Unintended Consequences and the Limits of Transparency

By Joshua Tauberer. April 2012; revised August 2014.

Influencing Vietnam politics

Transparency can have an effect on the accountability of government representatives through different channels. Malesky, Schuler, and Tran (2011) distinguish incentives, “the notion that increased openness forces delegates to perform better in order to win over voters in an electoral democracy”, from selection “which is that increased transparency enables voters to choose better candidates for office.”¹ But they demonstrated that incentives can have a perverse effect on policy-making when the public misunderstands the policy-making process — or at least when the politician fears he will be misunderstood.

Malesky, Schuler, and Tran conducted a rare experiment by actually influencing ongoing politics in Vietnam. In collaboration with VietnamNet, the leading online newspaper in the country, they launched a column that highlighted the political activities of 144 randomly selected delegates of the 493-member Vietnamese National Assembly in 2010. The column posted photos, news articles, interviews, and resumes of those delegates as well as daily performance metrics based on the delegates’ participation in their query session — similar to the British parliament’s question time. Those metrics were:

(i) The total number of the speeches and queries that the delegate made; (ii) The number of speeches and queries by the delegate that were critical of the government policies; (iii) The number of the speeches and queries by the delegate that were relevant to the interests of delegate’s constituents, province, and profession; and (iv) Comparison of the delegate’ [sic] performance in the above indicators with the best, average and worse delegates.²

The expected outcome of this experiment was not particularly clear. As a single-party state, Vietnam’s politicians are relatively shielded from whether their constituents approve of them or not: “The enormous power of provincial election boards in determining the level of opportunity available for a candidate calls into question the level of responsiveness of a particular delegate to underlying voters”.³ (In fact, delegates are so shielded that their voting records are not made public.) If it’s true that constituents do not have much of a role to play in elections, then there would be no incentive for politicians to alter their behavior that was exposed to their nominal constituents. And, at first that appeared to be so. Whether a delegate had been covered by the special VietnamNet column did not, across all delegates, affect the metrics.

But when the investigators took into account that the delegates come from provinces of varying levels of Internet access, a different picture emerged. The delegates who were covered by VietnamNet representing provinces with the highest Internet penetration “ask a full question less and reduce their criticism more than 12%” compared to delegates in digitally-similar provinces that were not covered by VietnamNet. It seems then that even in an authoritarian state public opinion matters, and transparency leads delegates to be more conformist to avoid public scrutiny. If this in turn leads to fewer important issues being discussed by the National Assembly, then transparency resulted in a net loss for making good public policy.

Question time in the UK

But transparency can have the opposite, yet perhaps equally detrimental, effect. A 2006 article in the Times of London claimed that British MPs had been participating in more debates and offering more questions for question time in an attempt to influence the metrics of one of the leading government transparency websites there, TheyWorkForYou.com, a project of mySociety. “A senior Commons official told The Times,” the article reported, “ ‘Every time you intervene they would count you down as if it was a speech, even in Westminster Hall, where there are five debates a day and virtually any debate you can get in on. A few Members have grasped this.’ ”⁴ The change in the behavior of the MPs wasn’t to be better policy makers: it was to appear to look more active through making the least amount of effort. Contributing a single word to a debate may be more of a distraction than anything else, and so just as fewer questions can be bad for public policy so, too, could be more but irrelevant questions.

Watching U.S. politicians

In 2013 a staffer for a congressman told me the congressman was concerned about maintaining his high “leadership score” on my website GovTrack.us (see Why I Built GovTrack.us). Would cosponsoring another bill lower his score? Even though the staffer knew full well that cosponsoring bills is important for building social capital (which is exactly what the analysis measures), the possibility of unfavorably altering GovTrack’s statistics may have gotten in the way of good legislating.

Politicians are smart. They will use the tools available to them to elevate their profile and push their message. Shortly after the Sunlight Foundation launched Politwoops (politwoops.sunlightfoundation.com), a database of deleted Tweets⁵, Montana representative @DennyRehberg started tweeting and promptly deleting his tweets with the apparent intention to have his tweets appear on Politwoops. In a retweet-and-delete, Rehberg tried to be funny:

RT @SpeakerBoehner You know what else has been deleted? Jobs in the Obama economy. Where are the jobs? #politwoops via @SunFoundation⁶

It is difficult to judge whether these unexpected effects were good or bad. It’s possible the Vietnamese delegates distilled their list of questions to the most pertinent ones to their constituency, resulting in better use of their question time, rather than culling their questions to be more conformist. Why British MPs would speak more and Vietnamese delegates less under similar conditions of scrutiny has yet to be answered, but either way there are unintended, and perhaps unwanted, consequences of parliamentary transparency.

But it is normally the case that the more we can see of policymakers, the more the policymakers want to take their negotiations somewhere else private. When TV cameras were placed into Congress, official business moved out of the official meetings. A former congressional staffer lamented:

Over time, most hearings and mark-ups were televised and even some conference committees. We staff got used to having the backs of our heads on TV, and we cracked jokes about those staff who seemed to cross behind the chair too many times just to be seen from the front.

I also started attending more meetings behind closed doors to reach agreements that would be reenacted before the cameras the next day. It’s a lot more work to do everything twice, and sometimes the reenactment on camera didn’t go according to the script, so the chair would hastily recess to repair the damage.⁷

Secrecy is a dynamic process responding to structurally imposed transparency. The New York Times reported that after a new 2008 ethics law imposed stricter lobbying reporting requirements, the number of registered lobbyists started to dramatically decline.⁸ Referring to the Honest Leadership and Open Government Act, P.L. 110-81, the article’s headline “Law to Curb Lobbying Sends It Underground” was a little dramatic. Not all of the lobbyists who de-registered did so with the intention to violate the law — some decided that the requirements outweighed the need to lobby at all, especially when their lobbying duties could be transferred to another registered lobbyist in their organization. But, still, anyone involved in policy-making would prefer to not have to play their hand in the open. That’s how negotiating works, and no doubt many lobbyists who de-registered did so legally but strategically by reducing the amount of time they spent lobbying to fall under the minimum requirements.

Similar effects happen with other sorts of rules. The New York Times reported in 2009 on the effects of a ban on trips by Members of Congress financed by lobbyists. The ban successfully cut the number of such trips in half or more, but violations continued and loopholes were exploited. The article gave fascinating details of the Congressional Black Caucus’s retreat at a casino resort in 2008:

Each of the 14 House members submitted a detailed agenda for approval to the ethics committee. It listed social events like a golf outing, but it also included serious topics like health care and global warming. But there is something missing from the agenda sent to the ethics committee.

A different copy handed out to the caucus members is much the same — except for the line under each event that names a corporate sponsor. A workshop focused on health care included the words ‘Sponsored by Eli Lily,’ the big drug company with a huge stake in health care legislation. Edison Electric Institute, an association of power plant owners, hosted the global warming seminar. Wal-Mart sponsored a clinic to teach lawmakers and other attendees how to skeet shoot; after the lessons came a competition sponsored by the International Longshoremen’s Association.

William A. Kirk, the Washington lawyer and lobbyist who helped arrange the weekend, said the sponsor companies did not directly pay for the events or member travel. They became sponsors by contributing to the general fund of the caucus’s Political Education and Leadership Institute, which is a nonprofit. Money from the general fund, however, paid for hotels and other accommodations. Members were responsible for their own flights, though some used campaign funds.⁹

Is this bribery? It is without a doubt inappropriate. But lawmakers will be lawmakers so long as they continue to have the same incentives. A travel ban does not pay for a Caucus retreat. It might make some think twice before violating the rule, but others will take their chances, perhaps rationalizing their actions, and accept inappropriate funding anyway.

When closed doors are good

By no means are private meetings even necessarily a bad thing for reaching good policy outcomes. The same staffer quoted above regarding cameras in Congress concluded:

I object to televising every utterance every minute of every closed door meeting because the meeting will be impaired. Human beings need interaction to try out ideas and to gauge support without being crucified for trying something that wasn’t adopted anyway. The more scrutiny beyond a reasonable amount, the less useful business gets done.¹⁰

Sometimes the ability to have frank discussion in private is useful. The most revered of all meetings of politicians here, the U.S. Constitutional Convention in 1787, was held in strict secrecy. James Madison reflected later that “no Constitution would ever have been adopted by the convention if the debates had been public.” And if that’s true, it is still true even if the delegates’ motivations for secrecy were less than pure. Madison surely knew that his Virginia Plan for a strong national government would have faced passionate opposition from his contemporaries still reeling with anti-monarchy bitterness, including Sam Adams and Patrick Henry. No doubt he knew secrecy at the convention gave his plan a better chance of success. And since his vision ultimately became the framework for the Constitution, anyone would have to admit that the end result of secrecy was soundly a success. Thomas Jefferson, learning of the secrecy rule at the convention while in Paris, called the secrecy “abominable.” One should wonder whether he would still think so in hindsight.¹¹

Antiquated transparency laws today are actually hindering transparency and innovation. State open meetings laws are preventing local officials from engaging citizens online for fear of inadvertently having what would be legally considered a meeting that would not meet other requirements such as public notice and public access.¹² At the federal level, the 1972 Federal Advisory Committee Act is preventing the exchange of knowledge between the government and private sector. The purpose of the law was to prevent federal agencies from having back-room consultations with corporate executives and other entrenched sources, but the requirements for obtaining public input have grown so complex under the act that today the law is probably preventing federal agencies from getting the best knowledge.

The paradox

It is impossible to shine a light and actually see everything that is there. Each new spotlight changes the game and sends some activities scurrying away beyond the light’s reach — a little like cat and mouse. But there’s so much cat and mouse all the time that you have to wonder whether anything truly ever changes. That’s captured well in what has been called (by a few) the Wonderlich Transparency Paradox, named after John Wonderlich at the Sunlight Foundation. It is one of those terms that is bound to make the textbooks one day. Anyway, Wonderlich wrote in 2009:

How ever far back in the process you require public scrutiny, the real negotiations . . . will continue fervently to exactly that point.”¹³

Or, to paraphrase, no matter how much transparency you put into the system, the real work is always going to happen just off stage.

A paradox is something you cannot avoid. It is impossible to require truly public debate. Even 24/7 filming of politicians’ lives won’t create transparent decision-making. The stars of reality shows already know how to get around film crews: by mixing in explicit content the film crews won’t air. There are other techniques. A negotiation in plain sight is meaningless if those watching don’t know when to watch, or can’t understand the terminology, or are overloaded with too much information to process. And if transparency regulations make the lives of politicians so onerous, we should start asking whether it impedes their ability to do their job or even affects what sorts of people would be willing to put up with the burden (in the case of 24/7 transparency, more exhibitionists would run for office). Transparency is not something that can always be legislated, and in certain cases, like the Constitutional Convention, not something we should always want.

But does open data work?

All that said, open data certainly does create accountability and in turn better policy.

And since Wonderlich has a knack for clarity in this area, I’ll quote from him again (now in 2012):

Open data wasn’t invented in 2009; open data isn’t born in a data portal. Construed most broadly, open data is people knowing things with technology…

If our first question is “does knowledge of government create accountability,” then the answer is clearly, definitively yes. Knowledge of the government creates accountability. As surely as ignorance and secrecy empower manipulation and abuse, information and knowledge empower self-determination . . . To suggest that open data can’t create accountability is to ignore the open data that helps create the accountability we already enjoy, and work to strengthen.

[For example,] Countrywide bribed legislators by giving them discounted interest rates and other favorable treatment. This should be illegal, and is clearly corrupting. [… But] Home ownership is publicly disclosed in the US, and because of that, legislators here don’t generally accept free homes. Huge personal bribes and free mansions are political currency in other countries, and in the US they’re the rare exception . . . Our comparatively strong disclosure laws, combined with cultural norms, a free and energetic press, and an effective judiciary, are what protect us from lawless corruption in public service. ¹⁴

Wonderlich cited FOIA, the Federal Advisory Committee Act, elections laws, and other policies that separate the United States from other countries where bribery is actually rampant. We should, of course, ask whether any individual open data project accomplishes its goals. But it really is clear that the transparency and, now, open data movements create accountability.

Instead, we should be careful to set proper expectations. Tom Lee, writing in the same thread that Wonderlich was responding to, noted that transparency works even if we don’t see its effects:

[T]he dream of writing [computer software] that moves misbehaving lawmakers smoothly from office to prison was never likely to come to pass. . . . Open data’s effect on corruption will more commonly involve altering malefactors’ cost:benefit calculations, consigning corrupt acts to a counterfactual that we’re unlikely to ever be able to precisely measure.¹⁵

In other words, an open data program isn’t successful only if it puts corrupt lawmakers in jail. Merely making information available can, at least sometimes, serve as a disincentive to bad behavior.