Secrecy could similarly make it easier for senators to act in accordance with their consciences. The Framers of the Bill of Rights rejected a proposal to allow voters to issue binding instructions to members of Congress. Senators, in particular, were meant to exercise independent judgment. Their ability to do so has dwindled in our age of hyper-polarization and nonstop news. By giving Republican senators room to relax their partisan personas and follow their own assessments of the evidence, secrecy can also be consistent with “trustee” models of democracy, which call for legislators to pursue their best understandings of the common good.
Many norms of congressional transparency are of quite recent vintage. Before the 1970s, for example, House members’ votes in the powerful Committee of the Whole were never recorded, while the absence of C-SPAN meant that most Americans could not observe legislators in action. Transparency has increased significantly since then, in Congress and across the regulatory agencies. The effects have been decidedly mixed, as study after study has shown that more open government does not necessarily mean better government. An American Political Science Association task force found in 2013 that “sunshine laws” have undermined negotiation, exacerbated gridlock, and enhanced special-interest influence in the Capitol. Transparency is best understood as a means to an end, not an end in itself, and the past several decades have taught us that its relationship to good governance is highly “contextual and contingent.”
Josh Blackman: What the Democrats left out
Exactly when the Senate doors should be open or shut is therefore a difficult question. For all the reasons just given, the costs of the television cameras may well outweigh the benefits during segments of an impeachment trial. Senator Flake was on to something important.
And yet, there is undeniable value in letting the American people see as much as possible of the case for removal and the arguments in defense of a president facing impeachment. The analogy to a courtroom trial is imperfect. Ordinary jurors are supposed to function as more or less autonomous agents; senators, by contrast, should be accountable to their constituents. An impeachment trial is an inescapably political affair, as well as a major event in the life of the nation and a key vehicle for public discourse about acceptable conduct in office.
Any attempt to conceal the senators’ ultimate votes, moreover, would raise distinctive constitutional complications. The Framers were more suspicious of secret voting than of secret deliberations in Congress, so they wrote Article I’s “journal clause” to permit as few as 20 senators to demand a recording of “the Yeas and Nays … on any question.” Were the Senate to try to move forward with a private vote, a small minority could (and almost certainly would) invoke this clause to derail the effort.