A Philosopher's Blog

Secrecy and Lawmaking

Posted in Business, Ethics, Philosophy, Politics by Michael LaBossiere on May 20, 2015

The Trans-Pacific Partnership (TPP) has generated considerable controversy, mostly over what people think it might do. While making prediction about such complex matters is always difficult, there is a somewhat unusual challenge in making such prediction about the TPP. This challenge is that it is being kept secret from the public.

While senators are allowed to read the text of the TPP, it is being treated like an ultra-secret document. To gaze upon it, a senator must go to a secure basement room, hand over all electronics and then leave behind any notes he (or she) has written. An official from the US Trade Representative’s office watches them. After reading the document, the senator is not allowed to discuss the matter with the public, experts or lawyers.

While members of congress typically do not read the legislation the lobbyists have written for them to pass and the public usually has little interest in the text of bills, there is obviously still the question of justifying such secrecy. After all, the United States is supposed to be a democratic state and President Obama made all the right noises about transparency in government.

Robert Mnookin, of Harvard Law, has put forth stock justifications for such secrecy. The first justification is that having such matters open to the public is damaging to the process: “The representatives of the parties have to be able to explore a variety of options just to see what might be feasible before they ultimately make a deal. That kind of exploration becomes next to impossible if you have to do it in public.”

The second stock justification is that secrecy enables deals to be negotiated. As he says,  “In private, people can explore and tentatively make concessions, which if they publicly made, would get shot down before you really had a chance to explore what you might be given in return for some compromise.”

In support of Mnookin, public exposure does have its disadvantages and secrecy does have its advantages. As he noted, if the negotiating parties have to operate in public, this can potentially limit their options. To use the obvious analogy, if a person is negotiating for a raise, then having to do so in front of his colleagues would certainly limit her options. In the case of trade deals, if the public knew about the details of the deals, then there might be backlash for proposals that anger the public.

Secrecy does, of course, confer many advantages. By being able to work out the exploration in secret, the public remains ignorant and thus cannot be upset about specific proposals. Going with the salary analogy, if I can negotiate my salary in complete secrecy, then I can say things I would not say publicly and explore deals that I would not make in public. This is obviously advantageous to the deal makers.

Obviously, the same sort of reasoning can be applied to all aspects of government: if the ruling officials are required to operate in the public eye, then they cannot explore things without fear that the public would be upset by what they are doing. For example, if the local government wanted to install red-light cameras to improve revenues and had to discuss this matter openly, then the public might oppose this. As another example, if the state legislature wanted to cut a special deal for a company, discussing the payoff openly could be problematic.

Secrecy would, in all such cases, allow the ruling officials to work out various compromises without the troubling impact of public scrutiny. The advantages to the ruling officials and their allies are quite evident—so much so, it is no wonder that governments have long pushed for secrecy.

Naturally, there are some minor concerns that need to be addressed. One is that secrecy allows for deals that, while advantageous for those making the deals, are harmful to other members of the population. Those who think that government should consider the general welfare would probably find this sort of thing problematic.

Another trivial point of concern is the possibility of corruption. After all, secrecy certainly serves as an enabler for corruption, while transparency tends to reduce corruption. The easy reply is that corruption is only of concern to those who think that corruption is a bad thing, as opposed to an opportunity for enhanced revenue for select individuals. Put that way, it sounds delightful.

A third matter is that such secrecy bypasses the ideal of the democratic system: that government is open and that matters of state are publicly discussed by the representatives so that the people have an opportunity to be aware of what is occurring and have a role in the process. This is obviously only of concern to those misguided few who value the ideals of such a system. Those realists and pragmatists who know the value of secrecy know that involving the people is a path to trouble. Best to keep such matters away from them, to allow their betters to settle matters behind closed doors.

A fourth minor concern is that making rational decisions about secret deals is rather difficult. When asked what I think about TPP, all I can say is that I am concerned that it is secret, but cannot say anything about the content—because I have no idea what is in it. While those who wrote it know what is in there (as do the few senators who have seen it), discussion of its content is not possible—which makes deciding about the matter problematic. The easy answer is that since we do not matter, we do not need to know.

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  1. ajmacdonaldjr said, on May 20, 2015 at 12:34 pm

    • WTP said, on May 20, 2015 at 1:14 pm

      He wasn’t fired from Fox. Or so says his producer:

      When Fox Business decided to lay off most of the staff of FreedomWatch and cancel Judge Napolitano’s show, people speculated that it was because of how radical we were. They might be right, but the only evidence we have of there being a problem with our “True North” libertarian reporting is anecdotal. None other than President George H.W. Bush reportedly called Fox News HQ to complain about the Judge because Napolitano said that he believed George W. Bush should be indicted.

      We weren’t fired.

      When they told us that we were going to be cancelled, I started receiving phone calls from frequent guests and from some leaders of the liberty movement across the nation. They were all concerned, and wanted to know what was happening. I told them the truth. We were cancelled and I was being laid off, along with all of the hardcore libertarians on the staff.


      Not that this video doesn’t have its points. But why the need to make a conspiracy out of it? A lie is a lie.

      • ronster12012 said, on May 28, 2015 at 5:48 am


        Where’s the lie? The producer said that some speculated that they were fired because they trod on someone’s toes, and he said “They might be right, but the only evidence we have of there being a problem with our “True North” libertarian reporting is anecdotal.”
        So all that is missing is hard evidence ie. company saying “we are firing you because you said X”. They are hardly likely to actually say that, especially if that X referred to someone or something especially sensitive as it would only draw attention to it.

        The producer is saying what he is saying because he still wants to work in the industry and by playing it this way he looks good and will move on to other jobs. Judge Napolitano is probably the real target and is finished.

        • WTP said, on May 28, 2015 at 6:14 am

          It’s that part where he says “We weren’t fired”. That part there. FBN is a business and if they decide the ratings, or POTETIAL growth are not there, they make a business decision. Neapolitano continues to appear on Fox News. He’s one of their more visible contributors and speaks his mind on the issues on several Fox shows. Megan Kelly’s highly rated program frequently has him on, as does they annoying Greta Vansustern. They simply made a decision that either him or his show didn’t fit their needs of a regular time slot.

          This is the problem with CT, seizing upon the slightest evidence constrained by a narrow view of the world and very susceptible to significant confirmation bias. A lot like leftist BS that Mike posts and often a leftist fellow traveller.

          Plus it’s just so damn tiring to constantly have to point out the obvious.

          • ronster12012 said, on May 28, 2015 at 6:43 am


            What is the difference between fired and laid off? I honestly don’t know. Fire the whole crew, lay the whole crew off, what is the difference?

            As for your usual position re CT, it actually makes you look a bit thick IMO. I know that in fact you aren’t but it gives that impression. It’s like someone who can’t read between the lines, who can’t read people and is a bit naive. My accountant is like that, a bit Aspbergerish, very bright about some things, incredibly dumb about others. Your position would be much stronger if there weren’t so many CTs that actually turned out to be true.


            • WTP said, on May 28, 2015 at 8:57 am

              “Fired” generally means you did something wrong. re:

              An employee is fired when his personal performance is unsatisfactory, or if he does not comply with company standards. When an employee is fired, there is no expectation of being rehired at a future date.

              Laid off means

              When an employee is laid off, it typically has nothing to do with the employee’s personal performance. Layoffs occur when a company undergoes restructuring or downsizing, or goes out of business. In some cases, a layoff may be temporary, and the employee is rehired when the economy improves.


              But that’s just one perspective. You can look these things up if you really are interested in searching for truth. Or you can simply react in a manner consistent with your emotions and/or prejudices. It’s your choice.

              As we delve into the personal…back atcha. You don’t strike me as the usual CTer does. You seem less bitter and more capable of understanding the complexities of life. Sometimes people overcompensate for their own naivety, possibly because they were caught blindsided by someone or something that they had faith in that failed them, or because their daddy believed one, or they were cheated in a business deal, or they were kicked in the head by a mule, hell who knows. It’s an understandable reaction, initially. But it’s no place to live. The world is a very complex place, far more complex than the vast majority of people understand. CT gives people comfort as the given CT “explains it all” for them. While not excluding those who have a faith in God, I sense that the explosion in CTs over the last few decades have filled a hole for those who have lost faith in a Supreme Being. I say this as someone who is not especially religious myself, so read between the lines of my prejudices if you will. But to address your (flawed IMO) perception of my being naive, I have studied many of these CTs and every one boils down to the believers refusal to accept reality. Been there, done that, over and over and over again. It’s tiresome. No matter what evidence (see our discussion regarding MH-17…which I really don’t want to get into again) that is presented, the CTer refuses to see what they don’t want to see and accepts, through confirmation bias, what isn’t there but what they insist is regardless of evidence or lack thereof.

              That said, there is one CT that I am inclined to believe. CT’s are perpetuated by evil Jews/Gypsies/George Soros/The Fed/Wall Street/The Builtbergers/ The Rothchilds/Communists/The Masons/The Lizard People/etc/etc/et al/the Yadda-Yadda-Yaddas and their ilk to keep the naive fools who believe in them from catching on the the REAL conspiracy.

  2. ronster12012 said, on May 28, 2015 at 11:43 am


    Thanks for clearing up the fired/ laid off terminology for me….we have different definitions here though ‘fired’ does tend to mean(depending on job status, permanent, casual or contract) that you have displeased(justifiably or not) someone, though not always.

    Backatchas are fine….I only pointed out my impressions, though amusingly we are both calling each other naive lol.

    No need for psychologizing(at least too much), that’s a common shaming tactic ie. you are delusional/paranoid/jealous/weird/ hung up/traumatized/bigoted/ loser living at home etc etc. I just see it more as projection than anything else.

    However, above and beyond simple CTs, which I do accept that many accept overenthusiastically, possibly for some of the reasons you listed, there *are* real different and valid interpretations of reality and that all interpretations are only approximate, tentative and not necessarily exclusive of other approximations.

    Just to be clear, IMO what are often called CTs are really just opinions outside of the ‘consensus reality’ that most just accept without question. Opinions are often status/tribal markers in society as basically we all like those who are like us on some level……..that’s normal and not pathological but nothing to do with ‘truth’. So the accusation of CT is really just another way of saying “you are different”.

    IMO it’s all about many/most people having a simple believe/disbelieve response.

    As for MH 17(without going into it)…..curious minds are still waiting. I’ll remind you on the anniversary and the next one and the one after that and the one after that again as we wait for the report lol

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