Sneaking the Last Doughnut: The Lack of Perceived Accountability among Kansas Ultraconservative Legislators

Everybody has a little bit of Watergate in him [or her] – the Reverend Billy Graham.

The social control of this tendency found in all of us has long been accomplished in part through transparency of behavior. Most of us would hesitate to violate certain unwritten workplace norms of politeness and take the last doughnut in full sight of our fellow coworkers, at least without first asking if any of them would like to split it. But without any coworkers around, the chances of that pastry surviving in our lone presence greatly diminishes. We may even experience a slight feeling of glee as we take our last bite.

There’s a social cost associated with taking actions that benefit yourself at the expense of those around you. Depending on the “offense,” costs may range from loss of friendships and trust to loss of resources (fines or other legal judgements) and freedom (prison). Maybe you won’t be included in the office email the next time doughnuts end up in the break room. But detecting these offenses and enforcing the associated costs (or rewarding positive behavior) requires some means of monitoring individual and collective actions.

Basically some level of behavioral transparency is required for groups to function in a manner that minimizes selfish actions that benefit the one or the few at the expense of the larger group. And this is why politicians, or really anyone in a leadership role, will at times limit the transparency of their actions. Not just to aid themselves in carrying out illegal actions (from making parking tickets disappear to Watergate), but sometimes just because it’s easier to conduct their day to day business.

Communicating nuances and obtaining buy-in from impacted parties relative to policies, procedures and legislation can be time consuming and draining, even when the issues aren’t controversial. The temptation to avoid that process and operate in some degree of darkness can be high. But the negative impacts such actions can have on both trust and the quality of decisions made, and the potential for it to lead to more nefarious actions on the part of our leaders, is why a basic level of transparency should always be present.

The Kansas legislature, while not unique in this regards, has had its own fair share of transparency issues the last few sessions. In particular, the legislature is developing a bad habit of passing budgets in the wee hours of the morning.

In the early AM hours of May 2, the legislature, for the second year in a row, passed a budget that wasn’t balanced, essentially passing the buck to the governor to make the final necessary cuts (or shift money around). The vote was very close in both chambers, actually requiring the use of a procedural move to hold the roll open long enough to turn some No votes into the exact number of Yes votes needed.

Representative Stephanie Clayton, Republican, 19^th District, in an interview on Up To Date later that morning, discussed the strategies employed by the ultraconservative legislative leadership to pass the budget. These included keeping legislators in their chambers over the weekend and late at night, isolating them from family, friends and their constituents (also reducing transparency) and even working without a change of clothes – all designed to make legislators more compliant. I wonder if perhaps they may have also threatened to remove the filling out of all the jelly doughnuts.

Performing this critical work over the weekend and late at night also means far less Kansans were listening to the live feed in each of the chambers. The end result is that limited transparency combined with fatigue and a lack of outside support allowed enough arm twisting to occur for the ultraconservative leadership to achieve their goals relative to the budget. A budget that wasn’t balanced, that likely won’t have the revenue needed to meet it (even without it being balanced) and driven by Governor Brownback’s illogical and reckless pursuit of zero income taxes.

In a previous Salon piece, I discussed what research from the intersection of biology, behavior, economics, politics and the social sciences have to say about free market principles, Kansas’ march to zero income taxes and pro-social vs. selfish behavior. Research from this intersection also has something to say about the need for transparency in government (see Evolution: This View of Life, The Evolution Institute and the Social Evolution Forum).

Building somewhat on my previous piece’s discussion, I’m going to introduce another concept known as the tragedy of the commons. The basic idea is that individuals or small groups acting in their own self-interest will often behave in a manner contrary to the long term best interests of the larger group that they are a part of. Specifically, they will tend to behave in a manner that depletes resources common to the whole group, often by limiting equitable access to those resources.

However, there are features of group organization that have evolved over the history of our species that help curb these “selfish” behaviors and promote pro-social behavior beneficial to the larger group. Transparency of behavior is one of these features that help maintain long term, equitable access to those resources.

And “resources” may be broadly defined, including such things as energy, water, food (including French crullers), financial stability (via employment and adequate pay/benefits), a good quality education, healthcare, safety and security and freedom from discrimination.

In 1990, Elinor Ostrom formulated eight design principles that enable groups to successfully manage their common-pool resources for the longer term benefit of the group. More recently David Sloan Wilson, Elinor Ostrom and Michael E. Cox generalized Ostrom’s eight design principles for application to a wider range of groups and situations. For the purposes of this discussion I’m going to focus on principles 4 and 5. Though I recommend reviewing all of them.

• Monitoring, in order to manage free-riding, exploitation, inequitable distribution or access to resources, promotion of hidden agendas, and other selfish behavior. Transparency is a key component of this, and is accomplished in modern society through everything from the creation of physical environments that limit hidden behavior, to formulating policies that limit the occurrence of meetings behind closed doors, to the monitoring performed by a free press.
• Graduated sanctions for rule violators, which may include such things as gentle reminders, loss of access to break room goodies, public shaming, gossiping, ostracizing or being voted out of office, along with a multitude of more formalized legal means.

The Kansas legislature did take one positive step forward this session towards improving transparency. The budget bill also enables live-streaming of committee hearings during next year’s legislative session. This is something that was desperately needed, considering some of the outlandish things that were said and done in committee the past few sessions.

However, one could easily argue this was a calculated action taken by the ultraconservative leadership during an election year under the graduated sanction threat of losing ultraconservative seats in the legislature. And there is still a large number of relatively common practices that limit transparency, a few of which include:

• Passing bills in the wee hours of the morning as previously mentioned.
• Bundling “selfish” bills with “pro-social” or neutral bills. In addition to getting bad legislation passed (or preventing good legislation from being passed), it increases the difficulty of tying individual legislator votes to specific items/issues.The gut and go legislative procedure (trick would be a better description). This allows one chamber to take a bill approved by the other chamber, "gut" it of its previous content, insert new legislation that may have nothing to do with previous content, approve it, then send it back to the original chamber for a simple up or down vote, WITHOUT any debate.
• This also can increase the difficulty of tying legislator votes to specific items/issues.
• Legislative leadership huddling behind closed doors without the media present.

Add to that legislative attempts to “eat the doughnut in secret” by misdirecting or shifting focus away from critical issues that could put the ultraconservative agenda in a negative light. Take the last day of the legislature’s 2016 session (June 1), when leadership chose to ignore the twin elephants in the room – the state’s economic meltdown (revenues again fell short in May, to the tune of $74.5 million) and the Kansas Supreme Court’s recent ruling that the legislature’s funding equity fix for schools is still unconstitutional.

No, instead of addressing these highly critical issues, the ultraconservative leadership ended the regular session by thumbing their noses at the federal government. They passed a resolution opposing the new federal guidelines requiring transgender students be allowed to participate in activities and use the restroom or locker room that corresponds to their gender identity.

It is true that a lack of cohesion among the GOP caucus relative to education funding likely played a role in the decision to set aside school funding until the subsequent special session (which the governor finally scheduled for June 23, just a week before the Supreme Court’s deadline). However, focusing on the federal transgender student guidelines, in addition to providing some degree of misdirection, also allowed the ultraconservatives a win on the last day of the regular session. Something they could use to help fire up the base and further legitimize their credentials going into the fall election season.

One could argue, however, that the amount of coverage from the media actually did limit the effectiveness of the legislature’s attempt at misdirection. There are also signs that at least some of the ultraconservative leaders are becoming less concerned with the transparency of their actions, though I think a few have never been overly concerned with this.

During the Senate GOP caucus meeting on the last day of the regular session, with the media present, several ultraconservatives openly discussed outright defying the Supreme Court. Reporting on the meeting, Peter Hancock with the Lawrence Journal World compared the Kansas Legislature’s actions to former President Nixon’s abuse of power and obstruction of justice during Watergate. He cited University of Kansas political science professor Burdett Loomis who doesn’t think it’s unreasonable to say Kansas is seeing the rise of an “Imperial Legislature.”

The ultraconservative legislators appear to see themselves as the ultimate authority for all things impacting the state – putting themselves above the courts, above the federal government, above the state’s board of education. And certainly above any of their own constituents who disagree with them.

If the monitoring design principle (via transparency) isn’t proving to be as effective as it should be in helping protect our state’s common pool resources (and the re-election of Governor Brownback in 2014 would support that), then this could indicate a breakdown in other design principles, such as graduated sanctions for rule violators.

In particular, many of the ultraconservative legislators haven’t seemed very concerned they’ll be held accountable in the voting booth. Recent history in Kansas would justify that, given voter turnout relative to the population has a whole and the ultraconservative’s ability to engage and fire up their smaller base. The re-election of the governor and takeover of both chambers by the ultraconservatives over the last six years, with the potential of gaining control of the courts, has given them the confidence to act with little fear of sanctions.

The design principles have to work together in concert for them to be effective. Transparency has little impact without effective sanctions in place. Why would I worry about eating the last remaining sprinkled doughnut in plain sight of my coworkers if I wouldn’t have to suffer any social consequences?

However, the ultraconservatives’ may be relying too much on recent history and misjudging the upcoming election cycle. As the state’s economic woes, the potential shut down of public education, the targeting of already marginalized kids, the stripping away of local control, etc., etc., become a reality for Kansans across the state, as they begin to feel or anticipate the impacts in their day to day lives, the potential in the fall for a larger voter turnout of Kansans who’ve done their homework rises.

And with the majority of retiring Republicans being reliable Brownback supporters, and a significant number of Democrats and moderate Republicans filing to run this fall, these voters will have the ability to doll out a few sanctions and send some of the remaining ultraconservative legislators packing. They won’t leave in the same level of disgrace as Nixon, but presumably at least without any of the remaining crullers from the State Capitol’s break rooms.