Transparency is key to democratic engagement. The legislative process can’t access it, but giving stakeholders authority can.

B. Features of Democratic Decision Making As a descriptive matter, whether a decision making process is "democratic" is a nuanced question, and there are a variety of different ways to evaluate it. Studying the process of states moving towards (and away from) democratization, Charles Tilly distinguished four general approaches: First, "constitutional" democracy is defined simply by a constitutional text that purports to place power in the hands of the people. 40Second, substantive approaches look beyond constitutional structure so that democracy can be defined holistically by whether the regime features things like "individual freedom, security, equity, social equality, public deliberation" and so on. 41Third, procedural definitions of democracy look at specific rules for voting and otherwise engaging in the decision making process. 42Fourth, process-oriented approaches look at an "interlocking set of political processes"-not just specific [*284] procedures--that might or might not yield decision making by the people in practice. 43 This Article adopts the process-oriented approach. 44Focusing on process seems particularly fitting in the context of tax lawmaking, where there is evidence that when regular taxpayers (i.e., non-experts) consider tax fairness, they are more concerned about process and procedure than distributional outcomes. 45The focus here is on who is included in the tax policymaking process, and how those participants engage with each other in the decision making process. While the particulars of the procedures might vary depending on context, there are several basic features that are necessary regardless. The remainder of this Part introduces three important features of decision making that are prerequisites for effective democratic processes--transparency, accountability and responsiveness. 46These features are closely linked with other aspects of democratic decision making such as who has power [*285] to set the legislative agenda, who is able to influence decisionmakers, and the decision procedure of majoritarianism, but this Article sets aside those concerns as less mutable because of their grounding in constitutional design and interpretation. 47These features animate the critique of democracy avoidance techniques in Part II and the proposals in Part III. Start with transparency, which is fundamental to public participation in decision making. 48As Sheffrin observed, "[f]or voice to be meaningful, there is a deep sense in which it must mean 'informed voice,'" which requires information about the issues at hand. 49Consider one aspect of transparency that targets the challenge of informed voice: reducing information costs to outsiders. Reducing information costs can help bolster informed voice for potential participants who would otherwise be outsiders, and it can help to address one particular form of derailing responsiveness that features centrally in tax lawmaking, what Wendy Wagner has deemed "information capture." 50In the context of agency rulemaking, she shows that sophisticated regulated interests are able to take advantage of the fact that they control much of the data relevant to the subject matter of a policy decision. By providing that data [*286] selectively in the regulatory process, and by providing it in ways that were inaccessible to potentially competing interests, these groups use information to control the process to achieve their own desired outcomes. 51The same sort of phenomenon can exist in tax lawmaking, if well-resourced potential taxpayers control detailed information that may reveal how they will respond to different sorts of changes in law. Some of the proposals introduced in Part III would promote transparency for the purpose of informed voice by requiring the decision-making body--e.g., a tax committee in Congress--to produce relevant data and also to cull, synthesize and explain it in a way that levels the playing field as between interests with varied levels of sophistication. 52 Existing institutions for federal tax lawmaking are strong in promoting transparency in some respects and weak in others. 53Consider who the decision makers are in tax policy, and how the tax lawmaking process proceeds: to perhaps understate the obvious, both of these are somewhat muddled. Formally, there is an organized tax legislative process 54and an organized hierarchy of decision [*287] makers. 55There are some taxspecific additions to the standard (formal) legislating process that could be understood as motivated by a desire to increase transparency, including the involvement of the JCT and the requirement that Congress rely on revenue estimates. 56In practice, however, the formal legislative process is often circumvented, and power centers have developed other than the ones prescribed in the rules, such that the identities of the actual people wielding influence are hard to discern. 57For example, the Senate leadership (meaning party [*288] leaders, not committee chairs) has become increasingly important to tax policymaking in recent years because tax changes are so often enacted under time pressure as part of omnibus end-of-year legislation. 58Further, although Congress has established some non-partisan sources of information, 59and built the tax policymaking process to make use of that information, sometimes the rules regarding information disclosures are ignored, and some of the sources of information have come under partisan attack from members of the Republican party recently. 60 If citizens can understand what is happening in the democratic process, and thus are empowered to participate in democratic governance in one form or other, "a key to express their preferences characteristic of democracy is the continued responsiveness of the government" to those preferences. 61When adequate and effective transparency allows affected interests to know and understand what policy has been enacted and why, it facilitates accountability and, in turn, government responsiveness. 62Thus, particularly in a representative system, transparency is [*289] a prerequisite for establishing means of recourse so that citizens can "sanction" unrepresentative actions. 63For example, in America's representative democratic system, numerous critics have observed that the requirements of the notice and comment procedure for regulations produced by non-elected executive branch officials are designed to ensure transparency, but the result is a "passive" and incomplete attempt at democratic legitimation. 64But accountability and responsiveness are values that demand more than passivity as to whether the actions of the government align with the preferences expressed by citizens. 65 Responsiveness can be complicated. A government may have mechanisms in place to be responsive, but if the participants to whom the government responds are skewed in some respect, then the government's actions will not be responsive to community preferences. 66And even if participation reflects the appropriate affected interests, there arises a related question: "To whose interests should the government be responsive when the people are in disagreement and have divergent preferences?" 67Representatives in a representative democracy "must be able to act when public preferences are confused or split, when citizens are apathetic or ignorant, and even when the public is outright [*290] opposed to what the government must do." 68To overcome these challenges, representatives must have some degree of autonomy as decisionmakers, or else they will simply reflect the paralysis of the public at large. 69 In short, democratic decision making relies on transparency, accountability and responsiveness, but there are many challenges in promoting these values in actual institutions.