Making Government Transparent and Accountable
The Sunlight Foundation uses cutting-edge technology and ideas to make government transparent and accountable. Underlying all of our efforts is a fundamental belief that increased transparency will improve the public's confidence in government
The Sunlight Foundation Blog
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Read the Bill: Secret Provision Inserted in Defense Appropriations
Buried in the final conference report for the Department of Defense Appropriations Act, 2006 (H.R. 2863) was a provision providing a lawsuit liability shield for pharmaceutical companies. The provision was aimed at preventing lawsuits against drug makers working to create vaccines for biological attacks and avian flu, but went much further in protecting many more kinds of drugs. What’s notable about this provision is that no one thought it would be in the bill. The conferees did not sign off on it and the final bill was passed in less than 24 hours, providing little time to address the late night addition of this provision. This is our next case study for the Read the Bill campaign.
During the first year of the 109th Congress much attention was paid to the development of drugs to counter biological weapons and avian flu. The Bush White House supported the position that companies helping to create and manufacture such drugs should be exempt from liability lawsuits, in the event of side-effects, injury, or death. One proposal pushed by Sen. Richard Burr, the Biodefense and Pandemic Vaccine Drug Development Act of 2005, provided a vehicle to pass liability shields for the drug industry and also created a new government department to work on creating vaccines that would be exempt from liability lawsuits, FOIA, and other open government laws. Burr’s bill passed the relevant committee intact but sat still on the legislative calendar.
Instead of pursuing the passage of Burr’s bill, Senate Majority Leader Bill Frist sought to attach parts of the liability shield to the Defense Appropriations Act. The defense funding bill had already passed both chambers of Congress and awaited hearing before a conference committee. In the weeks leading up to the release of a conference report on the bill, Frist worked with drug industry lobbyists to craft and insert the liability shield language into the bill. The only problem was that they failed, initially.
On December 18, 2005, the conference committee met to hash out the differences between the House and Senate versions of the legislation. Upon completing the conference report both sides agreed to keep the liability shield language out of the bill and left the hearing room to announce the details to the public. In most cases, that would have been the end of it. Frist, however, was undeterred, and after the conferees left the hearing he sought Speaker of the House Dennis Hastert’s approval to insert the 40-page liability shield language into the completed report. Unbeknown to the conferees, the report would include the liability shield.
The next day, fewer than 24 hours after the final bill was released to the public, the House convened to vote on the bill. Rep. David Obey, one of the duped conferees, called the insertion of the shield a “blatantly abusive power play.” Sen. Robert Byrd, another conferee, declared it an “insult to the legislative process.” Rep. Dan Burton stated, “This kind of thing should not be done at 11 at night.” The bill passed the House on December 19 and the Senate on December 21.
It was later revealed that more than 100 lobbyists were working on the insertion of the liability shield language. Three of those lobbyists were former staffers of Sen. Bill Frist. One of those lobbyists was Speaker Dennis Hastert’s son, Joshua Hastert.
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Announcing Online Poll
Today, Sunlight is posting an online poll asking the public if Congress is doing enough to address ethics and lobbying reform in the wake of recent scandals. We’ve posted one serious question and another one with a touch of humor: do you think it more likely that there would be a live sighting of Elvis before the current congressional leadership showed real leadership on the need for reform? (The poll is viewable here, and bloggers are encouraged to copy the source code and post it on their own sites.)
Why the cynical question? Here’s a brief guide to the issue.
Six months ago, lobbyist [sw: Jack Abramoff] admitted to corrupting government officials and pleaded guilty to three counts of conspiracy, fraud and tax evasion. Two very powerful Members of Congress have resigned their seats under a cloud of ethics charges, one of whom — [sw: Randy Cunningham] — is in jail, and one — [sw: Tom DeLay] — is under indictment in Texas.
Seven other Members — Senators [sw: Conrad Burns] and [sw: Bill Frist], and Congressmen [sw: Dennis Hastert], [sw: William Jefferson], [sw: Jerry Lewis], [sw: Alan Mollahan] and [sw: Bob Ney] — are currently under investigation by either the congressional ethics committees or law enforcement authorities (see this Congresspedia page for details). David Safavian, a top official at the General Services Administration, was found guilty by a jury on four counts of lying and obstruction of justice. And at least 11 government officials and former and current congressional staffers have either pled guilty or are under investigation for bribery, conspiracy, accepting bribes, corrupting elected officials, violations of lobbying rules, and numerous as yet unnamed reasons.
Six months ago, after Abramoff pled guilty, everyone in Congress was for reform:
"I intend to move forward aggressively and quickly to have the House of Representatives address lobbying reform. Over the past several months, I have spoken with many members about the need for such reforms. I have been encouraged by the breadth and boldness of their ideas. Now is the time for action." Dennis Hastert. 1/8/06.
"It’s a good time for us to look at more disclosure. I think you’ll see a congressional reaction to this totally unacceptable situation involving Jack Abramoff that’s both prompt and appropriate." — Roy Blunt (R-Mo.), 1/8/06.
"I believe that to regain the trust of the American people that this institution must go further than prosecuting the bad actors. We need to reform the rules so it’s clear beyond a shadow of a doubt what is ethically acceptable for members of Congress." — Dennis Hastert (R-Ill.), 1/17/2006.
"First, we must ban privately sponsored travel in the House of Representatives. I know fact-finding trips are important. This body considers legislation that affects people that cannot always travel to Washington to petition their government. Private travel has been abused by some, and I believe we need to put an end to it. Second, I think we need to tighten even further the gift rules. A Member of Congress should be able to accept a ball cap or a t-shirt from the proud students at a local middle school, but he or she doesn’t need to be taken to lunch or dinner by a lobbyist. Recent months have shown that we need a more transparent system. Our plan dramatically increases the reporting of lobbyist activities." — Dennis Hastert (R-Ill.), 1/17/06.
"Yesterday we marked the birthday of Dr. Martin Luther King. I thought about one of his letters from a Birmingham jail, in which he wrote that, We should always be careful about the tranquilizing drug of gradualism. And that’s why I believe we’re in a position today where we have an opportunity to be bold and strong, and that’s why this is a terrific opportunity for us. … The speaker has just talked about the issue of a ban on privately funded travel. I believe that it’s also very important for us to proceed with a significantly stronger gift ban, which would prevent members and staff from personally benefiting from gifts from lobbyists. One of the things that we’re considering is the prospect of going to the provisions that have been set forth by the White House, which have existed under Democratic and Republican administrations. … We also are proposing that we increase from one year to two years the post-employment lobbying ban that exists for members and senior staff." — David Dreier (R-Calif.), 1/17/06
That was then.
Now, six months later, the Washington Post reports that these calls for change are "a fading concern." The Post recounts, "Lawmakers considered a range of provisions, including a ban on privately funded junkets, a prohibition against taking gifts and an end to steeply discounted travel by private jet. Instead, they decided to strengthen and double the number of lobbyists’ public disclosure reports, and they discarded — or will probably discard — almost everything else." Powerful members of both chambers objected strongly to a ban on privately financed travel, and they were joined by major lobby groups. An independent office of public integrity was shot down in committee.
Currently there are two versions of lobbying and ethics reform. One is S. 2349, the Lobbying Transparency and Accountability Act of 2006; the other is HR 4975, the Lobbying Accountability and Transparency Act of 2006. Both bills have cleared their respective houses. The vote on HR 4975 fell on mostly partisan lines 217-213. Meanwhile, S. 2349 passed by a margin of 90-8 with the eight votes coming mostly from those who wanted tougher legislation. Both bills are in conference, however only the Senate has named conferees. Senate Conferees: Daniel Inouye (D-HI), Chris Dodd (D-CT), Trent Lott (R-MS), Mitch McConnell (R-KY), Ted Stevens (R-AK)
The House has yet to name conferees. The most current statement from the House and the Senate on reform came on June 9th from Sen. Bill Frist and Speaker Dennis Hastert: "Today, we asked lobbying reform conferees to complete their final package before the Fourth of July recess. Lobbying and ethics reform remains an important priority for Congress. We are confident that the conferees will work hard and deliver a conference report that will build trust with the American people by making our government more transparent and accountable." This Washington Post story gives the most recent account of the legislation.
Despite a series of scandals showing serious abuses of power, including the use of privately financed travel, gifts to legislators and staff by lobbyists, and the secretive earmarking of taxpayer dollars to the benefit of private interests, often with close ties to legislators and lobbyists, we think this Congress has done nothing to restore the trust of the public in the integrity of its work.
It’s time to find out what you think.
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You Gotta’ Disclose
Bill Frist was found guilty of failure to disclose a $1.44 million loan taken out jointly by his 2000 campaign and his 1994 campaign committee. Kudos to CREW for being the watchdog. Wouldn’t following the disclosure rules be better for our democracy than forcing the reform community to play ‘gotcha’?
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Frist Fined By FEC:
Today the FEC announced that it is fining Senate Majority Leader [sw: Bill Frist] (R-TN) $11,000 for failing to properly report a $1.44 million loan that he took out for his 2000 re-election campaign.
In June 2000, Senator Frist took $1 million of the money that had been contributed to his 2000 Senate campaign and invested it in the stock market, where it promptly began losing money. In November 2000, Senator Frist sought to collect $1.2 million he had lent his 1994 Senate campaign committee. As a result of the stock market losses, however, Frist 2000, Inc. did not have enough money to repay the loan. Senator Frist solved this problem by having the 1994 and the 2000 campaign committees jointly take out a $1.44 million bank loan at a cost of $10,000 a month interest. Frist 2000, Inc. did not report this debt on its FEC disclosure forms.
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Jefferson Raid Controversy Continues:
The controversy over the FBI raid of Rep. William Jefferson’s (D-LA) congressional office continued today despite efforts by Senate Majority Leader Bill Frist’s (R-TN) to put it to rest over the weekend. Frist, who was on "Fox New Sunday", stated about the FBI, "I don’t think it abused separation of powers … I think there’s allegations of criminal activity, and the American people need to have the law enforced." House Judiciary Committee James Sensenbrenner (R-WI) feels differently and today he held a hearing titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?" Sensenbrenner and the ranking Democrat John Conyers (D-MI) agreed that the raid was out of bounds with the chairman saying, "It is about the ability of the Congress to be able to do its job free of coercion from the executive branch." Conyers stated, "We’ve never learned why the member in question was not permitted to have his attorneys present while his offices were searched for some 18 hours."
Personally, I believe that this was an extraordinary case, but was not conducted "out of bounds". The affidavit against Jefferson was unbelievably detailed, showing an almost unparalleled level of corruption by an elected official. The FBI was carrying out a legally obtained warrant to search Jefferson’s office in relation to activities that did not include any legislative action nor any activity directly related to his elected role. I don’t think that members can live above the law just because they have been chosen by the people of their district or state to represent them. That is essentially the argument of people who are against the raid: that members may operate their congressional office as though it were a Cayman Islands bank account (hat tip to Bill Allison). This is what Josh Marshall is getting at when he states his support of the raid:
If the Feds can raid a congressman’s house, it’s not clear to me why they can’t raid his office. Sure, there’s some room for prudential restraint and a respect for comity. But if the DOJ can’t search a congressman’s office, then the power to investigate and prosecute close to falls apart since that creates a safe harbor for incriminating information. Any serious claim that the functioning of Congress falls outside the bounds of the DOJ would apply to acts as well as work product. And that means that any bribery prosecution is impossible since official acts are an element of the crime.
Rep. Barney Frank (D-MA) makes the same point in issuing his support for the raid and surprise at the bipartisan reaction against the raid:
I understand that the speech and debate clause is in the Constitution. It is there because Queen Elizabeth I and King James I were disrespectful of Parliament. It ought to be, in my judgment, construed narrowly. It should not be in any way interpreted as meaning that we as Members of Congress have legal protections superior to those of the average citizen.
If you want to read a selection of arguments made by law professors Josh has a number of links here (pro and con).
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In Blog Daylight:
- Nico at Think Progress writes about the importance of "Nine Fingers". For those who haven’t been following the Cunningham/Wilkes/Prostitution scandal as close as others "Nine Fingers" is a CIA agent who attended the infamous poker parties that Wilkes threw at the Watergate and Westin hotels. These poker games are alleged to have turned into hooker parties.
- Also at Think Progress, Judd writes that Speaker Dennis Hastert (R-IL) and Senate Majority Leader Bill Frist (R-TN) inserted a provision into a Defense Appropriations bill that was written by the vaccine industry. The provision "granted vaccine manufactures near-total immunity for injuries or deaths (even in cases of “gross negligence”) caused by their drugs during a viral pandemic, such as an outbreak of the avian flu." The vaccine industry’s lobbyist was none other than Hastert’s son, Joshua Hastert.
- Raw Story picks up a Roll Call story that shows more trouble for Rep. Alan Mollohan (D-WV). Taking trips to Spain paid for by non-profits that you created and then funnelled millions of dollars in federal earmarks to while receiving campaign contributions from the directors of said non-profits is bound to raise some eyebrows.
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Senate Votes to Ban Gifts, Meals; Schumer Holds up Reform:
The Senate voted to ban lobbyists from providing lawmakers and their staffs with meals and gifts, according to the New York Times. The meal ban was attached to broader reform legislation and was approved unanimously by voice vote. Aside from the meal and gift ban the reform legislation would require members to disclosure all privately financed travel, double the “cooling off” period for legislators turned lobbyists from one year to two years, and allow members to challenge individual earmarks. The most contentious part of the reform legislation would “require, for the first time, the disclosure of big, paid grass-roots lobbying campaigns aimed at influencing government officials.” The Family Research Council, the National Association of Manufacturers, and the ACLU oppose this reform. Meanwhile, Roll Call reports that Sen. Chuck Schumer (D-NY), in an attempt to block the United Arab Emirates from taking over control of numerous US ports, attached an amendment to the lobbying reform legislation that would block the controversial port deal that is supported by the Bush administration. This has thrown the reform process into disarray as Majority Leader Bill Frist (R-TN) filed for cloture to block Schumer’s amendment.
