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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Massa, Maf54 and the Ethics Committee
And now to totally contradict my previous post stating why no one needs to talk about tickle-monster Eric Massa.
The House voted today 404-2 to recommend that the House Ethics Committee reopen their probe into Massa’s misconduct and examine whether House leaders were aware of his misdeeds and whether they failed act quickly enough. This follows on the heels of reports that an aide in Speaker Pelosi’s office was informed in October that Massa was living with aides, hired too many aides, cursed around staff and appeared to be going on dates with openly-gay male staffers from other congressional offices.
On first blush these don’t exactly rise to the level of ethics investigation material — congressmen have been known to live with aides in the past and if he wants to cheat on his wife with adult men, that’s his prerogative. Either way, the Ethics Committee should look into whether there was any more information relayed to leadership prior to the reported receipt of complaints about harassment in February and whether they responded properly or not.
Already, this case is being compared to the 2006 Mark Foley scandal. I’m not really sure that it rises to that level for a number of reasons. That being said, let’s take a look at what made the Foley scandal toxic for the congressional leadership who covered it up. (Continue reading…)
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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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You Spin Me Right Round
Congress doesn’t spin records, they spin in revolving doors. And those doors are spinning faster than ever, according to a study from Public Citizen. The Politico reports on the study, which shows that between 1998 and 2004 a whopping 43 percent of retired lawmakers became lobbyists:
A study done in the post-Watergate era estimated that only 3 percent to 10 percent of retiring members of Congress became lobbyists.
But, from 1998 to 2004, 283 retired lawmakers became lobbyists — a whopping 43 percent of all retiring members, according to a study done by Public Citizen, a nonpartisan watchdog group.
In 2005, eight members joined lobbing firms, although only four ultimately registered to advocate on Capitol Hill. A year later, another nine members followed.
With another seat-cleansing November election apparently in the making, the lobbyist ranks are likely to swell again later this year.
While reforms passed in the Honest Leadership and Open Government Act were meant to stop the flow of lawmakers and staffers down the block to K Street, the cases of Al Wynn, Dennis Hastert, Trent Lott, and Richard Baker all show that the desire to cash in on connections on the Hill is not abating.
Unlike the video below, the revolving door in Washington doesn’t appear to be ready to break anytime soon:
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Sunlight Really is a Pretty Darn Good Disinfectant.
Speaking of Change Congress, I was reading Japhet Els’ posting about earmarks and wanted to weigh in here. (I just joined the Change Congress Google Group and will post this there, too.)
First of all, it is always easier to identify the problem than to solve it, no matter which policy arena you are playing in. But in this case, it’s even hard to identify the problem. Is it that lawmakers get to decide where to spend government money and the process is too subjective? (If not them, would a government bureaucrat know the needs of a district better?) Is it that the private financing of public elections corrupts public officials absolutely (or partially), and so we can’t trust the spending of government money to them because they simply can’t make unbiased decisions? (I kind of think the latter is a big part of the problem if not the whole of it.) Is it because some lawmakers have private investments in companies that might execute the contracts to perform the work designated by earmarks or that they make decisions to benefit their own personal holdings. (See Dennis Hastert.). It’s probably all of the above and more. (See Bill Allison’s frequent blog postings on earmarks.)
Second, proposals for reform have to be realistic. (Yes, they can be idealistic and realistic at the same time.) It is simply not realistic to propose to ban earmarks, I mean, someone has to decide which bridges and roads need to be fixed, which universities are doing great research and need to be supported, which community health clinics deserve government money, and yes too, how many new bombers we need. And while I understand that calling for an earmark ban is useful as an organizing vehicle, as policy it doesn’t make a lot of sense. Who would decide how to spend the money? And even if you suspend my disbelief, a history of reform efforts show us that such a "ban" would most likely drive the spending underground and make it even hard to track how Congress spends taxpayer money. The money will get spent.
Fundamentally, banning earmarks is like throwing out the baby with the bathwater. It’s a political point now being made by all those who attempt to represent themselves as populists – faux or real.
Instead, how about full and complete transparency for earmarks: who is requesting them, for what, with lots of details about costs and disclaimers about personal connections by lawmakers, along with a requirement that they all be posted for a minimum of 72 hours online in a downloadable format before they are voted on? We could easily craft such a policy. (No neither the House nor Senate went as far as what needs to be done to get real 21st century style disclosure in their last round of reforms. Minimally this ought to be a first step.
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Preventing Last-Minute Lawmaking
Over the weekend the Washington Post reported further on the contents of the omnibus package bill, the Tax Relief and Health Care Act of 2006. The bill, one of the last items passed of the 109th Congress, is representative of much that is wrong with the legislative process and in such serves as a perfect coda for a Congress that will be remembered as one of the worst.
The Post article tackles some last minute lawmaking by both Sen. Harry Reid (D-Nev.) and Rep. Dennis Hastert (R-Ill.). The two party leaders inserted rejected and opposed initiatives regarding public land sales and Medicare into the bill at the last second despite previously voiced opposition.
Both provisions have been criticized as potentially harmful to public interests. Land-use activists complained this week that Reid's provision would sell too much of the federal land to private developers and that it circumvents land-disposal procedures. Several senior senators objected to Hastert's provision on the floor of the Senate, saying it favored one type of Medicare plan over others. Representatives of Aon Corp., an insurance company based in Hastert's home state, lobbied for the provision.
Hastert’s provision was previously rejected by Senate negotiators on December 7th before being slipped into the bill just in time for the final vote. The bill also included a previously mentioned 520 tax earmarks in the form of import tariff breaks for individual companies previously sought by lawmakers and later slipped into this omnibus bill.
The Tax Relief and Health Care Act of 2006 began as a tax bill introduced by Rep. Ellen Tauscher (D-Ca.) to “provide that the Tax Court may review claims for equitable innocent spouse relief and to suspend the running on the period of limitations while such claims are pending.” By the time that it passed it was filled with tax breaks and special provisions like those sought by Reid and Hastert.
The final version of the bill was not available to the public prior to Congress approving it. It’s well passed time for Congress to change its habits of back-room dealing and secretive lawmaking. It’s not just the earmarks that need to be brought out into the open, but the whole process of legislative deal making.
Imagine that the final version of this bill was available for 72 hours prior to a vote. We wouldn’t have to rely on Washington Post and New York Times postscripts to relay the various misdeeds. Instead bloggers and journalists could both pick these special interest-packed-porkfests apart and put pressure on lawmakers to remove provisions and instead pass bills that have undergone a proper and transparent review process.
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Hastert’s Institutional Neglect
Does it surprise anyone that Rep. Tom Reynolds’, R-N.Y., chief of staff Kirk Fordham informed staff of a top House leadership member of Mark Foley’s internet escapades back in 2004? After Fordham "resigned" his position as the chief of staff he admitted that, "…even prior to the existence of the Foley e-mail exchanges I had more than one conversation with senior staff at the highest level of the House of Representatives asking them to intervene when I was informed of Mr. Foley’s inappropriate behavior." As I detailed yesterday nobody should be shocked by the fact that Dennis Hastert doesn’t run a tight ship. In their book, The Broken Branch, congressional scholars Norm Ornstein and Thomas Mann explain Hastert’s actions in the Ethics Committee purge of 2005 thusly:
The signals by the Speaker could not have been more clear: take your responsibilities as guardians of House ethics seriously and you will be the ones stigmatized; play the game and make sure that no ethics issues are raised about your party colleagues or are downplayed and diluted, and career enhancement awaits. (pgs 190-91)
What kind of message does this kind of behavior send to members? If you are Reynolds or Rep. Rodney Alexander, R-La., do you really want to be the one to raise ethics issues forcefully? Even if Hastert and the GOP leadership had any interest in solving ethics issues they could not have referred Foley’s case to the House Ethics Committee because Hastert’s purge knocked the committee out of business.
Hastert’s history of institutional neglect is what places him at the center of this ever growing scandal. Many have already put Hastert’s role as Speaker on a death watch. Let’s see if he can get past this week.
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Dennis Hastert’s History as Speaker
The Mark Foley scandal has engulfed the Speaker of the House Dennis Hastert, R-Ill. Today the conservative Washington Times called for the Speaker’s resignation and Majority Leader John Boehner reiterated that Hastert had told him that the matter would be taken care of earlier this year. Hastert was once said to “take this laissez-faire attitude on things”. This is evident in the Foley case, but it is also clear from his history as Speaker. Hastert, not acting like a good coach, seems to let problems fester or he actively works to cover them up. It comes as no surprise that his stewardship of the House has come under fire due to the revelations of the Foley scandal.
Looking back on Hastert’s rule as Speaker you can find numerous instances where he not only did not take the lead but led Congress in the wrong direction.
March, 1999: Hastert’s rise to Speaker attracts swarms of Washington lobbyists. In a departure from former Speaker New Gingrich’s fundraising in Southern and Midwestern states Hastert “has begun offering industry lobbyists the kind of deal they like: private audiences where, for a price, they can voice their views on what kind of agenda the 106th Congress should pursue.”
1999-2006: Earmarking under Hastert’s leadership explodes. In 1999 there were only 2,838 earmarks. In 2005 there were 13,997. That is nearly a 400 percent increase in earmarking.
June, 2003: Hastert holds a fundraiser at Jack Abramoff’s restaurant Signatures and collects $21,500 for his Keep Our Majority PAC. Seven days later Hastert signs a letter to Interior Secretary Gale Norton along with the rest of the House leadership in support of one of Abramoff’s tribal clients. The letter was written by Abramoff’s lobbying team. Hastert’s campaign committee and PAC took in well over $100,000 from Jack Abramoff and his clients throughout the years.
November, 2003: The vote on the Medicare prescription drug bill was held open for three hours as Hastert and the Republican leadership tried to switch votes to pass the bill. Majority Leader Tom DeLay, R-Texas, was later admonished by the House Ethics Committee for “inappropriate behavior” when he offered support for the candidacy of retiring Rep. Nick Smith’s, R-Michigan, son in exchange for Smith switching his “nay” vote to “yea”. Hastert talked to Smith fours times during the three-hour vote. Independent political observers have widely claimed that the three-hour vote was an extreme abuse of the legislative process.
November, 2004: Hastert engineers a rule change that protects the leadership post of the ethically challenged Majority Leader Tom DeLay, R-Texas, in case he is indicted on felony charges for his role in the 2003 Texas redistricting.
November, 2004: Hastert announces a policy whereby he will rule by a “majority of the majority.” This policy states that “Congress will pass bills only if most House Republicans back them, regardless of how many Democrats favor them.”
February, 2005: Hastert purges the House Ethics Committee of Republicans who voted to admonish Majority Leader Tom DeLay, R-Texas, and replaces them with top dollar recipients of DeLay’s PAC’s largesse. The Ethics Committee shuts down in protest of Hastert’s actions.
August, 2005: Hastert secures a $207 million earmark to build the Prairie Parkway though his district. The earmark would significantly raise the price of land that Hastert had recently purchased through a trust that was not properly disclosed in his personal financial disclosure statements.
Fall, 2005: Hastert’s office is warned of inappropriate e-mails sent by Rep. Mark Foley, R-Fl., to underage male pages.
November, 2005: Rep. Don Sherwood, R-Pa., settles out of court with his former mistress on charges that he choked her. Sherwood continues to serve in the House.
December, 2005: Hastert and Senate Majority Leader Bill Frist sneak language into a Defense Department spending conference report that would give “the Secretary of Health and Human Services the ability to suspend the ability of the public to file liability claims against vaccine manufacturers if he or she determines that there is an imminent threat of a pandemic viral outbreak.” The inserted language would be worth billions of dollars for foreign drug makers in the event of an outbreak.
March, 2006: Rep. Tom Reynolds, R-N.Y., tells Hastert directly about the inappropriate e-mails sent by Rep. Foley to underage pages.
May, 2006: Hastert launches an attack on the FBI for raiding the offices of Rep. William Jefferson, D-La., who is under investigation for accepting bribes and accused of hiding subpoenaed material in his congressional office. After demanding that the documents be immediately returned to Jefferson’s office Hastert reaches a deal with the FBI to have the documents reviewed by Jefferson and Justice Department officials.
Spring, 2006: Majority Leader John Boehner, R-Ohio, talks to Hastert about the inappropriate e-mails. Hastert assured Boehner that he would “take care of it.”
September, 2006: Rep. Bob Ney, R-Ohio, pleads guilty to accepting bribes from lobbyist Jack Abramoff. Ney has not been forced to resign by Hastert and the leadership and still retains his seat in the current Congress.
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Sex Scandal Shows Institutional Corruption
When the Rep. Mark Foley sexual predation scandal broke last week I thought that this would just be another sex scandal. The member resigns in disgrace, end of story. However, Foley’s Internet advances on teenage pages revealed an institutional corruption created by a leadership that favors protecting electoral majorities over protecting children from predators. The House leadership also is shown to have a disdain for pursuing investigations of any kind. This scandal continues to show that unethical behavior has not been pursued by the leadership for fear of losing their slim congressional majority.
This scandal erupted in a matter of days. You can’t say that the House leadership couldn’t have figured this out and dealt with this last year when ABC News took a couple of days to get to the bottom it. Matt Yglesias explains this point, “The difference is that when ABC News and others saw smoke, they went looking for fire. They investigated. When Hastert and co. saw smoke, by contrast, they decided to turn off the smoke detectors and hope the house didn’t burn down until after the midterms.” It is always possible that Speaker Hastert was too involved in other activities at the time to pay much attention to this festering problem of sexual predation.
Snark aside, this disdain for investigating and desire to protect potentially unethical action by members has a history under Dennis Hastert. When Tom DeLay faced multiple admonishments from the House Ethics Committee and a potential indictment for his role in the Texas redistricting the House leadership did not attempt to solve the issues of his unethical and possibly criminal behavior. Instead they changed the rules to protect his leadership position and purged the Ethics Committee of members who had voted to admonish. Rep. Bob Ney, R-Ohio, is still holding office despite pleading guilty to accepting bribes. He has not been asked to resign.
Look at the initial reaction to the Jack Abramoff scandal. Sen. Rick Santorum, R-Pa., said in 2005, “From everything I’ve heard, again, from the comments and responding to those, is everything he’s done was according to the law.” Tom DeLay stated that Abramoff “has never been on my payroll.” Tony Rudy and Michael Scanlon were, however, on DeLay’s payroll. Only one committee in both houses of Congress, the Senate Indian Affairs Committee conducted an investigation into Jack Abramoff’s illegal activity prior to the super-lobbyist’s guilty plea.
The Foley case follows that exact same formula as these other scandals. Hastert and top House leadership members (Tom Reynolds and John Boehner) knew about allegations last year and did not pursue them. They also did not discuss the issues with minority Democrats on the page board and ABC reports that Democratic sponsored pages were not warned about Foley’s “friendly” behavior while Republican sponsored pages were. Now, shockingly, top Republicans and House leadership are trying to defend and deflect this scandal. White House press secretary Tony Snow has stated that these were “simply naughty e-mails,” the National Republican Congressional Committee has stated that they “would gladly accept Mr. Foley’s money [$2.7 million] or part of it to devote to House races,” and former Speaker Newt Gingrich claims that if Foley had been investigated last year the investigators would have been accused of “gay bashing”.
It should be strongly noted that there is no current House investigation into the matter. Hastert is undertaking an internal review, but this is not a real investigation with members of the minority party involved. While the scandal has been referred to the House Ethics Committee no formal investigation has begun. In fact, the House, after spending a whopping 93 days working in Washington, is now out of session as congressmen have scurried back to their districts to campaign. Clearly, this scandal highlights an inability by the current House majority to police its own members and to conduct any kind of serious investigation (seriously, it took ABC two days to figure this one out).
Dennis Hastert ought to face much of the blame for his inaction and inattention to problems. Chuck Todd and John Mercurio of the Hotline explain Hastert’s lack of action perfectly, “Hastert is notoriously slow when encouraging a wounded member of his party to get going. From Tom DeLay to Bob Ney, Hastert never seems willing to push members into what needs to be done. Now, in all three recent cases (DeLay, Ney and Foley), the member eventually did the right thing — but at a politically painful pace.
Hastert, for better or worse, is an institutionalist. …he allows the system to work even when it appears the system doesn’t work very fast, and unfortunately for him, very well.”
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Earmarks and Ethical Transparency
Maybe no one else will find this amusing or ironic, but I certainly did. The Washington Post published a letter to the editor of mine yesterday, but didn’t post it online. It’s a little surprising that a paper with such a robust Web presence wouldn’t post online all the letters to the editor it prints on paper.
Here it is:
The Post correctly identifies pork-barrel spending "earmarks" as a major problem on Capitol Hill ["Pet Projects," editorial, July 5]. However, this issue is just one symptom of a much larger problem – the lack of transparency in Congress.
Under current ethics rules, Speaker J. Dennis Hastert (R-Ill.) was able to effectively mask his dealings from the public by filing vague financial reports. It took Bill Allison, our investigative reporter, weeks to uncover the fact that the speaker was profiting from a secret land deal. Members of Congress ought to make full disclosure the rule, not the exception – including making their schedules public and putting all disclosure material online in an easily searchable format.
The Toledo Blade weighed in with an editorial on the same subject earlier this week.
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A Further Communication from House Speaker Dennis Hastert’s Attorney
I received the following email from Mr. J. Randall Evans, the attorney for House Speaker Dennis Hastert, on June 24. (The previous correspondence is, in chronological order, at the end of this post, then here and here. Sorry I didn’t get around to posting it back then–I was busy getting ready to get out of town, and at the time didn’t have and still don’t have much of a response to it, other than to say that we continue to stand by our story:
Dear Mr. Allison:
Rather than litigate this matter in emails, there is an appropriate place to do it. Please note that this was not a limited liability partnership. The type and amount of property was disclosed. The city and state was disclosed. Indeed, the percentage ownership was disclosed. This was not a personal property holding. Instead, it was a real property holding which was disclosed.
In sum, Speaker Hastert disclosed his ownership interest, including the type, amount, location, and even percentage. The descriptions were sufficient to permit your entity, as well as any other entity, to locate the legal documentation on record.
“Hiding” is thus a term disproven by the readily available information and documents which you have posted. You know it is inaccurate, false and misleading. Yet, you have confirmed that as of June 22, 2006, you stand by it. We will see if you can defend it.
Sincerely,
Randy Evans
