A little while ago I blogged about Oregon Legislative Counsel claiming copyright over their revised statute laws and asking sites like Public Resource.org and Justia.org to take down copies of those laws. On June 19th the Legislative Counsel held a hearing with activist Carl Malamud from Public.Resource.org and others to discuss the issue.  Check out the testimony here.   In the end the Legislative Counsel voted to not assert copyright over the Oregon Revised Statutes.

This is a great victory for openness and democracy.  The idea of restricting how people see, use, and collect laws is absurd and I am relieved that Oregon made the right decision.

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Lobbying disclosure reports will finally get reviewed by an oversight body as a result of the Honest Leadership and Open Government Act (HLOGA). The Government Accountability Office (GAO) began auditing the first quarter lobbying reports to determine compliance and noncompliance to the Lobbying Disclosure Act of 1995 and subsequent amendments included in HLOGA. The GAO may ask for time sheets and restaurant and travel records to check to see if employees are meeting the lobbyist threshold. The audit results should be released around Sept. 30, 2008, six months after the initial quarterly report filing date. Michael Stern at Point of Order points out some issues that may prevent the GAO from requiring audited firms to turn over documents:

According to this article in Roll Call, the failure to comply with a GAO request could then be referred to the Secretary of the Senate and the Clerk of the House, which are responsible under the LDA for notifying any lobbyist or lobbying firm that “may be in noncompliance” with the law. This in turn could lead to a referral to the U.S. Attorney for potential civil or even criminal enforcement.

This, I think, must be wrong. HLOGA gives GAO the authority to request information from certain individuals and organizations, but it does not require that the information be provided.If Congress had intended that registrants and lobbyists be required to provide information requested, it surely would have said so explicitly. To imply such a duty would seem particularly inappropriate given the possibility that requests might infringe on First Amendment rights or other privileges.

A more likely interpretation is that Congress intended that the GAO’s notification would be referred to the committees of jurisdiction, which could then choose to use their subpoena power to obtain the needed information.

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Last week, the U.S. Government Accountability Office (GAO) released a report that details the extensive revolving door where former Department of Defense officials are now working for defense contractors, creating glaring conflicts of interest.

GAO’s report found that in 2006, defense contractors employed over 86,000 former DOD employees who had left the agency since 2001. The report found instances where former DOD officials were working on contracts under the responsibility of their form agency, office or command. And they found nine instances where former officials are working on a contract "for which they had program oversight responsibilities or decision-making authorities while at DOD."

This isn’t a newly recognized problem. A 2004 report by the Project on Government Oversight (POGO) on the revolving doors between the government and large private contractors found "conflict of interest is the rule, not the exception."

Scott Amey at POGO Blog wrote that individuals "move seamlessly between government and contractor positions, potentially subverting the contracting process." He adds that the system is "accepted and entrenched." Scott wrote that he hopes the GAO report will convince Congress "to jam the revolving door." You would think.

Another resource on the subject is the Center for Responsive Politics’s Revolving Door database, where you can access the profiles of 110 former top DOD officials.

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Via IEC Journal comes word of this Government Accountability Office report written up in this Government Executive article by Elizabeth Newell on the post-employment trends of 400 top former Defense Department officials — all of whom were subject to a one-year ban on lobbying their old colleagues. Newell offers this staggering finding:

Approximately 65 percent of those former officials were employed by one of seven contractors: Science Applications International Corp. (SAIC); Northrop Grumman Corp.; Lockheed Martin Corp.; Booz Allen Hamilton Inc.; L3 Communications Holding Inc.; General Dynamics and Raytheon Co. All but one of those companies, Booz Allen Hamilton, ranked in the top 10 of Government Executive’s Top 200 Contractors list in 2007. Booz Allen Hamilton was 24th on that list.

USASpending.gov, maintained by Office of Management and Budget, ranks all of those seven contractors in their top 20 for 2007. Newell quotes Cristina Chaplain, the report’s author, as saying, “Our results indicate that defense contractors may employ a substantial number of former DOD officials on assignments related to their former DOD agencies or their direct responsibilities.”

Newell writes that the report asks the Pentagon to think about how they can address this situation:

GAO recommended that Defense consider what type of contractor disclosure and certification information on former officials was necessary to ensure compliance with post-government employment restrictions

More robust disclosure of former official’s contacts with their old colleagues on contracting actions would be a start — perhaps the information could be included in USASpending.gov.

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Last week John Wonderlich posted about the ongoing story of the GAO giving exclusive rights to digitalize legislative histories to Thomson West on the Open House Project blog. The government entering a deal with a private company and giving them exclusive rights to public documents creates a situation where the whole point of digitalization is lost. When large amounts of documents are available on the internet in easy to download formats it’s supposed to increase public access but this situation has the opposite effect. Unfortunately this problem isn’t exclusive to the federal government.

Via Boing Boing and Carl Malamud,

“The State of Oregon is sending out cease and desist letters to sites like Justia and Public.Resource.Org that have been posting copies of Oregon laws, known as the Oregon Revised Statutes.

We’ve sent Oregon back two letters. The first reviews the law and explains to the Legislative Counsel why their assertion of copyright over the state statutes is particularly weak, from both a common law perspective and from their own enabling legislation.”

Malamud goes on to state that Thomson West has also made copies of these statutes but haven’t received cease and desist letters from Oregon yet (it was stated that West will be receiving letters). Apparently many states have laws that are copyrighted and this begs the question of how appropriate this kind of copyrighting in an internet age is. How can a law that was written for the purpose of serving the general public not be available to them to reproduce?

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It looks as if the Federal Communication Commission (FCC) could use Sunlight’s database expertise.

Wired.com writes about a GAO report issued earlier this week that blasts the agency for doing an "appalling job" of tracking, responding and resolving complaints regarding telecommunications services. GAO’s report states:

Limitations in FCC’s current approach for collecting and analyzing enforcement data constitute the principal challenge FCC faces in providing complete and accurate information on its enforcement program… Limitations in FCC’s current approach for collecting and analyzing enforcement data constitute the principal challenge FCC faces in providing complete and accurate information on its enforcement program.

Rep. Ed Markey, chair of the House Subcommittee on Telecommunications and the Internet, requested the investigation that focused on the agency’s enforcement efforts between 2003 and 2006.

How bad is it? Bad.

FCC’s enforcement bureau uses five separate databases and "manually searches tens of thousands of paper case files to track and monitor the extent to which each of its divisions takes enforcement action within its statute of limitations requirement for assessing fines or the time it takes to close an enforcement case…The FCC received about 454,000 complaints between 2003 and 2006. The agency responded to most of the complaints with a letter of acknowledgment. It investigated 10 percent of those complaints over those three years, say the GAO…It concluded 39,000 of those investigations –and less than 10 percent of them ended with an enforcement action, according to the GAO…The majority — 83 percent of the investigations — resulted in no enforcement action.

The GAO could not determine why the FCC failed to act on such a high percentage of complaints because the agency fails to systematically collect information on its investigations. GAO’s overall conclusion, Wired.com writes, is that the FCC needs to set itself measurable goals for its enforcement bureau and to develop the tools to more systematically track its enforcement efforts.

You would think that the agency charged with regulating interstate and international communications by radio, television, wire, satellite and cable would be significantly more engaged with the tools of the internet age…But I guess not.

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Yesterday, the Government Accountability Office (GAO) released a troubling report on the U.S. Defense Department (DoD) hiring of private contractors to assist in its operations in Iraq and Afghanistan. It really illustrates how little we know about government contracting and why the lack of transparency is a problem.

Imagine this. DoD doesn’t even know how many private contractors it has on the payroll. AP reports that a senior defense official, in congressional testimony last month, estimated that there are about the same number of private contractors in each of the two war zones as there are American troops, 163,000 in Iraq and 36,500 in Afghanistan. But no one apparently knows for sure. The GAO found that private contractors outnumber DoD employees in some offices, and handle sensitive jobs like writing contracts and awarding fees.

Private contractors are free of ethics regulations that government employees are required to adhere to, setting up situations where corruption can easily flourish and likely never be discovered. Contractors are prohibited from accepting bribes or kickbacks (I suppose that’s something) and the companies hired by DoD are required to have ethic codes. But there are no safeguards against conflicts of interests. And with so many individuals handling so much money with precious little oversight…Well, you get the picture.

GAO, Congress’ watchdog, recommends that DoD require that private contractors it hires be forced to identify conflicts of interest and work to prevent them. That’s a start.

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I recently came across a mandate that the GAO perform periodic reviews of financial disclosure practices across the government, which appears to be unenforced and unimplemented. (more)

My search started in the House rules from Ellen’s post last week pointing to this house rule, which leads from this search to this doc, from 1990. More clearly, there was language requiring the Comptroller General (head of the GAO) to "No later than December 31, 1992, and regularly thereafter, the Comptroller General shall conduct a study to determine whether the provisions of this title are being carried out effectively" –requiring the GAO to periodically review the effectiveness of those disclosure requirements.

It turns out that "by 1992" was clear enough to get a report written on financial disclosure (in 1990), but "regularly thereafter" appears to be interpreted as "whenever it comes up again," or perhaps "once every 20 years." Could it be that reviewing financial disclosure isn’t a priority? GAO standards actually dictate that legal mandates from Congress come before even congressional requests, so this requirement would seem to sit at the very top of the GAO priority food chain (see page 4 of the GAO’s protocols document ).

While this might seem to apply only to Congress, since I’m linking to house rules, the requirement actually comes from the Ethics in Government Act, which mandates financial disclosure from employees (see subsection (f), here) of all 3 branches of government, up to the President and Vice President, Judges, members of Congress, and several categories of related employees. (For an example of who qualifies for disclosure requirements, see this legislative branch explanation page.)

So what’s really going on? Is this an oversight? — has no member of Congress wondered if maybe the financial disclosure system is ineffective, and that there may be a built in mechanism to review it? Is it an ethics committee style detente, a congressional lack of will to put one’s own house in order? Surely such a disclosure requirement is noticed by members of Congress and governmental employees, since they have to disclose personal details. Do they seek to avoid stricter enforcement?

The spectacular paper The Political Economy of Transparency: What makes disclosure policies effective? warns that "transparency systems, always imperfect political compromises, must improve over time in scope, accuracy, and use in order to be sustainable. We have suggested that they can be improved by strengthening user intermediaries, encouraging effective enforcement, taking advantage of regulatory synergies, and complementing market interactions (Fung, Graham, Weil, 2002)."

I’m wondering whether the General Accountability Office, itself a champion of public information and transparency, has an untapped role to play in demanding accountability through disclosure of financial information from Congress, by performing the reviews of the effectiveness of disclosure programs as they’re charged to do.

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Paul Blumenthal just came across this document from the GAO, transcribing a pithy speech by the Comptroller General of the United States, David Walker (the head of the GAO). Transparent Government and Access to Information: A Role for Supreme Audit Institutions provides a neat tour of the advantages of transparent public administration, from the viewpoint at the top of the nation’s leading accountability officer.

(more after the jump.)

I (obviously) think the whole document is worth a read. It absolutely reinforces my belief that built in mechanisms of accountability are essential to a functioning democratic government, that the public should be involved in and aware of their oversight, and that the scope and effective administering of such oversight programs needs to continue to evolve as government grows and changes. Endemic oversight mechanisms should be especially encouraged by the increase in citizens’ potential as government watchdogs and participants in policymaking that the Internet brings.

To shape the development of policy that encourages robust and effective public (and administrative) oversight, we should be attentive to the themes of transparency that resonate throughout the current policy and governmental landscape. For example, where should the line be between public and private, in a legislative setting? What is the proper scope of a FOIA law? When is classification appropriate? When should lawmakers or industry use discretion in deciding what to disclose, and when should government set a standard policy?

A few academics at Harvard have been considering exactly these questions, and have a series of papers drawing helpful parallels and making broad conclusions about how to effectively administer good transparency policy. (see especially the papers at the bottom of this page.)

I’ve just started digging into the details, and so far the first paper I’m reading is stuffed with detail. (I have to quote more selectively here; the papers are copyrighted.)

In the United States, nutritional labeling, public school report cards, restaurant grading systems, campaign finance disclosure, toxic pollution reporting, auto safety and fuel economy ratings, and corporate financial reporting are among scores of transparency systems created by federal and state legislators.

…Government-mandated disclosure plays a unique role in supplementing and correcting the private provision of socially relevant information.

I’m looking forward to reading the rest of this, and the other papers. Academia, advocacy, and government should be better connected.

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