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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Don’t Give Grades Till the End of the Class
Kenneth Vogel over at Politico wrote this morning about a report put together by a coalition of watchdog organizations praising the White House for its openness by giving it an “A” grade.
The watchdog report speaks to the positive efforts undertaken by the administration to make the executive branch more open and transparent, and the highlighting of those efforts is all well and good.
But giving openness grades to the White House right now is like giving a grade for an entire class after the first few weeks. A professor wouldn’t give a grade for the whole semester because a student turned in quality homework in September and laid out a plan for how hard she is going to work over the next few months until the final. Encouragement, guidance, oversight… sure. But not a grade.
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Too Little, Too Late
The following appears in the National Journal’s new “lobbying experts” blog launched last week. I will be posting there regularly.
I’m what you might call a connoisseur of lobbying disclosure records. Over the years I’ve perused them when doing investigative research about any number of subjects, from lobbying around reform of the Food and Drug Administration to obscure real estate tax provisions. Instead of getting the who, the what, the why, the where, and the when of what actually happened, I typically end up extremely frustrated. The information available is always too little and comes too late.
First, in the “too little” department: it’s an open secret that the current exemption allowing people to avoid registering as a lobbyist if they spend less than 20 percent of their time involved in lobbying activities for a specific client means that there is a cadre of “stealth lobbyists” out there who are not reporting.
The most infamous example is Tom Daschle, who recently took a job as a senior policy adviser in the government affairs division of DLA Piper. Just as in his previous job at the firm Alston & Bird, Daschle is not expected to register as a lobbyist. Instead, he will simply be giving “advice” to clients. As my colleague Lisa Rosenberg (herself a lobbyist, for the Sunlight Foundation) pointed out recently, Daschle’s “frequent trips to the White House belie his claims that he is not attempting to influence policy on behalf of his clients. His clients, and their lobbyists, benefit from his access to key decision makers as well as his strategic advice on how best to influence lawmakers.” Until this loophole is closed, writes Rosenberg, “Daschle and untold numbers of former elected officials, corporate CEOs, and presidents of labor unions can act as stealth lobbyists–often with greater access and influence than the majority of registered lobbyists, and almost always without leaving a trace of what they are saying, who they are saying it to, and on who is paying them to say it.”
Then there’s the fact that even those who file as lobbyists are required to provide so little information. Consider this form filed by Clark & Associates for the firm’s work on behalf of the American Bankers Association. Here I see that the firm lobbied on the economic bailout bill–but all I can find out is that lobbyists contacted the “U.S. House of Representatives and U.S. Senate.” There are, of course, 435 members of the House and 100 members of the Senate, and from this form I don’t have a clue which ones in particular received visits, phone calls, or other communications from these lobbyists. Lobbying disclosure rules must be strengthened to include more detailed information about whom lobbyists contacted.
Now on to the matter of “too late.” Right now lobbyists file their disclosure forms only once a quarter, often months after the lobbying actually happened which means journalists, bloggers, and researchers are suffering from a big disadvantage when trying to track influence on any given issue. Given today’s technology, there’s really no reason for this. As I wrote last week, the Sunlight Foundation’s vision of lobbying disclosure nirvana would be a central website, where lobbyists can file reports on their activities and the public can easily find what they report, at a maximum of 72 hours after a lobbying contact has occurred.
The public needs information about who is lobbying our government about what. But with the state of lobbying disclosure today, we’re not getting anything close to information on-line in real-time, the way it ought to be.
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Lawmaker Investments and Disclosure Part II
Following up on the previous post, I took a look at the Baird bill (H.R. 682) to require disclosure of political intelligence firms and consultants and to require increased disclosure of lawmaker investments in stocks and futures. There is really only one major point in the registration and disclosure required for political intelligence consultants that is worth pointing out. That is the difference between who qualifies as a political intelligence consultant in Baird’s bill and who qualifies as a lobbyist under the Lobbyist Disclosure Act of 1995 (LDA).
Here’s the LDA:
Sec. 3 (10) LOBBYIST.—The term ”lobbyist” means any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a 3-month period.
And from H.R. 682:
‘(20) POLITICAL INTELLIGENCE CONSULTANT- The term ‘political intelligence consultant’ means any individual who is employed or retained by a client for financial or other compensation for services that include one or more political intelligence contacts.’.
The major difference is the lack of a 20 percent rule in Baird’s bill. Lobbyists do not have to register if they spend less than 20 percent of their time making lobbying contacts. This creates a whole class of crypto-lobbyists known formally as consultants. We’ve documented the poster boy for this line of work, Tom Daschle, previously.
The definition for political intelligence consultants in Baird’s bill is much more to my liking than the definition of lobbyists. Maybe starting to include more peddlers of influence under the LDA will open the bill up to the further changes that myself and the rest of the Sunlight crew believe is necessary.
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Are the Inspector General’s Financial Bailout Recommendations Out of Date?
Earlier this month, the Inspector General responsible for overseeing the government’s bailout of the financial sector released an audit of the Treasury Department and federal banking agencies that raised the specter of “external parties” – such as financial institutions – having “undue influence” over the bailout process. In short, the IG concluded that because the Treasury Department and other banking agencies insufficiently document oral communications between external parties and the federal government, it was “impossible” to determine whether bailout decisions were improperly influenced.
When explaining how to fix this disclosure gap, the Inspector General pointed to rules governing lobbying on the $787 billion economic stimulus funds as a good model for the financial bailout. The IG also noted that the Treasury Department announced on January 27, 2009 that it “would develop new rules to increase transparency and curtail potential lobbyist influence” over the financial industry bailout. And yet, the Treasury Department is still “finalizing” its draft policy 7 months after the press release. (More background available from WSJ and the Washington Times.)
It seems, however, that both the IG and the Treasury Department may not have realized that the model they are using for the financial bailout lobbying rules has itself been updated. They also seem to have forgotten about public disclosure of written communications. (Continue reading…)
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Total Transparency Lobbying Reform
Lanny Davis, Washington attorney and former Clinton White House counsel, wrote an very interesting editorial that was published earlier this week in The Washington Times. In it he advocates for “total transparency” lobbying reform.
Here’s his proposal:
Every lobbyist visiting a member of Congress or the executive branch to influence official action (the definition of lobbying) should first be required to sign in on an online, real-time computer (and thus, immediately accessible to all).
Information to be disclosed before the meeting should include the lobbyist’s name, the client represented, the amount paid by month or year for lobbying, the specific purpose of the meeting, the position to be taken by the lobbyist, the legislation to be discussed, the action to be requested (the “ask” or “asks,” to be updated after meeting), and the amount of current and prior campaign donations made by the client, the lobbyist and relatives associated with both.
Every time, every meeting. It’s as simple as that.
He says that total transparency would level the playing field. Both the lobbyist and the legislator or executive branch official would realize that the public would soon know everything that they discussed and pitched. “With total transparency, lobbyists and the officials they try to influence will have to ask themselves the question ‘would I mind if this lobbying meeting is fully reported in all respects in tomorrow’s newspaper?’” Davis writes that if the answer is “yes” then the meeting is cancelled. This is a good thing, he adds, “for the public – and certainly for the lobbyist and the legislator as well, who probably do not want to risk going to jail.”
Sounds great to me!
Hat tip: OMB Watch.
Update: For more information, check out what Sunlight researcher Paul Blumenthal wrote on Monday.
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And the Beat Goes On
Despite repeated denials by some reform groups, the recently passed ethics reforms are full of loopholes. USA Today and The Washington Post are now beginning to report on how "the more things change, the more they stay the same."
None of this is a great surprise, I suppose. That’s why it seems to us that transparency — 21st century style — may do more to stop bad things from happening than all the new laws that Congress passes.
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Is There More Backsliding on Earmark Reform?
Over at Porkbusters, N.Z. Bear relays the latest word on the shape that earmark reforms will take in the new lobbying bill, and offers readers a chance to check for themselves.
Rather than clutter the home page up with a million updates, I’ll take a closer look myself over on RealTime…
Based on what we’re hearing from those who would know, key changes include:
* The old version (passed by the Senate) required conference / committee reports to list all earmarks and required the chairman of the relevant committee to distribute the earmark list. But the new version of the bill allows the Majority Leader (as opposed to the Senate parliamentarian, a more objective judge) to determine whether or not a conference report complies with the disclosure requirements.
* The new version removes the requirement for earmark lists posted online to be in searchable format.
* The new version removes the provision that prevented any bill from being considered at all prior to the disclosure of earmarks; now the text only prohibits a formal motion to proceed, which leaves open a procedural loophole that would allow bills to slip through without disclosure.
* The old version prohibited earmarks which benefit a Member, their staff, or their family/their staff’s family. The new version waters that down and only prohibits earmarks that would “only” affect those parties — which means so long as you can make a case that your shiny new project affects at least one person other than you positively, you’re all set.Porkbusters has obtained and posted a copy of the latest draft of the legislation, and offers this invitation: “Check it out, and if you find more nasty surprises in there, please leave a comment and tell us what you’ve discovered…”
For comparison purposes, here’s an older version of the Senate bill (which passed in January).
More: Mark Tapscott writes that “Reid and Pelosi are gutting earmark reform.”
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Immigration Battle Exposes Inadequacies of Lobby Disclosure
Yesterday, the Senate moved one step closer to passing S. 1639, the Comprehensive Immigration Reform Bill, which has been less than popular with the public, and with those on the left, the center left, the center right and the right. Of course, some are supporting the bill, but sadly, lobbying records are no help in determing who might be supporting it.
While the bill’s opponents have been reporting on calls to lawmakers and posting videos on YouTube, the Senate Office of Public Records has posted only 17 lobbyist disclosure forms that list immigration as an issue of interest for 2007. In 2006, by contrast, 611 disclosures were filed, by everyone from the AARP and AFL-CIO to Wal-Mart and the Wine Institute, listing immigration as an issue on which they lobbied. But now, with a bill that would affect agriculture and construction, high tech and universities, food processing and small businesses, we know only that Duke University, Microsoft, and a handful of others are lobbying on the issue of immigration.
Are Gucci-loafered lobbyists whispering in senators’ ears about cloture votes while offering to host posh fundraisers at which employees of their Fortune 500 clients will pony up tens of thousands of dollars in contributions? Are former chiefs of staffs and legislative aides and even senators gladhanding their old colleagues? Don’t look to lobbyist disclosure to find out — under the rules, lobbyists have up to 45 days after they start work to disclose a minimal amount of information–the name of their client and the issues they’ll be addressing. Even then, it can take the Senate Office of Public Records, which at least posts the disclosures online, as much as 44 days to make the form public.
None of this necessary, of course — meaningful lobbyist disclosure would bring their actions out from what Mark Steyn called the “metaphorically smoke-filled room” into the light of day. Wouldn’t that make for a better process, not just on this bill, but on all of them.
Incidentally, here is the list of the immigration lobby as of June 27, 2007; again, I’m guessing this mildly understates K Street’s interest.
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Congressional Staff Need to be Transparent Too
Writing in the Washington Post, Paul Kane explicates the fine print on a fundraiser flier sent out by Sen. Charles Schumer and the Democratic Senatorial Campaign Committee, and finds that the draw for prospective lobbyist fundraisers will be congressional staff members — not members of Congress:
Officially, lobbyists are asked to give or raise $2,000 to be a “host” or $1,000 to be a “DSCC friend” in order to meet “individuals representing” Senate Democrats. That’s code word for chiefs of staff and staff directors of committees, according to lobbyists who received the fundraising pitch. The image of the invite that was e-mailed to Capitol Briefing included the file name of “chiefs invitation”.
It’s part of what some lobbyists say is an emerging technique in fundraising by the campaign committees — gathering a group of top advisers to lawmakers rather than the principals themselves. Lobbyists say they’ve heard that later this year House Democratic chiefs of staff will be the draw at a fundraiser for the Democratic Congressional Campaign Committee.
This is an important reminder of the reasoning behind item 3 on Sunlight’s reform agenda:
3.) Meaningful lobbyist disclosure. All who are paid to engage in direct issue advocacy with lawmakers and their staff should be required to register, and all registered lobbyists should disclose all legislative contacts, all legislation and regulations discussed, all contributions they make and coordinate to Members and organizations affiliated with members, all prior government employment, and any relationship to a current Member of Congress, staff member, or executive branch employee. All lobbyist reports should be filed online within 24 hours of any meeting or contribution.
Rest assured that we would consider attendance at by a staff member at a campaign cash raising soiree to be a reportable contact. I think the disclosures filed by lobbyists for foreign governments, political parties and other government-related entitities give a hint of what this might look like (and, because the Department of Justice’s Foreign Agent Registration Unit just put a database of them online, I can point to a specific example, a supplemental form filed in February 2007 by Watts Conulting Group, which is run by former Oklahoma Congressman J.C. Watts. Starting on page 12 of the form, you can see what we’re after: they sent letters requesting an appropriation for the Institute for Liberty and Democracy to 12 House members and 9 Senators (you can read the actual letters starting on page 16 of the PDF); they had meetings with three Senators, and they list all their political contributions.
These disclosures aren’t perfect — for one thing, we tend to think that these contacts can be reported more frequently than every six months; the technology exists for these contacts to be reported in real time, which obviously would be preferable. But it does show that a more stringent disclosure regime already exists, and could serve as a model for lobbying reform.
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Lobbying Bill Vote Underway
Update: Lobbying bill passes!
Following up on their promise to pass an ethics and lobbying reform bill before the Memorial Day recess the Democratic majority brought the bill to the floor today. Voting on amendments to the bill is still underway but there have been some developments that already buck against the growing press accounts bemoaning the slow pace of the bill's passage. Despite supposed opposition from some Democrats the Chris Van Hollen sponsored lobbyist bundling disclosure bill passed by a wide margin, 382-37. The bill was strengthened further by a Republican measure, supported by freshman Democrats, that requires PACs to disclose bundled contributions as well.
Also passing the House were amendments from Mike Castle and Dennis Cardoza. The Castle amendment states that it is the sense of the House that the use of a family relationship by a lobbyist who is an immediate family member of a Member of Congress is inappropriate. The Cardoza amendment would allow judges to increase the sentence of public officials covicted of bribery, fraud, extortion or theft of public funds greater than $10,000. There are over 40 more amendments that will be voted on this afternoon and evening. Considering the outcome of the bundling bill the underlying lobbying and ethics reform bill should pass overwhelmingly.
