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 — 21^st century style — may do more to stop bad things from happening than all the new laws that Congress passes.

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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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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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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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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.

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The House Rules Committee received today 48 amendments that will be offered during the debate and vote on the much-anticipated lobbying bill. There isn't too much of interest to us at Sunlight but I figured that you might want to check out all of the proposed amendments. The most controversial ones will certainly be Chris Van Hollen's bundling disclosure amendment, Chris Shays' 2-year lobbying cooling off amendment, Marty Meehan's ban on lobbyist thrown parties at national conventions, and the numerous amendments to create outside ethics enforcement bodies. Jeff Flake, notorious for his anti-earmark crusade, has also offered a raft of controversial amendments related to earmarks including an outright ban on lobbying for earmarks. I've put the whole list below the fold. Check it out:

Abercrombie (HI) #35 This amendment places a one-year ban on flag and general officers of the Armed Services from receiving compensation from any company that does greater than $50 million in business with the Department of Defense. This ban will take place 120 days from the enactment of the legislation.

Brown-Waite (FL) #13 Expresses the sense of Congress that if there is an ongoing criminal investigation into the activities of a Member of Congress, the Member's congressional office may be subject to searches and seizures by appropriate executive branch officials in possession of a valid court order.

Cardoza (CA) #1 (WITHDRAWN) This amendment would ban leadership Political Action Committees (PACs) and all other PACs except principal campaign committees, authorized committees, political party committees, or designated committees.

Cardoza (CA) #2 (WITHDRAWN) This amendment would require Senators to raise 50% of their campaign contributions from their home State.

Cardoza (CA) #3 (WITHDRAWN) This amendment would ban Member to Member political contributions.

Cardoza (CA) #4 (WITHDRAWN) This amendment would bar political committees of national parties from accepting campaign contributions from Members of Congress, or Members' political committees.

Cardoza (CA) #5 This amendment gives judges the discretion to increase the sentence for public officials convicted of bribery, fraud, extortion or theft of public funds greater than $10,000. If a public official was convicted of one of the enumerated crimes, a sentencing judge would have the discretion to double the length of a sentence (up to two years) for those public officials. Public officials are defined as Federal, State, or local elected officials; Presidential appointees; or a State or local official appointed by an elected state or local official.

Castle (DE) #20 Amendment would create an independent body, consisting of former Members and retired federal judges, to investigate claims of unethical or illegal actions by Members or staff and to report findings and recommend disciplinary action to the Committee on Standards. The Speaker and Minority Leader must agree on the chair of the Commission, and no Commissioner may have lobbied in the five years prior to his/her term.

Castle (DE) #21 Extends to two years the lobbying ban for former members of Congress, senior staff, and executive branch officials.

Castle (DE) #22 Amendment states that it is the sense of Congress that the use of a family relationship by a lobbyist who is an immediate family member of a Member of Congress to gain special advantages over other lobbyists is inappropriate.

Castle (DE) #23 Requires all registered lobbyists to complete a mandatory 8-hours of ethics training, conducted by the House Committee on Standards, each Congress. Ethics training would include the code of conduct and disclosure requirements applicable to Members, officers, and employees of the House, including rules relating to acceptance of gifts (including travel and meals), and financial disclosure requirements under the Ethics in Government Act of 1978. Failure to complete ethics training each Congress would trigger penalties.

Castle (DE) #24 Amendment to prohibit a campaign committee or leadership PAC of a candidate or Federal office holder from making payments to a spouse or immediate family member of candidate for services provided. Exempts nominal reimbursements under $500.

Christensen (VI) #44 This amendment would amend section 5(b) of the Lobbying Disclosure Act (2 U.S.C. 1604(b)) to require that specific information be disclosed when a registrant (“lobbyist”) is retained to engage in lobbying activities on behalf of a third party. This amendment would require that the identity of, the contact information for, and the amounts paid by a third party for the registrant’s services be disclosed on the registrant’s quarterly financial disclosure reports.

Conyers (MI) #27 Manager's Amendment. This amendment would make technical corrections to the text of the bill. In addition, the amendment would clarify that only those organizations that are described in any paragraph of section 501(c) of the Internal Revenue Code of 1986, are exempt from disclosing their membership lists to the Clerk of the House, and would also permit Members to omit personally identifiable information not required to be disclosed on the reports posted on the Internet by the Clerk.

Dreier (CA) #6 The amendment adds language passed by the House as part of H.R. 4975 in the 109th Congress amending the post-employment restrictions contained in section 207(e) of title 18, United States Code. The amendment would direct the Clerk, in consultation with the Committee on Standards of Official Conduct, to inform a Member, officer, or employee who is subject to the post-employment restrictions on lobbying contacts contained in that section of the beginning and ending dates of the restriction. The Clerk must also inform each office of the House to which the restriction applies of the restriction. The amendment also adds a new provision directing the Clerk to place the information on its public Internet site in a format that is searchable, sortable, and downloadable.

Dreier (CA) #41 Adds a provision passed by the House in the 109th Congress authorizing and requiring the House Inspector General to conduct random audits of lobbying disclosure filings. Authorizes the House Inspector General to refer wrongdoing by lobbyists to the Department of Justice.

Emanuel (IL) #47 (WITHDRAWN)The amendment would require registered lobbyists to disclose “bundled” campaign contributions in excess of $20,000 annually to covered recipients. If a registered lobbyist exceeds $20,000 annually in bundled contributions to one covered recipient, he/she must disclose the contributions from that year in excess of $5,000 per quarter.

English (PA) #10 Extends the current lifetime lobbying restrictions on the United States Trade Representative, which prevent him or her from "representing or advising foreign entities on any matter with the intent to influence a decision of any officer or employee of any department or agency of the United States, in carrying out his or her official duties," to also include the Secretary of Commerce.

Flake (AZ)/Boehner (OH) #18 The amendment would remove the exemption in the House gift rule for state and local government entities.

Flake (AZ) #38 The amendment requires registered lobbyists to report Congressional earmarks for which they lobby.

Flake (AZ) #39 The amendment prohibits lobbyists from lobbying for Congressional earmarks with federal funds.

Flake (AZ) #40 The amendment would require registered lobbyists who work for an entity that was created by earmarks to include in their annual report a statement detailing the total amount, by year, of Federal funds the entity has received since the founding of the entity, including which funds were received by such a Congressional earmark and which funds were received by a competitive grant process.

Garrett (NJ) #19 The amendment would make it a federal offense for persons convicted of federal, state, or local felonies to register as lobbyists.

Gingrey (GA) #8 The amendment would extend the prohibition on converting campaign dollars for personal use currently applicable to campaign committees to leadership PACs. Leadership PACs could use funds for authorized expenditures in connection with campaigns for Federal office, charitable contributions, or for transfers to a national, state, or local committee of a political party. Leadership PAC is defined as a political committee that is directly or indirectly established, maintained, or controlled by a candidate for election for Federal office or an individual holding Federal office.

Hulshof (MO) #25 Grants the Chairman and Ranking Member of the Ethics Committee subpoena power during informal fact-finding review of complaints and informal self-initiated fact-finding.

Hulshof (MO) #26 Add a House Rule that explicitly states neither the chair nor ranking member of the Ethics Committee may consult with their party leadership or leadership staff on any matter regarding an investigation by the Committee, including scheduling matters.

Issa (CA) #7 The amendment would amend the Lobbying Disclosure Act to prohibit state, local, or other government or semi-sovereign entities, including public institutions of higher education, from providing gifts to Members, officers, or employees of the House.

Jackson-Lee (TX) #16 This amendment amends the Van Hollen amendment regarding bundling. In particular, this amendment provides that the statement which a covered registered lobbyist is required to provide to the recipient must include a notification that the recipient has the right to respond to the statement to challenge and correct any information included before the registered lobbyist files the report.

Jackson-Lee (TX) #17 The amendment would require lobbyists to report to Congress on bundled contributions.

Kaptur (OH) #32 The amendment would expand the disclosure requirements to individuals and organizations, in addition to lobbyists. This amendment assumes that HR 2317 has been incorporated into HR 2316, and that the amendment now needs to be offered to HR 2316.

Kaptur (OH) #33 Sense of the Congress Resolution suggesting that the Supreme Court misinterpreted First Amendment free speech considerations in Buckley v. Valeo.

Kaptur (OH) #34 The amendment bans former officers and employees from knowingly acting as an agent or representing a foreign country or foreign political party in a matter in which the US has an interest. The amendment also would establish a five year restriction on certain officers and employees acting as an agent or attorney for or otherwise representing or advising for compensation non-US persons, partnerships, associations, corporations or organizations if the representation relates directly to a matter in which the United States is a party or has a direct and substantial interest.

Kaptur (OH) #37 (REVISED) Prohibits contributions and expenditures by multicandidate political committees or separate segregated funds sponsored by Foreign-Controlled Corporations and Associations. Bars foreign nationals from involvement in election-related activities. Establishes an FEC clearinghouse of public information on political activities of foreign principals and agents. Amends penalties in the Foreign Agents Registration Act.

Kirk (IL) #48 (LATE) The amendment addresses Members of Congress forfeiting their congressional pension should they be convicted of certain felonies. The amendment expands the number of such felonies from 3 to 22.

McHenry (NC) #36 This amendment would require Members' disclosure of residential properties, including primary residences and mortgage liabilities.

Meehan (MA) #12 Amends the Lobbying Disclosure Act to ban lobbyists from making or arranging a direct or indirect payment for a party, reception, or other event that is held at a national political party nominating convention in honor or recognition of a Member, officer, or employee of Congress.

Moore, Dennis (KS) #9 This amendment would modify the House earmark disclosure rules to require that lists of earmarks, limited tax benefits, and limited tariff benefits included in bills, joint resolutions, or conference reports be made available on the Internet in a searchable format to the general public at least 48 hours before consideration.

Schiff (CA) #30 This would amend the Rules of the House of Representatives by prohibiting a Member from soliciting contributions for their campaign committee if the committee pays the spouse of the Member on a commission basis for the spouse’s fundraising activities on behalf of the campaign committee.

Schiff (CA) #31 This would amend the criminal code by prohibiting candidates from soliciting contributions for the candidate's campaign committee if the committee pays the candidate’s spouse on an FEC basis for the spouse’s fundraising activities on behalf of the campaign committee.

Sestak (PA) #46 The amendment would establish a nine-member Independent Ethics Commission of former Federal judges, which would have the power to investigate alleged violations by Members and employees of the House, and present a case of probable ethics violations to the Committee on Standards of Official Conduct, as well as to make recommendations on violations to the Committee on Standards of Official Conduct that it report to the appropriate Federal or State authorities.

Shadegg (AZ) #42 The amendment would prohibit a Member of Congress convicted of bribery from receiving his or her taxpayer-funded retirement benefits.

Shays (CT) #28 Extends the prohibition on lobbying by members of Congress, senior staff, and Executive Branch officials from one to two years after they leave public service.

Shays (CT) #29 Establishes an Office of Public Integrity (OPI) to assist the House Ethics Committee. OPI would be a nonpartisan office comprised of professional staff who would investigate non-frivolous complaints of potential ethics violations and present its findings to the Ethics Committee for adjudication. OPI would also provide both formal and informal guidance to Members and their staff on the permissibility of conduct under House and Senate rules. Finally, OPI would provide informal guidance to registered lobbyists about reporting requirements and conduct random audits of reports.

Snyder (AR) #11 This amendment would prohibit former Member access privileges and services from being made available or provided to any former Member who is a registered lobbyist.

Terry (NE) #14 Provides for the loss of pensions for Members of Congress convicted of current federal "white-collar" criminal offenses like bribery, solicitation of gifts, perjury, making false claims, lying to a grand jury, etc. Denies pension benefits only for the period of federal service in the U.S. Congress and for offenses related to the service as a Member.

Terry (NE)/Price, Tom (GA) #43 The amendment sets forth findings that the House Committee on Standards of Official Conduct has not provided Members of Congress with adequate and clear guidance on the definition of a congressional earmark and what constitutes a Member’s financial interest in a congressional earmark. The amendment requires the Committee to publish an updated manual clearly explaining the new rules governing congressional earmark transparency and what constitutes a Member’s financial interest in an earmark.

Van Hollen (MD) #45 The amendment would require registered lobbyists to submit quarterly reports on bundled contributions.

Wolf (VA) #15 This amendment would make it a federal offense for former ambassadors and CIA station chiefs to act as an agent of the foreign nation where they were assigned for five years after their service as ambassador or station chief is completed.

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The House Judiciary Committee just took a break from the lobbying bill markup session to go vote on the floor of the House so it seems like a good time to give a re-cap. The first action the committee took was to pass HR 2317, the lobbyist bundling disclosure bill, out of committee. There were some questions raised from Rep. John Larson (D-CT) and Rep. Chris Cannon (R-UT) but ultimately the bill was voted out in favor. The bill will be reported as an amendment on the floor to be added to HR 2316, the lobbying and ethics package. In regards to HR 2316 the committee passed a manager's amendment that stripped the increase in the revolving door provision from 1 to 2 years, changed the location of disclosure for Members negotiating for outside employment from the Clerk of the House to the House Ethics Committe, and stripped a provision (Conyers called it a "drafting error") that would have required 501(c)(3)s to disclose all contributions over $500. That's it for now. I don't expect any more changes to occur today.

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The House Judiciary Committee is currently deciding what will or will not be included in the House’s ethics reform bill. While the Committee is talking about requiring greater transparency from lobbyists they aren’t taking simple steps to make the House more transparent. Last week, Ellen proposed that the Judiciary Committee take one simple step to make the House more transparent by putting personal financial disclosure forms online. (This is also a recommendation in The Open House Project report.) You can help make this happen by following this link and contacting Speaker Pelosi and the members of the Judiciary Committee and asking them to include a provision putting personal financial disclosures online in the ethics bill. If you want to know why you should care about the online disclosure of personal financial disclosure forms you can read Ellen’s post and continue reading this post. (See also the Congresspedia entry on personal financial disclosure.)

The first reason to put personal financial disclosure online is the sheer level of difficulty in obtaining them. In the absence of private sites like Open Secrets you have to hop on a plane and fly to Washington to view your Member’s personal financial disclosure. Once in Washington you’d have to go to Capitol Hill, specifically the basement in the Cannon Office Building to find the Legislative Resource Center. There you would be required to give your name, address, and occupation to obtain a copy of this disclosure form and then you’d have to pay to copy it yourself. If that’s not reason enough for why you’d want these documents online you can continue reading.

In the wake of the Watergate scandal, Koreagate, and a myriad of smaller scandals Congress passed the Ethics in Government Act. This Act required Members (along with executive branch officials and others) to file annual personal financial disclosures. The purpose of the financial disclosure provision is to make public the personal finances of lawmakers and executive branch officials so as to dissuade these targeted government officials from engaging in personal behavior that may constitute a conflict of interest and providing public documentation so that if they are violating some rule, protocol, or law or are maintaining unseemly relationships the news media can inform their constituents.

This is what we’d call a targeted transparency measure; a targeted item (Members’ personal finances) is made transparent to promote a goal (less conflicts of interest; less corruption) with an enforcement mechanism (public flogging in the news media that could lead to investigations). The purpose of targeted transparency is usually to create a greater amount of choice by providing essential information to a consumer. In this case the consumer is the constituent or voter and the choice is whether they want this person, the Member of Congress, to continue to represent them or not. But in the current conception there is a middle man — the news media.

By putting personal financial disclosure forms online voters can go to the Clerk of the House or the Senate website and discover whether their Member’s financial information is anything to fuss about. There’s no need to wait to find out what your newspaper’s Washington Bureau (if they even have one) has to say about your congressman’s finances. This also would prevent those often silly articles about an item in a Member’s personal financial disclosure that may or may not be controversial but the reporter is going to report about the controversy over whether it is controversial (see this recent Associated Press article or this Washington Post article).

Instead of relying on “check-box” journalism about Members of Congress you can check for yourself to see if your congressman is selling land to some unidentified Limited Liability Corporation, or if your congressman sold their stock just before the price dropped, or if they are affiliated with or own stock in controversial organizations. Or if they just happen to own stock and a summer house. Or, like some Members, have a lot of debt.

Putting personal financial disclosure forms online is just a piece of the puzzle in creating a system of user-centered (in this case constituents and voters) information so that constituents and voters can make better choices and share information to create those better choices. Better choices should lead to political representation more attuned to the needs of constituents.

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Speaking of the Dubai ports deal in the context of the inadequacy of our current lobbyist disclosure laws, it’s probably worth noting that it wasn’t just DP World that was hiring lobbyists. The controversy, recall, erupted in the second half of February, as an increasingly large, bipartisan group of lawmakers questioned the sale of a British firm that handled some U.S. port operations to a company owned by the government of Dubai, which is part of the United Arab Emirates. By March 9, DP World announced it would get out of the U.S. ports business.

What’s unique about the Dubai ports controversy is that, because the story was so sexy (as news folks like to say), it got a lot of coverage, and a lot of aspects of the story were explored. That a Florida-based company, called Eller & Co., brought the Dubai deal to the attention of Congress was reported in the very first AP story, for example. And how that came to be, and who it was who talked to which members of Congress, was revealed in a fine article by Douglas Turner of the Buffalo News dated March 4, 2006, and available through the magic of Nexis. This story, as far as I can tell from Nexis, was the first mention of Joseph Muldoon…

Attorney Joseph Muldoon III represents Eller & Co., a Miami-based shipping firm that is fighting the transaction here and in Britain’s highest court.

In an interview, the attorney said Eller & Co. does not want to become an unwilling partner of DP World’s Miami operations.

Muldoon told The News he unsuccessfully appealed two months ago to Sen. John Warner, R-Va., whom he knows personally, and also saw staff members for Sen. Kay Bailey Hutchison, R-Texas, to stop the sale on national security grounds.

“I’ll check it out,” Muldoon quoted Warner as responding.

“Finally, I went to Sen. [Charles E.] Schumer because he is a member of the Senate Banking Committee, which oversees the Treasury Department board which approved this thing. If this hadn’t been for Sen. Schumer,” Muldoon said in an interview, “this issue would never had gotten any traction.

/SNIP/

It was not until Muldoon called Schumer’s office three weeks ago that it bloomed into an issue that threatens the president’s hold on Republican majorities in the House and Senate.

There’s also an excellent account of this from Peter Overby of National Public Radio from four days later, March 8, 2006, which adds information about Muldoon–not the least bit of which is that he was the lobbyist for Eller & Co. (which, if I’m not mistaken, is the first time Muldoon is referred to as a lobbyist in the coverage).

Yet if you’d looked up Eller & Co. on the Senate Office of Public Records Web site–either on March 4 or March 8, you would have found…nothing. That’s because Muldoon didn’t file his lobbying registration disclosure unitl March 6, and it wasn’t posted on the Senate’s site until March 28–some 19 days after the Dubai ports controversy had been resolved. That’s no fault of Muldoon’s–he certainly followed the law and the rules for filing. It’s the law and the rules that are wholly inadequate to accomplishing the goals of disclosure.

As noted, the press coverage on this story was thorough–even touching on the contacts that one of the Washington lobbyists involved had during the course of the controversy. But most things that happen in Washington don’t get anywhere near this much coverage, if any at all. Members aren’t always so eager to go before the cameras (as they were in the Dubai ports affair) when it’s a tax break they’re doling out. Lobbyists don’t necessarily want to tell a reporter how they landed a fat earmark for a defense contractor client. Public disclosure of lobbying reports is supposed to fill in this gap–even if NPR or the Buffalo News or the Associated Press doesn’t share your interest in an issue, you as a citizen should know who’s trying to influence your elected representatives. Or, as the Lobbying Disclosure Act of 1995 puts it,

[R]esponsible representative Government requires public awareness of the efforts of paid lobbyists to influence the public decisionmaking process in both the legislative and executive branches of the Federal Government…

It seems to me that it’s awfully hard to have public awareness of the efforts of paid lobbyists to influence public decisionmaking if the decisions are taken before the lobbyists filings are available for public inspection…

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It’s been interesting to hear discussions (and be part of a few) about Sunlight’s transparency agenda, particularly from smart lawyer types, policy wonks and activists. For my part, I tend to need concrete examples to prop up my thinking, and thought I’d offer a few examples from how we do things now which I think will make it fairly clear as to why we need to do things differently.

Take our current state of lobbying disclosure, and a recent, relatively high profile matter that caused a lot of consternation among Americans: The Dubai ports deal. Under our current lobbying law, the average citizen would have no way of finding out how many lobbyists the company at the heart of the controversy was employing, or how much they were paying them, or who they were lobbying, until long after the matter was resolved.

For those like me with short memories, the controversy concerned a company based in the United Arab Emirates, DP World International, which would have taken over some operations at six U.S. ports thanks to its acquisition of Peninsular and Oriental Steam Navigation Company, the British firm that had had the contracts to work at the aforementioned ports. The Bush administration approved the sale and the shift to DP World of operations at the ports, after which critics–both Democrats and Republicans–raised some serious concerns about the deal. The fear was that the U.A.E.-owned firm would be more susceptible to infiltration by terrorists, who would have access to U.S. port facilities and foreign (perhaps uninspected) cargo.

As this handy timeline shows, these concerns were first aired by Congress on February 15, 2006 (the first story questioning the deal, from the Associated Press, hit the wires on Feb. 11); by March 9, 2006, a compromise had been struck: DP World agreed to transfer port operations to a U.S. firm (that sale was made this month).

During the high-profile controversy, DP World hired a number of lobbyists to press its case on Capitol Hill and to the administration; here are the firms, plus the dates that their first disclosures were put online by the Senate Office of Public Records:

Alston & Bird……………………………………March 6, 2006
Andreae & Assoc.………………………………Sept. 11, 2006
APCO Worldwide………………………………..March 6, 2006
Bell Pottinger……………………………………..March 23, 2006
Downey McGrath Group Inc.…………………..July 24, 2006
DP World FZE…………………………………….April 5, 2006
P&O Ports North America……………………..April 5, 2006

According to their registration statements, Alston & Bird, Andreae & Associates, DP World FZE and P&O Ports North America, their effective date of registration–when they were either retained to lobby or had their first contact with a government official–was February 15–the day the storm broke. . Under our current rules, they have 45 days to register with the Senate and the House after that effective date–in this case, the House and Senate offices that track lobbyists need not have known who was lobbying over the Dubai ports deal until April 1, 2006–more than three weeks after a compromise had been reached. And, I’m informed by Senate Office of Public Records, that they allow themselves 90 days from the time they receive a report until they get it online, sometimes longer (which might explain the lag for Downey McGrath–whose effective date was Feb. 13 and whose report was received by the Senate on Feb. 24–and Andreae & Associates).

In the case of the Dubai ports deal, it appears that everyone followed the disclosure rules–and yet, if you were relying on the public disclosures mandated by Congress to find out who was lobbying over this issue, you would have had no inkling until March 6, and wouldn’t have known the full roster until Sept. 11–a full 208 days after the controversy broke, and 186 days after it had been resolved.

And, of course, none of the registration disclosures linked above require a lobbying firm to specify what parts of the government–whether it’s Congress, the White House or the Department of Homeland Security–that’s being lobbied.

Not exactly timely disclosure.

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