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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The Little Things We Take For Granted
So, Nancy Pelosi and Steny Hoyer announced that they were going to place the final health care bill online for 72 hours prior to consideration yesterday. Where did they decide to do this? Twitter. And no one raises a hackle at all. It’s just accepted that this is a valid announcement of an important transparency policy. What better way to demonstrate how far Congress has come in terms of social media use and transparency than to have the Speaker of the House announce a transparency policy on a widely-used social media site.
It wasn’t too long ago that lawmakers weren’t even allowed to officially use Twitter, let alone any social media site, to communicate with everyone else. The Sunlight Foundation was at the forefront of changing that policy starting in 2007 and culminating in rules changes in 2008. John Wonderlich summed this all up way back when:
In May of 2007, the Sunlight Foundation released the Open House Project report, which included an entire chapter on the issue of Franking Reform. That chapter, prepared by David All and Paul Blumental, has guided our advocacy and discussions of web use restrictions since then.
Those discussions simmered until earlier this summer, when tensions between Members of the Franking Commission briefly escalated (the part of the Committee on House Administration that handles Web restrictions). This summer’s discussion caught some media attention, and unsettled some web-savvy Representatives, and ultimately engaged both parties’ leaders in the House.
The Sunlight Foundation capitalized on the chaos, creating the first twitter-based petition in the site letourcongresstweet.org, which amassed twitter-based signatures, and displayed vigorous support for updated rules from online communities across the political spectrum.
While House officials maneuvered publicly, the Senate passed similar reforms with a bit less fanfare. As recently as last week, agreement looked unlikely from the House committee, with Roll Call reporting that an attempt at negotiations ended in “an emotionally charged hearing and a breakdown in negotiations.”
That’s why we were suprised and delighted to get word from the Committee on House Administration that a new agreement had been reached. This measure wasn’t just a slight rewrite, however. The new guidelines represent an enormous change, one which has new media staff from both parties glowing.
And now we just take for granted that serious policies are announced over Twitter. Personally, I think that is awesome.
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Do certain provisions in the health care bill violate disclosure requirements?
Earlier this week, Sen. Tom Coburn and a group of Republican senators sent a letter to Majority Leader Harry Reid stating that certain provisions in the health care reform bill violated disclosure requirements created in the Honest Leadership and Open Government Act of 2007. Here’s a snippet of the letter (Full letter):
“It is clear that the Manager’s Amendment, in addition to the underlying bill, includes specific provisions which benefit some states and not others. We therefore ask you, as the sponsor of the Manager’s Amendment and underlying bill, to provide a list of all earmarks and congressional directed spending as required by The Honest Leadership and Open Government Act of 2007.”
This is a bit perplexing for a couple of reasons. First, the letter does not provide a list of the provisions that may be in violation of disclosure requirements. In the past, Coburn has been excellent at naming and providing lists of earmarks and other questionable provisions in bills, so this strikes me as a bit odd. Second, and most important, the provisions that I can only assume that Coburn is referring to would not fall under the disclosure requirements laid out in the 2007 ethics law. The provisions most likely being referred to are the Louisiana Medicaid deal made by Sen. Mary Landrieu and the Nebraska Medicaid deal made by Sen. Ben Nelson. Increases or changes in Medicaid or Medicare spending are not “directed spending items” as defined by the Honest Leadership and Open Government Act and would not be subject to disclosure requirements. Here’s the relevant legislative language:
5 “(a) the term ‘congressionally directed spending item’ means a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive process“
Emphasis added. Medicaid and Medicare funding are statutory and administrative formula-driven processes and thus the disclosure requirement does not apply.
Now there could very well be other items in the Senate manager’s amendment to the health care bill that would be subject to these disclosure requirements. I don’t know. It would be useful to see Coburn’s list of “over a half dozen” such provisions to gauge whether they should be subject to the relevant disclosure requirements. Furthermore, if Coburn believes that the requirements under the Honest Leadership and Open Government Act do not go far enough in requiring the disclosure of spending targeted towards the interests of particular members it would be interesting and useful to see statutory or rules changes that he thinks are appropriate. That’s a conversation I’d like to have.
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Can we have more lobbyist inspired ventriloquism?
I am anxiously awaiting a bipartisan coterie of congressmen releasing identical statements objecting to President Obama’s new policy targeting biologics firms.
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Pelosi & Hoyer Say Final Health Care Bill To Be Online For 72 Hours
Last week, Jake wrote that “it is utterly imperative that the final version of the bill be online for the public to view for at least 72 hours.” The House Majority just announced that they will do just that (via #HealthReformNow):
Pelosi and Hoyer say final health reform bill will be online for 72 hours before House vote so Members and Americans can review #hcr
This is a great development and another big win for those who have called for the bill to be available to the public for 72 hours throughout this whole process. The Sunlight Foundation has called for the health care bill to be available to the public for 72 hours at each point that versions have come to the floor. In each of these instances the majority has acquiesced and posted each version, from the House bill to the Senate bill, for at least 72 hours prior to consideration. Those of you who have signed the Read the Bill petition and put the pressure on Congress to be this transparent have been vital in ensuring that we have access to this major bill before lawmakers consider, debate and vote on it.
Earlier this week, Ellen explained the importance of the 72 hour requirement:
Think of posting something on line for 3 days as a ‘safety valve’ – a final chance for citizens, media, lawmakers and lobbyists alike to look at the whole package giving everyone one last opportunity to raise questions and concerns about the bill. If readers are in an advocacy mode they have time to mobilize others in support or opposition, and/or take action in whatever form they see fit.
There is no measure more important to debate in the open than health care, and this is a moment when we all need to be champions for public, online disclosure and engage with our government. With 72 hours, the buck can actually stop with citizens the way our Founders intended. We know that Congress do it because congressional leadership has already done so at other critical points in this debate.
Of course, we still need to make sure that this promise is kept and that won’t be done until the bill has been online for 72 hours and then brought to the floor. Let’s keep it up.
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Turning Gruber’s Disclosure Failure Into A Future Disclosure Policy
Sen. Charles Grassley is diving into the Jonathan Gruber scandal by asking the Department of Health and Human Services (HHS) to “disclose federal contracts of individuals invited to testify before Congress on healthcare reform.” I understand the political motivation behind this, but we could actually take this issue seriously. This proposal could, and should, go much further. So here’s a thought experiment and a proposal:
With some serious caveats, all witnesses before congressional committees should be required to disclose contracts, grants and subsidies, both federal and state, that they or their business receive along with any connection, through business or finance, that they have with any sitting member of the committee. Witnesses should also have to disclose whether they are a registered lobbyist and what contributions they have made to committee members. These disclosures should be made in a simple form and then disclosed on the overseeing committee’s Web site prior to the committee hearing.
Grassley’s concern comes from the case of Jonathan Gruber, a well-respected MIT professor and voice on health care reform, who was revealed to have been given a nearly $400,000 from HHS to consult on the President’s health care proposal. This, all the while, acting as a source to many journalists, appearing on television, writing in newspapers and having his research heavily cited in support of the Senate/White House health care bill. Gruber also appeared before the Senate Finance Committee on May 12, 2009 as a witness.
Gruber obviously isn’t the only one who is guilty of this kind of non-disclosure. There are likely numerous cases of executives, employees, lobbyists and experts paraded before congressional committees with some kind of undisclosed conflict of interest or connection.
In one case that went before the Ethics Committee, only to be rejected, Rep. Sam Graves invited his wife’s business associate to testify before a congressional hearing. While Graves ran this invitation by the Ethics Committee beforehand and the Ethics Committee dismissed the charges, this association and potential conflict of interest was not disclosed to the public.
It is likely that some committees already require witnesses to fill out similar forms to the ones I am proposing. These are, however, not made available to the public. Sunlight supports the online posting of all documents submitted to committees as they relate to hearings.
Now, as to the caveats for any policy resembling the one I just described. First, there would obviously be certain whistleblower protections. Second, if a conflict undermined national security, in nearly all cases, this could remain undisclosed. Third, all personal identify information — address, etc… — would not be made publicly available.
Please tell me in the comments how this could be better or rip me apart for proposing this policy.
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Reality Check — Health Care Negotiations
To require Congress to negotiate in public is to ban certain communications among Members of Congress.
There’s a growing sense that real legislative negotiations should be public.
C-SPAN made such a call last week, and the Society of Professional Journalists has now called for public access to health care negotiations.
These two efforts follow Representative Vern Buchanan’s bill introduced in October, H.Res. 847, a sense of the House resolution calling for open health care deliberations.
While each of these requests has slightly different wording, their goal is similar — taking aim at the real sausage-making — the trading, haggling, prodding, and arguing, the consensus-making, elbow-throwing, backstabbing stuff of legislative power. Were that aspect of Congress to be public, the institution would be change significantly, to say the least. How, though, can it be required to be public? (Continue reading…)
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The Nitty Gritty of Calling for 72 Hours for the Final Health Care Bill
As Jake wrote last week, the final version of the health care bill must be made publicly available for 72 hours prior to floor consideration. For us here at Sunlight figuring out what that exactly means has been a moderately arduous task over the past week. The legislative process to be used, “ping-pong,” is fairly confusing and, due to that, pin-pointing the final version is difficult. I’m going to try and unpack this in the best way possible here.
How exactly does this “ping-pong” process work? “Ping-pong,” like the game, envisions the two chambers sending amendments to the bill back and forth with multiple votes on amendments. Ultimately, the chambers will reach agreement and the bill will finally be considered passed.
Below is a quick summation of what that entails (for the full version please read this CRS Report): (Continue reading…)
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The Final Health Care Bill. Online for 72 Hours. No Negotiation.
As health care reform legislation enters its final stretches of debate, it is utterly imperative that the final version of the bill be online for the public to view for at least 72 hours.
There’s just simply no negotiating this.
When major amendments happen, those too need to be online for 72 hours.
In many ways, we as a country are in uncharted territory as we debate – or “demand” in some cases – making legislation transparent. The rules and procedures that have defined government for centuries haven’t caught up to the technology that finally allows government to actually be open and transparent (…yet).
And as that debate unfolds, we’re going to bump up against things we’ve simply never dealt with before. But in the debate of what’s the right way to bring about transparency, one thing is eminently clear – whatever you think of the bill: the public and legislators alike MUST have at least 72 hours to read the final legislation before it’s debated.
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Shifting Legislative Dynamics & Transparency
A couple of days ago I wrote about some of the potential transparency issues related to the decision by House and Senate Democrats to skip conference for the health care reform bill (see here for background on what conference is). After thinking more and more about the issue I’m inclined to believe that the issues raised with skipping conference relates more directly to a structural shift in Congress that far too many are ready to ignore. (For more on the conference committee controversy see this post by John Wonderlich.)
Ezra Klein, who has been focusing on congressional malfunctions for the past few months, points out the major shift in congressional relations and partisan behavior in recent years:
…understanding the United States Congress as an institution gripped by ideological competition is simply wrong. It’s an institution gripped by electoral competition. The political scientist Frances Lee puts this particularly clearly in her new book, “Beyond Ideology.”
“Parties,” she writes, “are institutions with members who have common political interests in winning elections and wielding power, not just coalitions of individuals with similar ideological preferences.” According to her data, senators in 2004 are 63 percent more divided along party lines than senators in 1981. It’s no coincidence that the rise in party-line voting has coincided with the ideological realignment of the parties. Now that the parties agree internally, they can focus their efforts on winning power. (Continue reading…)
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Skipping Conference Committee: What Does It Mean?
Earlier today, Jonathan Cohn broke the news that House and Senate Democrats are “almost certainly” going to bypass the official conference committee process to pass the health care reform bill. The reasoning given by Democrats is that going to conference allows Republicans with multiple opportunities to block or delay the bill’s ultimate passage. David Waldman gives a great run-down of the rules that would allow for further delay. The move to conference would require multiple Senate votes on moving to conference and appointing conferees, all processes that are subject to cloture votes (60 votes) and require 30 hours of debate. Skipping conference eliminates these cloture votes and requires lawmakers to only cast votes on the final passage of the bill. While providing the speedier passage of the bill, skipping conference presents some transparency-related problems.
Recently adopted and long standing House and Senate rules require conference committees to be generally open to the public. Both House and Senate rules require that all conference committee meetings be open to the public unless a majority of conferees votes in open session to close the meetings. Senate rules require all conference committee reports be publicly available for at least 48 hours prior to a final vote. Without conference, there is no mechanism to provide for openness in the final discussions regarding the health care bill.
Other conference rules provide for openness within the conference committee rather than public openness. These provisions require that conference committees not exclude conferees from decisions or refuse them the ability to see documents or participate in meetings. It will be much easier to exclude potentially difficult members (coming from both the left and right) without a formal conference.
The forgoing of formal conference isn’t entirely uncommon — and, in the end, everyone will still have to go on the record as for or against the final bill. At the same time, the process may speed up the bill’s passage while potentially limiting both the public’s and many of their elected official’s ability to consider the changes to the bill. As with every other major moment of consideration during this bill’s journey, both chambers should make the final version (conference report, amendment, substitute) available for at least 72 hours prior to consideration.
