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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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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Paranormal Legislative Activity
Some really weird stuff went down when Sunlight gave a Congressional bill and a camera to a local couple. Please watch this and share. Totally unexplainable.
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Increasing Legislative Transparency: Read the Bill and Beyond
On Friday, the House of Representatives passed the cap and trade bill after an incredibly messy process left little time for congressmen and the public to digest the final version of the bill. I think that process taught us a lot about how Congress mangles procedure, but also, in some ways, how Congress is trying to be more transparent, but not quite getting it right.
Looking back at what happened with cap and trade, we see that Congress, inexplicably, released a new version of the bill on a Monday evening before a Friday vote, with an explanation that this would not be the final version. This bill, the printed version, did not have a bill number written into the header, instead it look like this: H.R. ____.
This what we’d call a discussion draft, and it’s something that we’ve been seeing Congress release a lot more lately — likely due to pressure to make their operations more transparent. The managers of the cap and trade bill could have easily not released this discussion draft and dropped the whole new bill on Thursday or Friday. Instead, they released part of the bill on Monday and then 300 more pages on Thursday night. It’s great that Congress is releasing discussion drafts. They increase the ability of the public to peek inside to internal debates as they occur and hopefully have a say in the process. However, the time to publish discussion drafts is not the week a bill is being voted on, it’s when the bill is still being formed in a location with necessary transparency rules, like a committee hearing.
So this brings up an important point: when is the best time to read the bill? In many respects there needs to be a rule requiring bills to be posted online 72 hours prior to consideration for lawmakers and the public to know what is in the bill. But that isn’t the best period for citizen engagement in the legislative process outside of telling your congressman to vote “yea” or “nay”. The real sausage making happens in committees and we are seeing efforts by committees to release discussion drafts and versions of bills that they are working on. This is where discussion drafts are useful — not in final moments before consideration occurs.
Let’s run down areas in the legislative process where citizen engagement can have an impact and what Congress ought to be doing to increase transparency and provide a window for engagement:
1) Committee process – Where the real work gets done. Release of discussion drafts, manager’s statements, chairman’s mark would allow for much greater engagement by citizens in the process and would help other lawmakers and their staff familiarize themselves with the process that created legislation.
2) Prior to consideration – Pass a 72 hour rule so that all bills must be made publicly available online for 72 hours before consideration. While there is less chance for direct input by citizens this allows for organization in favor or in opposition of both the bill and proposed amendments to the bill. This also provides time for lawmakers and their staff to read the bill.
3) Post passage – This would be the area covered by President Obama’s five day bill posting pledge. I don’t think there is too much value here as the President likely already knows whether he will sign or veto a given piece of legislation. More transparency theater than anything else.
The next big debate in Congress will be around health care. Hopefully, Congress doesn’t only provide adequate time prior to consideration for the public to read the bill, but also continues to make efforts to provide drafts to the public during the committee process.
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What the frak is going on with the Cap and Trade bill?
There is currently some wacky legislative maneuvering going on with H.R. 2454, the cap and trade energy bill, that puts a serious spotlight on the failure of Congress to make bills properly available. According to the New York Times:
House Democratic leaders late last night released a revamped, 1,201-page energy and global warming bill (pdf), clearing the way for floor debate Friday even though it remains uncertain if they will have the votes to pass it.
The House bill posted on the Rules Committee Web site has grown from the 946-page version adopted last month in the Energy and Commerce Committee. Sources on and off Capitol Hill said the bulk of the changes largely reflect requests from the eight other committees that also had jurisdiction over the bill, including the Ways and Means Committee and Science and Technology Committee.
The bill is only available online at the House Rules Committee and is reported as “text of the bill to be introduced.” Despite having a bill, H.R. 2454, that has been reported out of the Energy & Commerce Committee and discharged by eight other committees, there is now, suddenly, a new bill that is almost 300-pages longer — but it’s still being considered as H.R. 2454. Stay with me here.
Here’s the timeline:
Introduced – 5/15/09
Reported with amendments out of Energy & Commerce – 6/5/09
Discharged by Education & Labor and Foreign Affairs Committees – 6/5/09
Discharged by Financial Services, Science & Technology, Transportation, Natural Resources, Agriculture, and Ways & Means Committees – 6/19/09
Placed on the Union Calendar, Calendar No. 90 – 6/19/09 (This version is 946 pages)
Submitted to House Rules Committee – 6/22/09, 4:22pm (This version is 1,201 pages)
So, where along the line does the bill suddenly expand by 300 pages? According to the New York Times, the various committee chairs held behind the scenes meetings and hashed out a compromise with no allowance for public input. (What lobbyists were involved in those meetings?) And now we are expecting a Friday vote on a bill that has had no public hearing in a committee with jurisdiction over it and that is not yet available in the main engine of public disclosure, THOMAS.
This raises serious questions about how we expect Congress to disclose their activities to the public. Is a bill posted to the House Rules Committee and not THOMAS truly publicly available? While the bill may be available for 72 hours prior to consideration, the public does not have reasonable access to it. Nor does the public know how the final details were reached.
And that isn’t even the worst part. This, apparently, isn’t even the final bill. The final bill will be a manager’s amendment that will be drafted later this week! From a posting on the House Rules Committee, we know that the deadline to submit amendments is Thursday at 9:30am. And there is talk that this will be voted on on Friday. Thus, the final version of this bill will likely only be available for less than 24 hours.
Sunlight has been advocating for all bills to be posted online for 72 hours prior to consideration. It doesn’t look like that is going to happen here. If you think that Congress should read the bills they vote on, you can tell your congressman to both support the Read the Bill resolution, H. Res. 554, and to give the public enough time to read the final version of the cap and trade bill, whenever that is made available.
As Open Left’s Chris Bowers says about this process:
[Y]ou don’t get to know what is in the bill until it is too late. Further, you get no chances to improve the bill.
This is an unacceptable process and it needs to change.
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Ignore the 5-Day Pledge, Organize Around 72-Hour Rule
The New York Times has a story today on President Obama’s 5 day bill posting pledge and how this transparency promise has both not happened as promised and evolved. Quoted in the piece is Sunlight’s Executive Director Ellen Miller noting the overall lack of utility in the President’s promise.
“There isn’t anybody in this town who doesn’t know that commenting after a bill has been passed is meaningless.”
While I’ve rightly criticized (as has Jim Harper) the breaking of the promise to post bills for comment five days before signing them, the reality is that no organizing can be done in comments that would make a difference after the bill is out of Congress.
The White House is now saying that they will start the five day count before the bill has made it out of Congress, stating that this makes for a more transparent process. This is relative nonsense as the White House is a part of different branch of government and the comments they receive on an unfinished bill won’t make it to the 535 lawmakers in the Legislative Branch.
What needs to happen is for Congress to require both bills and conference reports to be posted online for at least 72 hours before consideration begins. Right now there is a resolution in the House to do exactly that, H. Res. 554. If you thought that President Obama’s (now-broken) promise to post bills online for five days was a good idea, this is a far superior alternative. Since bills get written in Congress, not the Executive Branch, the provision of time prior to consideration allows citizens to voice their concerns directly to their representatives, whether over the phone, the internet, fax, or direct contact, during a legislative time frame that could actually effect the final product.
You can tell your congressman to support H. Res. 554 (the “Read the Bill” bill) here and you can sign our petition to Congress telling them to pass H. Res. 554 and give us all a chance to read the bills they consider.
(Update: The New York Times is asking if you support the 72 hour rule for Congress or Obama’s five day bill posting pledge. Go tell them what you think.)
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Peek at Transparency Related Legislation
One week into the 111th Congress and lawmakers have already introduced hundreds of bills. Of those few hundred bills some are bound to be concerned with what we’re concerned with: transparency and government ethics. Using Open Congress’ awesome bill tracking powers, I’ve compiled a list of the bills that relate to Sunlight’s work. You can find them by joining the Open Congress community and becoming my friend, or just keep reading below the jump. (Continue reading…)
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On Bailout Transparency
Congress took a real step today toward legislative transparency, proactively posting the proposed bailout legislation in public, online, in advance of floorconsideration.
To give citizens a chance to fully digest and comment on the proposed legislation, we’ve posted the text of the legislation to PublicMarkup.org for public review.
On Friday Ellen blogged a request for legislative transparency, calling on Congress to release the bailout draft as early as possible:
The Sunlight Foundation is calling on Congress to publish the proposed bailout legislation as soon as possible, to give constituents and lawmakers themselves as much time as possible to examine the specifics of the proposal before it’s voted on. We will post the draft legislation to PublicMarkup.org as soon as possible, to give citizens a chance to weigh in on the proposal’s specifics.
Any lack of transparency in consideration of this legislation would be especially ironic since lawmakers have blamed the current crisis on financial malfeasance that was hidden from public view.
Before the bailout proposal is considered by lawmakers, it must undergo an even more important test: evaluation and assessment by the public.
Today, Congress responded, and Speaker Pelosi and the House Financial Services Committee posted the bill they’ve designated as the final version.
From remarks Speaker Pelosi delivered at a press conference today:
Before I yield to Senator Reid, I just want to tell everyone that I am now informed that at this moment, you can find the plan on financialservices.house.gov, and then if not there, on speaker.gov. It’s there for all Americans to see, for our Members to read so they can make the important decision they have to make tomorrow in the House.
I also want to say that later when this bill passes and is implemented, all of the transactions related to this legislation will be on the Internet within 48 hours and that represents change. That transparency, that oversight, will be very important to the health of our economy.
In the midst of rare political urgency, as congressional leaders are pushed well beyond their comfort zones, facing the Bush Administration, unclear political consequences, a skeptical public, and posturing from the presidential candidates, Pelosi chose to assert the role of an empowered public.
Ellen identified two shortfalls in transparency; one real, helping cause the finance situation, and one potential, as Congress responds with legislation. Speaker Pelosi’s statement addresses both.
First, on finance data, Pelosi says “all of the transactions related to this legislation will be on the Internet within 48 hours…” While I don’t know finance well enough to speak to the details of publishing such data, I can say that this is the same sort of transaction tracking transparency that has made FedSpending.org (and USASpending.gov ) immensely successful — the same transparency that the individual US states are experimenting with (as Grover Norquist recently noted on The Next Right ).
On the second point, Speaker Pelosi points the public to the two sites where the legislation had just been posted. Now, putting legislation online is nothing new. THOMAS has been around since the mid 1990s. Referencing online access to legislation in the midst of intense negotiations, whipping, and public pressure, however, is.
The expectations here, of course, are much higher than with most legislation. The dollar amounts are enormous, the legislative process has slipped into urgency-mode, and rank-and-file lawmakers are scrambling to establish a position.
Regardless of the incentives facing congressional leadership, and regardless of the substance of the bill, this episode shows one thing very clearly: the bar for public disclosure has been raised.
Ellen, in her post, also points out the distinction between public dialog and “compromises and deal making — the real stuff of urgent policy-making.” If public dialog is going to remain separated, to some degree, from “the real stuff of urgent policy-making,” as it is sure to in a legislature controlled by centralized party leaders, then the role of the informed public needs to be clearly staked out, asserted, and defended.
Even if many Americans dislike this legislation, and even if much of the legislation was created in informal pre-legislative meetings, public scrutiny and input has been welcomed into that process.
The legislative process, just like finance regulation, depends on public scrutiny for stability and legitimacy. It’s good to see Congress recognize both.
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In Wisconsin legislation belongs to the lobbyists?
Cross posted from Open Records Blog
In the case of Lautenschlager v. Gunderson, a Wisconsin appeals court has dismissed an appeal by Peg Lautenschlager of a lower court ruling. The lower court said that under Wisconsin’s sunshine laws, legislators are allowed to share drafts of legislation with lobbyists, while still being able to withhold drafts from the public.
The appeals court dismissal does not speak to the underlying merits of the lower court ruling. Instead, it dismisses the appeal because it was brought by Lautenschlager as a private citizen, when the original lawsuit was filed by the Wisconsin attorney general’s office during her tenure as head of that office. She no longer holds the office, and the current occupant of the office elected not to appeal the lower court ruling.
Thus, the lower court ruling stands. One interesting aspect of it is the claim by the judge that Wisconsin courts should not interfere with how state legislators draft legislation because that’s a core legislative function. This is a separation of powers argument.
