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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72 Hours — Where Do We Stand?
Now that House Leadership has announced that they’ll post the final version of the health care bill online for 72 Hours, where do we stand?
As far as the 72 Hour effort goes, we’re primarily interested in seeing the final version of the bill online for 72 hours before consideration. If the House allows 72 public, online hours for the bill, and then passes it, then it’s on to the Senate.
If the Senate takes up the same bill and passes it, then great — the bill has already been online for 72 hours. If, however, the Senate makes major changes to the bill the House (hypothetically) passes, then those changes should be online for 72 hours too.
For the very complex version of how this all can work, see this CRS report, or Paul’s post summarizing it.
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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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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.
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Ensuring 72 Hours for Remaining Spending Bills
UPDATE (12/10): Before we could do so much as send an email asking for your support, the bill has passed by a vote of 221-202. It is a 1,000+ page piece of legislation that contains more than $1.1 trillion in spending for six of the largest federal agencies in the country, plus Medicare and Medicaid. Unbelievable.
Next up is the Defense Appropriations bill. I hope they get it right.
UPDATE (12/9): A House-Senate Committee has indeed combined six of the seven remaining appropriations bills into one omnibus bill – using the Transportation appropriation (HR 3288) as the vehicle and leaving out Defense (HR 3326) – which appropriates approximately $446.8 billion for FY 2010. We just finished downloading it. It’s very big.
Making sure the bill is online for at least 72 hours before debate seems eminently reasonable for a half trillion dollar piece of legislation, and is a requirement we know Congress is completely capable of fulfilling.
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It’s looking extremely likely that Congress will take up debate of six massive appropriations (read: “spending”) bills this week by combining them into one big omnibus bill and trying to pass them all at once before December 18th.
Assuming this scenario does indeed come to pass, it’s imperative that the House and Senate allow members of Congress, the media, and the public the necessary time to understand how our money is to be spent by putting the entire omnibus bill online for at least 72 hours before it’s debated.
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Over the years, it’s gotten harder to read the final bill
The year is winding down and for Congress that means it is time to pass the final versions of bills known as conference reports. Over the years, conference reports have been the biggest offenders in their timely availability for lawmakers and the public to read. Since 1999, nearly 80% of all conference reports were voted on in the House of Representatives without being available for at least 72 hours prior to floor consideration.Conference reports are the product of negotiations between the House and Senate after each chamber has passed different versions of the same bill. These reports contain the various compromises made between the two chambers of Congress.
In 1970, Congress passed the Congressional Reorganization Act of 1970, which required all committee and conference reports be made available to lawmakers (note: not the public) for three days prior to consideration on the floor of either chamber. This requirement was established in both the House and Senate rules. As evidenced by the recent decline in availability, the rule is subject to be waived.
In the House the decision to waive this rule is made by the House Rules Committee. The Rules Committee has jurisdiction over nearly all legislation before it comes to the floor for consideration. Their job is to establish the rules for debate of a particular bill or conference report. This includes deciding which rules to waive for consideration.
The earliest data immediately available (via thomas.loc.gov) is from the 93rd Congress (1973-1974). This Congress rarely waived the new three day holdover rule on conference reports. Only 25% of conference reports considered in the House were available to lawmakers for fewer than 72 hours. The seventies marked a period where regular congressional order was held in higher esteem. (Continue reading…)
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72 Hours is Now, Again
The Senate’s version of the health care bill was published on Wednesday, along with its CBO score.
Since the first preliminary procedural vote isn’t expected until Saturday evening, it looks likely that the Senate’s bill will see 72 hours in public, online, before its first vote.
Senators, their staff, and the public will all have a chance to digest this legislation before its formal floor consideration.
While the ReadtheBill.org effort has focused primarily on the House, the same banner was taken up in the Senate in early October, when Senators Lincoln, Bayh, Landrieu, Lieberman, McCaskill, Nelson, Pryor, and Webb wrote Majority Leader Reid, requesting 72 hours before an initial vote:
Every step of the process needs to be transparent, and information regarding the bill needs to be readily available to our constituents before the Senate starts to vote on legislation that will affect the lives of every American. The legislative text and complete budget scores from the Congressional Budget Office (C.B.O.) of the health care legislation considered on the Senate floor should be made available on a Web site the public can access for at least 72 hours prior to the first vote to proceed to the legislation.
By posting these materials online, Majority Leader Reid is strengthening and legitimizing the floor debate on the bill, and probably defending against some process criticism. He’ll also be raising the bar, showing that public scrutiny of legislation online should be a welcome component of Congress’s work.
As I suggested after Speaker Pelosi’s commitment and delivery on their 72 hour promise, if they can do it for health care — the toughest and most contentious of contexts — they can do it for every bill.
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“Cornerstone of Accountability and Transparency”
Just going to quote Norm Ornstein on the 72 hour rule:
It is a model that Congress needs to follow with more fealty. The pledge to put bills online at least 72 hours before they are considered on the floor can be tough to fulfill when time pressures to act are great, and when there is a fear that putting hundreds or thousands of pages of a major bill online in advance can lead to selective quotes and disinformation campaigns. But the 72-hour principle is a cornerstone of accountability and transparency in Congress, and it needs to be recognized and followed as such.
You can help us establish a 72 hour rule here.
