You're invited to attend a Transparency Happy Hour on Wednesday, May 22, from 5:30-7:30 at Bullfeathers, in Washington, D.C. Join advocates, activists, academics, and staffers for an evening of fun... and the opportunity to unwind after the day's Legislative Data and Transparency Conference!
Elsewhere in the Sunlight network
- 2016 preview? Three videos by GOP groups all target Hillary Clinton Sunlight Reporting Group
- How ex-Det. Guy Bowers became the biggest campaign donor of all Sunlight Reporting Group
- Hit parade: Reporting on nonprofits doing political spending Sunlight Reporting Group
- What's wrong with this picture? Greenhouse gas at all-time high Sunlight Reporting Group
- Whom Mark Sanford owes Sunlight Reporting Group
The White House's new Open Data Policy has received many accolades, but its ability to be sustained long term will depend on support from the legislative branch. Fortunately, Congress has been working on these issues for the last several years.
In a series of upcoming blogposts, I'm going to examine government information ecosystems and make suggestions on how legislatures can do a better job gathering, sharing, combining, and disclosing information.
Yesterday, the U.S. Supreme Court upheld a Virginia law that generally prohibits non-Virginians from making use of its Freedom of Information law. As part of its decision in McBurney v. Young, the Court held that the Constitution's Article IV "Privileges and Immunities" clause does not extend to a non-Virginian's right to access public information on equal terms with Virginia citizens.
The Constitution says that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," and the clause was intended to prevent a state from treating citizens of another state in a discriminatory manner. This ruling allows states like Virginia, Delaware, New Hampshire, and Tennessee to continue to make the benefits of their freedom of information laws available only to their citizens.
The Court squares this logical circle by concluding that the access to public information made available under state FOI laws are not "basic to the maintenance or well-being of the Union," and thus not a "fundamental" privilege or immunity the Constitution was intended to protect. It baldly states, without evidence, that "there is no contention that the Nation's unity founded in [the absence of FOIA laws prior to the 1960s], or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted."
The House of Representatives will hold its second annual Legislative Data and Transparency Conference on Wednesday, May 22.
Presidential libraries are the wild west of presidential fundraising. It takes place when presidents are the least accountable and involves tremendous amounts of secret money. Now's the time to fix this loophole.
Former Senator Daniel Patrick Moynihan famously said that "everyone is entitled to his own opinion, but not his own facts." In 1914, an uncharacteristically foresighted Congress spent $25,000 to establish a fact-finding arm whose mission was to gather "data ... bearing upon legislation, and to render such data serviceable to Congress." A century later, the Congressional Research Service generates hundreds of analytical non-partisan reports on legislative issues each year.
CRS reports often inform public debate. A recent analysis, which found no correlation between economic growth and cutting tax rates for the wealthy, set off a re-appraisal of long-held orthodoxy about tax policy. A 2006 analysis questioning the legal rationale supporting the Bush administration's warrantless wiretapping policy caused many to look at the issue with fresh eyes. CRS analyses are routinely cited in news reports, by the courts, in congressional debate, and by government watchdogs.
However, unlike its sister agencies that investigate federal spending and analyze the budgetary effects of legislation, CRS does not release its reports to the public on a regular basis. This was not always so, and even now CRS routinely shares its reports with officials in the executive and judicial branches and with the press upon request. Congressional offices also act to disseminate the reports, publishing some on their websites, frequently sending others to constituents in response to requests, and giving them to reporters (often to help push a political narrative.)
But for a member of the public, it's difficult to access reports generated by the 600-person $100 million-a-year agency in any comprehensive way. Efforts by non-profit organizations to gather and re-publish the reports online have met with limited success. The private sector has stepped in, selling access to the reports at $20 a pop, but the premium accentuates the gap between the elites and everyone else.
For over a decade-and-a-half, some members of Congress have pushed legislation to ensure that CRS reports intended for a general congressional audience are routinely made available to the public. They believe that all Americans should have an equal opportunity to be educated about important legislative issues. They know that increasing visibility of the reports will make the reports better, too. For the 113th Congress, Reps. Mike Quigley and Leonard Lance are leading the charge in the House of Representatives.
CRS leadership has quietly undermined public-access efforts. They feared an influx of public comments and a weakening of the special relationship they believe CRS has with Congress. However, CRS has never been obligated to respond to public comment, and there hasn't been a deluge of inquiries even with the reports being sold to special interests and made available by activists online. Moreover, CRS's target audience -- congressional staff -- have increasingly turned to Google and Wikipedia as a starting point for research.
CRS’s continued relevance to policymakers is predicated on releasing its reports to the public that they serve. In an era where just about everyone expresses an opinion online, we must ensure that we have all the facts as well.
As part of Sunshine week, I had the opportunity to testify at a House Oversight and Government Reform Committee hearing to share a few of Sunlight's ideas about making the executive branch more transparent. Video and text of my opening statement are below. It almost goes without saying that we're very interested in the transparency bills the Oversight Committee will be marking up this Wednesday.
Today at 10 a.m. I will be testifying about open government before the House Oversight and Government Reform Committee. The hearing is timed to coincide with Sunshine Week, an annual, week-long discussion on the importance of access to public information. The testimony (pdf, odt, docx) is intended to encourage the Oversight Committee to continue its good work, to adopt the Administration's best initiatives, and to help the Administration meet its pledge to be the most transparent once ever.
I hope that you'll watch and let me know what you think. I am particular excited that Chairman Issa and Ranking Member Cummings just yesterday released draft legislation to overhaul the Freedom of Information Act, which follows on the bipartisan DATA Act and Access to Congressionally Mandated Reports Act that was favorably reported by the committee last Congress.
Rep. Justin Amash has introduced a bill that would make it a lot easier for everyone to understand congressional legislation. The Readable Legislation Act of 2013 would require that draft legislation contain sufficient detail to make it possible to understand the effect and intent of the bill. It would impose "track changes" capability on federal legislation, where you could see how a bill would change the law.
Congressional committees already track changes for legislation they report out under the Ramseyer Rule in the House and the Cordon Rule in the Senate. (Sometimes these rules are waived, although I don't know how often.) Most legislation never makes it through committee, or skips the committee process entirely, and thus is not subject to these rules.
Track changes for legislation isn't a new idea. Most states draft legislation this way. I've written about this idea before, and my friend Harlan Yu just gave a 3-minute talk on one way to make this happen at an Advisory Committee on Transparency event.
The problem in implementing a track changes (or GitHub) approach to federal law arises from the fact that much of US law is not available in an official, codified format. Much of the US Code is unofficial, and to see the actual law you need to look up each bill as passed by Congress, and then look up the bills that amended that bill, and so on. That's an incredibly hard task. Making matters even more complicated is that many of the laws passed by Congress are not available in a free (or easy to manipulate) digital format.
While the House is working on addressing aspects of this problem, it remains a thorny issue. Perhaps legislation could be drafted in such a way that it's easy to see how the bill would modify the US Code, even if the Code is not the law itself. A combination of markup tags and/or natural language processing would make this technologically possible, if arduous.
But to make this work, legislation may need to be drafted two different ways -- once to amend the actual law and a second time to reflect changes to the Code -- which would impose a significant burden on legislative counsel, especially as legislation can go through multiple drafts on a single bill. It might also reveal when the law and the Code don't agree. And as legislation is not all crafted by a centralized drafting office, particular in the Senate, this may require some culture changes in how legislation is written. That's a tall order.
Just because this would be difficult doesn't mean it isn't worth doing. All the time we see provisions inserted into legislation that no one realizes is there until after the bill has passed. This is unacceptable. The elimination of one of these Easter eggs could pay back Congress for the cost of implementing a better change tracking system. Rep. Amash proposes implementing this requirement for January 2015. That is a worthy goal.