The greatest concentration of regulatory power is housed in a little known office deep inside the executive branch's bureaucracy. In the Office of Information and Regulatory Affairs, 50 staffers review all agency-proposed federal regulations and approve or reject all the "economically significant" rulemakings proposed by agencies under the president's authority. This enormous concentration of power attracts lobbyists like a magnet.

Because of OIRA's central role, presidents have issued a series of directives intended to quiet critics who complain that OIRA's decisionmaking -- and the influence peddling that surrounds it -- is hidden in the shadows and more responsive to politics than good policymaking. The most notable directives are Executive Order 12866 (September 1993), which requires agencies to disclose changes made to proposed rules after OIRA review, and an October 2001 OIRA memo, which extended EO 12866 to require disclosure of substantive meetings and contacts with outside parties in additional circumstances. In practice, however, compliance has been spotty and these directives have been loosely interpreted.

A new report from the Center for Progressive Reform [PDF] lays out these problems in detail, based on its examination of OIRA meetings over the decade between October 2001 and June 2011. Among the findings, OIRA has "routinely flouted" disclosure requirements and deadlines, most notably through the "the nondisclosure of communications between OIRA and the agencies." In addition, OIRA has moved much of its work to the pre-proposal stage, holding 43% of meetings with outside interests "before the agency's proposal was released to the public." CPR makes several transparency recommendations, including requiring the online posting of all written communications between OIRA staff and the originating agency, and the online publication of all changes demanded by OIRA (plus the original version of the rule submitted to OIRA and its final version).

It's not just CPR that has found OIRA's process lacking. The U.S. Government Accountability Office, the federal government's watchdog, has documented OIRA's transparency failings in several reports, most notably this April 2009 report, which follows up on this September 2003 report. OIRA only implemented one of OIRA's eight transparency recommendations. Among the concerns that GAO raised that are still unaddressed are the following recommendations to OIRA:

• Define the transparency requirements applicable to the agencies and OIRA in Executive Order 12866 in such a way that they include not only the formal review period, but also the informal review period when OIRA says it can have its most important impact on agencies’ rules.
• Reexamine OIRA’s current policy that only documents exchanged by OIRA branch chiefs and above need to be disclosed because most of the documents that are exchanged while rules are under review at OIRA are exchanged between agency staff and OIRA desk officers.
• Establish procedures whereby either OIRA or the agencies disclose the reason why rules are withdrawn from OIRA review.
• Define the types of “substantive” changes during the OIRA review process that agencies should disclose as including not only changes made to the regulatory text but also other, noneditorial changes that could ultimately affect the rules’ application (for example, explanations supporting the choice of one alternative over another and solicitations of comments on the estimated benefits and costs of regulatory options).

• Instruct agencies to put information about changes made in a rule after submission for OIRA’s review and those made at OIRA’s suggestion or recommendation in the agencies’ public rulemaking dockets, and to do so within a reasonable period after the rules have been published.
• Encourage agencies to use “best practice” methods of documentation that clearly describe those changes.

Even now, if you go to OIRA's disclosure website, it's easy to see the massive holes in the reporting of communications with outside parties. All of this information should be in a searachable and downloadable database, not a series of unstructured webpages. Meetings and phone calls that have taken place are clearly missing. The little information that is provided is difficult to decipher: names and organizations are misspelled, summaries are cryptic and filled with jargon, and it's hard without expert knowledge to connect the disclosure with the relevant rulemaking. A better approach is easy to imagine, as CPR demonstrated when it reverse engineered OIRA's disclosures into a usable database.

The entirety of OIRA's transparency problems are within the president's power to fix. With this administration's stated commitment to transparency, and its particular concerns about the undisclosed or disproportionate influence of special interests, its full implementation of the existing presidential directives would have a salutary effect. Building on those directives to create a downloadable online disclosure database that is linked to the relevant regulations would be a demonstration of vision and leadership.

However, if the White House is unwilling to take up this mantle, Congress should act to make sure that rulemakings represent the best policy decisions, not those who have the best access to the rulemakers. For more, watch this recent discussion with former senior OIRA administrators, the author of the GAO reports, and the head of Public Citizen.

At a fundamental level, congressional oversight is an expression of the American people's collaborative effort to govern themselves. Expressions of popular sovereignty are usually evaluated through the lens of legislation, i.e. where Congress directs the government (the executive branch) to take action. However, it is equally important to analyze whether the undertaken governmental actions are what Congress intended and the American people want.

There are many metrics to evaluate executive branch activities, including whether the government is accurately carrying out its instructions, whether it's doing so in a way that is faithful to what Congress intended, whether it is acting expeditiously, and whether the outcomes are achieving the desired ends. At Sunlight, we have a particular interest in government transparency, and this blogpost outlines some methods Congress can employ to make the executive branch more transparent, as well as how the fruits of Congressional oversight efforts can be made more readily available to the American people.

Executive Branch Oversight

In the following section, we have identified a number of steps Congress as an institution can undertake to make executive branch actions more transparent. We also look at the steps committees could undertake as part of their oversight role. (Individual member offices also play a role here, but that is a discussion for a different time.)

Institution Wide

Congress receives many reports from the executive branch, some of which are required by law, others which are provided upon request or upon demand. Often times, the reports are not provided in a timely fashion, are incomplete, or are only sent to a small unit within Congress. To the extent possible, these reports should be aggregated and provided through a central repository to all interested members of Congress. Legislation to do that has been introduced in both chambers, under the title Access to Congressionally Mandated Reports Act.

Congress (or its constituent parts) often employ researches at legislative support agencies (like GAO, CBO, CRS) or in academia to assist with oversight of the executive branch. To the greatest extent possible, these reports should be aggregated and be provided through a central repository to all interested members of Congress. Legislation to aggregate and release Congressional Research Service reports has been introduced in the House this session.

Some executive branch processes, such as rulemakings, are not overseen by Congress in a systematic fashion. While there have been efforts in the past to bolster Congress's oversight role here, most notably under the Congressional Review Act, Congress should consider creating a legislative support agency or expand the current responsibility within GAO to review and evaluate all agency rulemakings.

Congress is responsible for overseeing federal spending, but the information provided by the executive branch often is unreliable, insufficiently detailed, and diffuse. Congress should require the executive branch to use unified data standards to report all of its budget formulation and spending data. Legislation, entitled the DATA Act, has been introduced in the House and Senate for these purposes.

Congress should have a more effective system to see which special interests are trying to influence policy, who they're lobbying, and the positions they're taking. Congress should require all persons who lobby professionally to register as lobbyists, make sure that professional fixers (who give strategic lobbying advice) are covered, and better disclose who they're meeting with and what they're saying. Congress should also codify and expand disclosure rules around the super-regulators in OMB's Office of Information and Regulatory Affairs. There's currently legislation in the form of the Transparency in Government Act to close the lobbying loopholes, although there isn't any current legislation on OIRA.

Committee Wide

Congressional committees should create, maintain, and regularly review their agency oversight plans. At the end of each session, they should evaluate whether their oversight efforts were in accord with their oversight plans.

Congressional committees should consider retaining professional non-partisan staff that serve both the majority and the minority, and play the role of a repository of information about oversight efforts.

Congressional committees should have a clear understanding of the statutory and customary responsibilities of the agencies under their purview, and should regularly publish an updated compilation of the laws and regulations that govern the agencies. Included within this is a responsibility to review the laws under their jurisdiction, with a particular emphasis on transparency requirements.

Congressional staff should be regularly trained in the art of oversight as discussed in resources like When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry. There should be a specific non-partisan office established within each chamber to provide expert assistance and guidance on oversight techniques, including how to use transparency as a means to improve accountability.

Congressional committees should receive an updated list of the reports required to be submitted to Congress by the agencies within their jurisdiction.

Congressional committees should have a means for receiving confidential and non-confidential communications from the public, including reports from whistleblowers, and for responding to those concerns in both public and non-public ways.

Oversight of Congressional Committees

When Congress keeps an eye on the executive branch, the oversight work is almost always performed by its various committees and subcommittees, and the information they gather is done so in trust for the American people. To the maximum extent possible, that information should be made available to the public so that we can be empowered to make crucial decisions about policy, including whether to keep or replace the elected officials who are acting as our agents.

These are many things Congressional committees can do to keep the public in the loop. To the maximum extent possible, they should:

Publish all documents from hearings, and do so as quickly as possible. Often times, committees don't publish documents submitted for or created at hearings for months or years, if ever. In those circumstances, non-final documents should be released as they're created, and then updated for a final official "committee print." If there's no committee print, the information should still be gathered and released all in one place.

Create oversight plans at the beginning of each year, publish the plans, and then later evaluate how well they've accomplished the goals set out in the plans.

Webcast all hearings. Unofficial transcripts should be released immediately upon creation.

Publish a list of all staff, including their titles and areas of responsibility. That will make it easier for whistleblowers, government officials, the public, and others to reach the appropriate staffers.

Follow our guidelines as to what belongs on a committee website.

Release documents subpoenaed from entities being overseen (to the extent possible), as well as release reports from agencies that are being overseen. This is regardless of whether the committee holds a hearing.

Publish analyses and reviews performed at their behest by legislative support agencies.

Release letters to and from the administration and agencies.

Shorten the time that committee records are sealed, especially records sent to the national archives.

Create a transparent means for people to request documents, records, or other committee-held information, including the adoption of the presumption that the information should be released.

Encourage the collaboration between equivalent bodies in the House and Senate.

Before the Senate recessed on Friday, Senators Warner and Portman reintroduced the DATA Act, which would transform how the federal government makes financial information available to the public. Our friends at the Data Transparency Coalition and OMB Watch issued statements lauding the legislation. We agree.

While we're still reviewing the many changes vis-a-vis the House-passed version, we thought it would be helpful to show how the bill would change current law. Accordingly, we've included a hand-crafted redline below, which shows the current law and how the bill would change it. We'll have more to say soon.

Updated DATA Act Redline 2012-09-21

Seventeen years after the creation of THOMAS, Congress today launched a sleeker, more intuitive and user-friendly legislative information website, beta.congress.gov.

What's noticeable about this evolving beta website, besides the major improvements in how people can search and understand legislative developments, is what's still missing: public comment on the design process and computer-friendly bulk access to the underlying data.

We hope that Congress will now deeply engage with the public on the design and specifications process and make sure that legislative information is available in ways that most encourage analysis and reuse.

It's also worth remembering what the Library of Congress said in 1996 as it considered what should be included in its legislative information system:

To be most useful to Members of Congress, the legislative information system must provide access to a wide range of current and historical information, including existing statutes, support agency analyses, academic studies, court decisions, budget and financial data, regulations and executive branch policies, public and private sector analyses, lobby group position papers, and newspaper reports from local, national, and international sources.

We will have more to say as we dig deeper into the website. The Library of Congress' news release is below.

LOC News Announcement on Beta.Congress.gov

It's been 225 years since the signing of the U.S. Constitution in September 1787, so the three years that have elapsed since we first asked the Library of Congress to publish the invaluable legal treatise Constitution Annotated online in a machine-readable format are little more than 1.3% of the age of our country. And the 670 days (i.e. 1 year and 10 months) that have flown by since Congress directed the Constitution Annotated be published online as it is updated, along with two other "vital legislative and legal documents," are but a brief flicker in geological terms. But in political terms, another congressional session is about to pass without the Library of Congress and GPO making good on their obligation to provide this important document to the American people.

I've run out of clever ways to say this, especially with so many others saying the same thing, but here goes. The Constitution Annotated is an important legal treatise that provides an easily understandable exploration of how Supreme Court decisions interpret the U.S. Constitution. It's already published on Congress' internal website as it is updated, and it should be published online in the same way. At a minimum, the Library and GPO should meet their obligation to do as Congress directed: publish these documents online "as quickly as possible." An informed public is the cornerstone of our democracy, and they should have this information readily available to them.

In the near future, Congress is expected to release a major upgrade to its aging legislative information website THOMAS. The long-overdue update is part of a much larger effort to "enhance the effectiveness of mission-critical systems," a response to significant public and internal pressure to improve congressional efficiency and transparency. The launch of "THOMAS Beta" is the first step towards developing what the Library of Congress describes as a completely "modern legislative information system" that will replace THOMAS and Congress' more sophisticated internal legislative tracking website "LIS" in FY 2014. Both THOMAS and LIS will stay online alongside the beta website for several years.

While THOMAS Beta has been shown to stakeholders inside Congress, as far as I am aware there has been no formal engagement process with the public to identify specifications, discuss wireframes, or generally make sure the site meets the public's needs. It is expected that such conversations will occur after the launch as the site is built out. My understanding is that the majority of the work on THOMAS Beta thus far has been to modernize the underlying information architecture, with many of the new bells and whistles and apps to be rolled out over time.

Two years ago, the Sunlight Foundation gathered ideas from the community for upgrading THOMAS, and in July 2010 we highlighted three additional ideas, but the primary recommendation continues to be requiring all of the underlying information behind THOMAS to be made available to the public "in bulk."  In other words, all of the legislative information behind THOMAS and LIS should be made available in a way that's easy for machines to understand so that developers can more easy and reliably build tools like OpenCongress, GovTrack, the Congress Android App, and Scout that re-use information in clever new ways.

The House leadership has endorsed the idea of bulk access and established a nascent bulk data task force, but not everyone inside Congress is fully on board with the effort. From an external perspective, we have requested that public stakeholders be included on the bulk data task force, which is being coordinated by the House Clerk's office. Along similar lines, for several years we and others have asked the Library of Congress to form an advisory group on THOMAS (as it is responsible for overseeing THOMAS), and we hope the impending launch of THOMAS Beta will make this a reality.

It's important to understand the context in which the THOMAS Beta rolls out. In the last year, the House of Representatives released an innovative legislative information portal, docs.house.gov, which provides bulk access to House data in a way that is more timely than THOMAS, and will soon provide materials from House committees in addition to documents concerning floor proceedings. The House also held three conferences on legislative transparency and created the bulk data task force. In addition, more than 85 organizations will release a declaration on parliamentary openness in Rome this Saturday at the World e-Parliament Conference that endorses providing information in open and structured formats. And the free, open-source parliamentary information system-in-a-box Bungeni is continuing to gain steam around the world.

We are eagerly looking forward to the launch of THOMAS Beta, and will pay particularly close attention to whether the Library of Congress, which has general responsibility for the project, has built a system that uses modern techniques -- such as bulk access and APIs -- to make information available to the public.

by Daniel Schuman and Adeeb Sahar

The Department of Justice is withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012, according to a Sunlight Foundation analysis. This apparently conflicts with agency guidance on releasing opinions to the public as well as best practices recommended by former Justice Department officials.

OLC opinions are the Justice Department's authoritative legal advice to the executive branch on questions central to the functioning of government. Publication of opinions allow Congress and the public to review executive branch determinations on the lawfulness of policy options, thereby providing information necessary for oversight, historical, and precedential purposes.

In a 2010 memo, the Department of Justice endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.” Nineteen former DOJ officials, including Obama's first nominee to head the OLC, went further in a 2006 article, where they embraced the principle that “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”

The Sunlight Foundation reviewed a document listing OLC opinions issued over a 15-year span that was published on the Government Attic, a website that contains federal agency responses to FOIA requests. A careful reading of the FOIA response allowed us to determine that at least 509 opinions were issued between January 1998 and March 28, 2012.* The DOJ redacted the titles of 36% (184) of the opinions from the document, citing FOIA Exemption 5 (deliberative process or attorney-client privilege) in every instance. An additional 3% (17) of the opinions had some words redacted from their titles, with FOIA exemption 6 (invasion of personal privacy) cited each time.

The OLC maintains a webpage dedicated to online publication of opinions it has determined "are appropriate for publication." It maintains a separate online "OLC FOIA Reading Room" that contains documents "disclosed through discretionary release, but ... not selected for official publication." We counted the number of opinions that were identified by title and the number of opinions whose full text was available online. We also identified the titles of 64% (325) of the opinions through a review of the FOIA response document. Comparing the webpages against the FOIA response, we identified the titles of an additional 21 opinions not listed in the FOIA response.

Using this aggregated list of 346 opinion titles, we found that the OLC failed to publish the full text of 7% (38) of the opinions whose titles had been released to the public via the FOIA response or on the OLC's official webpages. Of the 38 opinions, we found the full text of 5% (24) of the reports on the Internet using a Google search.

Based on numerous inconsistencies among the FOIA response and the OLC webpages, the withholding of 2/5ths of OLC opinions from the public, and administration policy that is supposed to favor transparency, we believe the Department of Justice must make significant efforts to improve its procedures regarding public access to OLC opinions. We asked the DOJ to publish the full text of the 24 opinions on its website, but it did not respond to our request. Similarly, our request to identify the remaining 163 titles went unanswered.

The Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online. The Bush administration's published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005. The Bush administration issued OLC opinions at a significantly higher rate than Obama. Without knowing the content of the withheld opinions, it is not possible to judge their relative importance.

Office of Legal Counsel opinions provide an important window into how the executive branch interprets laws and constrains agency behavior. During the Bush administration, the misuse of OLC memos combined with unwarranted secrecy about their existence was a major spark to the controversy over the use of torture during interrogations, among many other issues. Similar concerns have been raised regarding the Obama administration. While there is undoubtedly a need for some opinions to be closely held, an approximately two-fifths withholding rate (both overall and for the Obama administration) most likely is too high. With the release of some of these opinions to the public through channels other than OLC webpages, it is apparent that the review process for online publication is not functioning properly.

The Office of Legal Counsel should refresh its website to indicate how many memos are issued each year. It should adopt the default of releasing all memos, not just the ones it deems “significant” (as such a distinction invites abuse and mistrust), and should do so prospectively and retrospectively. Where it cannot release an opinion in its entirety, the OLC should release versions that are redacted as lightly as possible. At a minimum, the titles of opinions should be released, and if even that raises insurmountable issues, descriptions of memos should be available in their stead. Finally, the administration should consider bringing in a trusted reviewer from outside the executive branch who can credibly (and publicly) make recommendations about the release of additional opinions.

[*] The Government Attic incorrectly identified the date range of the document in its cover page.

This afternoon the Sunlight Foundation, joined by 8 other non-profits, filed an amicus brief supporting disclosing financial disbursements made by entities for electioneering communications. The D.C. Court of Appeals will soon hear argument in Van Hollen v. FEC, a case in which the lower court correctly found that the FEC had improperly narrowed statutory requirements that regulate when donor disbursements must be reported. The FEC's regulation had the effect of turning off nearly all reporting.

In related news, the FEC announced today that it would abide by the lower court's ruling requiring disclosure of these donations while the matter is being litigated.

The brief is available below.

Van Hollen v FEC, AARP Et Al Amicus Brief

This past weekend I was fortunate to attend the American Association of Law Libraries 105th annual conference. On Sunday morning, I gave a presentation to a special interest section entitled "Law Libraries, Government Transparency, and the Internet," where I discussed the important role that law libraries can play in making the government more open and transparent.

After the talk, there were many requests for copies of my slides, so I'm publishing them here. (There are a few errors arising from publishing them online, but nothing serious.) I'm also happy to make available the underlying files.