Open government may have won a round, with some of the money that was cut in the previous Congress year's budget*  for the Electronic Government Fund being restored by the 2012 Appropriations Bill (PDF) released this morning. The E-Gov Fund supports programs like Data.Gov, USASpending.gov, the IT Spending Dashboard, mobile apps, and much more. At first glance, the bill does three things:

First, it sets E-Gov funding at $12.4 million. While in FY 2009 and FY 2010 Congress provided $34 million each year to support government transparency programs, in 2011 the amount was cut to $8 million. For FY 2012, the House had proposed a partial-funding restoration to around $16 million, but the Senate had proposed further cuts, reducing the appropriation to somewhere between $5-7 million. It appears that the two chambers have split the difference, arriving at $12.4 million.

Second, it preserves the E-Gov Fund as an independent funding source. The E-Gov Fund has always existed as a stand-alone entity, but this year, the Senate (and later the House) proposed combining it with the Federal Citizen Services Fund. Doing so would raise important legal questions, but also increase the likelihood that one program would leach funds out of the other. By keeping the funds separate, the bill would help ensure that E-Gov funds are used for their statutory purposes outlined in the Electronic Government Act of 2002: " to improve the methods by which Government information, including information on the Internet, is organized, preserved, and made accessible to the public."

Third, it provides for an important measure of transparency. Because some funds spent by GSA are not controlled by statute or the GSA Administrator -- a concern sometimes raised that E-Gov Fund spending is left to the administration's discretion -- a broad provision in the bill may have been inserted to address that issue. Sec. 528 imposes a reporting requirement on GSA to "describe each program, project, or activity that is funded by appropriations to GSA but is not under the control or direction, in statute or in practice, of the Administrator of General Services." (It is unclear whether this requirement has existed in appropriations from previous years.)

Of course, this is not a done deal. The bill we're looking at appears to be the negotiated agreement between the House and the Senate, although I've seen a report indicating that negotiations may still be ongoing. Even if it is not finalized, Senator Carper and Representative Issa deserve a lot of credit for fighting for these important transparency programs, as do our coalition partners (like OMB Watch) and thousands of people around the U.S. who have called on congress to #savethedata. While $12.4 million is far less than was available just a few years ago, it should be enough to keep these key programs alive and allow for a slow but steady rate of innovation.

• Updated to reflect that the money was cut by the current Congress, but for the previous fiscal year.

Why is Congress trying to make it harder to see where private jets are flying?

Deep in the embattled FAA funding bill is a provision that would make it far more difficult to track private jet flights.

It's very difficult to see a legitimate interest in rolling back public access to the flights of private aircraft, especially when tracking aircraft provides key information for investigative journalism. Add to that concern the $5 Million in disclosed private trips that Members of Congress have accepted this year (despite attempts to ban privately funded travel), and a grim picture emerges. (And those are just the trips we know about.)  Exactly who is Congress protecting with this pro-secrecy provision?

Section 119A of S. 1596:

SEC. 119A. Notwithstanding any other provision of law, none of the funds made available under this Act or any prior Act may be used to implement or to continue to implement any limitation on the ability of any owner or operator of a private aircraft to obtain, upon a request to the Administrator of the Federal Aviation Administration, a blocking of that owner's or operator’s aircraft registration number from any display of the Federal Aviation Administration’s Aircraft Situational Display to Industry data that is made available to the public, except data made available to a Government agency, for the noncommercial flights of that owner or operator.

Update:  For those wondering what kind of reporting is made possible through jet disclosures:

The Guardian, Mundane bills bring CIA's rendition network into sharper focus

New York Times, For Perry, Private Jets Have Been Key to Public Job

St. Petersburg Times, Who's on all those private jets up above Tampa Bay?

McClatchy, Who owned drug plane that crashed in Mexico?

ABC News, FAA Missing One-Third of U.S. Aircraft Registrations

Update 2:

Another one: Common Blog, Who was at the Koch Corporate Caucus in Vail, Colo.?

From the stream of news coming from Congress about the budget, one might think that committee meetings and legislation on federal spending would be easily accessible online. That's often not true.

For example, the legislative text for four major appropriations bills are not yet online despite their apparent approval by both the full Senate Appropriations Committee yesterday and the relevant subcommittees prior to that. The four missing Senate bills are: Department of Defense Appropriations Act, 2012; Commerce, Justice, Science, and Related Agencies Appropriations Act, 2012; Financial Services and General Government Appropriations Act, 2012; and Legislative Branch Appropriations Act, 2012. The public's only chance to see the legislation is after all the important decisions have been made. By comparison, the House generally makes legislation considered by committees available to the public prior to votes.

None of the Senate committee reports for these bills are available online, either, except for the Legislative Branch Appropriations Act, which is on THOMAS. The reports explain the decisions by appropriators and often provide significant guidance on how money will be spent.

Senate Appropriators do release streaming audio of subcommittee markups, although the audio feed isn't always reliable. The House, by contrast, will live stream video of its markups, but only when the committee finds it convenient; it often does not broadcast meetings at all. This goes against the spirit -- and likely the letter -- of the new House Rules passed by the 112th Congress.

Unfortunately, the best way to look at the legislation and reports in a timely way is often by using expensive private news services. Congress owes the public a better explanation of what it's doing.

Yesterday's Legistorm report on congressional staffers-turned-lobbyists provides more support for the theory that Congress is turning over its work to special interests. It adds to a mountain of evidence that includes an expanding pay gap between House staff and their private sector equivalents, fewer policy staff in Congress, and significant new cuts in staff positions and pay.

Looking at a decade's worth of data, Legistorm found that "5,400 people have been both lobbyists and received paychecks as staff from the legislative branch in the past decade." The report adds that it's likely that at least 2,900 former staffers are currently lobbying, with 605 current congressional staff having served as lobbyists in the past decade. These numbers are likely low, both because the number of federally registered lobbyists does not include many people who lobby and data available for the study was incomplete (missing "perhaps hundreds of potential staffer-lobbyist matches.")

Having inside connections is a big help to the bottom line for staffers-turned-lobbyists, according to two research papers. Lobbyists who are connected to members of Congress get paid more than those who are only experts. In addition, lobbyists who worked for a US Senator "suffer a 24% drop in revenue -- around $177,000 -- when their ex-employers leave office." In Washington, who you know is more important than what you know.

That influence is only magnified when Congress cannot effectively evaluate claims made by lobbyists. Unfortunately, Congress has been shrinking its pool of experienced staff for over two decades. According to my review of data going back to 1979, "there are fewer House staff and fewer legislative support agency personnel now that at any time in the recent past." House personal office, committee, and leadership staff are at 87% of their 1979 levels. Committee staff alone are at 62% of their 1979 levels, having eliminated 755 positions. Major legislative support agencies have suffered tremendous losses, and are at 65% of their 1979 staffing levels. GAO, the investigative arm of Congress that looks at the public purse, is at 60% of its 1979 staffing level; CRS is at 80%. While government has grown more complex, there are fewer congressional staff to provide oversight, and they cannot help but rely upon the army of lobbyists whose influence has expanded to fill the vacuum. It's no wonder that $3.51 billion was spent on lobbying in 2010.

The reduced congressional capacity to handle influence has an effect on decision-making. For example, a recent look at lobbying during the financial crisis found that mortgage-lending companies that lobbied prior to the financial crisis engaged in riskier lending practices and were more likely to be bailed out.

With these institutional factors at play, it's no surprise that staff are leaving to go to the private sector. A review of two decades of staff salary surveys shows that the leading factors that drive out staff are unpredictable work hours and low pay. The high turnover rate and youthful median staff age puts Congress at a disadvantage when dealing with the Executive branch or the private sector.

This trend is only going to accelerate. The House Appropriations Committee has adopted what it called "the largest ever two-year reduction for the legislative branch." For upcoming fiscal year 2012, which starts on October 1, the House Appropriations Committee has endorsed a 6.46% cut to the House of Representatives, which on top of the FY 2011 cuts decreases the House's budget by 10.4% over two years. By way of example, the amount of money available to each personal office for a Member of Congress will be reduced by around $90,000. Since most office costs are fixed and staff pay is already effectively frozen, this likely will translate into staff reductions and pay cuts. Put another way, if you add up all spending for the legislative branch, including expenditures for security, all the support agencies, the visitor center, and so on, the proposed 2012 budget is $4.38 billion. By contrast, the total federal budget is $3.82 trillion. That's a small amount of money when compared to its responsibility to set the direction for the entire government.

Tomorrow, the Senate Appropriations Committee will markup its Legislative Branch Appropriations bill, determining how much pain to mete out to Senate personal, committee, and leadership offices. At the same time, it will determine whether to agree to the House's huge cuts to the Government Printing Office (16%), the Library of Congress (8%), Government Accountability Office (6.4%), and other important legislative support agencies. The future of many staff now includes earlier retirement, furloughs, and a bare minimum of resources.

All of these problems are compounded by Congress's lack of introspection about the work that it does and our inability to track these exertion of influence by special interests. It's true that there are important ongoing legislative efforts to close these lobbying disclosure loopholes, most notably the Lobbyist Disclosure Enhancement Act, and a broad consensus about what to do about lobbying. And there are some efforts to make more congressional information publicly available, so that the public can figure out what's going on. Unfortunately, we are far from where we need to be if we want an effective Congress that capably balances its dual roles as policymaker and agent of the people.

Congress will shed significant legislative capacity if the budget bill approved earlier today by the House Appropriations Subcommittee on the Legislative Branch becomes law. The legislative branch faces a $227 million (or 6.39%) cut from FY 2011, with the brunt borne by GPO (16% cut) and the Library of Congress (8% cut). These two entities have significant responsibilities for making government information available to the public.

It's likely that there will be fewer congressional staff (or they will earn less money) if the $84 million (or 6.46%) cut to the House of Representatives goes through. Added to the FY 2010 budget, money for the House of Representatives has decreased by 10.4% in two years, making it more likely that competent staff will leave Congress for greener pastures with lobbying firms and think tanks.

The bill also includes an unfortunate provision that prevents the Library of Congress from publishing (or preparing for publication) any publication without prior approval. As I testified previously, this provision has been twisted by CRS into a justification for not releasing its reports to the public. A coalition of organizations wrote a letter to appropriators in April that asked them to refrain from including that provision in this year's bill. (More on CRS's future here).

The legislation still need to be approved by the full House Appropriations Committee, the Senate, and signed by the president.

The Electronic Government Fund would likely receive around $13m for FY2012 if Congress agrees with today's 27-21 vote by the House Appropriations Committee to adopt the Financial Services and General Government appropriation bill. The legislation now advances to the full House. It's increasingly likely that e-gov fund will increase from the $8m appropriated in FY 2011, a modest move in the right direction, albeit a far cry from the $34m appropriated in both FY 2009 and 2010. The full committee effectively ratified the subcommittee's vote last week on funding.

This appropriations bill makes a substantial change to the e-gov fund by replacing it with a new fund, the "Information and Engagement for Citizens" fund, that combines e-gov with the pre-existing "Federal Citizen Services Fund." According to the report accompanying the legislation, this new fund's purpose is "to provide electronic or other methods of providing access and understanding of Federal information, benefits, and services to citizens, businesses, other governments, and the media."

All in all, $50,000,000 will be appropriated to the new fund. It appears that the Information and Engagement for Citizens fund can be topped off to $60,000,000 through additional revenues and collections -- i.e. reimbursements from federal agencies, users fees for publications ordered by the public, payments from private entities for services rendered, and gifts from the public.

How will this break out? The draft legislation would appropriate $50m to e-gov and OCS, and last year OCS was cut from $37m to $34m. If we assume that OCS has been returned to a $37m funding level, that leaves $13m for e-gov.

The legislative report also includes a report-back provision, where OMB is expected to submit to the appropriations committee "a detailed expenditure plan prior to obligation of funds under this account. The plan should describe the projects selected, and the budget, timeline, objectives and expected benefits and savings realized for each project."

We hope that the plan will be reported publicly, so that we can see how these funds will be expended.

House Appropriators released draft legislation [PDF] on Wednesday that appears to increase funding levels for the Electronic Government Fund, the source of financial support for government financial and data transparency websites, in a hint of things to come at tomorrow's mark-up. The e-gov fund suffered a huge cut from $34m in FY 2010 to $8m in FY 2011, which put many of its programs on life-support and terminated others, and has been the subject of a campaign by transparency advocates (including Sunlight) to restore full funding. The legislation was released 24-hours before a House Appropriations Committee Financial Services Subcommittee mark-up, scheduled for some time on Thursday morning. UPDATE 6/16: the subcommittee approved the legislation without amendment.

In a legislative twist, funding for the Electronic Government Fund appears to have been combined with funding for the Office of Citizen Services, making it difficult to figure out how much money will actually go towards e-gov websites. My best guess is that the legislation would increase the money available for e-gov to $13m from the $8m appropriated in FY 2011, which is still far off from the $34m available in FY 2010.

Where does this guess come from? Well, the draft legislation would appropriate $50m to e-gov and OCS, and last year OCS was cut from $37m to $34m. If we assume that OCS has been returned to a $37m funding level, that leaves $13m for e-gov. (It could be that OCS funding will not be fully restored, so more money would go towards e-gov, but there’s no way to know.) Combining these two funds together may have some logic to it, as the GSA’s Office of Citizen Services and Information Technology maintains projects built under both of those funds.

What does this mean in practical terms? Were the House Appropriations Subcommittee’s text to be untouched during mark-up and adopted into law, the e-gov fund would marginally improve, moving from life support to critical condition. Enough money might be available to either make some improvements to its existing transparency programs, or perhaps to add a new program, but not much more than that. Progress on improving transparency websites and access to data would be slow, fitful,  and uneven -- but possible.

A critical test for the funding level comes this Thursday morning, when the House Appropriations Subcommittee will mark-up the text, meaning that it will review, amend, and (likely) vote to approve the legislation. This is the best opportunity in the House for real changes to be made to the bill. Hopefully the e-gov fund will receive a financial boost during this process.

Unfortunately, the hearing will take place in a tiny room in the Capitol, so it is very difficult for members of the public to attend. It won’t be webcast, despite House rules requiring committees to “provide audio and video coverage … in a manner that allows the public to easily listen to and view the proceedings,” so you can’t watch the action online. We’ve run into this problem before. My colleague Melanie will try to attend, but given the space constraints and significant interest in the mark-up, odds are slim that she’ll be able to get into the room.

Assuming the bill is passed out of subcommittee this week, it will go to the full Appropriations Committee next week, which will likely simply endorse the actions of the subcommittee, although there is a slim chance for amendment. After that, it will advance to the floor of the House for a final vote, and then go to the Senate. The whole process will start again, and we have hope that the Senate will fight to fully fund e-gov.

Of course, we’ll be following this each step of the way. And everything could change during mark-up.

Here’s the legislative language from the House Appropriations Subcommittee text:

INFORMATION AND ENGAGEMENT FOR CITIZENS

For necessary expenses of the Office of Citizen Services, including services authorized by 5 U.S.C. 3109, and 24 to carry out the E-Government Act of 2002 (Public Law 25 107–347), $50,000,000: Provided, That the revenues and collections deposited into the Federal Citizen Services Fund shall only be available for necessary expenses of Federal Citizen Services activities in the aggregate amount not to exceed $60,000,000: Provided further, That revenues and collections accruing to the Fund during fis-cal year 2012 in excess of such amount shall remain in the Fund and shall not be available for expenditure except as authorized in appropriations Acts.

Earlier today I testified before the House Appropriations Subcommittee on the Legislative Branch on lifting a publishing restriction on CRS general distribution products and granting the public bulk access to THOMAS data. What follows is my oral testimony, and I've embedded the written testimony at the end of the blogpost.

Comments of the Sunlight Foundation before the Committee on Appropriations Subcommittee on Legislative Branch May 11, 2011

My name is Daniel Schuman, and I am the Policy Counsel for the Sunlight Foundation, a non-partisan non-profit dedicated to using the power of the Internet to increase government openness and transparency. I am here to speak with you today about empowering the Congressional Research Service to better serve Congress and the American people, and to encourage this committee to follow-up on its languishing request regarding public access to the raw legislative information that powers THOMAS.

Taxpayers spend around $100 million a year to fund CRS and its nearly 700 staff members. As an administrative unit of the Library of Congress, CRS often furthers the Library's public mission, and its products help frame public debate on important issues. As an example, in the last two years, major newspapers cited CRS reports 779 times; over the last decade, federal courts have cited CRS Reports 130 times.

All the while, the Library of Congress's ability to pay for publishing costs has been restricted, by legislative branch appropriations language, for every year since 1952.

This 59-year-old publishing rule was likely intended as a cost-savings measure, a leftover from a bygone era of expensive layout, printing, and distribution costs. It also precedes CRS's creation by nearly two decades. Times have changed, and these print limitations are a counterproductive anachronism in the Internet age. A coalition of 38 organizations recently wrote to you to urge an end to the restriction, and I am here to do so in person today.

Congressional staff already google for CRS reports, review Cornell's Constitution Annotated website to learn about Supreme Court decisions, search YouTube for briefings on Federal Law, and look to OpenCongress.org for legislative summaries. Unfortunately, CRS has not kept up with the times, and embraces an overbroad interpretation of the publishing restriction – transforming a speed bump into a road block – thereby stifling its ability to innovate, meet the needs of its clients, and fulfill its public responsibilities. In short, you should lift the publishing restriction and send CRS an unmistakable signal to modernize.

Let me be clear: I am not requesting that all CRS reports be made publicly available. One-on-one communications between CRS and individual Members of Congress or their staff are and ought to be confidential.

Instead, I ask that the Committee grant CRS the flexibility to release general distribution products online without excuse or fear of violating an antiquated publishing restriction. Speaker Boehner and Majority Leader Cantor recently encouraged the Clerk of the House to develop better online tools to make legislative information more open, and Congress more accountable, to the American people. CRS, the source of much legislative information, should be similarly open.

With respect to THOMAS, in 2009, this committee adopted a forward-thinking approach that required a report on the issues around granting the American people access to all electronic legislative information at once – through a method known as “bulk” access.

Nearly three years later, as far as we know, no such report has been generated. A reason why is that the trigger for the release of the report was the launch of Legislative Information System 2.0, which has not happened and likely will never happen as envisioned.

The world has not waited. In the interim, GPO has published five datasets online in bulk, including the Code of Federal Regulations and the Federal Register. Data.gov was launched in May 2009 and now has hundreds of thousands of datasets. Technologists are already using this information, in new and exciting ways, that enhance the public's access to government information.

In the same way, providing bulk access to THOMAS data would give technology innovators an opportunity to creatively use data to solve new problems and address unmet needs. It would put all of this important legislative information into the American people's hands.

We ask for your renewed attention to this unheeded directive and urge you to make up for lost time. The committee should grant the public bulk access to legislative documents, bill status and summary information, and other legislative data no later than 120 days after the start of FY 2012. We also ask for the immediate creation of an advisory committee, composed of relevant legislative agency employees and members of the public, that will meet regularly to address the public's need for access to this information, and the means by which it is provided. Finally, as mentioned before, we ask that you end the publishing restriction.

This committee has the unparalleled opportunity to make government more open and accountable. We hope that you seize the moment. Thank you for the opportunity to testify today. I look forward to your questions.

Daniel Schuman Testimony Appropriations Subcommittee 2011-05-11

The recent policies imposed by the House Appropriations Committee and the House Republican Caucus to ban for-profit earmarks and all earmarks respectively will reduce the ability of the public to track directed spending and do little to stem this type of spending. Perhaps this is counter-intuitive to some people, but, as the late, great Bill Hicks would say, "I know this is not a very popular idea. You don't hear it too often any more … but it's the truth."

First of all, the obvious, the for-profit earmark ban and the House Republican earmark ban both only apply to the House of Representatives. The Senate refuses to follow suit. With the Senate earmarking precious appropriations dollars, House members will take to lobbying their state's senators for earmarks in their respective districts. The money isn't drying up, so why not try to get some.

Second, tons of not-for-profit earmarks go to colleges, universities, non-profits and state and local governments that then contract out to for-profit firms. Here are some examples:

Twice in recent years, House Appropriations Committee Chairman David R. Obey (D-Wis.) helped obtain earmarks totaling $3.2 million for a home-state university to study how to make military jet fuel from plants. Standing behind that nonprofit work, however, is a for-profit Chicago firm that often partners with universities to reap part of their earmark benefits. (Washington Post)

Another example of controversial earmarks the new reform would not touch is a nonprofit defense research center at Pennsylvania State University that collected nearly $250 million in earmarks through Murtha, then channeled a significant portion of the funds to companies that were among Murtha’s campaign supporters.

According to a report in the Washington Post, officials at the center regularly consulted with two “handlers” close to Murtha, one of whom was a lobbyist for the PMA Group, a firm that recently disbanded in the wake of an FBI raid on its offices. (The Hill)

Third, there are a variety of other ways for lawmakers to secure earmarked funds outside of the appropriations committee. One such example are the earmarks included in the transportation reauthorization bill. Unlike the Appropriations Committee, the House Transportation & Infrastructure Committee does not post online the requests they receive from members nor does it require members to post their transportation earmarks to their official web sites. Transportation earmarks only come up every four years. If a ban remains in effect, lawmakers will certainly look for other ways to direct spending to their district. By going through Transportation Committee they would be circumventing transparency rules set up by the Appropriations Committee.

Even more troubling could be the increase in "phone-marks" in place of earmarks. "Phone-marks" are the practice of lawmakers lobbying executive agencies to give money to particular organizations. Lawmaker lobbying could easily be instigated by an outside lobbyist or campaign contributor seeking funding for a project. And, of course, there is no transparency in this process.

What Congress really needs to do is pass real earmark reform. Earmark reform that makes the process totally transparent and encoded in rules or laws. Committee imposed rules or bans can easily be changed or circumvented -- this includes the committee's imposed rules on earmark transparency. Passing a resolution like the Cassidy-Speier earmark reform bill would allow people to actually see the earmarking process before their eyes, instead of head-faking with a ban and then taking the process underground.

Last week, Congress spent $1.1 trillion tax dollars by combining six pieces of appropriations ("spending") legislation into one 1,000+ page "minibus" bill and passing it with almost no public disclosure or debate.  In fact, the bill was available to the public online for less than 24 hours.

Before December 18th, Congress will be taking up the last remaining 2010 appropriations bill: Defense.  If history is any lesson, Congress will likely try to cram different pieces of legislation into this final bill, and these new bills will be those that were unable to pass previously on their own.  If the new bills are included in the Defense appropriation bill at the last minute, the public won't know what's going on until after the bill is passed.

It's imperative that we have the ability to read the bill online not only before it's passed, but before it's debated, so we can call our representatives while there's still time to have an impact on what they spend our money on.

The craziest part of this whole thing (Capitol Hill finds these things to be "normal") is that the legislation Congress will try to insert may not have anything to do with defense. Raising the nation's debt limit and various health care reforms are two possible inclusions.  By "drafting" behind the Defense bill their chance of passing Congress increases.

And while debt limit and health care reform provisions are at least being discussed in the media, it is the laws we can't see, that have never been debated in the open, that are the most dangerous threat.

Example: the Commodity Futures Modernization Act that was slipped into an omnibus bill back in 2000.  The text was only available for 24 hours and its inclusion in the omnibus was only known for 4 minutes before final consideration.  The passage of the Act not only created the "Enron loophole" but a market of unregulated derivatives which contributed to near economic collapse in late 2008.

Last week, as Congress dropped and passed the minibus appropriations bill, the ridiculousness of not making the bill available online for 72 hours was frustrating and disappointing. Even for the team here at the Sunlight Foundation, who were watching very closely, the $1.1 trillion minibus bill had passed before we could do so much as send an email alert!

It was perhaps most distressing because we now KNOW Congress can make major legislation available for 72 hours before it's debated; we've seen them do it throughout the health care debate. Appropriations don't get the same public pressure as health care so our representatives decided not to give us time to go through the massive spending bill - which added up to be more spending than the Stimulus package.

This week, Congress has a chance to redeem themselves with the one remaining spending bill of the year, and we'll be demanding they get it right.

Post by Jake Brewer with contributions from Noah Kunin.

Image credit by id-iom