Lost in the widening scandal over the IRS targeting of conservative political groups: The fact that most of them were not the big political players of 2012.
It’s axiomatic that the Sunlight Foundation believes transparency can deter corruption, foster accountability and increase the public’s participation in government. But that is not to say that in all cases transparency alone is sufficient to ensure a cleaner, fairer democracy. That is why it is troubling when people in the position of shaping public debate blithely remark that contribution limits should be tossed out in exchange for greater transparency.
David Axelrod, the president’s former top strategist and newly minted NBC pundit did just that through a series of tweets. As compiled by Politico, Axelrod tweeted, “Campaign finance system is a mess. Limits have just created a cottage industry for lawyers who devise schemes to circumvent them. Too much money in politics. But if it’s inevitable, let it flow directly to candidates and demand full disclosure, with stiff penalties. And end the SuperPac and faux SuperPac game that too often allows donors to elude detection and candidates to deny responsibility."
Too much money in politics. But if it's inevitable, let it flow directly to candidates and demand full disclosure, with stiff penalties.2/3— David Axelrod (@davidaxelrod) February 20, 2013
Exchanging candidates’ unfettered access to the deepest pockets for greater transparency is not a fair trade. We need disclosure and limits. Knowing a driver is going 200 miles per hour does not mean it is safe for him to do so. Similarly, knowing a candidate received $100,000 or $1,000,000 from a single donor does not make that candidate less corrupted or corruptible. Nor does it foster any faith in our system. As the Supreme Court noted in Buckley v. Valeo, contribution limits are one of the law’s “primary weapons against the reality or appearance of improper influence” on candidates by contributors. The Court found that these limits “serve the basic governmental interest in safeguarding the integrity of the electoral process."
A campaign finance system that permits unlimited contributions to candidates would encourage an arms race between candidates, each promising access and influence to any sugar daddy willing to fork over a six or seven figure contribution. A plutocracy would evolve, with voters’ and small donors’ voices drowned out by the amplifying power of unlimited contributions from a few.
We share Axelrod’s frustration with the current dark money system and understand that only the thinnest veneer exists between third party groups and the candidates they support. But rather shredding that veneer, laws should adopted to fortify it. As a first step, Axelrod’s own proposal of “full disclosure, with stiff penalities” should apply to the Super PACs and 501(c) groups that engage in political activities with unlimited funds. The DISCLOSE Act would have provided such disclosure, had it not been killed in Congress. (It should be noted that, consistent with his continued disappointing actions on transparency and reform, the president failed to use any political capitol to ensure passage of a robust dark money transparency bill.)
Our campaign finance and disclosure system is in desperate need of repair. But giving up on it is not the answer. We need to shine a bright light on all the money already in the system, without opening up the floodgates for still more.
With President Obama’s public inauguration in just under six weeks, and the start of the new Congress in four, what happens now will set the tone for the next few years. Here are 3 major transparency developments that we’ll be watching to develop by Inauguration Day.
(1) President Obama’s Second Inaugural should return to his themes of making government work for the people, not the special interests, by embracing comprehensive lobbying reform and bringing transparency to dark money’s role in politics.
During the first campaign, candidate Obama said, “I am in this race to tell the corporate lobbyists that their days of setting the agenda in Washington are over.” While some efforts have been made to require better lobbying transparency, the administration has been lax in enforcing its own disclosure rules, largely ignoring important lobbying disclosure bills like the LDEA. While it was much more active with urging the adoption of post-Citizens United transparency requirements for campaigns, the DISCLOSE Act has failed to pass the Senate and the administration declined to act on its own. Just recently, it stoked outrage by going to corporations to fund inaugural activities. In his second inaugural, the President should recommit his administration to weakening the undue power special interests have in setting Washington’s agenda by adopting an affirmative agenda for lobbying reform and campaign finance transparency. We have a few suggestions to help them get started.
(2) As the debate over spending, prompted by the fiscal cliff, comes to a head, negotiations over its resolution should be public, and the government should improve disclosure on how it raises and spends money.
President Obama and congressional negotiators are keeping the public largely in the dark about negotiations over the fiscal cliff. We believe our elected officials can do better, and have called on them to “commit to ensuring that any legislation resulting from the negotiations is online for 72 hours prior to consideration in Congress and that any side agreements, including promised votes on future legislation, are also made public.” At the same time, the fight over rebalancing the government’s books may incorporate a discussion over making information about federal spending available to the public. Legislation that would do this, known as the DATA Act, has already passed the House and is pending in the Senate. By Inauguration Day, we hope that our elected officials will have used the fiscal cliff to mark a new era of financial transparency.
(3) The House and Senate should adopt new rules of procedure that strengthen how they make information available to the public.
In the last Congress, the House required all of its hearings to be webcast, set in motion the creation of a new transparency portal, allowed electronic devices on the floor and official electronic documents online, and overall took a huge step towards greater transparency (including a commitment to improved public access to legislative data by the end of the 112th Congress). While the Senate did not alter its rules at the beginning of the last Congress, the impending fight over filibuster reform may mean that the upper chamber will consider revamping many of its procedures. Here are some changes we’d like to see in the House and Senate to help them open up.
How transparent has President Barack Obama's administration been? While the first term seemed to start with several bold initiatives, members of the transparency community have been disappointed with the apparent lack of initiative since then. Panelists gave the administration mixed reviews at the Dec. 3, 2012 Advisory Committee on Transparency event examining what's happened over the past four years and what in store for the next four.
Participants in the panel discussion, moderated by Daniel Schuman, policy counsel at the Sunlight Foundation and director of the Advisory Committee on Transparency, had a hard time listing the Obama administration's accomplishments without mentioning caveats in the same breath. Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, said the administration's efforts may have been well intended but were not always well executed. The decision to release the White House visitor logs, for example, resulted in more transparency about who is trying to influence the executive branch, but also resulted in some staff taking meetings to coffee shops.
President Barack Obama and former Massachusetts Gov. Mitt Romney will meet on stage tonight for their third and final debate -- this time on foreign policy. And we'll be there to provide real-time analysis, context and conversation on our award-winning platform, Sunlight Live.
The debate comes just days after the candidates' super PACs reported their latest financial disclosures. As we reported over the weekend, the pro-Romney super PAC, Restore Our Future, passed the $100 million fundraising mark. Restore Our Future was actually out-raised in September by the pro-Obama super PAC, Priorities USA Action, but because Restore Our Future raised more in previous months, it retains a $9 million cash-on-hand advantage.Where are these groups getting their money? Turns out more than two dozen people wrote million-dollar checks to these and other super PACs in September. No doubt they'll be closely watching the final meetup between Romney and Obama to see if their investments will pay off.
So why should you be watching with Sunlight Live? In the first debate, when the candidates started talking education, Russ Choma of the Center for Responsive Politics pointed out that "Obama's top source of funds are faculty and staff in the University of California system."
During the vice presidential debate, when the conversation turned to supporting veterans of the wars in Iraq and Afghanistan, Sunlight reporter Anu Narayanswamy added that the department of Veterans Affairs has asked for a $140 billion over the next five years.
And last week, during the second Romney-Obama matchup, Sunlight's editorial director, Bill Allison, provided a graphic to show the increasing trade deficit between the U.S. and China.
Meanwhile, our viewers kept things lively with lots of interesting questions, commentary and conversation.
So now you know why you should be watching, too. The debate begins tonight at 9 p.m. ET, but we'll get things started during the 8 o'clock hour, so join us at Sunlight Live.
(Photo courtesy of Obama for America via Flickr.)
A new Presidential Policy Directive aimed at protecting whistleblowers with access to classified information marks an important step in securing the rights of government employees who try to expose waste, fraud, and abuse.
The directive, issued by President Barack Obama, bans retaliation against employees for protected disclosures, though it does not extend to disclosures to Congress or the public. It sets standards that Congress has so far failed to put into law. The Whistleblower Protection Enhancement Act has been approved in the House but has yet to make it through the Senate, and it does not contain the intelligence-community protections outlined in the directive.
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.
The controversy over what’s hiding in Mitt Romney’s unreleased tax returns continues. But even without the missing filings, putting his 2010 and 2011 tax numbers in context is strikingly informative. It dramatically shows what an outlier Romney is on a few basic tax and income dimensions.
An in-depth analysis of Obama's 2008 campaign contributors conducted by iWatch News in 2011 determined that in certain circumstances major bundlers ended up receiving appointments to key White House positions, invitations to White House events, and stimulus money awarded through contracts. This analysis required a high level of investigative journalism skill and a significant amount of time. It would not have been possible, however, without access to a number of data sources.
The iWatch analysis frequently returns to the story of Donald H. Gips, a Colorado businessman and bundler for Obama. His story provides a useful frame for illustrating the data sources that provided essential information for this piece.
Accessing Campaign Finance Data Regarding Bundlers
The article states that Gips bundled over $500,000 for Obama in 2008. Presidential candidates are not required to report their bundlers, but both Obama and McCain chose to do so in 2008. The Center for Responsive Politics makes available the list from 2008 as well as a list of 2012 bundlers for those candidates who have chosen to disclose. While the candidate usually only discloses the name of the bundler, CRP adds value by including additional information such as the total amount contributed, the name of the bundler, the city and state, and employer. The information also contains the total amount the bundler has contributed him or herself to the specified candidate since 1990. Bundlers are additionally broken down by industry. A search for Gips shows that he bundled over $500,000 in 2008 and has individually donated $32,391 since 1990.
While presidential candidates only disclose bundlers voluntarily, bundler information for candidate committees, leadership PACs, and political party committees is required to be disclosed by the Honest Leadership and Open Government Act of 2007. Bundler information for these entities can be found using the Federal Election Commission website. In addition, Sunlight's Influence Explorer also provides bundler information for registered lobbyists and lobbying firms in a searchable and user-friendly format.
Monitoring Staff Changes in the White House
After Obama won the election, the article states that Gips was put in charge of hiring in the White House and subsequently appointed as the U.S. ambassador to South Africa. The White House provides a searchable database of nominations and appointments that indicates the name of the nominee, the position and agency, the formal nomination date, and the date and result of the confirmation vote. Gips does not appear in that list, as his position did not require him to be appointed. A press release from Change.gov, Obama's transition website, however, lists Gips among several other staff announcements. The U.S. Department of State provides a list of embassies, which can be used to find information about American consulates around the world, including the name of the current ambassador.
Tracking Stimulus Funds
The article points out that Level 3 Communications LLC, where Gips was formerly vice president, was later the recipient of $13.8 million in stimulus funds. Information regarding the recipients of stimulus funds is available from three places:
- Information regarding stimulus funds is available from Recovery.gov. Level 3 EON, a subsidiary of Level 3 Communications, appears as having received $13.7 million in six awards.
- You can find information about the stimulus as well as all contracts and grants data on USASpending.gov. A search on this site shows that Level 3 Communications received just under $80,000 in awards from the Department of Defense and the Department of Agriculture.
- Our Influence Explorer also provides contract data in a more user-friendly format.
Viewing White House Visitors
The article also discusses bundlers receiving access to the White House, such as invitations to events or meetings. The Obama White House has voluntarily chosen to disclose the security records that detail those who enter the White House. These Visitor Logs have been criticized for a lack of accuracy and completeness, but can be valuable for use in analyses such as the iWatch report. The records show 18 visits by Gips to the White House between August 17, 2009 and April 1, 2011. Among the 18 are two trips to see the president and various trips to other White House staff such as Jenny Cizner, who works in the Office of Presidential Personnel, and Valerie Jarrett, a senior advisor to the president.
"The News Without Transparency" shows you what the news would look like without public access to information. Laws and regulations that force the government to make the data it has publicly available are absolutely vital, along with services that take that raw data and make it easy for reporters to write sentences like the ones we've redacted in the piece above. If you have an article you'd like us to put through the redaction machine, please send us an email at email@example.com.
U.S. President Barack Obama this autumn joined with other global leaders to formally unveil the Open Government Partnership as the United Nations met in New York City. Funding for the partnership so far is $733,500 from the Transparency and Accountability Initiative, $350,000 from Google and in-kind contributions from the U.S. government, World Bank Institute and others. The eight charter members have already formalized their commitment to the core principles of disclosure, engagement, integrity, innovation and accountability. The eight are the Year One co-leaders the U.S. and Brazil, plus Indonesia, Mexico, Norway, the Philippines, South Africa and the United Kingdom. Another 38 countries are committed to joining, many from eastern and northern Europe but also seven from South and Central America, four from Africa and three from the Middle East. An important step in the partnership's agenda will come at a March 2012 Brazil meeting with the presentation by each new member of an open government plan of their own, against which future actions can be measured.
The New York event gave rise to the expected lofty statements. In a speech, Philippines President Benigno S. Acquino III, remarked: "This is what democracy is all about: having a government disciplined enough to imbibe in itself the principles of transparency, accountability, and citizen involvement-the necessary preconditions to poverty alleviation and inclusive and sustainable economic growth."
Who could be against imbibing that? But in an open society the media don't always parrot the party line. Only the day prior, news reporters had chastised the White House in print for an advance briefing on the Open Government Partnership by State Department officials who insisted on being described only as "Senior Administration Official 1" and "Senior Administration Official 2". Standard operating procedure in most high-level briefings, true. But, implied the reaction - from the Associated Press, Tech President, and Politico, to name a few - rather discordant for a big "transparency" initiative. It wasn't the first time in recent months that the gap between words and deeds on U.S. open government efforts had drawn notice.
The day after the partnership's formal unveiling, J. Nicholas Hoover of Information Week wrote:
...the Obama administration's commitment to open government hasn't always lived up to its rhetoric. For example, the White House has aggressively pursued whistleblowers and leakers of information, and in court cases has regularly used the defense that certain data must be shielded from the public as state secrets. (A March 2011) event recognizing Obama for a commitment to open government was ironically closed to the press...Congress' record in recent years has also been mixed. For example, while the websites of congressional committees now nearly universally stream congressional hearings, Congress has slashed a key source of funding for transparency efforts. Federal court records are also difficult to access online, and are often available only behind a paywall. The new National Action Plan and international partnership on open government are positive additional steps pointing toward increased transparency, but will ultimately be judged by their execution, and not the initial plans.
Exactly right. Success for OGP will begin with helping member nations understand how to best harness the passion and capacity of disparate ground-level actors - particularly NGOs, local governments, journalists, students, engaged citizens, artists and social media users. To complement important data they already have on the communications and personal technology preferences of constituents, OGP nations should commission independent surveys on how the civic landscapes in their respective nations are perceived at home.
This qualitative harvesting must be incisive and unflinching because real conditions on the ground greatly shape implementation of open government. Earlier this year I led a conversation on transparency with mid-career government officials from Yemen, Tunisia, Guineau, Djibouti, India, Pakistan, Trinidad and Tobago, Lithuania and South Korea, who were among the enrollees in a year-long program as Hubert H. Humphrey Fellows at the University of Washington's Evans School of Public Affairs, in Seattle. The dominant concern of the group was how to develop a flexible model for building open government systems, keeping in mind widely varying socio-political environments in different nations. Participants identified some of the big questions that need to guide any open government visioning at national scale. These fell into two broad areas.
- Political culture. Are political corruption and cronyism an animating concern? How is the national government experienced, on the whole, by the populace? As an authoritative patriarch which discourages close scrutiny? As despotic and dangerous, or unstable? As a work in progress, or in the best case as genuinely transparent, strategic and collaborative? Do the principles of universal human rights have purchase, and is there true freedom of the press or not?
- Education, economy and technology. What is the state of education in the country - do scientific and secular views hold sway or not? Are higher ed and institutional R&D in a healthy state, and is there a burgeoning community of public-spirited software developers? Is the economy open or state-run? What are the particulars of technology adoption and access across class lines?
The answers will help guide whether an open government planning process can even be credibly launched in a given nation, and how; or whether it may be wiser to take a more incremental approach.
Read the rest of Matt's post tomorrow...