Last night's announcement came as no surprise -- that the President would formally align himself with super PAC run by former White House staffers.  The corrupting influence of money in politics, according to the President's public persona, is a threat wielded by rank-and-file lobbyists and insider trading. It's been about a year since the post Citizens United President Obama, who railed against the threat of dark money in the face of campaign finance regulation.

Messina's announcement did make one helpful clarification -- that the President still supports having a better disclosure law for outside spending. If that's true, he sure has a funny way of showing it. A State of the Union that doesn't even acknowledge that the floodgates have been opened, and continues to paint lobbyists as the problem (while continuing to accept bundled checks from their bosses.)

Now we know why disclosure and reform were absent -- they've been jettisoned, relegated to an awkward reassuring line in the announcement that the biggest checks are now welcome, despite the President's persistent warnings throughout 2010 that we should make no mistake in remembering how unlimited, often secret donations affect public service. Descriptive rhetoric was apparently insufficient, and thanks to Republican obstruction in the Senate (and absolute apathy towards the issue on their own) we'll get to live through the dark money arms race, rather than imagining it.

The announcement suggests that the President negotiated with the super PAC, and that his involvement is predicated on disclosure that meets the standard set by the law. That's a pretty low standard, since it's the law, and since it's the same law that Obama says he's committed to (silently) changing.

We will do so only in the knowledge and with the expectation that all of its donations will be fully disclosed as required by law to the Federal Election Commission.

"As required by law" may as well be written "quarterly, unreliably, and in a way that still permits anonymity". The technically legal presented as rigorously ethical. "We'll follow the law I railed against as ineffective" might be a better paraphrase.

The partisan lines around campaign finance disclosure are about to get rearranged, and it's unlikely that they'll become a more productive force for reliable disclosure, especially if Obama continues to use disclosure as a rhetorical shield (through the visitor logs) and especially if the partisan logic of unilateral disarmament continues to obscure the thousand other choices about transparency and accountability that are involved in creating a Presidential dark money machine.

 

Tonight's State of the Union Address raised even less transparency issues than we expected. (See the text at the end of this post.)

President Obama called for a ban on insider trading in Congress, and proposes to ban lobbyists from bundling contributions, and to ban bundlers from lobbying.

The insider trading ban is a proposal Sunlight has supported, in the form of the STOCK Act, despite some initial misgivings. Congress should create clarity about self-dealing and insider trading, and the President is right to call on Congress to address this issue.

When Obama raised the issue of money in politics in his speech, though, he raises the "corrosive influence of money in politics." As wrong as insider trading may be, money in politics isn't about self-dealing. Obama is closer to hitting the mark in raising the issue of bundlers, but unfortunately raises a proposal that's unlikely to get discussed beyond tomorrow. A ban on lobbying or contributing to campaigns is unlikely to pass Congress, and unlikely to pass muster with the courts.  Even if it did, it would do little to mitigate the "corrosive influence of money in politics", since bundlers are often just the bag men operating at others' behest. If you're not getting the Chris Dodds of the world, your lobbying reform plan is probably aiming a little too low.

It's not clear why Obama is suddenly more interested in bundlers than say, lobbying disclosure (last year's lobbying SOTU provision), although it's possible that Obama is raising it because it will become a campaign issue, as Republican candidates have yet to release information about bundlers supporting them, as Obama has.

But this is still disappointing, since it again shows Obama relying on a flawed statutory definition of lobbyist in order to appear opposed to special interests, without actually having to do much.

Worse, though, than the lackluster vision for lobbying reform, is what's entirely missing from the State of the Union: any mention of the flood of dark money flowing into our elections. As I noted earlier today, Obama spent most of 2010 railing against the Citizens United decision -- warning us of the dangers of unlimited and secret contributions, and pushing for a legislative fix.

Since Republicans have blocked that effort, and former White House staffers started a super PAC to help Obama's re-election bid, Obama has almost completely ignored the issue. It's apparently too politically awkward to address when he's the beneficiary of all that dark money he spent 2010 warning us about.

It's good to have a President willing to raise transparency and money in politics in the State of the Union. But when insider trading and an ill-fated lunge at bundlers are all the vision he has to offer, we have to wonder whether Obama sees his old transparency platform as a political liability, rather than a vision to be perfected and implemented.

 

Speech Excerpt:

Some of this has to do with the corrosive influence of money in politics.  So together, let’s take some steps to fix that.  Send me a bill that bans insider trading by Members of Congress, and I will sign it tomorrow.  Let’s limit any elected official from owning stocks in industries they impact.  Let’s make sure people who bundle campaign contributions for Congress can’t lobby Congress, and vice versa – an idea that has bipartisan support, at least outside of Washington.

Some of what’s broken has to do with the way Congress does its business these days.  A simple majority is no longer enough to get anything – even routine business – passed through the Senate.  Neither party has been blameless in these tactics.  Now both parties should put an end to it.  For starters, I ask the Senate to pass a rule that all judicial and public service nominations receive a simple up or down vote within 90 days.

Tonight, President Obama will deliver his fourth State of the Union address, and we'll be watching to see how his reform and transparency ambitions fit within this most public description of the President's priorities.* In an election year when an anti-Washington campaign theme will still be required, Obama may continue to cast his transparency work as a list of achievements, rather than an affirmative vision for accountable government.

Here are some themes from Obama's (first) campaign, his Presidency, and previous State of the Union addresses, that could be rejuvinated tonight:

Campaign Finance Transparency:

As we noted last year, Obama directly confronted the Supreme Court Justices in 2010 (shortly after the Citizens United decision), and then avoided campaign finance transparency altogether in 2011. The 2012 State of the Union could see Obama revive the issue from the bully pulpit. Almost nothing was done by Congress during 2011, a year when Congress failed at even defending a draft Executive Order that the President requiring disclosure of political giving from government contractors. The issue is still rife for Presidential engagement, though -- people hate the Citizens United decision, and it should be easy to rail against negative ads and dark money in our elections.

The issue could be awkward for Obama, whose former staffers started their own super PAC to aid in his re-election. Even if Obama and his party are to be the beneficiaries of the often secret, unlimited contributions they have warned us about in the past, the President still has a responsibility to push the issue.

Lobbying Disclosure

Obama loves to rail against lobbyists, and they've been a staple of previous campaign rhethoric, SOTU addresses, and White House policies. Lobbying disclosure and lobbyists will likely come up again this year, especially as cashing in on public service has become a disputed theme in the Republican presidential contest. We'll be watching to see whether Obama articulates any kind of affirmative vision for lobbying disclosure, or whether he adopts a "we already did that" posture like he did last year.

The White House has certainly done a great deal on lobbying disclosure, but their work too often relies on the flawed statutory definition of a lobbyist, which is weak, easily evaded, and fails for the most important of influencers.  An affirmative vision for reform is necessary.

Earmarks

Obama pushed for Earmark disclosure in the 2010 SOTU, and then issued a flat veto threat in 2011.  Unfortunately, neither approach has worked, and the supposed ban has made earmark requests a dark art, rather than the subject of public debate. The White House has been reportedly circulating a draft EO on earmark request disclosure, which Sunlight has pushed for extensively. Today would be a great day to issue an updated Executive Order, to protect merit in spending decisions, and keep Members of Congress from strongarming agencies into supporting their pet projects, while often pretending to be opposed to money from Washington.

Working with Congress

After the last year of Continuing Resolutions, near government shutdowns, the debt limit fight, and the supercommittee, watching the heads of divided government share a dais should be entertaining. Political gamesmanship has led the leaders of both parties to break campaign promises (72 hours for all bills, or "end[ing] the practice of writing legislation behind closed doors").

I don't expect Obama to raise the bar on negotiating with Congress, but he should. The frustrated-with-Washington undercurrent is about a variety of different things, and party leaders' tendency to choose each other over the public is near the top of the list. The reset button needs to be pushed for how party leaders approach divided government. The political moment of the State of the Union probably is an insufficient occasion to force such a reconsideration.

Wild Cards

If Obama wants to discuss transparency in his SOTU, there are a variety of other issues he could address in his speech. He could run through the oft-recited litany of White House achievements, like the Open Government Directive, Data.gov, the visitor logs, the Open Government Partership, and while they each have their failings, they're still successes the White House should highlight.

National Security secrecy, transparency in the finance sector, and the ongoing struggle to strengthen the FOIA could all come up in the speech as well.

We'll be watching, and have reactions after the address.

*Update: please join us at SunlightLive.com for our live coverage beginning at 9 pm ET.

In addition to an analysis of who gets paid what, the news reports highlighted the fact that the reports are now provided digitally. These staff salary reports are valuable oversight tools, but they do not include information such as assets, gifts, or travel payment. For top level executive branch staff, that information is available in the staff personal financial disclosures, which are available upon request through an online portal created by the Obama Administration. While lower level staff do submit reports as well, these are not publicly available.

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‘Back to the Source' takes a news article that makes good use of data and investigative techniques and tries to determine whether the underlying data that made the piece possible is publicly available. If you’d like to know where the data behind a particular piece can be found, please feel free to send us an email at mbuck@sunlightfoundation.com.

Throughout the last year, we've repeatedly pointed out that Speaker Boehner repeatedly pledged to put all bills online for 72 hours before they're voted on, reflecting Sunlight's call and the ReadtheBill.org campaign.

Boehner's pledge was unambiguous and repeated often -- all non emergency bills for 72 hours.  Unfortuantely, this has become a pledge that has been broken often, most recently last week with the bills rushed through the House.

For easier reference, here are the commitments on video, edited into one shorter clip.

These commitments matter. Remember when Republicans derided Pelosi for the healthcare bill, and claimed that bills were being "rammed down" their throats? Similarly, remember when (mostly) Democrats were outraged that the PATRIOT Act wasn't read before it was passed?

When we're pushing for important transparency reforms, like having all bills online for 72 hours before floor consideration, the minority party is often a natural ally. Each time the majority changes hands, there's usually a rush to reform processes, and promises to run a more accountable ship. Of course, many of these promises are kept, and we make progress.

But the toughest promises to keep are often the most important, and this Congress has a very poor track record on legislative secrecy. When the most important bills are written by a tiny number of negotiators, and then foisted on the rest of Congress at the eleventh hour, we can expect dismal approval ratings and mistrust to rule the day.

While such discord in Congress is more likely under divided government like we've got now, perhaps Boehner (and Obama) should revisit the visions they set for their current roles before they began -- Obama on Change.gov, and Boehner in the Pledge to America.

They should remember that when they run up to the last possible second to negotiate deals between party leaders, it's not a zero sum competition. It's not whether Republicans or Democrats gain ground, or are seen as taking the more reasonable position. When the 72 hour expectation is flaunted, our trust in government suffers, as does our sense of merit in policymaking, and our sense of self governance.

Leaders from both parties have largely turned their backs on transparency in policymaking. Whether it's the perceived necessity of SuperPACS, or the acceptance of the ridiculous secrecy of the SuperCommittee, neither party has found solid ground to discuss transparent process.

Let's hope they revisit their past rhetoric, because without solid footing, we'll just keep sliding downhill.

Having legislation that is meaningfully public isn't a luxury, it's a requirement. A closed Congress is an abused process. Our leaders should remind themselves of the times they've agreed with that sentiment.

There are almost 27,000 people—or 1/100th of one percent of the United States population—who spent more than $10,000 to influence elections during the 2010 election cycle.

The top 10 people from this elite class of donors together spent more than $23 million on the last election. The majority of that money went to Super PACs used for independent expenditures. Eight contributed their money exclusively to Republican groups and candidates; two contributed exclusively to Democratic groups and candidates.

In total, this tiny group of relatively unknown individuals was responsible for $774 million of the $3.2 billion that poured into the hotly contested mid-term elections. That money went not only to candidate campaigns and political action committees, but to Super PACs, officially known as “independent expenditure-only committees.” After the Supreme Court’s landmark decision in Citizens United and the Federal Election Commission’s two advisory opinions that followed, individuals and corporations effectively have unlimited giving potential. By giving to Super PACs, they can bypass traditional giving limits.

The group that benefited most from the top 10 mega-donors largesse: American Crossroads. That Super PAC received millions of dollars from seven of the top donors, and $7 million from just one donor, Bob Perry.

Here’s a look at who’s who among America’s top 10 most influential givers:

1. Bob Perry is the CEO of Perry Homes. Perry has been influential in politics and a prominent donor for a number of years. In 2004, he gave $8 million to a number of nonprofit political groups known as 527 committees. Most notably, $4.4 million of that money went to the political group Swift Vets and POWs for Truth, which opposed Sen. John Kerry’s presidential bid. During the 2010 election cycle, Perry donated $7.3 million to political efforts. All but a small portion of his money for the 2010 election went to American Crossroads, a group cofounded by former George W. Bush strategist Karl Rove and former Republican National Committee Chairman Ed Gillespie.

2. Wayne Hughes, owner and chairman of Public Storage, Inc. According to disclosures, Hughes gave a total of $3.28 million to conservative candidates and committees, with $3.25 million going to American Crossroads. Hughes also gave $4,800 to House Majority Leader Eric Cantor, R-Va.

3. Fred Eshelman is the CEO of Pharmaceutical Product Development. Eshelman spent $3 million in 2010 funding his own group, RightChange. RightChange registered with the FEC as a Super PAC and spent those millions of dollars to defeat Democratic candidates including Sen. Michael Bennet of Colorado and Sen. Patty Murray of Washington.

4. Robert Rowling, CEO and Chairman of TRT Holdings, a holding company that owns Golds Gyms and Omni Hotels as well as oil and gas interests. Rowling spent $2.59 million during the last election on conservative efforts. He gave $2.5 million of that money to American Crossroads.

5. Donald Sussman is the Chairman of the holding company Paloma Partners. Sussman, who earlier this year married Rep. Chellie Pingree, D-Maine, gave $1.26 million in 2010 to Democratic candidates. He has also funded a group called the Democracy Fund, a separate but predecessor organization to the United Republic Action Fund. Both of these groups have been affiliated with United Republic, and both have been dissolved.* Sussman gave a little more than $750,000 to the Super PAC Women Vote! and its parent organization Emily’s List. Those two organizations support pro-choice female political candidates.

6. John Ricketts is the founder of TD Ameritrade and still a board member there. In 2010, his total political contributions were $1.25 million. He gave to a variety of Republican candidates, including House Speaker John Boehner.
   

7. Jerry Perenchio is the CEO of the investment firm Chartwell Partners and former owner of the Spanish-speaking television network Univision. In 2010, he gave $1.12 million to conservative candidates and groups, including $1 million to American Crossroads.

8. Trevor Rees-Jones is the president of Chief Oil & Gas. In 2010, he gave $1.1 million to Republican efforts. $1,000,000 of that was given to American Crossroads.

9. Rachel Hunter is the Treasurer for the organization Media Matters and an heir to the Hyatt Hotels fortune. She’s related to Penny Pritzker who was the national finance chairwoman of the Obama campaign in 2008. In 2010, Hunter gave more than $1 million to democratic groups and candidates. The bulk of that money went to the 527 organization, Bring Ohio Back.

10. John Childs is on the Board of Directors for Club for Growth and is the founder of JW Childs Assoc., a private equity firm. In 2010, he gave a total $923,000 to Super PACs supporting Republicans and to Republican candidates directly. He gave $100,000 of that money to American Crossroads and $650,000 to his own group, Club for Growth.

For a full list of the top donors for 2010, see the embedded spreadsheet below.

Also, as a disclaimer, we think it is important to note that there are funders of the Sunlight Foundation on this list. For example, David Bonderman and Marjorie Roswell are numbers 9 and 103 on the list and have donated to the Sunlight Foundation. Additionally, the founder of the Open Society Foundations, George Soros, is 134th on the list. Open Society Foundations has provided grant support to Sunlight.

*Based on inaccurate information received from a source at United Republic, we originally reported incorrectly that Donald Sussman is a funder of that organization.

While there's currently a so-called "ban" on earmarks in the Congress, it's widely reported that this earmark ban isn't really effective, because Members just write letters to the administration, requesting funding for their pet projects.

The Obama administration may finally drag this practice into the light, according to the National Journal.

Since March, Sunlight has been pointing to an Executive Order issued under Bush that requires agencies to post requests for funding sent by Congress online.  Agency officials are required to ignore verbal requests for funding, and post any paper copies online.

The only problem with this order is that nobody seemed to have heard of it, and the agencies were almost completely out of compliance with the order.

This is made even more clear as a flood of investigative pieces have demonstrated Members' requests for funding, often in a manner in contradiction with their public anti-spending personae.  We've been compliling a list of those stories, to bolster the case that these requests should be public, and that the Obama administration should implement and enforce this order. (Here's a recent New York Times letter to the editor to that effect, for example.)

The National Journal piece suggests that the administration will refer to, and add to this order, requiring agencies to start posting spending requests that they receive. The President should sign this Executive Order, and require Members of Congress to stand publicly for the spending they would prefer to request in private.

Sunlight would also like to see this disclosure done in as strong a way as possible.  Images of letters are difficult to reuse and analyze, so they should be posted with the actual text exposed, through OCR if necessary.  Agencies should disclose these requests retrospectively, as well, since there's a wealth of important information contained in the letters Members have sent in recent years.

It looks like the administration has gotten the message on earmark accountability. We can't wait to look through what they've got.

As Byron York just pointed out, the debt limit bill is being urgently rushed through Congress, and Members of Congress only have a few hours to read the bill.  (It was apparently posted online at about 1:45 AM.)

It didn't have to be this way.  As leaders worked against a looming deadline, they should have protected Members' and the public's ability to analyze legislation before floor consideration.  President Obama and Speaker Boehner both clearly agree with this sentiment; Boehner repeatedly promised 72 hours for all legislation, and Obama promised 5 days online before signing all legislation.  Clearly neither one is going to happen.

Certainly, nobody would suggest that the country default on its debt in order to post a bill online for 3 days.  But the exceptions to the 72 hour rule are reserved for emergency situations only.  We're in an emergency now, but it's one of our leaders' own making.  Rank and file Members of Congress are, along with their constituents, left with only a few hours to examine legislation of vital public import, even as party leaders have specifically promised to keep this from happening.  If, in the end, closed negotiations won out over public scrutiny, perhaps it's time to take a closer look at party leaders' rhetoric about openness.

Is the federal government getting biased advice from its advisory committees? Concerns about skewed advice and conflicts-of-interest prompted President Obama's September 2009 order banning lobbyists from executive-branch federal advisory committees and remedial legislation last Congress. No legislation was ultimately enacted, and the president's order barely scratched the surface of the issue.

A recent CRS report explains how advisory committees give advice to the government on a wide variety of issues and often help the government manage and solve complex or divisive issues. During FY 2010 there were 1,004 active committees with a total of 74,336 members, with total operating costs of around $400m. The committees are intended to gather and explore viewpoints from business, academic, governmental, and other interests.

Concerns about skewed advice led to the introduction of the Federal Advisory Committee Act Amendments of 2010, which passed the House unanimously but was not considered by the Senate. That bill was reintroduced this Congress by Rep. Cummings as part of the Transparency and Openness in Government Act, and appears to be co-sponsored by all the democratic members of the Committee on Oversight and Government Reform. Committee Chairman Issa has already publicly stated his willingness to hold a hearing on that bill -- the part of it that concern Federal Advisory Committees -- although a date has not yet been announced.

The proposed legislation has a number of good ideas.

• It significantly increases transparency about committee activities. As a general, 15 days prior to each meeting -- but no later than 48 hours in advance -- information about committee activities must be posted online, including how members are chosen, a list of current members, any member recusal agreements, a summary of how the committee makes decisions, notices of upcoming meetings, and a statement indicating when a meeting is closed to the public and the reason why. Transcripts or recordings of committee proceedings must be published online within 30 days of the meeting.
• It extends all advisory committee disclosure rules to subcommittees (and privately contracted committees) with the same force that they apply to the full committee. This way, committee work won't be shunted to subcommittees in an effort to avoid disclosure requirements.
• It allows the public to suggest who should serve as a committee member, so that the usual suspects aren't named to the board again and again.
• It closes a loophole that allowed government officials serving on the board to avoid making ethics disclosures.
• It requires people who regularly attend, participate, and otherwise act like committee members (except that they do not vote) be considered as committee members, and thus subject to committee disclosure rules.
• It provides for oversight of the committees by the Comptroller General, who must publish annual reports on the committees.
• It requires committee members to be selected without regard to partisan affiliation

These improvements go a long way towards making the advisory committee more open. We have additional suggestions.

• All information made available on the Internet shall be done so by state-of-the-art methods and in open formats. Information published online should be in user-friendly formats that machines can automatically gather for analysis.
• There should be a publicly-available online calendar that identifies all upcoming advisory committee meetings, and contains basic information about those meetings. The calendar should link to each committee's agenda.
• All information made available to the public (whether on the internet or otherwise) should be at no cost. Committees should not be able to charge for transcripts or other documents.
• Documents submitted to the Advisory Committee shall be made publicly available unless the Advisory Committee determines that those materials would disclose matters described in the FOIA exemptions listed in section 552(b) of title 5, United States Code. That determination should be appealable, and there should be a publicly-available summary of the contents at the time the materials are submitted.
• In addition to listing the names of its committee members, each committee should also make available brief biographies of its members.
• All members of each advisory committee shall file financial disclosure forms, which shall be made available on the committee website after redactions to remove personally identifiable information, such as social security numbers. This will help determine if there is a conflict of (financial) interest.
• All members of the Advisory Committee should declare and publicly disclose conflicts of interest. These statements must be updated whenever new conflicts arise or on an annual basis, whichever is more frequent. These disclosures shall be placed on the Internet. There should be random reviews to ensure that all proper disclosures are filed.
• The FACA main website should be updated and reworked. It's design is pretty bad.
• The underlying data behind the FACA database should continue to be made publicly available in a bulk format. For example, here's the raw file of members through 2008.

Federal advisory committees are a major way that the government gets advice from members of the public, especially expert advice. We need to make sure that the advice is not tainted by hidden agendas and reflects the best analysis available.