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.

by Jacob Hutt, policy intern

A recent report by the Congressional Research Service sheds light on President Obama's draft executive order that would require federal contractors to disclose their contributions made to corporate and third party entities.

“Presidential Authority to Impose Requirements on Federal Contractors” explains the history of the executive authority related to federal procurement and analyzes whether the President would exceed his presidential authority if he issues this executive order.

The report notes that Obama could cite either statutory authority granted to him by the Federal Property and Administrative Services Act (FPASA) or rely on his inherent constitutional authority as President. In response, Congress could seek to amend FPASA -- either widening or narrowing the President’s authority -- or introduce new legislation, as Rep. Tom Cole has done, for example, to counteract President Obama’s requirement of federal contractors.

As we've written elsewhere, "Among the myriad dire consequences of the Citizens United decision, among the most worrisome is the tool lobbyists now have to threaten to use secret campaign spending against members who do not do their bidding. The draft Executive Order is an effort to address this problem." And we support it.

Ten transparency organizations praised congressional and administration efforts to improve federal financial transparency in a letter sent earlier today. The organizations said the recently-introduced Digital Accountability and Transparency Act of 2011 (or DATA Act) would "revolutionize federal spending transparency," and also praised President Obama's June 13, 2011, Executive Order as an important transparency measure.

The DATA Act would establish a federal transparency board -- a successor to the Recovery Accountability and Transparency Board -- with the dual missions of expanding spending transparency to the entire government and identifying government-wide financial data standards. The legislation was introduced by Representative Darrell Issa in the House and Senator Mark Warner in the Senate. The DATA Act will be marked up by the House Committee on Oversight and Government Reform this Wednesday.

The Executive Order immediately establishes a Government Accountability and Transparency Board that, over the next six months, will develop a plan to integrate government spending data.

Neither the Executive Order nor the DATA Act are without flaws. Organizations are working to improve the DATA Act as it moves its way through the legislative process, with the most significant concern being its sunset after 7 years.

Last week, Sunlight Executive Director, Ellen Miller, testified before the House Committee on Oversight and Government Reform on federal spending transparency.

The letter is below.

Organizations Support Federal Spending Transparency 2011-06-21

It's been a busy day for transparency initiatives. This morning President Obama issued an executive order which will create an 11-member board led by Vice President Biden to oversee the reporting of all federal spending data. It is modeled on the Recovery Accountability and Transparency Board and similar in aims to a board proposed in the DATA Act of 2011, also introduced this morning.

We'll have more on this from our policy experts later, but for now you can read the executive order below.

Executive Order--Delivering an Efficient, Effective, And Accountable Government

This morning, Rep. Darrell Issa introduced a major transparency bill that would transform how we track federal spending and identify waste, fraud, and abuse. The Digital Accountability and Transparency Act of 2011 would establish an independent body to track all federal spending on a single website and require the the use of consistent government-wide data standards.

The DATA Act would build upon the successes of USASpending.gov and the Recovery Accountability and Transparency Board -- the independent body that reports upon recovery spending -- by creating a board responsible for publishing and monitoring all federal spending, to be known as the Federal Accountability and Spending Transparency Board. The FAST Board would oversee a successor website to USASpending.gov, which currently tracks all federal spending, but contains nearly $1.3 trillion in spending discrepancies that we identified as part of our Clearspending project.

While the creation of the FAST Board will garner the lion’s share of attention, the effort to create government-wide financial data reporting standards should not be overlooked. It will have a tremendous effect on public participation and oversight by empowering the American people to look at the data themselves. Indeed, Sunlight supports legislation, the Public Online Information Act, that promotes the creation of government-wide data standards and sets up an entity with similar responsibilities.

The White House is at least partially in agreement with this new transparency effort. This morning’s Washington Post reported that President Obama will sign an executive order today that will put Vice President Biden in charge of an 11-member oversight board -- very similar to the RAT Board -- to address federal agency waste and fraud. We won’t know until the EO is released whether the president will seek to modernize agency reporting methods by improving data standards as well. UPDATE: here's the EO.

Our executive director Ellen Miller will be testifying tomorrow on federal financial transparency before the Committee on Oversight and Government Reform, which Rep. Issa chairs. While we are still looking at the details of the DATA Act he introduced today, its broad outlines make a lot of sense. Agencies need to be motivated to fix their reporting systems and follow common reporting methods. And there's new funding to support this particular government transparency effort, an ongoing issue that I wrote about here as part of the #savethedata campaign. There’s a lot more to come.

Here’s the legislation.

The DATA Act

Well, here we are.

Details of the budget deal negotiated last week have finally been posted online, and e-government programs are likely to be deeply cut. The bill will come to a vote in the next few days, and will likely become law, since it represents an agreement reached by congressional negotiators and the White House.

What the agreement is, however, we don't actually know.

Only this morning, three days after the deal was reached, are we seeing the full legislation that Congressional leaders and the White House have already agreed to. And we still don't know what else was agreed to -- hearings, scheduling Senate or House votes, etc. Reid, Boehner, and Obama should all be asked what terms of their agreement are that are outside this new bill.

The urgent need to fund the government (funding expires again this Friday at midnight) will again force Congress's hand, and the bill is unlikely to get a full 72 hours online as Speaker Boehner repeatedly pledged throughout last summer. Though no one, at this point, would advocate shutting down the government in order to give a bill three days online. Especially when an agreement has already been reached, the details have been locked in, and the emergency of a shutdown is looming.

This week's rushed and hollow congressional proceedings, as disappointing as they are, are really a natural extension of the budget negotiations train wreck we've been watching for years. The rank and file members of both the House and Senate have handed power to the Speaker and Majority Leader, a situation only made worse by last year's lack of a budget, and the ideologically charged brinksmanship that is characteristic of a budget fight played out during a divided government.

A very small number of political leaders have ended up with startling control over the country's priorities, and the public has been left piecing together what is happening well after it's been decided. The proverbial "table" of viable options ("on the table," "off the table") has somehow ended up in the back room.

Glimpses of the budget negotiations have been visible in the press, but those details tend to be the obvious theater of base appeasement. Boehner denies there's a deal; anonymous Obama staffers paint the President as both tough-as-nails and as a great convener; and Reid accuses Boehner of reneging. In other words, we get whatever they want us to hear.

If we continue to accept this manner of negotiations as standard operating procedure, this is what we're going to get, for the 2012 budget, the debt ceiling, and probably everything else. While it's difficult to force all of any negotiation to be public, we've got to be able to do better than this. Is it really the same President who once promised healthcare negotiations would be on C-SPAN that is now enforcing gag orders and non-disclosure agreements on the most far-reaching of public policies?

The same politicians that decried last year's legislative initiatives as too sweeping, too secretive, or "rammed through" have negotiated a package that amends all of those initiatives, in private. Congress is left as an antiquated afterthought, a bygone conclusion, a formality.

The White House has been just as bad. The Federal Employees' union had to use FOIA and then sue to try to get access to OMB's contingency plans for a shutdown, which were treated as political documents, rather than management documents vital to the operations of a vast bureaucracy. And OMB guidance advised senior staff to repeat that this was all part of "winning the future," -- the most base example of vapid ideology winning out over merit and substance.

And now we're left with the electronic government fund, once at $34 million, now reduced to $8 million. Is that sufficient? Will USASpending, the ITDashboard, or Data.gov continue to function? The real shame here is that we don't even know. Nobody does.

Vivek Kundra, speaking just now in a Senate hearing, said (paraphrased) that they're in the process of reassessing priorities, and it's unclear what will change.

So the signature sites of the Obama transparency initiative have been cut by a deal that the Obama administration agreed to, and they don't even know how those sites will be affected. If Vivek Kundra doesn't know, you can be sure that appropriators don't, and that the "negotiators" striking this deal were utterly unaware of the consequences of their "agreement."

The electronic government fund deserves a public hearing of its merits, as do all public policies.

If nobody demands better from our leaders, this will be the best we're going to get.

Divided government should mean that we get to see the strengths of each branch played off each other, creating accountability. If a few party leaders are allowed to play Congress and make their own decisions, public accountability gets manipulated, and collaboration gets replaced by collusion.

President Obama's mentioned several of Sunlight's core issues in his State of the Union Address issues last night. A closer look at what he said, and what he said last year, helps to sort out the rhetoric from the reality.

Earmarks

Here's President Obama, last night:

And because the American people deserve to know that special interests aren’t larding up legislation with pet projects, both parties in Congress should know this: if a bill comes to my desk with earmarks inside, I will veto it... A 21st century government that’s open and competent.

This is a new development, and a departure from his request last year, in January of 2010:

I'm also calling on Congress to continue down the path of earmark reform. Applause.) Democrats and Republicans. (Applause.) Democrats and Republicans. You've trimmed some of this spending, you've embraced some meaningful change. But restoring the public trust demands more. For example, some members of Congress post some earmark requests online. (Applause.) Tonight, I'm calling on Congress to publish all earmark requests on a single Web site before there's a vote, so that the American people can see how their money is being spent. (Applause.)

In 2010, Obama called for earmark transparency. In 2011, he issues an outright veto threat. What has changed?

After Obama's initial call for an earmarks database, lawmakers (and Sunlight) took his call seriously, crafting the Earmark Transparency Act in both the House and the Senate. They had broad bipartisan support, and the Senate bill even passed out of committee. The White House was silent, and uninvolved.

Unfortunately, a veto threat is an unlikely fix to our earmark issues. It's unclear how long it'll last, or whether it's a threat that Congress will accept. Even if they do, no one expects earmarks to end, but instead to continue under a different procedure -- phonemarking, lettermarking, and who knows what else. (We're calling those "nearmarks").  Members of Congress can still direct funds to pet projects; they'll just be harder to track, and further from the public eye.

The only ultimately reliable authority to appeal to on spending is public scrutiny. That's what Obama called for last year. Too bad he didn't follow through. It's difficult not to interpret the earmark veto threat with skepticism, as part of an escalating anti-washington political arms race, rather than a well-considered solution to a real problem.

Campaign Finance Disclosure

After the Citizens United decision, President Obama became a fierce ally for legislation to create disclosure in its wake. He made countless speeches and radio addresses, and the White House was heavily involved in trying to get the effort passed. Senate Republicans ultimately blocked the effort, even after an initiative to introduce a disclosure-only bill.

Given that history, it's surprising that this issue didn't show up at all in last night's speech. The cynical view is that Democrats are planning ways to benefit from campaign finance deregulation; perhaps Republican control of the House makes a disclosure bill less likely to pass. In any case, it's a huge reversal for the reform issue perhaps closest to Obama's heart to get a goose egg in the SOTU.

2011:

nothing

2010:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Lobbying

Last night's speech saw one particular call for lobbying reform:

Because you deserve to know when your elected officials are meeting with lobbyists, I ask Congress to do what the White House has already done: put that information online.

That sounds like a good idea, but unfortuntely it's expressed in State of the Union shorthand, and glosses over a pile of complexity. There are two sets of policies that Obama could be referring to when he says that they've "already done" lobbying disclosure.

First is the visitor logs, which the White House released as a result of a CREW lawsuit. They allow anyone to see records of most visitors to the White House posted online four months after the visits occur. These are meaningful disclosures, and allowed Sunlight's Paul Blumenthal to reconstruct the lobbying and dealmaking that went into the healthcare bill.

But that doesn't mean that they're an effective lobbying disclosure system. The design of the WAVES system is an artifact of how security officers track who enters and leaves the White House system -- a far cry from the lobbying disclosure so necessary to holding officials accountable.

Secondly, Obama could be referring to the lobbying disclosures the Executive Branch is voluntarily making around focused issues. There are such policies now applied to TARP, the stimulus, and now to the Dodd-Frank bill. Again, these are meaningful policies, worthy of broad praise, and further analysis. But they're insufficient for the White House to say they're "already done." These policies are easy to evade, and often rely on the outdated and ineffective definitions from the Lobbyist Disclosure Act.

The real fix is the sort of fundamental reform to our lobbying disclosure system that we've described in our bill on PublicMarkup, and posted for public review and commentary.

Having the President push for such a measure would improve its prognosis significantly. Unfortunately, it's unclear whether the line in last night's speech was the opening salvo in a new lobbying reform initiative, or a temporary jab at the legislature intended to garner praise for existing White House initiatives.

If "we do big things" then real-time, online lobbying disclosure should be one of them.

Other

Obama also mentioned the following line:

Because you deserve to know exactly how and where your tax dollars are being spent, you will be able to go to a website and get that information for the very first time in history.

This is rather cryptic. It's possible that this refers to a proposal to create a digital receipt for after paying your taxes, which has been floating around in different versions for several years. But that's a guess.

The USASpending.gov site already provides details on how the government spends money on grants and contracts, although the data they're using is largely unreliable.  If the government is going to add to this accounting, they should fix those problems first.

Overall

Compared to last year's speech, 2011's ideas were derivative and rhetorical.  Since there is no dedicated staffer at the White House pursuing ethics and transparency, it looks like the Obama's leadership on this issue is slipping.

As the White House staff shakeup continues, and in the absence of the not-to-be-replaced Ethics Czar, we're left wondering whether we've already seen the best of the transparency of the Obama Administration.