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

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

Executive Branch Oversight

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

Institution Wide

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

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

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

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

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

Committee Wide

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

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

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

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

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

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

Oversight of Congressional Committees

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

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

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

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

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

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

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

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

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

Release letters to and from the administration and agencies.

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

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

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

Today Darrell Issa, chairman of the House Committee on Oversight and Government Reform, spoke about his vision for improving open government and federal spending transparency at the O'Reilly Media 2011 Strata Summit. The Chairman focused his remarks on the DATA Act, the bipartisan legislation he introduced that would transform how government tracks federal spending and identifies waste, fraud, and abuse.

He emphasized the importance of making government data available online in real time so that innovative minds can immediately make use the information to build their own businesses. Business, in turn, would help the government identify program mismanagement and data quality problems. The Chairman specifically singled out Vice President Biden as a supporter of efforts to find a common solution to make data available in a systematic way.

In an ensuring Q&A with O'Reily Media's Alex Howard, Chairman Issa explained that the private sector must step up as advocates for greater openness because they will benefit from building and using the tools made possible by greater transparency. He added when government drives down the cost of obtaining information, private individuals will derive value from the analysis of data, not its ownership.

The Chairman also addressed proposed cuts to the Electronic Government Fund, which supports many government transparency programs, saying that he doesn't always agree with funding cuts. He added that he has an assurance from appropriators that they're willing to listen when he makes that case that increased spending on transparency programs in the short term may save more money later. Accurate data will help drive down the inefficiencies of government.

Tomorrow morning I will be testifying before the full House Oversight and Government Reform Committee about the Sunlight Foundation's work to liberate federal spending data and experience in developing databases and tools for tracking spending. The hearing, entitled "Achieving Transparency and Accountability in Federal Spending," will be the second opportunity for me to discuss the Sunlight Foundation's Clearspending report where we identified nearly $1.3 trillion in misreported federal spending. The two hour hearing should be live-streamed on the committee website and will start at 9:30 am in Rayburn 2154.

It is an exciting time to continue this important conversation as just today there were two new federal spending developments. The House Oversight Chair Darrell Issa (R-CA) introduced a major piece of transparency legislation that would transform how we track federal spending and identify waste, fraud and abuse. You can read more about the bill from a blog post by Daniel Schuman, Sunlight's policy counsel. The White House also issued an executive order today that will put Vice President Biden in charge of an 11-member oversight board — very similar to the Recovery and Accountability Transparency Board — to address federal agency waste and fraud.

The entirety of my remarks appear below:

6-14-11 - Written Testimony of Ellen Miller before the Committee on House Oversight and Government Reform

Public oversight of government could become a lot easier if legislation introduced yesterday becomes law. The “Access to Congressionally Mandated Reports Act” (HR 1974) requires reports to Congress or its committees be published online by GPO. The legislation, sponsored by Rep. Mike Quigley, and joined by 6 original co-sponsors, reaches virtually all federal agencies and applies to all reports required by statute or conference report, subject to limited exceptions.

Similar legislation was introduced last congress by former Rep. Steve Dreihaus, whose groundbreaking, common-sense legislation has been upgraded by this bill in several important ways:

First, the ACRMA makes sure the reports will be available in bulk, in open formats, and in a timely fashion, so that people can easily learn about the work of the federal government.

Second, it would require the reports to be published by GPO, a legislative branch agency, instead of OMB, so as to maintain control of congressional documents by an arm of the legislature. Because GPO already has a website to publish reports online, publishing these additional documents should be a relatively light lift.

Third, the bill would make it possible to determine when agencies have failed to submit reports to congress in a timely fashion as required by law.

Finally, ACMRA spells out the limited circumstances when reports (or some of their contents) can be withheld or redacted, including indicating when redactions are made.

A number of organizations -- including the Sunlight Foundation -- have already endorsed the bill, and we hope that it will receive speedy consideration and passage.

This is the kind of transparency reform that everyone can support.

Access to Congressionally Mandated Report Act of 2011

This morning I testified before the House Committee on Oversight and Government Reform's Subcommittee on Technology and Information Policy about the failures of government to make rhetoric meet reality. The Sunlight Foundation has been excited about the new promises of data transparency, but sometimes the results are nowhere near the accuracy and completeness necessary for the data to be useful for the public.

Sunlight's Clearspending analysis found that nearly $1.3 trillion of federal spending as reported on USASpending.gov was inaccurate. While there have been some improvements, little to no progress has been made to address the fundamental flaws in the data quality. Correcting the very complicated system of federal reporting for government spending is an enormous task. It has to be done because without it there is no hope for accountability.

In order to fulfill the promise of the Open Government Directive and move forward to meaningful spending disclosure I offered a number of recommendations to the committee. These include unique identifiers for government contracts and grants, publicly available hierarchical identifiers for recipients to follow interconnected entities and timely bulk access to all data.

A video of the hearing should be available shortly on the committee's website and the entirety of my remarks appear below:

Written Testimony of Ellen Miller before the Committee on House Oversight and Government Reform

The Washington Post has an excellent profile of Neil Barofsky, the Special Inspector General for the Troubled Asset Relief Program (TARP). According to the Post, Barofsky is the genuine real deal when it comes to providing oversight and achieving accountability for the money spent on bailing out the banks. And he isn't afraid to ruffle some feathers in maintaining integrity and independence:

Barofsky had a simple message: The government should require any bank receiving taxpayer dollars to explain how it is spending the money. The official, Neel Kashkari, disagreed. So Barofsky, the special inspector general for the program, said his office would do it instead. "I don't think Treasury's done enough," he said. "Frankly, I'm not terribly concerned if anyone in Treasury actually thinks we're being too aggressive. That's our job." The episode illustrates why lawmakers and watchdog groups say Barofsky is emerging as the primary check on waste and fraud in the six-month-old financial rescue effort. But Wall Street executives and Treasury officials criticize him as an overreaching zealot scaring banks from joining the financial rescue, and even his supporters wonder whether his office has sufficient resources to adequately oversee such a gigantic program.

The Special Inspector General's office has been allocated $50 million for what could be a decade's worth of work. It is vital to have someone with Barofsky's dedication to oversight and transparency in charge of this operation. The fact that he quotes from "The Simpsons" and his favorite band is The Clash just makes it that much better.

According to POGO and TPM Muckraker, the hold on the nomination of Neil Barofsky to head the bailout oversight office has been released. Still no word on whether the senator who placed the hold was Sen. Jim Bunning. Kagro X, at Congress Matters, speculates as to whether the disclosure rules for holds forced the offending senator's hand.

(cross posted from our Google Group)

Jon Henke wrote the following provocation, and I decided to respond to the whole list, since it's a topic I think many here will be interested in. (I asked his permission to post in full.)

His email is first, and then my responses:

I had a fascinating conversation with a team leader from the GAO today, and two thoughts occurred to me: 1. GAO reports are done at the request of Congressmen, publicly available, and (as I understand it) reasonably dispassionate and thorough. Would it be possible (or useful) to have a sympathetic Senator request a GAO report on the use of technology in the Senate? Or on opportunities for Congressional transparency? Whether it arrived in time to be useful to the Open Senate Project (doubtful), the examination process should provide very helpful ideas and motivation for progress. Perhaps a broader study could even provide a template for how the Obama administration could deploy technology and transparency to the executive branch agencies. 2. GAO studies typically last around a year, and upon their completion they are published online. But why are they only published when they are done? This is a public interest process. Why not make the public part of the process? Once a study is commissioned, and the outline of the project (what will be studied, how, what data is considered, etc) is devised, why not put that online and allow public comment about each section? If the GAO is studying veterans benefits, why just have a small team examining whatever evidence they can find? This is a job that screams "crowdsourcing/wisdom of crowds". What's more, a collaborative process would both (a) allow input and ideas from citizens, and (b) allow experts (and yes, lobbyists) to make their arguments publicly, where they can (and should) be considered and integrated into the thought process. That could provide a useful way to evaluate the reports and the input of various groups, too (Did their predictions obtain in reality? Were important ideas ignored?) Thoughts?

(and now responses)

I had a fascinating conversation with a team leader from the GAO today, and two thoughts occurred to me: 1. GAO reports are done at the request of Congressmen, publicly available, and (as I understand it) reasonably dispassionate and thorough. Would it be possible (or useful) to have a sympathetic Senator request a GAO report on the use of technology in the Senate? Or on opportunities for Congressional transparency?

I agree with the first sentence. There's a backlog of reports requested, though, and first priority is given to committee chairs' requests. (Here's the GAO document (pdf) that lays out their triage arrangement for requests.) They're also all public, although some of them are withheld from web publication by agency request.

I'm not sure how likely it is that GAO (or Congress) would prepare a report on transparency; CRS is more likely to respond (or to be asked) to prepare such a report. One recent, very similar report was prepared by Walter Oleszek, which I reviewed here, in September of 2007. I'm not sure if the report has been updated since, but it's a great resource.

Applying GAO to Congress isn't done all that frequently (as far as I'm aware), since GAO is a legislative support agency (like CRS or CBO), though of a slightly different type, acting often more like an executive agency. GAO's statutory requirement to review financial disclosure within all 3 branches has been (apparently) routinely ignored since approximately 1990.

Whether it arrived in time to be useful to the Open Senate Project (doubtful), the examination process should provide very helpful ideas and motivation for progress. Perhaps a broader study could even provide a template for how the Obama administration could deploy technology and transparency to the executive branch agencies.

With those cautions in mind, I'd love to see a GAO review of transparency in Congress, or even across all three branches, especially since many of the disclosure requirements have roots in the same laws (like the Ethics in Government Act, which sets financial disclosure requirements for high ranking staff in all three branches.) This is probably one among many tools to spur Congress into some constructive introspection, including CRS reports, committee hearings, legislation, sense of the Congress resolutions, informal advisory recommendations (cf this list, OMBWatch's report, or the ABA rulemaking report), lawsuits, committee reports, rulebreakers and internal champions, media coverage, etc. It would likely have to come from some committee chair (or leadership figure) with relevant jurisdiction, like a leg. branch approps chair, government reform chair (in the House) or gov't affairs cmte chair (in the Senate).

2. GAO studies typically last around a year, and upon their completion they are published online. But why are they only published when they are done? This is a public interest process. Why not make the public part of the process? Once a study is commissioned, and the outline of the project (what will be studied, how, what data is considered, etc) is devised, why not put that online and allow public comment about each section? If the GAO is studying veterans benefits, why just have a small team examining whatever evidence they can find? This is a job that screams "crowdsourcing/wisdom of crowds".

I agree with this in spirit, but I strongly fear unintended consequences here. Take the Office of Legislative Counsel, for example. This is a quiet, isolated room full of legal scholars with expertise in the actual drafting of laws. They operate under strict guidelines over what they can share, since the same drafters could conceivably be asked to write opposing bills for political opponents. Maintaining confidentiality and objectivity is essential, since everyone has an interest in trusting that bills will be well written.

The same is true for some CRS documents (those we're NOT asking to have published), where Members sometimes turn for confidential advice. I think confusion between these documents and the circulable documents causes some of the resistance to an open CRS we find on the hill.

GAO, not unlike a police department, needs whatever tools are necessary for effective oversight, and publishing only completed documents probably falls into that category.

What's more, a collaborative process would both (a) allow input and ideas from citizens, and (b) allow experts (and yes, lobbyists) to make their arguments publicly, where they can (and should) be considered and integrated into the thought process. That could provide a useful way to evaluate the reports and the input of various groups, too (Did their predictions obtain in reality? Were important ideas ignored?)

Again, with those cautions in place, I'm a HUGE fan of the idea that an empowered public can strengthen our checks and balances, and reinstate effective oversight both within and between branches. That's why I'd like to see a collection of upcoming reports to Congress (since it would empower public watchdogs and oversight staff alike), and why I started the (now defunct) Congressional Committees Project two years ago.

Integrating public activity into carefully constructed government processes can be tricky, which is one reason that the Peer to Patent Project's success is so impressive -- it's obviously the product of some brilliant and careful planning.

I'd love to see oversight committees, GAO, or even CRS start to address the possibilities presented to them by communities such as this one, but the first steps are hard to find, especially for as heated a topic as oversight, where jurisdictions are carefully protected, and where the stakes are especially high for those under investigation. If even commenting on the quintessentially public bill is so hard to implement, a publicly empowered oversight process will be even tougher to generate.

It's a good first step, though, that people within those institutions we wish to change are following along closely (many are on this list), and that policy makers and the media are recognizing the developing capacity for public relevance.

TPM Muckraker has been all over the hold placed on the nomination of Neil Barofsky to lead the oversight of the bailout. All signs point to the initial suspect, Sen. Jim Bunning. If Bunning stays shut like a bad clam, the identity will have to come out in a few days anyways. In replying to my post from two days ago, Kagro X writes at Congress Matters:

I actually count three session days since Chairman Dodd's November 21st statement noting the hold -- pro forma sessions on the 24th, 26th and 29th. The calendar at Majority Leader Reid's site lists a pro forma session for yesterday, December 2nd, with another scheduled for Friday, plus a working session on Monday. That'd take us to six session days since Dodd's acknowledgment of the hold, which may or may not have been in place for a few days prior to the Dodd statement. So in all likelihood, next week will see us pass the necessary sixth session day required under the new rule, and we'll know who the chowderhead behind this delay is.

According to TPM Muckraker, a Senate Republican placed a secret hold on the nomination of Neil Barofsky to lead the office of special inspector for the bailout.

Earlier this month, the Bush administration nominated Neil Barofsky, a federal prosecutor, to be the Treasury Department's special inspector general on the bailout program. That's a crucial post, given the astronomical sums at issue, the broad authority that Treasury has been given to distribute them, the concerns that have been raised about possible conflicts of interest, and the general urgency of our efforts to prevent an economic collapse. So you'd think Congress would be doing everything it could to get Barofsky confirmed right away. You'd be wrong. Last week, Sen. Chris Dodd, the Connecticut Democrat who chairs the banking committee, issued a little-noticed statement saying that although the nomination "was cleared by members of the Senate Banking Committee, the leadership of the Senate Committee on Homeland Security and Governmental Affairs, and all Democratic Senators," it was "blocked on the floor by at least one Republican member." (itals ours.)

We've had our fair share of experience with secret holds, having fought to reveal the identities of those secretly blocking the Coburn-Obama bill (FFATA) and the campaign finance e-filing bill (S. 223). The first thing of note is that secret holds were, for the most part, abolished during the 110th Congress. The Honest Leadership and Open Government Act mandated the disclosure of the identity of a senator secretly blocking a "measure or matter" "not later than 6 session days" after the initiation of the hold.

The Barofsky nomination provides a good example of the loopholes in this mandate of disclosure. If a bill or, in this case, a nomination comes up prior to a long recess, the disclosure of the offending senator's identity will have to wait until the Senate reconvenes for at least 6 session days, not calendar days. So far, since the nomination was blocked, the Senate convened for two session days. While they are expected to convene tomorrow for a pro forma session, it is unknown whether the Senate will convene for four more days by the end of the year.

TPM Muckraker suspects Sen. Jim Bunning to be the secret hold senator, having opposed the full funding of the office that Barofsky is nominated to lead. If you can't wait another four session days to find out who is blocking oversight of the $700 billion bailout, feel free to call your senator and ask. Leave your findings in the comments or head over to TPM Muckraker and let them know.