Recovery.gov is supposed to be a transparency clearing house for information on the federal stimulus spending appropriated in the $787 billion American Recovery and Reinvestment Act passed earlier this year. Unfortunately, the reports on spending and jobs saved or created are showing errors across the board.

Clay Johnson at Sunlight Labs looked at the "dirty secret" that is FederalReporting.gov, the site where agencies and stimulus fund recipients file their reports before that data is pulled by Recovery.gov:

Looking into FederalReporting.gov is a lot tougher than Recovery.gov. Not a lot of light has shone upon this website. In terms of costs-- the only thing I can find on usaspending.gov is that the EPA has set up a $4,000,000 helpdesk for the operation. It looks like right now there are three ways to send data into FederalReporting-- via an Excel Spreadsheet, a Web Form, and via an XML API.

The question on my mind is-- what kind of validation is being done on the data before it goes into federalreporting.gov? For instance, how is data getting being accepted by FederalReporting.gov saying that jobs are being created in Arizona's 15th District when Arizona's 15th district doesn't exist? Shouldn't FederalReporting.gov be validating that? It seems from the documentation that all three methods of submission have a validation process. Is the validation so lax that obviously wrong data can get through?

My initial reaction upon seeing the Arizona 15th District story was that this could have been a state-level agency or contractor reporting that jobs were created in the 15th District of the Arizona Legislature (Arizona elects one state senator and two state representatives from each of their 30 legislative districts). That was until I saw that jobs and spending were being reported from the 86th District and other states were seeing reporting coming from the 99th District and other non-existent legislative boundaries. This problem, which is huge for a project that is relying on transparency for legitimacy, stems from a patchwork reporting structure that, as Clay reported, is not being overseen properly. It looks like some of the state and local agencies and private contractors and subcontractors are simply putting a number into a box where they decided not to figure out the correct answer. Subsequently, the reporting site that they submit to is apparently not checking for errors.

In response to a letter sent by House Oversight and Government Reform Committee ranking member Darrell Issa, Recovery Accountability and Transparency Board chairman Earl Devaney answered questions about the accuracy of Recovery.gov reporting by stating, "Your letter specifically asks if I am able to certify that the number of jobs reported as created/saved on Recovery.gov is accurate and auditable. No, I am not able to make this certification." The accurate part is obvious from the many examples pointed out by ABC, Sunlight Labs and others, but the auditable seems a bit shocking. Why isn't the data able to be audited? Is it really that bad? Or is the Recovery board's staff that over-stretched. While Devaney promises “increasingly higher levels of accuracy in the future," this problem of accuracy and auditability should have been tackled before issuing press releases claiming the positive effects of stimulus spending.

Earlier today, I gave a presentation on the executive branch's lobbying disclosure rules to the American Bar Association's Section of Administrative Law and Regulatory Practice at their 2009 Administrative Law Conference.

My slides from the conference are available below.

The White House's Office of Management and Budget released the administration's new stimulus lobbying rules on Friday, as John mentioned earlier. In summary, the new rules generally expand who is covered by the ban on agency staff having oral communications regarding Recovery Act grants, although it shrinks the circumstances as to when the ban applies and what it covers. It also closes a loophole pertaining to written communications by lobbyists on policy matters.

The 787 billion dollar question is how does the OMB's July 24th guidance on stimulus recovery lobbying differ from its April 7th memo? (For a short video explaining the old rules, see this.) Here's how the rules have changed.

Who Is Covered?

The rule against agency officials engaging in oral communications with persons applying for federal financial assistance under the Recovery Act has been expanded to nearly everyone, instead of only encompassing lobbyists, as it did before.

However, the ban specifically exempts certain groups of people. It doesn't reach federal government employees. It doesn't cover the elected chief executive of a state, local, or tribal government (e.g., governors and mayors). And the ban doesn't apply to the Presiding Officer or Majority Leader in each chamber of a state legislature.

In addition, the ban does not apply if the subject of the communication to an agency official regards a purely logistical question, or was made at a widely attended gathering. Nor does it cover people responding to communications initiated by agency staff – that is, to answer agency staff questions.

Interestingly enough, it is not clear whether the new rules pertain to Congressional staff or Members of Congress. It seems reasonable to conclude that Congressional staff can communicate with agency officials under the “federal government employee” exemption. However, Members of Congress are not specifically exempted from these rules, although elected officials at the state and local level are specifically mentioned as exempted. (It would be a stretch to fit Members of Congress under the “federal government employee” exemption.)

The omission of Members of Congress probably is an oversight. If followed, banning communications by Members of Congress would likely be unconstitutional, as Congress has oversight responsibilities over agency activities.

When Does The Ban Take Effect?

The ban on oral communications set forth in the April 7th memo prohibits communications “regarding Recovery Act matters” that pertain to “particular projects, applications, or applicants for funding.” Under the old rule, oral communications are prohibited upon the first expression of interest by a party, or even earlier than that, if there's enough indication that the party is interested in a specific project or application.

The new memo changes this considerably. Now, persons interested in receiving Recovery Act money may communicate with agency officials up until the point they file a “formal application.” This is much later on in the process. Conceivably, persons interested in Recovery Act funds may hold off on filing an application for a grant while they lobby administration officials, and then submit the formal paperwork once they've laid the groundwork.

What Does The Ban Cover?

Under the new rule, the ban covers only oral communications concerning pending applications for a competitive grant or other competitive form of federal financial assistance under the Recovery Act. The previous rule covered oral communications regarding all grants, regardless of whether they were competitive or issued based upon a formula. The new OMB memo explains that only competitive grants are covered because “in formula-driven grant contexts, grantees . . . are designated by statute and do not have to compete with others to receive their awards from Federal agencies.”

Final Thoughts

The OMB memo says that the administration will soon release a “web tool” to “facilitate disclosure of lobbyist contacts concerning the Recovery Act.” This will go a long way towards making this a more transparent process. Hopefully, the form will look something like this.

Last Friday's memo also partially closed a loophole identified in an earlier post. Agencies are now required to publish online written communications from lobbyists concerning Recovery Act policies. This alleviates the concern about lobbyists can ask for the creation of specific grants that would benefit their clients without having to disclose their request. It leaves open, however, the ability of lobbyists to ask for the creation of formula-driven grants that would ultimately be distributed to their clients.

Today, May 8th, marks the 125th birthday of Harry S Truman, our 33rd president. He once said, "Secrecy and a free, democratic government don't mix." Amen, Mr. President.

Here are a few of the more interesting media mentions of Sunlight and our friends and grantees from this week:

Monday morning, Tom Lee, a technology director at Sunlight, appeared on C-SPAN’s “Washington Journal” taking questions about Recovery.gov, the Web site set up to track spending under the federal government’s economic stimulus program. Tom is working on SubsidyScope, a project of The Pew Charitable Trusts, that looks at the role of federal subsidies in the economy. Below is the video of the segment:

Speaking of Recovery.gov, Matt Kelley with USA Today reported that the Web site won't have details on contracts and grants until October and may not be complete until next spring — halfway through the program. Kelley quotes Greg Elin, Sunlight’s chief evangelist, saying people accustomed to getting easily searchable information quickly could be frustrated. "If we have to wait until October to get the information or to the end of the year to get a powerful recovery.gov site, the Obama administration will have missed an important opportunity."

Katrina Vanden Heuvel, editor of The Nation, in an op-ed titled "Ways to Protect Our Democracy," highlights the work of Sunlight and Sunlight Labs, and mentions the Apps for America contest. Vanden Heuvel quotes Gabriela Schneider, "This is the next generation of civic engagement…We see it as a way to revitalize democracy. The transparency work is a catalyst for the greater democracy reform movement."

The U.S. Senate announced this week that it was going to start publishing roll call votes in XML, an online format that’s easily reusable by other programs. XML allows the data to be manipulated and organized in such a way that public interest groups can get a much more thorough picture of Senate voting patterns. In writing about the move, the Politico’s  Victoria McGrane quoted John Wonderlich, Sunlight's policy director, as saying the Senate’s decision was “spectacular.” The Examiner newspapers editorialized that the move signals the Senate had finally joined the 21st Century. As encouraging and important as this step by the Senate is, I’d hold off on that designation until senators start disclosing campaign finance data online and in a timely manner.

The New York Times’ Stephanie Strom highlighted the campaign to get Congress to release to the public Congressional Research Service reports, highlighting the efforts of Open CRS, Center for Democracy and Technology, OpentheGovernment.org and Sunlight.

Jeanne Cummings at the Politico wrote about “lobbyist contact” disclosures posted on government department and agency Web sites. She made note of a review conducted by Paul Blumenthal, Sunlight’s senior writer, that found only 14 of a possible 29 departments and agencies have created Web pages to disclose lobbyist inquiries. On March 20, President Obama issued a memo to all agencies involved with the distribution of funds from the American Recovery and Reinvestment Act requiring them to disclose all communications between lobbyists and agency officials. John Fritze with USA Today wrote that Obama’s effort to make lobbying more transparent has shed little light on the behind-the-scenes, special-interests lobbying thus far. He quotes Melanie Sloan, director of Citizens for Responsibility and Ethics in Washington, "We're looking to have more disclosure, not less. If this was supposed to give us more disclosure, why is it that you're not seeing lobbyist communications?"

Mother Jones' Jonathan Stein profiled Lisa Rosenberg, Sunlight’s government affairs consultant, terming her "K Street's worst nightmare" and "the lobbyist lobbyists hate." He wrote that Lisa is "not your average influence peddler," but does the "unthinkable" by lobbying for more oversight and regulation of lobbying. Stein quotes Lisa, "I have no friends...My lobbyist colleagues are cringing at the things that I do."

Joshua Zumbrun at Forbes.com wrote about six ways Uncle Sam can help rescue newspapers. One of his proposals is for the government to help ease newspapers into nonprofit status, citing the Center for Responsive Politics and the Center for Public Integrity as examples of nonprofit organizations that are already making an impact.

Thanks, and see you next Friday!