Yesterday it was reported that a former Member of Congress, Ernest Istook, was seen on the House floor asking his colleagues to oppose the Boehner debt ceiling legislation. It seems that Istook, though clearly “lobbying” by anyone’s sense of the word, did not violate a House Rule that prohibits former members who are lobbyists from access to the floor.

The reason Istook can use his clout, his friendships with current House members, and the resources of the Heritage Foundation—where he is currently employed—to sidle up to lawmakers and ask for their support, is because he is not a registered lobbyist. A current gaping loophole in the law provides that anyone who spends less than 20 percent of his time lobbying does not need to register and report his activities. In the case if former members, the loophole also allows them to continue to access their colleagues on the floor of the House, the House gym and other exclusive venues limited to current and former lawmakers.

On a day when average citizens couldn’t reach their members of Congress because phone lines were overwhelmed and web sites crashed, it is particularly galling that former members, the ultimate Washington insiders, have such direct and immediate access.

Sunlight supports legislation, HR 2339, the Lobbying Disclosure Enhancement Act, that would end stealth lobbying by closing the 20 percent loophole. In addition, the bill would require that all lobbyists report the names of the individual members with whom they are meeting so that we know who our elected officials are talking to, and about what.

Will the American people be able to watch online as members of Congress discuss how much money to spend on the House of Representatives next year? Probably not, as this Thursday's hearing will take place in a room without cameras, even through the main committee room is wired to the internet and apparently available.*

The in-person-only nature of the hearing conflicts with the newly adopted House Rules, which require “to the maximum extent practicable, each committee shall --”

provide audio and video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings.

Last year, Speaker Boehner moved to ensure that the House Rules Committee could broadcasting video of its proceedings in its main hearing room. At the time, he said, “given the important business conducted there, we feel strongly that the American people should have the ability to watch the Committee in action.” The same argument can be made here.

In light of the serious and important efforts being undertaken by the House leadership to move Congress into the electronic age, the Appropriations Committee should hold its hearings as possible in the main room whenever possible, starting with this one, until cameras are installed in its subcommittee rooms.

~ Phone calls requesting comment were not immediately returned, but I do hope to have an update when we hear back.

Speaker Boehner and Majority Leader Cantor today sent a letter to the Clerk of the House calling for better access to the House's electronic data:

...At the start of the 112th Congress, the House adopted a Rules Package that identified electronic documents as a priority for the institution. Towards that end, we are asking all House stakeholders to work together on publicly releasing the House’s legislative data in machine-readable formats. The Rules of the House, adopted on the opening day of this Congress, directed the Committee on House Administration to establish and maintain electronic data standards for the House and its committees. We have asked that this standard be developed in conjunction with your office for the purpose of transitioning the House to more open data formats, such as XML. We believe that this legislative data, using standardized machine-readable formats, should be publicly available on House websites. The Clerk’s office should work to ensure the consistent public availability and utility of the House’s legislative data.

This an extremely important move. A joint letter from the Speaker and Majority Leader is a real commitment to data release, and means that the House is going to be adjusting how it shares legislative information online.

This has been a priority for the Sunlight Foundation since we were founded, from the 2007 Open House Project chapter on data access from Josh Tauberer, to the 2008 legislative appropriations language that was crafted to this end, and to OpenCongress.org's persistent advocacy on this topic.

Access to legislative data brings citizens closer to their representatives. When developers and programmers have better access to the data of Congress, they can better build the databases and tools that let the rest of us connect with the legislature.

This is a fantastic move from Speaker Boehner, and recognizes the transparency innovation happening outside Congress.

We're excited to see what this commitment will yield, and to work with the House and the community of legislative data users to help create the most effective access possible to House legislative data.

On Friday, Rep. Peters introduced a new bill, (H. Res. 230), to carry the Read the Bill mantle.

The bill would require all legislation that hasn't been reported out of committee to be posted online for at least 72 hours.

The measure, also cosponsored by Reps Quigley and Polis, comes on the heels of the new House Rules for the 112th Congress, which require three calendar days for legislation. This rules change (from this January) was a significant improvement over what came before, even if there are many avenues for evading a full, 72 hour public airing of legislation.

The biggest loophole in the existing rules, it turns out, is that three calendar days can mean as little as 24 hours and change, as long as the bill is online during part of three different working days. Several bills this Congress have been passed without 72 hours online, including the NPR defunding vote, and one of the Continuing Resolution bills from House Republicans.

These votes were particularly surprising, since Speaker Boehner was a big proponent of the 72 hour standard for all House bills, as we've pointed out before.

Rep. Peters' bill would raise the standard for House bills from 3 days to 72 hours, and give lawmakers and the public the minimum they need to see what is in bills that are being considered.

House leaders have clearly recognized that the public expects bills to be online before votes, and have improved the way bills are shared online, but we shouldn't rely on the Speakers' prerogatives in order to guarantee a reasonable amount of time for public consideration of bills in the people's House.

H. Res 230 is short enough to read in a minute or two. The full text is below:

HRES 230 IH 112th CONGRESS 1st Session H. RES. 230 Amending the Rules of the House of Representatives to provide that the House may not consider any reported bill until at least 72 hours after it is reported. IN THE HOUSE OF REPRESENTATIVES April 15, 2011 Mr. PETERS (for himself, Mr. QUIGLEY, and Mr. POLIS) submitted the following resolution; which was referred to the Committee on Rules RESOLUTION Amending the Rules of the House of Representatives to provide that the House may not consider any reported bill until at least 72 hours after it is reported. Resolved, That clause 11 of rule XXI of the Rules of the House of Representatives is amended to read as follows: `11. It shall not be in order to consider a bill or joint resolution that has not been reported by a committee until such measure has been available to Members, Delegates, and the Resident Commissioner for 72 hours (excluding Saturdays, Sundays, or legal holidays except when the House is in session on such a day) in which such measure has been available to Members, Delegates, and the Resident Commissioner.'.

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.

Now that we've seen the final Rules package that the House will pass later today, we can talk about what's changing with a little more certainty.

Late this summer, we released a detailed set of recommendations for Rules changes, and we're delighted by how many of those changes will be incorporated into the House Rules.

Final Bill Availability: As Lisa noted yesterday, the public will have a much better chance of being able to read bills before they're considered on the floor. While House Rules are waivable, and this one is by no means ironclad, we have probably, finally, moved beyond the dispiriting spectacle of voting on bills which haven't been posted online first.

Sunlight has long been the leading force behind the ReadtheBill movement.

New Committee Responsibility for Electronic Publication: The new Rules give the Committee on House Administration (CHA) responsibility for setting standards for how documents are made available online. This dovetails nicely with the new bill publishing that will now be happening, and it's heartening that someone will be specifically responsible for how information is posted online. Today's Rules have a number of first steps, and CHA will have its work cut out for it in working through online publication for the House.

This closely echoes chapter 12 of our 2007 Open House Project report.

Committee Hearing Notice: Sunlight has long called for structured, online advanced notice of committee hearings. The new rules require a week's notice before hearings, and three days notice before meetings. This notice is required to be "publicly available in electronic form."

Markup Text: Committees are now required to post copies of legislation to be "publicly available in electronic form" at least 24 hours before markups.

Committee Votes Online: Maybe this perennial fight can now end -- the new Rules require committees to post all recorded votes online. This was in the 2007 Open House Project report, and in our recent Rules package.

Committee Amendments Online: Amendments adopted in committee must now be posted online within 24 hours.

New Disclosure for Testimony: Anyone testifying in the House will now not only submit disclosures to the House, but those will be posted online as well. This provision was in our Rules package.

Committee Rules: Committees must now post their committee rules online, another Sunlight recommendation.

Committee Coverage: The House Rules now require committees to broadcast their proceedings, with the caveat that is the phrase "to the maximum extent practicable." The wording implies both live and archived access to proceedings.

Votes in the Rules Committee: The Rules Committee will no longer enjoy an exemption to the requirement that they put their recorded votes into committee reports. (Another Sunlight recommendation.)

Electronic Devices on the Floor: Electronic devices are now allowed on the House floor, as long as they don't impair decorum.

Press Treatment: Provisions that singled out specific media organizations or types of media organziations for access to official proceedings have been broadened. (Another Sunlight recommendation.)

Oversight Plans: The House started posting committees' oversight plans more reliably during the 111th Congress, after our urging, and the 112th House Rules broaden committees' required activity reports, and also increase their frequency.

Interim Online Posting: Until the House Admin Committee determines a central location, bills will be posted online on the Rules Committee site, or on majority committee sites.

Office of Congressional Ethics: The Office of Congressional Ethics will continue to function in the 112th Congress, as Daniel recently noted, and Sunlight pushed for.

Exercise Facilities: Lobbyists (or former Members married to lobbyists) are now further restricted from the House exercise facilities.

Via Boehner's twitter feed, it looks like OCE will survive the transition to the 112th Congress. Here's the CNN story.

CNN is also reporting that a draft of the House Rules for the 112th Congress will be posted tomorrow.

We'll be following the draft closely, since Sunlight released a comprehensive Rules reform package.

To watch for, in addition to the very welcome OCE update: whether a 72 Hour ReadtheBill rule is included, and what kind of new information is required from committees.

As House Republican leaders examine their options for House reforms, the 72 Hour Rule, or ReadTheBill, is always near the top of the list.

The form this reform will take, though, is far from clear.

Daniel recently gave details on the technical limitations a 72 Hour rule will face, noting that bills need to be shared better -- on THOMAS, in a machine-readable format, and available in bulk -- in order to maximize reuse online.

In addition to those technological hurdles, procedural hurdles also stand in the way of an effective 72 Hour Rule.

Presumptive Speaker Boehner has already taken one step past Speaker Pelosi on the ReadtheBill front, by committing to putting all non-emergency legislation online for 72 hours. The form this reform takes, however, will determine its strength and reliability.

Here are some procedural complications that could weaken a 72 Hour Rule.

Is it a rules change? It's unclear, so far, whether the 72 Hour Rule will be codified as a change to the House rules. Most focused advocacy for the ReadtheBill effort has focused on a particular proposal, H.Res 554 in the 111th Congress, which is primarily a rules change. If Republicans don't pass a rules change, then the rule will continue as an informal commitment from the Speaker of the House, with an uncertain future. A future Speaker wouldn't have to undo anything to walk away from it, and neither would Boehner, should he choose to.

What about amendments? H.Res. 554 punts on amendments. The bill actually contains Sense of the House language, basically asserting that major amendments should be online for an appropriate period of time. While this may seem like an oversight, further reflection reveals that requirements for amendments to be online can be tricky. Imagine if all bills were online for 72 hours before floor consideration, and all amendments were online for 72 hours before the same floor consideration. If that's the case, then no one can amend the bill they're reading, since the deadline for amendments would have already passed. The solution here may be to require bills to be online for 72 hours and amendments online for 24, but there's no clear consensus that that's the right solution. And that brings us to the second problem relating to amendments.

What about manager's amendments? Even if all amendments were online for one day before floor consideration, it's likely that large, contentious bills would get enormous managers amendments introduced at the last possible moment (whenever that moment may be). If it's just a day, that may still be a very short period of time to read and evaluate what may be an enormous and complex pile of compromises. Worse, these last minute changes are often the most contentious features of the bill -- they're the things being negotiated, after all. A strong, reliable 72 hour rule will eventually need to address managers amendments, and the complex negotiations they inevitably contain.

Depending on one's ideological relationship to any legislation in question, those negotiations can represent anything from valuable bipartisan compromise and careful deliberation all the way to vote-buying and backroom deals. One's feelings about the 72 hour rule also follow a similar pattern. How else do Michael Moore's meditation on the USA PATRIOT Act and the Republican opposition to the health care bill end up on the same script?

The Rules Committee Can Waive the Rules. Most bills are passed in the House under special rules, which govern debate, and can waive any House rule. Even rules about the Rules Committee can be waived by a rule reported out of the Rules committee and passed on the floor. Republican leadership, especially Eric Cantor, have been vocal about what they term a return to "regular order," but the Rules Committee is an extension of the prerogatives of the Speaker, one of the defining characteristics of the House. If the Senate is deliberative and slow, the House is decisive and authoritative, and the authority is the Speaker's, often expressed through the majority party's disproportionate control of the Rules Committee.

Self Executing Rules can change bills. Similarly, the special Rules from the Rules Committee can contain language that changes bills, essentially functioning as an amendment. Both parties have objected strongly to the other party's use of such rules, but, to our knowledge, no one has suggested a viable mechanism for reigning in this prerogative of the Rules Committee.

Conference Reports may be tricky. Most legislation will need to pass both chambers of Congress and go through a Conference Committee before heading to the President's desk. 72 hours for the initial House version would be nice, but without a chance to see what comes out of Conference, we won't know what's in the final law until too late. This can be tough, because each chamber can make changes to what comes out of the conference committee, and send the legislation back and forth. Should every iteration, if there are several, be subjected to 72 hours anew? We faced this difficulty before, and hedged, saying that conference reports and any major changes that follow should be online for 72 hours.

Is the Rule powerful? In addition to the fact that House Rules are waivable, some House Rules are simply ignored. A powerful 72 Hour Rule (like H.Res. 554) will change what is in order, effectively empowering the minority to raise a point of order against an offending motion. Without such an appeal to procedure, the requirement would be far weaker. Changes to the Congressional Record, for example, are supposed to only be typographical or grammatical, but Members regularly make far more substantive changes to their remarks as they appear. This is against the Rules, but essentially, no one cares. Even the best rule will need popular expectations to back it up.

This is actually true for all of the complications we've identified. Even the most well meaning 72 Hour Rule will be a seductive sacrifice for any Speaker who is faced with a potential legislative achievement. These are probably only some of the ways a public posting requirement could be evaded. Congressional floor procedures are incredibly complicated, and governed not just by Rules, but by complex precedents. The real arbiter of acceptable congressional procedure will ultimately always be the electorate. No one else can, or even should, have that kind of power of Congress.

Even so, we're hoping Speaker Boehner and Republican leaders choose to codify a strong, effective 72 Hour rule, and lives up to his promise, even when it's inconvenient, as he has readily acknowledged it will be.

In 2007, then Minority Leader Boehner spoke at the press conference announcing our Open House Project report, which identified changes the House should enact to become more open. Speaker Pelosi's initial endorsement kicked off the project, and many of the reforms we identified were enacted by the Speaker and the Congress over the next three years.

Once again, as leadership roles change, enthusiasm for transparency is contagious. In fact, it's the one issue party leaders often agree on, at least in general terms.

Promises and rhetoric from both sides only become real through work and commitment, and we're going continue to work diligently to enact the reforms at the heart of Sunlight's mission. From our Rules package, to campaign finance disclosure, earmark transparency, to the 72 Hour Rule and beyond, we're diving through the transparency issues facing the President and the Congress.

For just a taste of the transparency commitments in the last few days, here's President Obama in today's press conference:

Q Is there anything in the “Pledge to America” that you think you can support? THE PRESIDENT: You know, I’m sure there are going to be areas, particularly around, for example, reforming how Washington works, that I’ll be interested in. I think the American people want to see more transparency, more openness. As I said, in the midst of economic crisis, I think one of the things I take responsibility for is not having pushed harder on some of those issues. And I think if you take Republicans and Democrats at their word this is an area that they want to deliver on for the American people, I want to be supportive of that effort.

...and here is Eric Cantor's proposal (pdf) for how Congress should function,

...and here is Leader Boehner speaking recently about the 72 hour rule.

We've been tracking promises and issue areas where we'll be working, and will pursue them all vigorously, especially in the coming months.

In each of the last 3 political cycles, transparency has been a campaign issue. In 2006 we saw ethics and disclosure issues lead directly to the Honest Leadership and Open Government Act reform package, in 2008 transparency was a major tenet of the Obama campaign, and now in the 2010 midterms, candidates across the political spectrum have government reform platforms with different takes on government transparency.

Our recent House recommendations look at the rules that control transparency in the House, and offer detailed recommendations for opening Congress. We’ve renewed our call for a rules change to require all bills to be posted online for 72 hours before floor consideration, something Sunlight has long advocated for.

In a few years, the 72 hour rule has gone from a perennial complaint to a serious leadership issue -- the sort of attention the issue deserves.

Over the last year, Speaker Pelosi has repeatedly committed to posting major legislation online before floor consideration, and stuck by those promises. 72 hours online has become the new normal.

CBS News has apparently posted an advance draft of the House GOP platform, with some 72 hour language:

Read The Bill:We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives.No more hiding legislative language from the minority party, opponents, and the public.Legislation should be understood by all interested parties before it is voted on.

The language throughout the “Pledge to America” platform is fascinating to me, because it frames process reforms as a move away from the privileges of the Speaker, toward a more decentralized House.

The House of Representatives continues to move further away from its roots as a deliberative body, toward acentralized power structure where the majority does whatever it needs to win at all costs

A House with less centralized control won’t necessarily be more likely to post bills online before they come to the floor, though.

The only ways to get the House to publish bills online before they’re voted on are through the Speaker’s discretion, Rules changes, or through public expectations. Commitments from leadership are a step forward, but a rules change is far more decisive. And leadership commitments and rules changes both depend on the public caring -- without that, the rules can be ignored, and leadership will just go back to rushing bills to the floor.