On Thursday, the White House announced the winners of their Leading Practices initiative, that they first outlined in April.

The Leading Practices were designed to highlight examples where agencies have risen above the expectations set by the White House, and proactively attained a higher standard of transparency. (I participated in helping to establish the leading practices standards.)

The winners are a collection of some of the best transparency work being done at federal agencies, with HHS taking the slot for transparency (quite deservingly). These winners are a nice counterpart to the White House page on Open Government Highlights.

As I wrote when the Leading Practices were first announced, though, there is a bittersweet element to this congratulatory platform. As the White House rightly points to the great work some agencies are undertaking, we can't help but wonder whether there is an analagous effort being undertaken with agencies who are struggling with (or blowing off) the Directive's requirements.

While we can hardly expect the White House or OMB to publicly chastise any laggard agencies, we do have to wonder how much of a private stick exists to go along with this public carrot.

The White House is characterizing their failure to replace Ethics Czar Norm Eisen as an upgrade. If they wanted to vigorously pursue the portfolio assembled under Eisen, though, they could have replaced him, and fit a new person into the empty slot.

Instead of filling an existing position, though, the White House is carving up Eisen's portfolio, and transferring those responsibilities to the White House Counsel, Bob Bauer, who already has a full plate of Presidential issues. This could bode poorly for some of the issues Sunlight cares about most. Here are some of the issues that will now apparently have to vie for the White House counsel's attention:

Earmark Transparency: In his 2010 State of the Union address, President Obama called for a single searchable database of all earmarks and earmark requests. In the months since then, we've seen bills introduced in the House and Senate, and a bill reported favorably out of the Senate Homeland Security and Government Affairs Committee. The time is ripe for earmark transparency to be solved through online disclosure, and yet the White House has remained silent since the SOTU address.

Open Government Directive: The Open Government Directive can either become a dated, rhetorical memo, or a transformative commitment to a new era of openness. Only if the White House holds agencies to their requirements and plans can the Directive have real force. OMB Director Orszag has left, and with Eisen leaving, enforcement faces more uncertainty. When the public compliance dashboard doesn't meaningfully differentiate between failure and progress toward meeting expectations (compare the yellow to the red in this chart), we can expect clarity in enforcement to continue to be a concern.

Citizens United: The White House is clearly committed to passing a legislative fix to the Supreme Court decision, but will the legislative fight get the attention it needs to succeed?

Whither Ethics.gov?: Ethics.gov was a campaign promise to build a single website with ethics and accountability information to transform government accountability. Does this have any hope of still happening?

Lobbying Disclosure Reform: President Obama also called for reform of lobbying regulations in his State of the Union. While the White House frequently rails against special interest lobbying and disproportional influence, will they have the bandwidth to push for real solutions to this real problem?

Executive Disclosure: The White House made some meaningful first steps in posting ethics filings online, requiring extensive stimulus lobbying disclosure, and posting the Visitor Logs records online for the first time. These aren't well established policies, though, and need a steady hand and a clear commitment to mature into permanent, reliable, effective policies. Will the White House Counsel's office take on these challenges?

Regulatory Failure: In the wake of the failed Minerals Management Service, the Executive continues to fight entrenched incompetence, conflicts of interest, and ineffective regulation. Will the administration respond sufficiently to the oil spill, and the myriad other regulatory failures it represents? Will the ethics and disclosure systems at the heart of our regulatory system get the thorough analysis and reform they desperately need?

These are just some of the issues Sunlight cares deeply about, and they are among the many others our broader community fights for, like whistleblower protection, records management, or regulatory reform.

As we look at the rearrangement in the White House, we're left wondering not just whether they can succeed without a dedicated Ethics Czar, but whether they could succeed if they had hired three of them.

On June 15th, President Obama addressed the nation, referring to the oil spill and the failed Minerals Management Service, and said:

But it’s now clear that the problem there ran much deeper, and the pace of reform was just too slow.

Given that admission, we're surprised to learn that the White House is turning away from having a single dedicated staffer overseeing ethics and government reform, and shifting his portfolio to two others with other responsibilities.

If the administration's commitment to government reform was insufficiently focused in the face of the Interior Department's longstanding regulatory failures, how is it an appropriate response to divide responsibilities among multiple staffers?

Today the White House released its log of White House visitors for the period of September 16-30, 2009. (Here's today's announcement and the data.) More than 2,000 records specifically requested from the time period prior to September 16 have been released as well. Records for October 2009 -- the first full month to which the visitor log publication policy applies -- will be released in 30 days.

It's worth noting that the White House is working to release visitor information for the Vice President's Residence in an identical format to the White House Complex; when the visitor record system at the residence is updated, the White House  "visitor information for the White House Complex and the Residence will be released in a common format." Hooray for common standards.

The White House deserves significant praise for releasing this information, although, as we noted earlier, getting to this point was a bit bumpy.

White House Ethics Counsel Norm Eisen raises the issue that it's difficult to disambiguate visitors who share the same name. This is a common problem with this kind of data, often making it difficult to compare datasets. (Or, as they note, figure out whether the William Ayers visiting the White House is the former weatherman, or someone with a less stormy past.) How can this problem be mitigated? Perhaps having people indicate their state of residence, or age, or if they are a registered lobbyist under the LDA.

The White House is also likely withholding some records for reasons of national security, political sensitivity, privacy, or other concerns, as they said they would in their policy statement. It would be helpful to know how many people fall under that category. While I'm at it, it would also be nice to have all the records prior to September 16th released.

Still, this is a tremendous change in policy from where we were a year ago. And it is a welcome companion to their announcement earlier this week regarding changing (de)classification procedures.

As promised by the White House, new stimulus lobbying policies have been released by OMB.

The new guidance clarifies restrictions on lobbying, lifting a more general limitation on meetings between federally registered lobbyists and administration officials, and clamping down on all communications regarding awards for carefully tailored time periods.

We're particularly excited about this announcement:

A web tool is being developed to facilitate disclosure of lobbyist contacts concerning the Recovery Act, and the tool will be available shortly for your agency’s use.

...given that we've long advocated for better real-time disclosure of lobbying contacts online, going so far as to mockup what such a system might look like.

I've embedded the document below. H/t Ellen's and Gabriela's twitter feeds.

The White House today announced significant changes being crafted in how the administration will regulate stimulus lobbying, in a new post today on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for Ethics and Government Reform.

The administration's move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances, while preserving the strongest part of the original program: the move to real-time online disclosure of contacts from registered lobbyists.

The new policy, according to the post: (bold added)

First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.

Second, we will focus the restriction on oral communications to target the scenario where concerns about merit-based decision-making are greatest –after competitive grant applications are submitted and before awards are made. Once such applications are on file, the competition should be strictly on the merits. To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see.

Third, we will continue to require immediate internet disclosure of all other communications with registered lobbyists. If registered lobbyists have conversations or meetings before an application is filed, a form must be completed and posted to each agency’s website documenting the contact.

The first two points are really the same measure: the administration is banning all oral contacts from anyone, not just lobbyists, and targeting that provision to a very specific scenario.

Relying on the distinctions of the Lobbying Disclosure Act (which defines who must register as a lobbyist) was too easy to skirt, since the influential are often not lobbyists. This was one of the main complaints from CREW, ACLU, and ALL, who suggested lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.

It may seem radical to ban all oral communications between administration officials and the public, but this seemingly radical move is tempered by two points: first, the restriction applies to a narrowly defined situation where the administration has deemed merit-based decision making to be most sensitive; and second, the administration connects stimulus spending, in its gravity and sheer size, to the scope of potential corruption:

We concluded this was necessary under the unique circumstances of the stimulus program.

For perhaps the strongest evidence of the sort of merit-based decision making these policies seek to cultivate, we can look to Eisen's post itself for evidence of our government engaging in good faith, in public, to find the best solutions to fit our most pressing problems. How often before now have we seen informal blog posts announcing a new policy before guidance has been issued, and suggesting it's still under consideration?

This iterative, public approach to problem-solving should be interpreted as a sign of strength, and suggests that bold steps don't just bring political risk, as they often can, but can also offer a productive strategy for finding public policy solutions. This is especially true of lobbying reform, where previous reforms have all come too late, as reactions to gross abuses. When the administration is willing to engage in a fruitful dialog to identify the best course of action, disagreements become relationships, and mistakes become lessons.

Other administration officials should follow Eisen's lead, and see what the public (and stakeholder communities) have to offer.

The administration's previous stimulus lobbying policies have seen significant praise and criticism, and has been subjected to an extensive review process, to which Sunlight has been a party.

Colleagues Daniel Schuman and Lisa Rosenberg and I just returned from the Eisenhower Executive Office Building, where a meeting was held by administration officials to help evaluate the new lobbying restrictions put in place for stimulus funds. Many other non-profits and coalitions represented various viewpoints on lobbying and ethics reform.

The administration, proactively protecting stimulus funds, instituted stringent new lobbying restrictions, banning oral communications from lobbyists on specific spending projects, and placing new disclosure requirements on executive branch employees who meet with lobbyists on stimulus policy.

To me, this looks like an imperfect law (the Lobbying Disclosure Act) being used as a foundation for imperfect lobbying restrictions, in the face of enormous and unprecedented stimulus spending. Whether the restrictions are proportional to the sudden need for competent spending is certainly up for debate. There seems to be little debate, however over whether the LDA is a sufficient vehicle for lobbying regulation. It isn't. The LDA requirements are easily skirted, enforcement is lax, and many terms are insufficiently defined. (It's probably fair to say that position was the consensus of the groups present, but certainly not presented as administration policy.) In the context of constantly evolving lobbying regulations, (1946, 1995, 2007, etc), the Obama administration's new lobbying policies make an excellent provocation. The shortfalls of lobbying restrictions under the LDA are magnified by the administration's reliance on them as a foundation for stimulus restrictions.

As Obama administration officials doggedly refer to "evidence-based decision making," and inevitably portray unchecked oral communications between officials and lobbyists as a potential barrier to merit-based evaluations, I understand more and more why the policy was built on the LDA framework. Without the distinction between lobbyists and non-lobbyists, what framework can one use for such a regulations?

If the new requirements are guilty of anything, it's over-reliance on the LDA framework and definitions, and that shouldn't be a surprise -- after all, this is the same Obama whose campaign banned contributions from registered lobbyists to his campaign, even returning checks in the mail, and the same administration that has nearly universally banned lobbyists from working in the White House. But what else can ethics regulations and lobbying restrictions be built on, if not the registered lobbyist distinction, as defined by the LDA?

This question led the discussants in today's meeting to begin to delve into the world of nuance that exists between LDA-defined-Lobbyists and everyone else.

Working through who should report, what should be reported, and for what topics will take real work, and will likely involve all three branches, as new laws and regulations circle through court challenges and create real-world results.

Different restrictions or disclosure requirements may be appropriate for different circumstances, and funding decisions may stand as a different class of communications from other types. The current LDA even recognizes different speech situations, albeit bluntly, through a long list of reasonable exceptions to "lobbying contacts," for things like public communications, whistleblowing, subpoenas, etc. (2 USC 1602) If some speech is excepted from lobbying restrictions (negative distinctions), should some speech be covered more stringently (affirmative distinctions)? The same nuances need to be worked out for who reports, what criteria trigger reporting requirements (payment, time spent, profit motives, fundraising, etc), and what gets reported.

I don't think anyone thinks that the current restrictions will build a corruption-proof shield of merit around stimulus money, but, even if nothing else, they're certainly holding the distinctions upon which we've built lobbying and ethics law in stark relief, and demonstrating a firm commitment to dialog on the part of the Obama administration.