House Republicans, and more than a few Democrats, have taken a series of votes to kill a proposed executive order that would shine more light on dark money electioneering contributions made by recipients of government contracts.

The votes are remarkable for a number of reasons. First, there is no executive order. Opponents of disclosure are responding to a draft EO that was leaked to the press in April, resulting in an outcry from the Chamber of Commerce. The Chamber’s allies on Capitol Hill responded with amendments to the National Defense Authorization Act as well as three appropriations bills, (Homeland Security, Department of Defense and Energy and Water) that would prevent agencies from using their appropriations to implement “any rule, regulation or executive order” regarding the disclosure political contributions.

Even more remarkable is the looking glass way the lawmakers have turned transparency on its head, pretending that it would result in a “pay-to-play” system that would somehow advantage government contractors who contribute to Democrats.

One of the most important features of the draft EO is that it would require any entity bidding for a government contract to disclose contributions it made to third parties—like the Chamber or other shadowy nonprofit organizations—when those contributions are intended to pay for electioneering communications. Shining a light on this type of secret, dark money spending is a critical first step to restoring accountability to the political process.

But the Chamber has convinced a majority of the House that allowing voters to scrutinize who is paying for political ads will somehow corrupt the process of the awarding of government contracts. In fact, the opposite is true. The current opaque regime allows potential government contractors who want to garner favor with decision-makers in Congress or the executive branch to make secret campaign expenditures that only the decision-makers will know about. So pay-to-play, the alleged concern of those opposed to the EO, continues unabated and in secret.

The other canard opponents of the draft EO like to use is that the disclosure requirements are burdensome or unconstitutional. But the receipt of taxpayer dollars in the form of a federal contract always comes with conditions, including a variety of reporting requirements. Disclosure of contributions is no more burdensome than any other check imposed on potential contractors, and, as the Supreme Court noted, does not conflict with the first amendment.

Responsibility for making campaign expenditures transparent has been shunted to the White House by an activist Supreme Court that allowed dark money into our elections and an inactive Congress that has failed to shine a light on it. The House’s preemptive strikes against the EO should not derail the President’s efforts to ensure that there is transparency in the federal contracting process.

Last Friday, the House passed a measure that aims to block any executive order regarding disclosure of political donations.

Eighteen House Democrats joined almost every Republican to support the amendment, while another eight Democrats did not vote at all. All other Democrats opposed it. The measure was attached to an energy and water appropriations bill and would prohibit the use of any funding to implement an Obama administration effort to require more information on campaign spending.

On average, the 18 Democrats House members received about 63 percent of their campaign contributions from corporate sources for the 2010 election, according to an analysis of Center for Responsive Politics data. This was calculated by totaling each members’ donations from 14 13 sectors (such as defense and finance) identified by CRP but excluding donations from the following sectors: lawyers and lobbyists, Labor, ideological or single-issue groups and groups labeled ‘other.’

Of the 18 congressmen, Reps. Mike Ross, Jim Matheson, and Colin Peterson relied most on corporate PACs and employees during the last election, taking in nearly 85 percent from those sources. Reps. Henry Cuellar and Dan Boren received nearly 80 percent of their campaign cash from corporate sources.

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The amendment they voted for sought to preempt an Obama administration effort, first disclosed in April, to issue an executive order that would require all government contractors to disclose their political contributions, including those to organizations that don't disclose their donors. It was meant as a response to Citizens United v. FEC, where the Supreme Court ruled to remove restrictions on corporations’ expenditures in elections.

That ruling opened the floodgates for some undisclosed election spending. Nonprofit organizations can now receive corporate donations and make independent expenditures on elections without reporting their donors to the Federal Election Commission. Crossroads GPS spent $15 million opposing Democratic candidates last election; because it's organized as a section 501(c)4 committee, it's not required to disclose its donors. Similarly, because the U.S. Chamber of Commerce is a 501(c)6 organization, it doesn't have to disclose its donors, despite spending more than $32 million in the 2010 cycle to influence elections.

Democrats have gotten into the act as well, recently launching Priorities USA Action, a 501(c)4 organization that was co-founded by former White House spokesman Bill Burton.

Obama's executive order would bring some unknown corporate donations to nonprofits into the public realm. It would also make the donations of the nation’s largest union, AFL-CIO, known, because it has small contracts with the Department of Labor.

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.

They’re at it again. Members of Congress who give lip service to transparency and accountability go out of their way to keep political spending in the dark. First they block the DISCLOSE Act, a reasonable—if not perfect—response to the Supreme Court’s devastating Citizens United decision. This time, Senators Collins and Portman are the culprits behind an attempt to amend the National Defense Authorization Act for Fiscal Year 2012 (S. 981) in a way that would prevent potential federal contractors from disclosing political expenditures.

Senators Collins and Portman are taking this step in response to a draft Executive Order that would impose transparency on the federal contracting system. Whether their point is to bully the President into not issuing the EO or to protect their campaign contributors if he does, the result is still the same: Millions of dollars of political spending by military contractors will be known to elected officials, but not to the public.

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. We urge members of the Armed Services Committee to defeat this amendment and take a stand against secrecy and pay to play rules that are anathema to a transparent and accountable system of federal contracting.

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

During the 2010 midterm election David and Charles Koch, owners of the massive energy conglomerate Koch Industries, became the face of secret donors to a new set of political groups spawned by the controversial Citizens United Supreme Court ruling. Koch Industries is also a longtime government contractor receiving $85 million in contracts over the past eleven years. These two facts may not seem to overlap, but if President Obama signs a draft executive order leaked this week Koch Industries and a large number of the nation’s companies would face the prospect of having to disclose their now-secret contributions to political efforts when they seek new federal contracts.

The centerpiece of the draft order, which requires disclosure of a variety of contributions that are already disclosed to the Federal Election Commission, is its requirement that any organization bidding on a federal contract disclose contributions made by the organization, its subsidiaries, and its directors to any third party group intending on using that money for independent expenditures or electioneering communications.

The order specifically targets a disclosure loophole created by the Citizens United ruling. The ruling opened the door for a whole host of organizations, including 501(c)(4) nonprofit organizations, to run electoral advertisements without disclosing their donors to the public. The most notable of these groups is Crossroads GPS, a conservative nonprofit that spent more than $15 million on advertisements opposing Democratic candidates for office in the 2010 midterm election.

Under the order donations to Crossroads GPS and other groups including the U.S. Chamber of Commerce, and Americans for Prosperity would have to be disclosed by companies seeking federal contracts.

The order is an attempt by the White House to do what Congress could not do when it failed to pass a legislative response to Citizens United, known as the DISCLOSE Act, at the end of last year.

By applying to all organizations submitting a bid for contract the order would cover a huge swath of the country's companies. JPMorgan Chase, Exxon Mobil, General Electric, and the aforementioned Koch Industries all hold government contracts. Thirty-three of the forty-one companies listed in the top 100 campaign contributors over the past two decades are recipients of federal contracts. According to USASpending.gov, there are 129,083 recipients of federal contracts, although many of these may be duplicates.

Even News Corporation, the owner of Fox News, the Wall Street Journal, and the New York Post, is a government contractor. The executive order would require both the company and its owner Rupert Murdoch to disclose contributions to political groups. Last year News Corporation contributed $1 million to the Republican Governors Association, which already discloses its donors, and, according to a New York Times investigation, another $1 million to the U.S. Chamber of Commerce, which does not disclose its donors.

That Times investigation uncovered a number of contributors to the Chamber’s political efforts, most of whom also hold government contracts and would face new disclosure rules under the potential executive order. In addition to News Corporation, Dow Chemical, Aegon, Chevron Texaco, Prudential Financial, and Alpha Technologies all contributed to the Chamber of Commerce in recent years while holding government contracts.

While the order would certainly not apply retroactively these companies would have to disclose their political giving for the two previous years if they sought a new contract from the government.

House Oversight and Government Reform Chairman Darrell Issa, R-Calif., criticized the draft Executive Order for stifling speech and failing to cover unions that support the President and his party, “This order is a purely political act offered under the benign label of disclosure. The order would not impose the same requirements on the labor unions or other organizations who support the President.” While many unions receive federal grants there are few receiving federal contracts.

One notable exception is the nation’s largest federation of labor unions, the AFL-CIO, which received small contracts from the Department of Labor as recently as last year. USASpending.gov lists two purchase orders from 2010 for contracts with the AFL-CIO Working for America Institute. The contracts were with the Department of Labor and Department of Transportation. The draft order does not distinguish between types of contracts, thus any future contract with the AFL-CIO would trigger the same disclosure requirements applied to corporations with contracts.

Some companies already voluntarily disclose contributions to political groups on their corporate websites, although most of the time the information is dated, poorly defined, or not explained.

General Dynamics lists contributions to political nonprofits, but does not provide names. Instead, the defense contractor lists $125,000 in contributions to three 501(c)(4) nonprofits.

The top recipient of contract dollars from the federal government, Lockheed Martin, lists contributions it made to trade associations in 2010 including a $50,000 contribution to the U.S. Chamber of Commerce. Lockheed states, “We believe that the non-deductible portion of our dues is for trade association lobbying.”

Northrop Grumman and Raytheon Corporation detail their contributions to candidates and 527s, but do not explain a policy for contributions to other politically active organizations. Meanwhile, Pfizer releases an annual report on its political action committee contributions, which does not list contributions to nonprofits or trade associations.

Since the current leadership "ban" on earmarks went into effect at the beginning of this Congress, there has been an enormous amount of media coverage on how this ban will likely be evaded by appropriators. Appropriators are basically saying that they can still earmark, but that they'll simply contact agencies directly, apparently completely out the the public view.

There's one problem with this story, as told by the lawmakers quoted in these stories: there is an Executive Order (EO) from President Bush that is supposed to make this sort of involvement impossible.

Executive Order 13457 requires that agencies make spending decisions based on "transparent, statutory criteria." It mandates that agencies ignore congressional input unless it's offered in writing, and even requires all written attempts by Congress to influence executive spending decisions to be posted on the Internet.

I don't know of a single instance in which an agency posted correspondence from an appropriator online as a result of this EO. If anyone has one, I'd love to see it.

This order is still on the books, and, despite being an EO from President Bush, should be something that President Obama supports. It looks like something Obama's OMB could have written, all about protecting merit-based decision making, and requiring online transparency.

Unfortunately, there has been no pressure on agencies to follow this Executive Order and post congressional correspondence about spending decisions online. It's also unclear whether OMB has issued any exemptions to the requirements, as the EO allows.

If Congress and the President are going to walk away from earmark transparency in Congress for now (by instituting a "ban"), then the least they can do is make sure the process that replaces it follows the transparency requirements that already exist.

CRS covered this Executive Order when it came out, but mostly from a separation of powers perspective, saying that it was a legitimate move from the President. It's time for some attention to the online transparency aspects of the Order, and for the current debate about earmark accountability to take this EO into account.

For comprehensive earmark transparency context, see this page on transparencyhub.

On Day Two, President Obama issued new Executive Orders and memoranda -- including an Executive Order on Ethics Commitments by Executive Branch Personnel, a memoranda on Transparency and Open Government and one on the Freedom of Information Act --  indicating a dramatic break in the executive branch's stance toward being held accountable to the public it serves. Roll Call called today's action by the new president "sweeping,"and we agree.

Clearly, creating greater transparency in government is a high priority for the new administration. This is a good beginning and it represents real change. Under these new directives, President Obama has prohibited executive branch employees from accepting gifts from lobbyists, and puts a stop to the revolving door, preventing any incoming staff who are former lobbyists to work on matters which they previously lobbied. It also prohibits any current staff who leave their positions from ever returning to lobby the administration while Obama is president.

But at least as importantly, if not more so because of the dramatic break from the past that it represents, we particularly pleased to see President Obama's focus on making government records more readily available under FOIA. The very same quote from Justice Brandeis that inspired our name ("Sunlight is said to be the best of disinfectants...") also inspired Obama, who referenced it in the opening paragraph of memorandum on FOIA. Under this directive, open government advocates (not to mention our own Real Time team) should see better responsiveness to FOIA requests. The administration aims to err on the side of transparency and requests to withhold information will be subject to review and approval by the Justice Department and the administration legal counsel.

Regarding the FOIA action, Columbia Journalism Review makes note that Obama used an executive order. This order in effect nullifies a 2001 memo John Ashcroft, then President Bush's attorney general, had issued overturning one Janet Reno, Bill Clinton's attorney general had issued years before. Obama's executive order has more legal force and symbolic importance, making it harder for future presidents to nullify.  CJR termed his action "a quick and prominent victory for government openness."

It's very encouraging that one of President Obama's first official acts in office was  to show a sweeping commitment to freedom of information, transparency and open government.

The irony is that, as of 6pm today, many hours after the announcement of these actions, they are still not posted on at WhiteHouse.gov. We know it's Day One but ...... Thanks to our friends at TechPresident, you can see them here.

While the administration's real challenge will come in implementing the details, today's announcement is a dramatic break in the executive branch's stance toward being held  accountable to the public it serves. To be sure, President Obama and his administration recognize the critical role of technology to create greater government transparency.

Of course, there's still more work to be done. We hope that moving forward, each agency should do an audit of its information and data how it makes it available. The new administration should also redefine the definition of "public information" to mean that government information is not public until it is posted online in an easy-to-download format.

(adapted from an Open House Project Google Group message)

President Obama has stepped to the plate today, and addressed many of the Open Government community's primary concerns, in issuing several Executive Orders on ethics and transparency.

They're extremely heartening; the memos (via National Journal) are full of great passages, for example:

A democracy requires accountability, and accountability requires transparency.  As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants."  In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.  At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. ... My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration.  Openness will strengthen our democracy and promote efficiency and effectiveness in Government. ... The presumption of disclosure also means that agencies should take affirmative steps to make information public.  They should not wait for specific requests from the public.  All agencies should use modern technology to inform citizens about what is known and done by their Government.  Disclosure should be timely.

Some of this isn't going to be easy, especially the idea of affirmative disclosure outlined above, which is likely only possible through affirmative designations applied across government records sets, with a careful eye to concerns of privacy, security, and the prerogatives of closed deliberation.  The CTO, OMB Director, AG, and GSA Administrator have quite an assignment for the next 120 days!

Another reason we should follow implementation of these memos closely: it's only too easy to rely on traditional procedures and distinctions for dissemination.  These memos, as far as I can tell, were circulated through a traditional and closed process, and there's still no access to primary sources online, from the White House Press secretary, the EO or Proclamation pages, or the blog of WhiteHouse.gov.  This is emblematic of the challenges that are going to face President Obama and his administration as they strive to live up to the promise of a truly transparent, participatory, and collaborative government, as these memos describe.

To be clear, I'd rather have such fundamental changes announced exclusively on the inside of specially marked boxes of cigars than not at all.  These are sweeping pronouncements, and show enormous promise and the realization of campaign and transition promises.  For the open government announcements to come so quickly further cements trust and accountability as what we hope will be central themes of any governmental operations.

It's the Obama administration's first full day, and they deserve praise for taking a bold stand on open government issues.  Hopefully their Office of Public Liaison (which is now accepting comments) and new media operations will take center stage as they ramp up operations, empowering the public in the same manner as these memos prescribe for the rest of government.