Last week, my colleague John Wonderlich spoke on a panel about the nature of the Open Government Directive with other transparency leaders inside and outside of government. John commented that transparency needs a lasting structure in government so that it doesn't become a fad, a la breakdancing in the 80s. The White House's Norm Eisen responded that transparency would not be a fad and that "the project that the president is taking on is really a 17th century project that dates back to the founding of our democracy, which is a government for and by the people." Eisen is absolutely correct that the ideology of transparency traces its roots back to the founding of the Republic. There is a direct line that runs from the opening of the House of Representatives to the current transparency efforts that Sunlight and others are currently pursuing. This post is the beginning in a series looking at the history of transparency in the American federal government. (Much of this information is adapted from this previous project.)

“However firmly liberty may be established in any country, it cannot long subsist if the channels of information be stopped,” Massachusetts Senator Elbridge Gerry stated in his fierce defense of providing federal subsidies to newspaper postal distribution in 1792. Early on in the founding of the United States lawmakers recognized and debated the importance of maintaining an informed citizenry. In the debate where Gerry so strongly defended the importance of information flow Congress wound up adopting a policy to subsidize the postal delivery of newspapers to keep the public informed of the workings of their government.

During the same debate over postal policy, James Madison stated, “In such an one [government] as ours, where members are so far removed from the eye of their constituents, an easy and prompt circulation of public proceedings is peculiarly essential.”

In the small republic of the late-18th century, American politicians were seriously concerned with keeping their constituents directly informed of what transpired in the nation's capitol. Similarly, people were more than interested in obtaining information to express their opinions. The societal shifts that occurred in post-revolutionary America were an early precursor of the types of changes enabled by 21st century mass communications technology. Where we now have the means to express our opinions in almost instantaneous fashion that circumvents the old paths of discourse, ordinary people in the late-18th century all of a sudden found out that the barriers preventing them from expressing opinions at all no longer existed.

This began with the liberation of the people from a system of royalty, aristocracy and gentry. As Paul Starr paraphrases James Madison in The Creation of the Media, “liberty granted power in America.” That was power to the middle and lower classes who now, due to the liberty granted them, could voice their opinions on anything, including deriding the upper classes. In The Radicalism of the American Revolution Gordon Wood writes, “In contrast to pre-revolutionary America, the society of the early Republic had thousands upon thousands of obscure ordinary people participating in the creation of this public opinion.” Opinions crave for information.

Starr explains,

“Republican ideology held up a new standard of good conduct: The responsible citizen was informed and kept up with the times. Self-government, in other words, generated greater demand for information, particularly for news and newspapers. … [B]y legitimating the idea that ordinary people could govern themselves, the Revolution dignified their right to speak up—literally, without self-consciously bending and averting their eyes while addressing people of higher status.”

And policy-makers at the time took this revolution in public interaction to heart. The Post Office Act of 1792, and the reenactment of this as permanent policy in 1794, was intended to provide low-cost to entry for newspapers to reach people throughout the country. Similar policies were enacted to open up the work of the Congress to the public.

The House of Representatives opened their doors on the first day of their first session. As the only body then to have representatives directly elected by the people this openness policy seemed the perfect way to express the closeness of the body to the voting public. Rep. Alexander White of Virgina later wrote in his diary, “The pleasure which our open Doors, and the knowledge of our Debate obtained by the means, has given the People, can hardly be conceived.”

The Senate, however, remained obstinate and cloaked in aristocratic pretensions. Upon establishing itself, the Senate refused to open their doors, mirroring the policy of both the Roman Senate and the Constitutional Congress. This did not sit well with the newly liberated people of the country, particularly those organizing in Democratic-Republican clubs throughout the land. Between 1789 and 1791, the Virginia Assembly, the Maryland House of Delegates, the Pennsylvania Senate and the North Carolina Legislature all debated resolutions demanding the Senate doors be opened. During that same period of time, two attempts to pass legislation opening Senate doors failed by wide margins on the Senate floor.

Ultimately, it would take a massive press campaign, led by journalist Philip Freneau, before the doors of the Senate would swing open to the public.

In 1791, Secretary of State Thomas Jefferson and Rep. James Madison recruited Freneau, a classmate of Madison at Princeton University, to head the anti-Federalist, pro-Republican newspaper, the National Gazette. Freneau immediately went to work covering the daily workings of Congress, writing that the paper would regularly publish a "brief history of the Debates and Proceedings of the Supreme Legislature of the United States." Freneau's decision to publish the records of Congress led him into direct confrontation with the Senate over their closed door policies. For nearly three years, and sparking two failed attempts to open Senate doors, Freneau railed against the "aristocratic junto," writing, "Secrecy is necessary to design and a masque to treachery; honesty shrinks not from the public eye." Facing financial troubles due to his unpopular support of a much disliked French foreign minister and the yellow fever epidemic that ran through Philadelphia, Freneau shuttered the National Gazette on October 27, 1793.

The efforts by Freneau, Madison and Jefferson to open the Senate's doors were both principled and political. These three, along with other legislators and printers, shared a starkly differing perspective on the direction that the United States should pursue. To them the Federalists were tyrannical, cloaked in secret societies and interested in crowning a king, not a president. The Senate represented these aristocratic pretensions and became an easy target for the rapidly organizing opposition to the Federalists in the communities of artisans, small businessmen and farmers. Just as many of the fights over procedure and openness today seem to be pursued out of partisan pique, this effort sought to discredit the Federalists and enforce the notion of their elitism.

At the outset of the 1794 Senate session, senators were forced to face their closed-door policy after the Federalists contested the seating of Sen. Albert Gallatin, born in Switzerland, for failing to meet the Senate's residency requirement. Supporters of an open door policy used the incident to advocate for temporarily opening the doors for the duration of the hearings of Gallatin's eligibility. As Gallatin was elected by the Pennsylvania Legislature, the Senate was put in a situation whereby they could be issuing a secret ruling against the will of the legislature. The Federalists in control knew that to deny the duly elected Senator a seat in secret hearings would prove politically dangerous and acquiesced to temporarily opening the doors.

During the debate over opening the Gallatin hearings, Senator Alexander Martin introduced a measure to permanently open the Senate's doors. After the open hearings contesting Gallatin's eligibility, Martin's measure found itself on the floor. Unlike previous attempts to pass a bill, this measure fell by only one vote. However, on a motion to reconsider, Vermont Senator Stephen Bradley switched his vote and brought three more northern senators with him to secure passage of the bill. Three months after Freneau's Gazette went silent, the Senate voted 19-8 to open their doors to the public at the beginning of the next session.

These early efforts to open government to the people relied on the simple revolutionary notion that ordinary people had an equal say in public life and deserved the information to craft informed opinions.  The policies enacted may seem rudimentary by our standards today, but postal travel and open congressional sessions provided the meat of the information that fed public opinion and public debate.

(Part II will pick up in the 19th century.)

Sad news that Sen. Ted Kennedy has passed away from brain cancer. Kennedy was not just a prolific legislator and consummate deal maker, but also willing to experiment with technology. In fact, Kennedy was the first member of Congress to connect to the Internet and pioneered online discussions in usenet forums. I'm going to re-post something I wrote here last year when it was announced that Kennedy had brain cancer:

...fifteen years ago, Ted Kennedy became the first Senator to communicate with constituents over the Internet. Back in 1993, this was no small feat. At the time there were no congressional offices connected to the Internet. (The House launched a pilot program on June 2, 1993, hooking up seven members to an Internet network.) One dedicated staffer and the technology hubs of MIT and other top-level educational institutions made Kennedy into the first digital Senator. Here’s the story (which you can read about in more detail Chris Casey’s book, The Hill on the Net):

One day while working as a systems administrator in the office of Massachusetts Sen. Edward Kennedy, Chris Casey dialed online to read the bulletin boards at Massachusetts universities. While finding answers to computer questions and downloading software to help in the office, Casey found himself reading threads about a variety of topics, including politics. The discovery of this online constituency led Casey to suggest that Kennedy reach out by creating his own online community and posting his press releases for public comment. Casey worked with Jonathan Gourd of North Shore Mac to set Kennedy up with a “conference” to connect with online constituents. Casey then went to sell the Senator’s office on the idea, eventually winning approval from Senator Kennedy himself, who, understanding the importance of constituent relations, told Casey, “If you can find a way for me to reach constituents using computer networks, do it.”

While Kennedy’s office initially set ground rules to not respond to written questions and comments, that barrier quickly fell aside as Casey cautiously entered the fray to give information on bills the Senator sponsored or votes the Senator took. Kennedy’s office also used the bulletin board to post the text of legislation for review, most notably the release of health care legislation prepared by Kennedy’s committee on the eve of President Bill Clinton’s big health care speech to Congress. Casey later worked with MIT to get the Kennedy bulletin board groups posted into usenet groups (ne.politics and talk.politics.misc). A year later ... Kennedy launched the first official Web site for a Senate office.

(update: h/t to Matt Yglesias for finding the screencap and Chris Casey for posting it to his Flickr account)

In case you needed the short version of the full history of Congress and Read the Bill, please read below. Just to fit this into a blog post, I'm starting in 1965 and not 1789. I thought that after the rushed cap and trade vote and the upcoming health care reform vote it would be important to provide some background on Congress' habit of not reading bills:

In the mid-1960s, a movement was afoot among young, liberal members of Congress to reform the way the legislative branch operated. Opacity and centralized power were their enemies. Openness and diffusion of power were the solutions. In a 1965 report issued by the Joint Committee on the Organization of Congress, one such area where openness was ascribed as a means to diffuse power was the time allowed to study bills prior to consideration:

A bill that cannot survive a 3-day scrutiny of its provisions is a bill that should not be enacted. Proper consideration must be given to important legislation, even in the closing days of a session. The world's most powerful legislature cannot in good conscience deprive its membership of a brief study of a committee report prior to final action.

Prior to the issuance of this report, Congress had mandated a 1-day layover for bills in the Legislative Reorganization Act of 1946. Soon Congress would pass a new reogranization bill. The Legislative Reorganization Act of 1970 contained a provision requiring a 3-day (calendar day, not legislative day) layover for all bills and committee reports prior to a bill being considered.

This change was made within the House and Senate rules, which are maleable, shifting guidelines, not strict laws of the land. The rule did not require any type of majority to waive the 3-day layover requirement and soon the rule would be waived repeatedly to pass large pieces of legislation that the majority wanted passed in a hurry. By the late-1980s, a new practice emerged in Congress: the combination appropriations bill, then derisively known as omnibus appropriations bills. These bills, which have become a more regular feature of Congress in recent years, could measure in length of thousands of pages, taking a staff days or weeks to read, parse and understand. Few of these bills were given adequate time for neither reading, parsing nor understanding. And if wisdom comes from understanding, then Congress was left none the wiser.

For most of the omnibus bills passed, the 3-day layover rule was waived. Back then, newspapers and trade magazines actually noted the waiving of this rule. Today, it goes without mention.

As the seasons turned from the decade of glitz and greed to grunge and gangsta rap, the political winds in Congress shifted in favor from the majority Democrats to the minority Republicans. Republicans, smelling blood, took up the ethics mantle as a cudgel against a Democratic House that had become stale, abusive of House rules and riddled with corruption scandals. One such abuse of House rules to be used against the majority was the consistent waiver of the 3-day layover rule. Bills were passed with no time to read them.

In 1992, Rep. Harris Falwell called for a 2/3rds majority vote to waive the 3-day layover rule. This would later become a central piece of the Read the Bill legislation currently offered by Rep. Brian Baird in the 110th Congress. The other central piece of Baird's Read the Bill legislation could not have been introduced in 1992 as the platform for distribution had yet to be created.

In 1993, the World Wide Web opened the Internet to the wider public and the Mosaic browser quickly followed to allow for much greater interface capabilities through the various nodes of the Net. Congressional lawmakers quickly began moving operations online. In 1995, the new Republican majority launched the legislative search web site, THOMAS.

Despite increasing the ability of the public to receive bills and bill information over the Internet, the Republican majority continued to waive the 3-day layover rule just as they had complained the Democrats did. During this period, many rushed pieces of legislation were the result of Speaker Gingrich's failed efforts to shut down the government. In the wake of the public rejection of his move to refuse funding for government operations, the House was forced to quickly rush large appropriations bills through the chamber to begin funding again.

But the 3-day layover waivers did not stop at crises akin to the government shutdown. Over the course of the 12 year Republican reign in the House, bills became bigger and were passed faster. By the last few years of House Republican rule, under Majority Leader Tom DeLay, the rushing of bills became a fiasco.

In 2006, Rep. Brian Baird introduced legislation that would require, like Rep. Falwell's 1992 proposal, a 2/3rds vote on waiving the 3-day layover rule and the public distribution of all legislation for 72 hours prior to consideration. These two ideas married both the diffusion of power within Congress presented by 1960s reformers with the diffusion of power to the people provided for by the connectivity of the populace through the Internet. The Democrats rallied to Baird's proposal, including it as part of an ethics platform, just as the Republicans had in 1994. But, history has a way of repeating itself.

After sweeping back into power after 12 years, House Democrats passed a massive ethics reform bill. They failed to include Baird's Read the Bill legislation in the reform package. To this day, the 3-day layover rule is waived with regularity and bills are rushed through Congress.

While it's easy to fault the current Congress for process abuses like the waiving of the 3-day layover rule, it should always be remembered that this is a process that has been born of institutional abuse over time. Like drug addicts, it's hard to stop abusing once you've started. (Or rather, like Pringles: once you pop, you just can't stop.) The efforts at diffusion of power through allowing lawmakers more time to study legislation had largely fallen by the wayside as Speakers, starting in the 1980s, sought to reconsolidate power that reformers in the 1960s and 1970s had spread around Congress.

While the reformers of that era sought to create more independence and spread more power among individual members of Congress, the Read the Bill legislation -- along with the many other transparency provisions supported here -- are aimed at diffusing power to the people writ large (that's you I'm talking about). Thanks to the Internet we can distribute that power back to us by getting the information we need to hold elected officials, and sometimes ourselves, to account. Transparency provides knowledge and knowledge is power.

Over the course of two-hundred twenty years Congress has gradually opened their inner workings to public inspection. From the opening of its doors to the organization of its papers to the disclosure of influence, transparency has been on the march for centuries in Congress. Despite the popular depiction of Congress as intractably opaque, America’s First Branch of government has pushed forward some of the most innovative transparency reforms over the course of its existence. Technological developments, political calculation, idealism, and, most of all, corruption scandals have all contributed to the continued march of transparency. The Sunlight Foundation Transparency Timeline highlights key moments in the history of transparency reform in Congress and tells the story behind the events that have led to the current level of openness on Capitol Hill.

Of course, Congress did not have to operate in such an open manner. The decision to do so was made in the first year of operation of the Federal Congress when the House of Representatives moved to permanently open its doors to the public. None of the previous governmental or organizing bodies of the American Republic provided for unregulated public viewing of their debates. The House of Representatives was a unique, radical body, a direct manifestation of the people as sovereign, and took seriously the Jeffersonian ideal that information belonged to the people. On April 9, 1789, the House opened its doors. From this decision all other changes making Congress more transparent and connected to the people flow.

Some of the highlights in the Transparency Timeline are:

• The early connections to the Internet made by then-Committee on House Administration chairman Charlie Rose that led to widespread adoption.
• The first requirement of lobbyist disclosure in 1876 (not made permanent) after the Credit Mobilier scandal implicated nearly a dozen members of Congress.
• During a 1913 committee investigation into lobbying abuses, senators were forced to disclose their personal finances for the first time.
• The Legislative Reorganizations Acts of 1946 and 1970 that began to truly open up the committee process.

Go ahead and read the Timeline. I’ll have more here on the blog looking deeper at the history behind some of these transparency reforms and their importance.