On Friday, the House of Representatives passed the cap and trade bill after an incredibly messy process left little time for congressmen and the public to digest the final version of the bill. I think that process taught us a lot about how Congress mangles procedure, but also, in some ways, how Congress is trying to be more transparent, but not quite getting it right.

Looking back at what happened with cap and trade, we see that Congress, inexplicably, released a new version of the bill on a Monday evening before a Friday vote, with an explanation that this would not be the final version. This bill, the printed version, did not have a bill number written into the header, instead it look like this: H.R. ____.

This what we'd call a discussion draft, and it's something that we've been seeing Congress release a lot more lately -- likely due to pressure to make their operations more transparent. The managers of the cap and trade bill could have easily not released this discussion draft and dropped the whole new bill on Thursday or Friday. Instead, they released part of the bill on Monday and then 300 more pages on Thursday night. It's great that Congress is releasing discussion drafts. They increase the ability of the public to peek inside to internal debates as they occur and hopefully have a say in the process. However, the time to publish discussion drafts is not the week a bill is being voted on, it's when the bill is still being formed in a location with necessary transparency rules, like a committee hearing.

So this brings up an important point: when is the best time to read the bill? In many respects there needs to be a rule requiring bills to be posted online 72 hours prior to consideration for lawmakers and the public to know what is in the bill. But that isn't the best period for citizen engagement in the legislative process outside of telling your congressman to vote "yea" or "nay". The real sausage making happens in committees and we are seeing efforts by committees to release discussion drafts and versions of bills that they are working on. This is where discussion drafts are useful -- not in final moments before consideration occurs.

Let's run down areas in the legislative process where citizen engagement can have an impact and what Congress ought to be doing to increase transparency and provide a window for engagement:

1) Committee process - Where the real work gets done. Release of discussion drafts, manager's statements, chairman's mark would allow for much greater engagement by citizens in the process and would help other lawmakers and their staff familiarize themselves with the process that created legislation.

2) Prior to consideration - Pass a 72 hour rule so that all bills must be made publicly available online for 72 hours before consideration. While there is less chance for direct input by citizens this allows for organization in favor or in opposition of both the bill and proposed amendments to the bill. This also provides time for lawmakers and their staff to read the bill.

3) Post passage - This would be the area covered by President Obama's five day bill posting pledge. I don't think there is too much value here as the President likely already knows whether he will sign or veto a given piece of legislation. More transparency theater than anything else.

The next big debate in Congress will be around health care. Hopefully, Congress doesn't only provide adequate time prior to consideration for the public to read the bill, but also continues to make efforts to provide drafts to the public during the committee process.

Today is the day that the House plans to vote on the cap and trade bill that has mysteriously changed this week. Last night, the bill changed again. We are now looking at an additional 300-pages that will be considered as amending H.R. 2998, the replacement bill of origins unknown. This is what the House Rules Committee tells us:

[I]n lieu of the amendment recommended by the Committee on Energy and Commerce now printed in the bill, an amendment in the nature of a substitute consisting of the text of H.R. 2998, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted.

This means that H.R. 2998, which will be considered as an amendment in the form of a substitute, will include an additional 300 pages approved by the Rules Committee that will not be voted on. Let me see if I can run this down quickly and succinctly:

1. The original bill, H.R. 2454, approximately 1,000 pages, was reported out of the Energy & Commerce Committee.
2. It was replaced this week by H.R. 2998, 1,201 pages, which will be voted on as an amendment in the form of a substitute.
3. The Rules Committee, last night, released a committee report that includes a 300-page amendment to H.R. 2998. This 300-page amendment, the Waxman amendment (#121), is considered as adopted upon an affirmative vote for H.R. 2998, the amendment in the form of the substitute.

This means that we are looking at 300 extra pages added to the bill overnight. Stay tuned for more and go to ReadTheBill.org to tell your congressman that we need time to read the bills.

The pace for the cap and trade bill continues apace. Today, the House Rules Committee posted to their web site the bill number, H.R. 2998, for the draft of unknown origin that has become a point of much debate over the past few days. This bill, H.R. 2998, is set to replace H.R. 2454, the bill previously reported out of committee. As I wrote two days ago, we have little idea as to the negotiations that transformed the approximately 1,000 page H.R. 2454 into the 1,200 page H.R. 2998. If nothing else it reminded me of South Park's underpants gnomes (for an image that might help explain the image below, see here). And thus I present this image that represents, to the best of our knowledge, how this bill grew overnight:

Phase 1: Report H.R. 2454 out of committee

Phase 2: ?

Phase 3: Replace H.R. 2454 with H.R. 2998

The House Rules Committee is currently deciding which of the 224 amendments proposed will be allowed a vote on the floor of the House. That could take a while. In the mean time we'll all twiddle our thumbs and try to figure out what process led to this compromise bill.

Or you can go to ReadTheBill.org and tell Congress that they shouldn't let this happen again. Tell them to support H. Res. 554 and require bills to be posted online for at least 72 hours prior to consideration.

So, it looks as though the cap and trade bill will continue to sail toward a Friday vote despite the final version not being actually finalized. As I noted yesterday, this process prevents both the public and the lawmakers on Capitol Hill from having adequate time to review a critically important bill. The hurried process also spells danger for the many activist organizations and other actors seeking to have an effect on the end result. How can you lobby when you don't know what you're lobbying on? And how can you get your supporters to call Congress when you don't know what to tell them?

Now some of these actors may already have a wing-tip or birkenstock in the door with their lobbyists, but that doesn't do much for activating their membership. If no one knows what a bill will contain until 24 hours prior to consideration it is remarkably difficult to get a message to your representative to express your position on how they ought to vote. Even more complicated is to organize a membership around amendments to support or oppose. And this is, in many ways, why this process occurs. It stymies public interaction and voices, whether independent of a larger group or not.

Now this does not solely apply to the party in power now. Historically, leadership aims to control the pace of legislation. And why wouldn't they? In Congress, time is just another tool of power.

In this case, time is being used to prevent citizen action and to reduce outside pressure on potentially wayward lawmakers. If the leadership wants to pass a bill and fears that calls from constituents to certain lawmakers may place the vote in jeopardy, rushing the bill to the floor will prevent an inundation of calls, especially from members of organizations organized around a particular bill.

If you are the Sierra Club or the Chamber of Commerce, you're getting squeezed right now. (The same thing happened with groups organized around the FISA Amendments Act last year.) For the general public that wants their voice heard, you're getting squeezed even harder.

This is a critical reason for Congress to establish a 72 hour rule. Not only does Congress need to read their bills. Not only does the public writ large deserve a chance to read the bills. But so do advocacy groups that organize and drive much of the public support or opposition to specific pieces of legislation.

If you think that bills should be made available for at least 72 hours before they are considered, go to ReadTheBill.org and tell your congressman to support legislation to create a 72 hour rule.

There is currently some wacky legislative maneuvering going on with H.R. 2454, the cap and trade energy bill, that puts a serious spotlight on the failure of Congress to make bills properly available. According to the New York Times:

House Democratic leaders late last night released a revamped, 1,201-page energy and global warming bill (pdf), clearing the way for floor debate Friday even though it remains uncertain if they will have the votes to pass it. The House bill posted on the Rules Committee Web site has grown from the 946-page version adopted last month in the Energy and Commerce Committee. Sources on and off Capitol Hill said the bulk of the changes largely reflect requests from the eight other committees that also had jurisdiction over the bill, including the Ways and Means Committee and Science and Technology Committee.

The bill is only available online at the House Rules Committee and is reported as "text of the bill to be introduced." Despite having a bill, H.R. 2454, that has been reported out of the Energy & Commerce Committee and discharged by eight other committees, there is now, suddenly, a new bill that is almost 300-pages longer -- but it's still being considered as H.R. 2454. Stay with me here.

Here's the timeline:

Introduced - 5/15/09

Reported with amendments out of Energy & Commerce - 6/5/09

Discharged by Education & Labor and Foreign Affairs Committees - 6/5/09

Discharged by Financial Services, Science & Technology, Transportation, Natural Resources, Agriculture, and Ways & Means Committees - 6/19/09

Placed on the Union Calendar, Calendar No. 90 - 6/19/09 (This version is 946 pages)

Submitted to House Rules Committee - 6/22/09, 4:22pm (This version is 1,201 pages)

So, where along the line does the bill suddenly expand by 300 pages? According to the New York Times, the various committee chairs held behind the scenes meetings and hashed out a compromise with no allowance for public input. (What lobbyists were involved in those meetings?) And now we are expecting a Friday vote on a bill that has had no public hearing in a committee with jurisdiction over it and that is not yet available in the main engine of public disclosure, THOMAS.

This raises serious questions about how we expect Congress to disclose their activities to the public. Is a bill posted to the House Rules Committee and not THOMAS truly publicly available? While the bill may be available for 72 hours prior to consideration, the public does not have reasonable access to it. Nor does the public know how the final details were reached.

And that isn't even the worst part. This, apparently, isn't even the final bill. The final bill will be a manager's amendment that will be drafted later this week! From a posting on the House Rules Committee, we know that the deadline to submit amendments is Thursday at 9:30am. And there is talk that this will be voted on on Friday. Thus, the final version of this bill will likely only be available for less than 24 hours.

Sunlight has been advocating for all bills to be posted online for 72 hours prior to consideration. It doesn't look like that is going to happen here. If you think that Congress should read the bills they vote on, you can tell your congressman to both support the Read the Bill resolution, H. Res. 554, and to give the public enough time to read the final version of the cap and trade bill, whenever that is made available.

As Open Left's Chris Bowers says about this process:

[Y]ou don't get to know what is in the bill until it is too late. Further, you get no chances to improve the bill.

This is an unacceptable process and it needs to change.

The New York Times has a story today on President Obama's 5 day bill posting pledge and how this transparency promise has both not happened as promised and evolved. Quoted in the piece is Sunlight's Executive Director Ellen Miller noting the overall lack of utility in the President's promise.

"There isn’t anybody in this town who doesn’t know that commenting after a bill has been passed is meaningless."

While I've rightly criticized (as has Jim Harper) the breaking of the promise to post bills for comment five days before signing them, the reality is that no organizing can be done in comments that would make a difference after the bill is out of Congress.

The White House is now saying that they will start the five day count before the bill has made it out of Congress, stating that this makes for a more transparent process. This is relative nonsense as the White House is a part of different branch of government and the comments they receive on an unfinished bill won't make it to the 535 lawmakers in the Legislative Branch.

What needs to happen is for Congress to require both bills and conference reports to be posted online for at least 72 hours before consideration begins. Right now there is a resolution in the House to do exactly that, H. Res. 554. If you thought that President Obama's (now-broken) promise to post bills online for five days was a good idea, this is a far superior alternative. Since bills get written in Congress, not the Executive Branch, the provision of time prior to consideration allows citizens to voice their concerns directly to their representatives, whether over the phone, the internet, fax, or direct contact, during a legislative time frame that could actually effect the final product.

You can tell your congressman to support H. Res. 554 (the "Read the Bill" bill) here and you can sign our petition to Congress telling them to pass H. Res. 554 and give us all a chance to read the bills they consider.

(Update: The New York Times is asking if you support the 72 hour rule for Congress or Obama's five day bill posting pledge. Go tell them what you think.)

Today's Washington Times has a review of President Obama's pledge to post legislation online before signing it, where Press Secretary Gibbs is paraphrased:

White House press secretary Robert Gibbs said the clock starts ticking when a link is posted to bills when they are in their final version, such as a conference report, even if they haven't passed Congress.

Here's (I believe) the exchange from Friday:

Q Robert, on the signings today, I'm wondering, the President had pledged to put bills up on the Web for five days before he signed legislation. And is that just pretty much out the window? MR. BURTON: It's been five days. MR. GIBBS: I think we posted conference reports several days in advance. I can get you the exact days. Q The conference reports? MR. GIBBS: The conference reports that after they've voted on become the gross legislation that's delivered here that the President ultimately signs that becomes public law. Q So you're -- is that a finalized version of it that went out or -- MR. GIBBS: Well, a conference report, as you know, is an unamendable piece of legislation that has to be approved by both Houses, language has to be simultaneous, it gets sent down here, and we sign it. So if a conference report is -- if something is delineated as a conference report or if there's not a conference committee and there's a separate piece of legislation, if the Senate passes a bill -- if the House and Senate pass different versions of a bill and the House agrees to accede to the Senate version, then the Senate version might be put up before the House votes on it. Once they vote on it, both Houses have passed identical legislation, and it comes down here. Q So it's effectively a finalized version. It just hasn't -- MR. GIBBS: It's not effectively -- it legally is, yes. Q Okay.

Compare that to this post from WhiteHouse.gov from January 20th:

One significant addition to WhiteHouse.gov reflects a campaign promise from the President: we will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it.

The only other update from the White House has come in this post, which says:

The President remains committed to bringing more transparency to government, and in this spirit the White House will continue to publish legislation expected to come to his desk online for public comment as it moves through Congress.

A little clarity would go a long way here. The White House will either start to fulfill campaign promise, whether it's meaningful or not, or they won't. The least acceptable choice, though, is to continue to redefine online, or bill.

For a clearer version of the pledge, here's the version Politifact cites:

"Too often bills are rushed through Congress and to the president before the public has the opportunity to review them," Obama's campaign Web site states . "As president, Obama will not sign any nonemergency bill without giving the American public an opportunity to review and comment on the White House Web site for five days."

That's pretty clear. Posting a link from WhiteHouse.gov to THOMAS of a conference report that is expected to pass doesn't cut it.

Today House Minority Leader John Boehner endorsed the idea of a mandatory 72-hour review period for all major spending legislation. He noted the Sunlight Foundation’s advocacy for such a rule. (see video below)

The 8000 individuals who have signed our Read the Bill petition and the dozens of high profile endorsements we have garnered for the concept speak to the growing support for the commonsense solution.

ReadTheBill.org To us, it is axiomatic that if all non-emergency legislation were posted online in a searchable format at least 72 hours before consideration, the legislative process would be transformed because members of Congress would know what they were voting on before they voted. A 72-hour rule would give those outside the Capitol and K Street a chance to understand legislation and voice ways to improve it. Reporters would have meaningful opportunities to explain legislation to the public. Membership organizations, trade associations and nonprofits would be better able to serve their members by being able to review, analyze and explain legislative proposals. Corporations, small business owners and labor leaders would know how legislation might impact workers or their bottom line. Individuals would read bills on issues that are important to them and become more active participants in our democracy.

We appreciate that this commonsense idea is finally getting some high profile attention. We aren’t so naïve as to think that congressional Republicans aren’t engaging in a little partisan gamesmanship with their sudden embrace of an idea that has been around for some time. They weren’t exactly carrying the banner for the cause when, for example, they were in the majority and Congress passed the USA PATRIOT Act in 2001. Debate on that bill, which dramatically expanded the federal government’s ability to spy on its citizens and altered long-held constitutional protections, began as soon as the bill was introduced. Translation: Members voted for (or less often against) the bill without having any idea of its breadth, depth or impact.

And the list goes on—omnibus spending bills with billions of dollars in spending, a bill that deregulated the financial sector and gave rise to the risky behavior that has shaken our economy, and of course the economic stimulus package were all debated without members of Congress or the public having had the chance to read them. These critical pieces of legislation and their sometimes dire results demonstrate all too convincingly that the issue of putting bills online for 72 hours is too important to become a victim of partisan sniping and finger pointing. Let’s all just admit that both parties slip controversial provisions and wasteful spending for pet projects into legislation when they hope no one is looking.

Putting bills online for 72 hours is not a panacea. But allowing for a few days for everyone to read vital legislation it is a crucial step in improving the legislative process. And if the process is better, the resulting legislation will be better too.

As President Obama asks Congress to "expeditiously" pass his Iraq-Afghanistan supplemental appropriations, I would hope that Congress can put the bill text online for at least 72 hours before they take the bill to the floor.

I understand the urgency, but 72 hours is not too much time to ask to allow time to read the bill, public review and open debate of the bill contents. The debate over funding wars and troops shouldn't be rushed, excluding the public in the process.