The House Legislative Branch Appropriations Subcommittee just scheduled four budget hearings for next week, none of which will be webcast (according to their public notices). Just like last year, the hearings will be held in a tiny room in the Capitol that is often crowded past capacity. The public has a right to attend these meetings, and House Rules require that they be webcast (whenever practicable).

So what does "practicable" mean? When we surveyed how frequently committees webcast their hearings last year, we found that House Appropriators stood out for the absence of transparency of their proceedings.

The Sunlight Foundation tracked 200 House hearings over 20 days to determine whether they were webcast live, plus 407 hearings from January 17 to April 2 to determine whether video from the proceedings were archived online. Twenty-five percent (48 of 200) of the hearings were not live-streamed, and 22 percent (91 of 407) were not archived on committee websites.

Of the 48 hearings that were not live-streamed, 47 were Appropriations Committee hearings (Armed Services was the other one). Similarly, of the 91 hearings that did not have video archived on the committee website, 74 were Appropriations Committee hearings.

This is an intensely frustrating and longstanding problem.

I'm singling out the Legislative Branch Appropriations Committee's budget hearings on GPO, LOC, GAO, and CBO because we at the Sunlight Foundation care a lot about the legislative support agencies, particularly as they empower a lot of federal transparency. (And they've been actively working on government transparency issues, and there's more that we'd like them to do.)

But it's unfair to single them out. A quick look at the upcoming hearings and meetings for the Appropriations Committee finds meeting after meeting that won't be webcast. The hearing on nuclear nonproliferation? Won't be webcast. Indian education? Nope. Army Corps of Engineers? Out of luck. Of the ten upcoming hearings that indicate webcasting status, 2 will be webcast and 8 (including a closed hearing) will not.

With the budget crisis, impending sequester, and questions about federal spending, how is it that the committee most responsible for spending money is the one that's least likely to put its meetings online? We've seen a commitment from the House leadership to do better, and I hope that the Appropriations Committee will find a way to make that happen.

The Freedom of Information Act (FOIA) is a foundational law that guarantees US citizens the right to request and receive information from federal government agencies, with some relatively narrow exceptions. In a move reminiscent of the the Department of Justice's attempt to defang FOIA, the Federal Mediation and Conciliation Service—which mediates labor disputes around the United States—just finalized some changes to their FOIA rules that appear to raise the price and difficulty for citizens requesting information.

For example, current law offers a straightforward public interest fee waiver or discount:

Documents are to be furnished without charge or at reduced levels if disclosure of the information is in the public interest; that is, because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.

The new rule changes this to explicitly say that this determination is up to FMCS, and to leave room for the FMCS to deny a waiver even if the request is judged to be in the public interest (emphasis mine):

Documents may be furnished without charge or at reduced levels if FMCS determines that disclosure of the information is in the public interest; that is, because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.

There is a raft of other changes that raise fees, increase standard processing times, allow the agency to label a request as "complex" and put it into a longer queue, and allow indefinite delays to processing.

Interestingly, two policies are being removed entirely - one that says dispute notices are disclosable, and one that mandates that the agency report to Congress what requests were denied and why. The regulation states these are removed because "they are neither required by law nor necessary to interpret the law." It's not clear whether the agency now believes that the original legislative statute is sufficient to guarantee these policies, or whether the agency no longer believes they are required to implement them.

These regulations were first proposed in 1999, then re-proposed in 2007, and only made final on Tuesday, November 6th. The second and final versions each say that no public comments were received on the version before it.

If you'd like to analyze what this rule changes, the easiest way I've found is comparing the rule's web version (or public inspection PDF) on FederalRegister.gov to Cornell's online Code of Federal Regulations. To follow ongoing changes to FOIA around the government, I recommend using Scout, a tool we built to do just that, and how this particular rule came to our attention.

The House Rules Committee is looking into how to provide better context for legislation, by showing the difference between different versions of bills.

The committee's oversight plan, posted on its website, (as all House committees are newly required to do), lays out the committee's priorities for the coming Congress. One of the major headings is "Impact of new Information Technology on the House," in which recent reforms are outlined, along with a discussion of "comparative prints":

Some of the issues raised during the transition from the 111th to 112th Congress were not yet mature enough to be addressed in this Congress’ rules package. One such issue is the availability of “comparative prints” showing both changes to bills at various stages of the legislative process as well as showing changes to current law proposed by legislation before the House. A number of current Members of the House were previously State legislators where the practice of showing proposed changes as part of the text of bills was commonplace. While clause 3(e) of rule XIII (commonly referred to as the “Ramsayer” rule) requires a comparative print in committee reports, there is wide acknowledgement that this is insufficient to meet the current needs of Members and the public. The Committee will examine the need for changes in rules and procedures to make comparative prints more widely available at various stages of the legislative process.

It's fantastic that the Rules Committee will be examining this issue further; Sunlight also gets this feature request rather often. It's to this end that both OpenCongress.org and GovTrack.us both feature versioning tools, to let users see how bills have changed over time.

Here's a good example of this feature in action. You can easily compare the version of last Congress's DISCLOSE Act as it was introduced in the House, to how it looked when it got to the Senate, using the boxes along the left-hand side.

This isn't a trivial capability; we have often tried to do this for bills as they move through the process. Daniel used Microsoft Word as a workaround to compare versions of the DISCLOSE Act last year, since the bills had a long lag time before they appeared on THOMAS. We even once made a video about how difficult this sort of process would be if it were entirely paper-based.

If the Rules Committee makes any headway on attacking this problem, we'll be glad for it; tracking legislation is empowering, and understanding changes as they are made makes the process much easier. They've already helped, in fact, by starting to publish bills in XML on the Rules Committee site, which they deserve enormous credit for doing.

Before the holiday break, I compared the draft House Rules for the 112th Congress against the House Rules for the 111th Congress. Yesterday, House Republicans released an updated Rules proposal, so I've taken a second look.

Here's a redline of the House Rules as a Word file. A PDF is available below. Please note that the rules changes are only part of the rules package up for a vote today -- there are also orders (resolutions) that will apply during the 112th Congress only, including a reauthorization of the Office of Congressional Ethics.

111th House Rules as Amended by 112th Rules Changes

House Republicans have published their proposed rules package for the 112th Congress here. It includes the bill that would instantiate the new rules [PDF] and a section-by-section analysis. It's worth noting that the rules package largely adopts the 111th House's rules, but with a 33-page list of alterations that make some important changes.  It would be helpful to have a redline version of the 111th House Rules to show how they would be changed.

House Republicans are expected to consider the proposed rules at a meeting on January 4th, where the proposal could change further if the conference adopts amendments. On January 5th, the whole House will vote on whether to adopt these rules or an alternative.

The House Rules for the 111th Congress are available here, but in an unwieldy PDF format. Sunlight's recommendations for updating the House rules are here.

The Office of Congressional Ethics has a new lease on life now that the House Republican leadership has reportedly included the independent watchdog in its 112th Congress rules package. OCE’s continued existence was an open question because it has to be renewed each Congress, and many Republicans -- including the incoming Speaker -- opposed its creation in 2008. (In recent months, a handful of Democrats, including those under investigation for ethics violations, came out against the office. Some opposed its creation from when it was first proposed.)

Legislatures have a hard time policing themselves effectively because of inherent conflicts of interest. Similarly, any attempt to use executive branch agencies (such as the Justice Department) to enforce Congressional ethics rules raises tricky separation of powers questions. The Office of Congressional Ethics avoids both of these problems because it is a legislative entity that is independent of day-to-day congressional control. In addition, unlike the House Ethics Committee, OCE investigates complaints from the public and is required to be open and transparent about its work. And finally, the OCE's role is appropriately limited, recognizing that Members of Congress are ultimately responsible for enforcing ethics rules.

The embrace of OCE by both parties strengthens its hand and creates a sense of permanence that future Speakers will find hard to undo. The Sunlight Foundation recommended that OCE continue to exist, as did a coalition of organizations. We are pleased to see that presumptive Speaker Boehner has stepped up to the plate.

We look forward to reviewing the proposed 112th House Rules for additional ethics reforms, and hope that the Senate will consider creating a similar watchdog.

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.