SOTU

 

Transparency in the State of the Union 2013

In years past, we have celebrated or analyzed the transparency, ethics, and money-in-politics themes from State of the Union addresses.

This year, there's not much to talk about.

Aside from saying that the White House will ensure anti-terrorism "efforts are even more transparent to the American people and to the world" (whatever that means), transparency didn't come up at all.

Obama says that we have to "keep the people's government open," but he means avoid a shutdown, not remain transparent.

This is a far cry from recent years -- here are excerpts from 2012, 2011, and 2010.

It's not a surprise for government integrity, transparency, and influence to be absent, since Obama's visionary rhetoric and action on government transparency have largely been replaced with rhetorical defenses.

Maybe it's still too awkward to talk about lobbying and dark money when the President is accepting huge corporate donations for his inauguration parties and designing his own c4.  By his own words, the post-Citizens United Obama repeatedly assured us that secret money in politics would undermine integrity. We're still wondering whether his ongoing silence on transparency and money in politics is evidence that he was right.

State of the Union: What Twoops May Come?

PolitwoopsIn a few hours, President Obama will deliver the annual State of the Union address to update Congress and the public on his administration's priorities. In addition to the usual contest of claps and ovations v. frowns and silence, there are sure to be many reactions across social media. Along with many citizens following at home, members of Congress will be commenting including Rep. Steve Stockman (R-TX) who promises to be "live-tweeting official responses to the Address, debunking myths and fact-checking the President." The Sunlight Foundation's Politwoops is the best spot to track the bloopers among these rapid responses. We've just finished a full audit to make sure we follow as many official and campaign accounts of those in power.

Perhaps in preparation for an evening of active twittering and in fear of making Politwoops, Rep. Tom Price (R-GA) deleted a tweet simply reading "Test" and Rep. Matt Cartwright (D-PA) deleted one saying "This one is for Politwoops." As our alert Jake Harper discovered earlier today, members of Congress are already getting a little over-eager with their thumbs. Rep. Yvette D. Clarke (D-NY), who is no stranger to historical mix-ups, plainly (and incorrectly) tweeted: "Abraham #Lincoln was the 14th President of the United States." Instead of a correction, she opted to simply say "Happy Birthday President Abraham #Lincoln!"

Previous events that caused a flurry of Politwoops included the debates from the 2012 elections when a number of Republicans reacted negatively to Joe Biden and Rep. Ele claimed Mitt Romney "shot his whole wad in the first debate." The incorrect news that the Supreme Court struck down the individual mandate was also a moment of regret caught by Politwoops. So if you're watching the State of the Union, be sure to keep a tab of Politwoops open to follow the conversation of members of Congress that they may wish you hadn't heard.

Transparency in the State of the Union

Tonight's State of the Union Address raised even less transparency issues than we expected. (See the text at the end of this post.)

President Obama called for a ban on insider trading in Congress, and proposes to ban lobbyists from bundling contributions, and to ban bundlers from lobbying.

The insider trading ban is a proposal Sunlight has supported, in the form of the STOCK Act, despite some initial misgivings. Congress should create clarity about self-dealing and insider trading, and the President is right to call on Congress to address this issue.

When Obama raised the issue of money in politics in his speech, though, he raises the "corrosive influence of money in politics." As wrong as insider trading may be, money in politics isn't about self-dealing. Obama is closer to hitting the mark in raising the issue of bundlers, but unfortunately raises a proposal that's unlikely to get discussed beyond tomorrow. A ban on lobbying or contributing to campaigns is unlikely to pass Congress, and unlikely to pass muster with the courts.  Even if it did, it would do little to mitigate the "corrosive influence of money in politics", since bundlers are often just the bag men operating at others' behest. If you're not getting the Chris Dodds of the world, your lobbying reform plan is probably aiming a little too low.

It's not clear why Obama is suddenly more interested in bundlers than say, lobbying disclosure (last year's lobbying SOTU provision), although it's possible that Obama is raising it because it will become a campaign issue, as Republican candidates have yet to release information about bundlers supporting them, as Obama has.

But this is still disappointing, since it again shows Obama relying on a flawed statutory definition of lobbyist in order to appear opposed to special interests, without actually having to do much.

Worse, though, than the lackluster vision for lobbying reform, is what's entirely missing from the State of the Union: any mention of the flood of dark money flowing into our elections. As I noted earlier today, Obama spent most of 2010 railing against the Citizens United decision -- warning us of the dangers of unlimited and secret contributions, and pushing for a legislative fix.

Since Republicans have blocked that effort, and former White House staffers started a super PAC to help Obama's re-election bid, Obama has almost completely ignored the issue. It's apparently too politically awkward to address when he's the beneficiary of all that dark money he spent 2010 warning us about.

It's good to have a President willing to raise transparency and money in politics in the State of the Union. But when insider trading and an ill-fated lunge at bundlers are all the vision he has to offer, we have to wonder whether Obama sees his old transparency platform as a political liability, rather than a vision to be perfected and implemented.

 

Speech Excerpt:

Some of this has to do with the corrosive influence of money in politics.  So together, let’s take some steps to fix that.  Send me a bill that bans insider trading by Members of Congress, and I will sign it tomorrow.  Let’s limit any elected official from owning stocks in industries they impact.  Let’s make sure people who bundle campaign contributions for Congress can’t lobby Congress, and vice versa – an idea that has bipartisan support, at least outside of Washington. Some of what’s broken has to do with the way Congress does its business these days.  A simple majority is no longer enough to get anything – even routine business – passed through the Senate.  Neither party has been blameless in these tactics.  Now both parties should put an end to it.  For starters, I ask the Senate to pass a rule that all judicial and public service nominations receive a simple up or down vote within 90 days.

Looking to Obama's State of the Union

Tonight, President Obama will deliver his fourth State of the Union address, and we'll be watching to see how his reform and transparency ambitions fit within this most public description of the President's priorities.* In an election year when an anti-Washington campaign theme will still be required, Obama may continue to cast his transparency work as a list of achievements, rather than an affirmative vision for accountable government.

Here are some themes from Obama's (first) campaign, his Presidency, and previous State of the Union addresses, that could be rejuvinated tonight:

Campaign Finance Transparency:

As we noted last year, Obama directly confronted the Supreme Court Justices in 2010 (shortly after the Citizens United decision), and then avoided campaign finance transparency altogether in 2011. The 2012 State of the Union could see Obama revive the issue from the bully pulpit. Almost nothing was done by Congress during 2011, a year when Congress failed at even defending a draft Executive Order that the President requiring disclosure of political giving from government contractors. The issue is still rife for Presidential engagement, though -- people hate the Citizens United decision, and it should be easy to rail against negative ads and dark money in our elections.

The issue could be awkward for Obama, whose former staffers started their own super PAC to aid in his re-election. Even if Obama and his party are to be the beneficiaries of the often secret, unlimited contributions they have warned us about in the past, the President still has a responsibility to push the issue.

Lobbying Disclosure

Obama loves to rail against lobbyists, and they've been a staple of previous campaign rhethoric, SOTU addresses, and White House policies. Lobbying disclosure and lobbyists will likely come up again this year, especially as cashing in on public service has become a disputed theme in the Republican presidential contest. We'll be watching to see whether Obama articulates any kind of affirmative vision for lobbying disclosure, or whether he adopts a "we already did that" posture like he did last year.

The White House has certainly done a great deal on lobbying disclosure, but their work too often relies on the flawed statutory definition of a lobbyist, which is weak, easily evaded, and fails for the most important of influencers.  An affirmative vision for reform is necessary.

Earmarks

Obama pushed for Earmark disclosure in the 2010 SOTU, and then issued a flat veto threat in 2011.  Unfortunately, neither approach has worked, and the supposed ban has made earmark requests a dark art, rather than the subject of public debate. The White House has been reportedly circulating a draft EO on earmark request disclosure, which Sunlight has pushed for extensively. Today would be a great day to issue an updated Executive Order, to protect merit in spending decisions, and keep Members of Congress from strongarming agencies into supporting their pet projects, while often pretending to be opposed to money from Washington.

Working with Congress

After the last year of Continuing Resolutions, near government shutdowns, the debt limit fight, and the supercommittee, watching the heads of divided government share a dais should be entertaining. Political gamesmanship has led the leaders of both parties to break campaign promises (72 hours for all bills, or "end[ing] the practice of writing legislation behind closed doors").

I don't expect Obama to raise the bar on negotiating with Congress, but he should. The frustrated-with-Washington undercurrent is about a variety of different things, and party leaders' tendency to choose each other over the public is near the top of the list. The reset button needs to be pushed for how party leaders approach divided government. The political moment of the State of the Union probably is an insufficient occasion to force such a reconsideration.

Wild Cards

If Obama wants to discuss transparency in his SOTU, there are a variety of other issues he could address in his speech. He could run through the oft-recited litany of White House achievements, like the Open Government Directive, Data.gov, the visitor logs, the Open Government Partership, and while they each have their failings, they're still successes the White House should highlight.

National Security secrecy, transparency in the finance sector, and the ongoing struggle to strengthen the FOIA could all come up in the speech as well.

We'll be watching, and have reactions after the address.

*Update: please join us at SunlightLive.com for our live coverage beginning at 9 pm ET.

Lobbyist SOTU Reactions Around Town

Every year the big trade groups in Washington come out with some kind of statement about how the State of the Union either shows how their industry is hugely important or how the State of the Union failed because it didn't include their industry's priorities. I've collected a few of these for you to peruse:

U.S. Chamber of Commerce:

President Obama highlighted the urgent need to revitalize our economy, create jobs, build a world-class infrastructure system, and strengthen America’s competitiveness in his State of the Union address. America must move swiftly to create millions of jobs, unshackle entrepreneurs and small businesses, and restore America’s economic leadership around the globe--or we will be left behind. ... The U.S. Chamber will work with anyone who shares our goals and we don’t care who gets the credit.

Business Roundtable:

Business Roundtable is heartened by President Obama’s focus on American competitiveness. U.S. job creation and long-term growth depend on a robust economic climate. The priorities laid out tonight by the President must now be analyzed closely to ensure they will promote, rather than stifle, an environment where the private sector can create jobs and expand the economy. ... we must promptly ratify and pursue more trade agreements, enact comprehensive tax reform and reevaluate excessive and expensive regulations.

American Petroleum Institute:

Tonight was a missed opportunity. The president focused on job growth through federal spending, but was silent on one of the best ways to create jobs: allow more energy development. Natural gas and renewables are important components of our energy mix, but we will need our nation's vast oil resources for decades to come.  The oil and natural gas industry is a key driver of new jobs and economic prosperity Producing more oil and gas at home, which most Americans want, could create hundreds of thousands of jobs, reduce our deficit by billions, and enhance our energy security. Even better, the government wouldn't have to invest a single taxpayer dollar - just give industry a green light to invest its own money.

AFL-CIO:

President Obama certainly understands our need to be competitive in manufacturing, new technology and skills.  But he must also understand that last-century trade deals that reward and encourage corporations that outsource American jobs will do little to generate net new jobs in the United States or raise living standards here or abroad.  Working people will continue to urge the President and his administration to stick to his campaign promises of reforming trade deals, so they do more than boost profits for multi-national corporations. ... We firmly believe that we should not be cutting government spending when the economy is so weak.  This economy is failing to create jobs at an adequate pace to dig us out of the hole we're in, and a spending freeze at this time will slow down job creation and growth – further worsening the deficit.  This is simply the wrong medicine at the wrong time. And it is essential that the President acts on the commitment he outlined tonight to strengthen and preserve our essential retirement security programs – Social Security and Medicare. All working people will continue to fight any proposals that aim to cut Social Security and Medicare benefits.

SEIU:

Let's be clear, there is no greater investment in this country than getting Americans back to work. With nearly 30 million Americans unemployed or underemployed, we don't just have a jobs crisis, we have a jobs emergency. ... It's alarming to hear some Republicans counter the president's bold vision with devastating cuts that would destroy jobs and plunge our nation back into recession. These Republicans are quick to dismiss job-creating investments in education and infrastructure as unnecessary spending while pushing for budget-busting tax breaks for millionaires. And it's no longer acceptable for corporations and Wall Street banks to earn a record $1.6 trillion in profits while refusing to put America back to work.

Pharmaceutical Researchers and Manufacturers of America (PhRMA):

In his State of the Union address to the nation, the President called for Americans to unleash their creative spirit and come together around the common goal of outcompeting other nations in an increasingly challenging economic global environment. A key cornerstone to meeting this challenge will be a focus on biomedical research investment. We are pleased the President acknowledged medical innovation as a critical means to help bolster the economy, control health care costs and improve Americans’ health and productivity.

National Education Association:

We thank President Obama for shining a spotlight on education and for recognizing the remarkable work of the nation's teachers. Our students’ futures and the economic well-being of our nation are at stake. We know that the road to the American dream runs directly through our nation’s classrooms. ... We welcome the president’s call to fix No Child Left Behind. We agree that it is time to right-size the role of the federal government in education. However, we remain concerned that competitive grants such as Race to the Top create winners and losers among our students.

American Wind Energy Association:

We are pleased to see the possibility of the first predictable long-term federal policy toward renewable energy. But of course we'll need to make sure the policy really deploys the renewable energy Americans want in the near term, as well as the long term. ... It is true that fossil fuels receive five times more in federal incentives than renewable energy. We don't believe that is in line with Americans' current priorities.

American Medical Association:

The AMA applauds the President’s willingness to consider medical liability reform to rein in frivolous lawsuits and help reduce health care costs. Medical liability reform is critical as every American pays the price for high medical liability costs.

Transparency In The SOTU

President Obama's mentioned several of Sunlight's core issues in his State of the Union Address issues last night. A closer look at what he said, and what he said last year, helps to sort out the rhetoric from the reality.

Earmarks

Here's President Obama, last night:

And because the American people deserve to know that special interests aren’t larding up legislation with pet projects, both parties in Congress should know this: if a bill comes to my desk with earmarks inside, I will veto it... A 21st century government that’s open and competent.

This is a new development, and a departure from his request last year, in January of 2010:

I'm also calling on Congress to continue down the path of earmark reform. Applause.) Democrats and Republicans. (Applause.) Democrats and Republicans. You've trimmed some of this spending, you've embraced some meaningful change. But restoring the public trust demands more. For example, some members of Congress post some earmark requests online. (Applause.) Tonight, I'm calling on Congress to publish all earmark requests on a single Web site before there's a vote, so that the American people can see how their money is being spent. (Applause.)

In 2010, Obama called for earmark transparency. In 2011, he issues an outright veto threat. What has changed?

After Obama's initial call for an earmarks database, lawmakers (and Sunlight) took his call seriously, crafting the Earmark Transparency Act in both the House and the Senate. They had broad bipartisan support, and the Senate bill even passed out of committee. The White House was silent, and uninvolved.

Unfortunately, a veto threat is an unlikely fix to our earmark issues. It's unclear how long it'll last, or whether it's a threat that Congress will accept. Even if they do, no one expects earmarks to end, but instead to continue under a different procedure -- phonemarking, lettermarking, and who knows what else. (We're calling those "nearmarks").  Members of Congress can still direct funds to pet projects; they'll just be harder to track, and further from the public eye.

The only ultimately reliable authority to appeal to on spending is public scrutiny. That's what Obama called for last year. Too bad he didn't follow through. It's difficult not to interpret the earmark veto threat with skepticism, as part of an escalating anti-washington political arms race, rather than a well-considered solution to a real problem.

Campaign Finance Disclosure

After the Citizens United decision, President Obama became a fierce ally for legislation to create disclosure in its wake. He made countless speeches and radio addresses, and the White House was heavily involved in trying to get the effort passed. Senate Republicans ultimately blocked the effort, even after an initiative to introduce a disclosure-only bill.

Given that history, it's surprising that this issue didn't show up at all in last night's speech. The cynical view is that Democrats are planning ways to benefit from campaign finance deregulation; perhaps Republican control of the House makes a disclosure bill less likely to pass. In any case, it's a huge reversal for the reform issue perhaps closest to Obama's heart to get a goose egg in the SOTU.

2011:

nothing

2010:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Lobbying

Last night's speech saw one particular call for lobbying reform:

Because you deserve to know when your elected officials are meeting with lobbyists, I ask Congress to do what the White House has already done: put that information online.

That sounds like a good idea, but unfortuntely it's expressed in State of the Union shorthand, and glosses over a pile of complexity. There are two sets of policies that Obama could be referring to when he says that they've "already done" lobbying disclosure.

First is the visitor logs, which the White House released as a result of a CREW lawsuit. They allow anyone to see records of most visitors to the White House posted online four months after the visits occur. These are meaningful disclosures, and allowed Sunlight's Paul Blumenthal to reconstruct the lobbying and dealmaking that went into the healthcare bill.

But that doesn't mean that they're an effective lobbying disclosure system. The design of the WAVES system is an artifact of how security officers track who enters and leaves the White House system -- a far cry from the lobbying disclosure so necessary to holding officials accountable.

Secondly, Obama could be referring to the lobbying disclosures the Executive Branch is voluntarily making around focused issues. There are such policies now applied to TARP, the stimulus, and now to the Dodd-Frank bill. Again, these are meaningful policies, worthy of broad praise, and further analysis. But they're insufficient for the White House to say they're "already done." These policies are easy to evade, and often rely on the outdated and ineffective definitions from the Lobbyist Disclosure Act.

The real fix is the sort of fundamental reform to our lobbying disclosure system that we've described in our bill on PublicMarkup, and posted for public review and commentary.

Having the President push for such a measure would improve its prognosis significantly. Unfortunately, it's unclear whether the line in last night's speech was the opening salvo in a new lobbying reform initiative, or a temporary jab at the legislature intended to garner praise for existing White House initiatives.

If "we do big things" then real-time, online lobbying disclosure should be one of them.

Other

Obama also mentioned the following line:

Because you deserve to know exactly how and where your tax dollars are being spent, you will be able to go to a website and get that information for the very first time in history.

This is rather cryptic. It's possible that this refers to a proposal to create a digital receipt for after paying your taxes, which has been floating around in different versions for several years. But that's a guess.

The USASpending.gov site already provides details on how the government spends money on grants and contracts, although the data they're using is largely unreliable.  If the government is going to add to this accounting, they should fix those problems first.

Overall

Compared to last year's speech, 2011's ideas were derivative and rhetorical.  Since there is no dedicated staffer at the White House pursuing ethics and transparency, it looks like the Obama's leadership on this issue is slipping.

As the White House staff shakeup continues, and in the absence of the not-to-be-replaced Ethics Czar, we're left wondering whether we've already seen the best of the transparency of the Obama Administration.

Transparency Reforms on List of President's Priorities

Copies of the SOTU speech are now circulating and there are several things in it that Sunlight is extremely happy about.

First, the President will call for the establishment of a single Congress-wide database so that all of us can track earmarks. A state-of-the-art, user-friendly online database, one that allows users to search, sort, and download machine-readable data, will spur more citizen interest and involvement  -- and accountability -- in federal budgetary questions.

Sunlight has long advocated transparency to ensure that earmarks reflect the public interest. There is a long history of members abusing earmarks, requesting funding to build bridges to nowhere and to reward political allies, family members and even for personal enrichment. These abuses were most prevalent when there was little transparency in the process. Until 2007, members did not disclose which earmarks they requested, recipients were not named and individual earmarks were scattered throughout a dozen or more congressional committee documents that totaled hundreds of pages.

While the last two Congresses have improved earmark disclosure, it’s still impossible for a citizen to find, in a single place, all the relevant information about the projects their elected lawmakers request before votes are taken on them. What the President is requesting -- a centralized database with information posted before final decisions are made -- is a much-needed change.

Second, the President is calling for more complete disclosure by lobbyists when  they are lobbying the White House or Congress. Under his plan, each contact would be reported, presumably with enough specificity to be meaningful.  Sunlight believes strongly that such disclosures should be made electronically, published promptly and maintained online in a downloadable, searchable, sortable format. We believe that disclosure should include all legislation and regulations discussed and all requests for specific services or government funding. Legislative contacts should be reported within 24 hours of any meeting. In addition, the requirement that contributions by registered lobbyists be reported semiannually should be amended to require contributions be reported within 24 hours of being made.

And third, the President calls for fixes to the campaign finance system in the wake of the Citizens United Supreme Court decision. We believe that this decision certainly calls for an immediate update to the entire campaign finance disclosure law regime — covering everything from who has to disclose, what is required to be disclosed, how often, and in what form – whether the spending comes directly from corporations’ or unions’ treasuries, from lobbyists, political parties or the candidates themselves. Clearly, now more than ever, our entire system of public disclosure of election-related contributions and expenditures needs to be upgraded to keep pace with the influences it is designed to track. And with the technical capacity we now have in this 24/7 world, this means that disclosures must be filed online, in real time.

We applaud the President for making these new initiatives and stand ready to consult with Congress and the administration to find the best technical means to accomplish these goals.

Excerpts from the Speech below:

Rather than fight the same tired battles that have dominated Washington for decades, it's time for something new. Let's try common sense. Let's invest in our people without leaving them a mountain of debt. Let's meet our responsibility to the people who sent us here.

To do that, we have to recognize that we face more than a deficit of dollars right now. We face a deficit of trust - deep and corrosive doubts about how Washington works that have been growing for years. To close that credibility gap we must take action on both ends of Pennsylvania Avenue to end the outsized influence of lobbyists; to do our work openly; and to give our people the government they deserve.

That's what I came to Washington to do. That's why - for the first time in history - my administration posts our White House visitors online. And that's why we've excluded lobbyists from policy-making jobs or seats on federal boards and commissions.

But we cannot stop there. It's time to require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress. And it's time to put strict limits on the contributions that lobbyists give to candidates for federal office. Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign companies - to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong.

I'm also calling on Congress to continue down the path of earmark reform. You have trimmed some of this spending and embraced some meaningful change. But restoring the public trust demands more. For example, some members of Congress post some earmark requests online. Tonight, I'm calling on Congress to publish all earmark requests on a single Web site before there's a vote so that the American people can see how their money is being spent.