How transparent has President Barack Obama’s administration been? While the first term seemed to start with several bold initiatives, members of the transparency community have been disappointed with the apparent lack of initiative since then. Panelists gave the administration mixed reviews at the Dec. 3, 2012 Advisory Committee on Transparency event examining what’s happened over the past four years and what in store for the next four.

Participants in the panel discussion, moderated by Daniel Schuman, policy counsel at the Sunlight Foundation and director of the Advisory Committee on Transparency, had a hard time listing the Obama administration’s accomplishments without mentioning caveats in the same breath. Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, said the administration’s efforts may have been well intended but were not always well executed. The decision to release the White House visitor logs, for example, resulted in more transparency about who is trying to influence the executive branch, but also resulted in some staff taking meetings to coffee shops.

Weismann gave the administration credit for working to make some changes at a time when there is a history of secrecy in many federal agencies. She pointed to the Open Government Directive as one way the White House tried to direct agencies to adopt a more open culture. Changing that culture can be very difficult, and it certainly takes time, she noted.

Hudson Hollister, executive director of the Data Transparency Coalition, looked at the progress of the administration from the open data perspective. He said that while there were strides toward publishing more government data, the most useful government data is still not being published – information, for example, used by executive branch agencies to guide their decision making. Another problem is that some of the data that is being published is not in a machine readable format, which makes it difficult for outside groups to analyze and reuse that information. One of the biggest questions about the administration’s transparency record, Hollister said, comes in regard to government spending. The Digital Accountability and Transparency Act, known as the DATA Act, was proposed in 2011 and enjoys bipartisan support, but the White House has actively undermined the spending-disclosure measure.

Josh Gerstein, a White House Reporter at POLITICO, framed the administration’s transparency record as a tale of two Obamas. The President seemed to initially be much more supportive of openness, but has since backed away from it. In the current negotiations about the so-called fiscal cliff, for instance, Obama has allowed a series of secret meetings with CEOs, interest groups, and others. After being criticized for similar moves during the heatlhcare reform talks several years ago, Obama had said he realized a need to be more transparent. His actions belie his words.

All of the panelists agreed more needs to be done if Obama wants to improve his transparency record, and his second term will afford him a second chance. The panelists also discussed the need for the transparency initiatives that do exist to be institutionalized lest they be lost.

The video of the event is available on C-Span.

The conversation drew attention in the media, with Washington Post coverage of the discussion highlighting some of the administration’s achievements and disappointments.

How serious is the 112th Congress about transparency? The answer to that question depends on who you ask, as panelists proved at an Oct. 1 Advisory Committee on Transparency panel discussion. Though the 112th Congress received mixed reviews of its transparency record, panelists agreed some key improvements have been made and there is still room for progress.

The panel discussion, moderated by ACT Director and Sunlight Foundation Policy Counsel Daniel Schuman, made the different views on congressional transparency progress clear. Hugh Halpern, staff director of the House Committee on Rules, praised the 112th Congress and its leadership for modernizing how it operates and shares information with the public. One critical step he noted was that Congress for the first time recognizes paper and electronic documents as being equal. That means the cumbersome step of printing is eliminated, and having information available in electronic format brings it one step closer to being available online for the public. He also cited mandatory web-casting of committee events, an effort to obey the “3-day rule” requiring posting of bills for three calendar days before votes, and the launch of docs.house.govwhere information is posted for public review. Halpern noted Congress is still in the process of implementing rules changes made in the 112th, and he does not see the need for many rules changes for the 113th. Halpern emphasized that the 112th Congress is open to constructive criticism, but he thinks the group can be very proud of its transparency record.

Jim Harper, director of information policy studies at the Cato Institute and founder of WashingtonWatch.com, had some different thoughts on how the 112th performed in the transparency arena. The Cato Institute graded Congress on efforts to be more open, based on factors such as authoritative sourcing, availability, machine discoverability, and machine readability, and the results were not good, Harper said. The grades are a lagging indicator, Harper added, because Congress is making more data available and the transparency community has yet to sift through the data and understand it.

John Wonderlich, policy director at the Sunlight Foundation, agreed with Halpern and Harper that there has been progress in gaining access to the official work of Congress. He said docs.house.gov has been under-appreciated in terms of how much information if offers. Timestamps, for example, allow viewers to assess how long bills were available before votes, adding an accountability element to the posts. The 112th Congress’ record on ethics and influence is mixed because the laws regulating campaign finance are unclear, Wonderlich said. He cited the STOCK Act as one example of an improvement that will provide new financial disclosure information to dig into, though he said it could be improved by requiring real-estate disclosures. Wonderlich also assessed how political power functions, noting that it has been disorderly for the past two years because of divided government.

During a question and answer session at the end of the panel discussion, the panelists also discussed topics ranging from why the public should care about access to Congress to what next steps should be taken toward greater transparency. Halpern, Harper and Wonderlich once again found common themes: that a transparent Congress is key to our system of government, and more steps should be taken to advance the progress that has been made so far in bringing information to the public.

[youtube https://www.youtube.com/watch?v=1F13RWBhltQ]

by Alex Engler

On August 20, the Advisory Committee on Transparency hosted a panel discussion with experts on the federal regulatory process concerning the role of the Office of Information and Regulatory Affairs. Moderated by Daniel Schuman, director of ACT and policy counsel of the Sunlight Foundation, the panel took a detailed look at how to improve and adjust OIRA’s function in order to create greater efficacy, accountability, and transparency in the regulatory process.

Curtis Copeland, a former regulatory analyst at CRS and GAO, began the conversation by providing a brief historical account of OIRA. He spoke about the expansion of OIRA’s focus from mostly approving agency data collection to performing comprehensive reviews of economically significant regulations. Copeland mentioned two concerns that made this shift controversial. First, OIRA was seen as a challenge to separation of powers – how did this extension of the White House have the authority to influence the statutory requirements of federal agencies? Second, OIRA was criticized for acting as a “black box” in which regulations were changed or impeded with no transparency.

Susan Dudley, former OIRA Administrator under George W. Bush who is currently the Director of George Washington University’s Regulatory Studies Center, continued the discussion by describing OIRA as an office of non-partisan and dedicated civil servants that acts as a “dispassionate and analytical second opinion on agencies’ actions.” She argued that OIRA needed more staff to confront expanding responsibilities and to make up for previous reductions that reduced FTE staff from 90 to fewer than 50. Dudley also claimed that OIRA was less susceptible for special interest pressures than other agencies.

Michael Fitzpatrick, former OIRA Associate Administrator under President Obama, who recently moved to government relations at GE, agreed with Ms. Dudley’s depiction of OIRA, and asserted that the regulatory process greatly benefited from OIRA review. Fitzpatrick said that the criticism of OIRA leveraged by both sides of the political spectrum was indicative of a well functioning non-partisan agency, and also cited a need for more FTEs. He went on top argue that independent agencies should be accounted for at some level in the regulatory review process – specifically citing the Independent Agency Regulatory Analysis Act proposed by Senators Portman, Warner, and Collins.

The Director of Public Citizen, Robert Weissman, contended that the federal rulemaking process is “profoundly broken” and is, contrary to the assertions of the OIRA panelists, far more accessible to industry interests and lobbyists. He stated that OIRA meets with business interests five to six times for every single meeting with public interest groups. Weissman described OIRA as a major factor in the systemic delay of necessary regulations – specifically citing an OSHA rule regarding silica exposure that has been held up by OIRA for over eighteen months without explanation. He strongly urged OIRA to shift its role towards addressing holes in regulatory capture and promoting interagency coordination. Absent that shift, he suggested that there were many deficiencies in transparency at OIRA. Weissman also asserted that OIRA is a one-way ratchet that only weakens regulations, and never strengthens them.

OIRA Transparency – Conversations and comments on OIRA transparency were interspersed throughout the panel and have been aggregated below.

• Dudley said that OIRA was a very transparent organization that made available the versions of regulations before and after OIRA’s involvement. She cited the Unified Agenda as a tool to know when regulations will be finalized. She also said that return letters, which OIRA sends with regulations sent back to agencies, clearly indicate the problem with the regulation. However, she also mentioned that agency heads often choose to withdraw regulations that they suspect are going to be returned
• Moderator Daniel Schuman mentioned four reports (two by GAO, one by CRS, and one by the Center for Progressive Reform (CPR)) that identified a lack of OIRA transparency, including a 2009 GAO report that said OIRA was not complying with the transparency requirement of the governing Executive Order. The CPR report also asserted there were many accounts of preliminary non-public intervention, or informal review, by OIRA.
• Dudley responded by arguing that the requirement that regulatory review schedules are public has led to more special interest involvement – i.e. that by letting the public know when certain regulations are being reviewed, special interests are more likely to lobby OIRA.
• Copeland supported Schuman’s earlier comment by stating that OIRA only implemented one of the nine suggestions that GAO pushed for in 2003. Copeland also indicated that the OIRA motion ‘consistent with change’ could indicate the change of a comma, or a complete gutting of the rule. He also said that many rules that are withdrawn, rather than being returned with an explanatory letter, are done so at the instigation of OIRA.
• Fitzpatrick contended that informal reviews happen “very rarely” under the Obama administration due to a concentrated effort to reduce the influence of the informal review process. Regarding the “consistent with change” motion, he asserted that it is transparent enough because the before and after versions of the document are public. He then argued that withdrawn rules are generally taken back because the agency realizes that the rule was not analytically sound and/or their were concerns raised by other agencies or OIRA. Fitzpatrick also pointed out that 90% of rules that OIRA reviews are finalized, either with or without changes.
• Copeland explained that making public the before and after versions of a rulemaking document changed at OIRA that is hundreds of pages long is not inherently very useful, since no other information is provided.

You can find more information on OIRA and the federal regulatory process on the Advisory Committee on Transparency’s OIRA page.

[youtube https://www.youtube.com/watch?v=JrHZBA6wv3I]

Update: this event has been postponed until further notice.

The Advisory Committee on Transparency will host an event on legislative transparency and legislative branch appropriations on Monday, March 12th at 2:00 p.m. in the Rayburn House Office Building, room 2203. This event is particular timely as the House and Senate consider how much money to appropriate for important transparency programs.

The panel of experts will focus on rules changes that impact the level of transparency in the appropriations process. The discussion will also emphasize changes in funding for legislative branch support agencies and internal congressional processes that have implications for congressional transparency and legislative capacity.

Super PACs were the subject of an event hosted by the Advisory Committee on Transparency in January 2012. The event addressed the history of super PACs, legal issues surrounding them, and their potential effect on elections.

Eliza Newlin Carney, a staff writer for CQ Roll Call and the journalist who coined the term super PAC, got the discussion started. She argued that campaign finance transparency has been eroding for some time, sparked by increased activism from non-profit organizations that don’t have to disclose their donors. She outlined three specific issues that have emerged with the rise of super PACs: FEC disclosure regulations are incomplete, super PACs can delay reporting their donors, and super PACs can use affiliated non-profits to obscure the identity of their donors.

Mimi Marziani, Counsel for the Democracy Program at the Brennan Center for Justice at the NYU School of Law, explained how super PACs came to be. She detailed how the Supreme Court’s 2010 Citizens United decision set the stage for non-coordinated independent expenditures by lifting the ban on direct corporate and union participation in elections. The subsequent Court of Appeals’ Speech Now decision found that the government cannot restrict unlimited business and labor contributions for these expenditures. Together, the two decisions led to the creation of super PACs. Marziani highlighted three assumptions included in these decisions that she found troubling. First, that independent expenditures are non-corrupting. Second, that anti-coordination rules are sufficient to prevent actual coordination. Finally, that current disclosure requirements are sufficient to shine light on these new avenues for political spending.

Paul Ryan, FEC Program Director and Associate Legal Counsel at the Campaign Legal Center, picked up some of the threads started by Marziani. According to Ryan, 8 of 9 Supreme Court justices endorsed the central role of disclosure for the campaign finance system. But, he argued that some significant deficits in current disclosure rules exist. It is easy for super PACs to obscure the corporate role in elections by accepting donations from non-profits that are not required to disclose their donors. Additionally, Ryan blamed dysfunction among FEC commissioners for preventing needed regulations from being instituted. He pointed out legislation, the DISCLOSE Act, which narrowly failed to pass through congress in 2010, and the SUPERPAC Act proposed by the Sunlight Foundation, that could solve some of these problems.

Allen Dickerson, Legal Director and Interim Executive Director of the Center for Competitive Politics, approached the topic with a different perspective. He argued that since super PACs already have to follow the same reporting rules as traditional PACs, more disclosure is not necessary. He then suggested that smaller donations are not particularly noteworthy and do not need to be subject to disclosure. Dickerson also took time to push against Paul Ryan’s suggestion that super PACs would use non-profits to obscure their donors, calling the required process “inefficient”.

The event ended with a question and answer section that sparked an engaging discussion and pushed the panelists on a number of issues. They talked about the possibility that non-profits will be used to obscure donors, the level of coordination that is actually allowed between super PACs and candidates, and the practical effect that super PACs may have on the 2012 elections.

The event was moderated by Daniel Schuman, director of the Advisory Committee on Transparency. See the Sunlight Foundation’s page on Disclosing Money in Elections or the Sunlight Foundation Reporting Group’s super PAC resource page for more information.

For the full biographies of our speakers, please click here

[youtube https://www.youtube.com/watch?v=xRA83g4y3w8]C-SPAN also has live video of the event available here

The Advisory Committee on Transparency educates policymakers on transparency-related issues, problems, and solutions and shares ideas with members of the Congressional Transparency Caucus. It hosts events to discuss important and wide-ranging transparency policy issues with experts from a variety of backgrounds and develops educational publications and provides timely information to the public and members of Congress. Learn more at http://transparencycaucus.org.