On Thursday, the House of Representatives did something unusual: it passed a small, bipartisan bill with a substantive and positive impact on policy. The PRESS Act, co-sponsored by Rep. Kevin Kiley [R, CA], Jamie Raskin [D, MD], and eighteen others, is a reporter shield law. The District of Columbia and every state except Wyoming provide a statutory protection or court-recognized shield for journalists.
This bill, like the ones in the states, prohibits prosecutors from forcing journalists and their IT providers to disclose information about their sources except when doing so would prevent terrorism or imminent violence. Basically, think of it as a clergy or attorney-client privilege, but for reporters talking to their sources — an entirely different form of confession. The purpose is to allow journalists to report the news without fear the government will go after them for doing their jobs. Going after the press for “leaks” is a time-honored way of distracting from the substance of the reporting.
This wasn’t the first go-round for the legislation. The predecessor Free Flow of Information Act was introduced in 2009 and co-sponsored by then Rep. Mike Pence [R, IN]. (Watch him testify in favor of it before the Senate Judiciary Committee.) The bill has been reintroduced in each Congress and has a Senate companion measure co-sponsored by Sens. Wyden [D, OR] and Lee [R, UT], but faced a block by Sen. Tom Cotton [R, AR]. This example of the ability of any senator to block small legislation that the majority leader is unwilling to place on the floor prompted me to think about the success rate for government transparency and accountability legislation since, say, 2010.
With the help of friends who work at opengov organizations, I compiled a list of open and accountable government legislation over the last fourteen years. This is far from a full accounting: It misses bespoke legislation affecting a particular agency and it ignores the many policies put into effect through appropriations committee report language.
What became apparent in separating the vast majority of good government bills that became law and those that did not was that many of them traveled on another legislative vehicle, often NDAA or Appropriations. Those bills that were not in a package almost always went by suspension in the House and UC in the Senate. A few in the House did get treated under regular order, but it was a small number.
This result isn’t surprising to anyone who works as an advocate. Scholars Molly Reynolds and Peter Hanson wrote recently about how the new regular order is omnibus legislation. Having worked as an advocate, I’m aware of the many compromises that had to be struck because of petty objections, turf battles, and the use of legislation as a bargaining chip.
Looking at my batting average, I’ve found much greater success with the use of legislative vehicles than stand-alone legislation in getting a measure across the finish line, even if the legislation is first developed as a stand-alone bill. However, in my experience, most (smaller) successes have come through report language in appropriations bills, which change policy in a way that systems like Congress.gov are unable to track. Perhaps the rise of AI will make it easier to reduce and track report language policy riders.
If I redo the list of enacted bills, I’ll extend it back to 2009-2010, the last period of unified government. My suspicion is that there’s a number of new good government laws enacted during that time frame. If I’ve missed any, please drop me a line at daniel@americalabs.org.
As for the PRESS Act, we will see whether having 100% support in the House and 99% support in the Senate is enough to get it past the finish line. If the past is prologue, we have a good idea what it will take to make it law. Much law gets enacted in the going-out-of-business period after the final election in a session of Congress, so we’ll keep our fingers crossed for the post-November period.
I’m also going to keep my eye on those bills that keep getting reintroduced, cycle after cycle. For some, it’s just a matter of time and waiting for a certain member to retire or change committee assignments.
Select recent enacted transparency legislation
2023-2024
- None
2021-2022
- Access to Congressionally Mandated Reports Act §7241 (2022) (P.L. 117-263) — Requires agencies who are required by law to submit reports to Congress to also submit some of those reports to GPO’s online repository, and tracks what reports are due and when they are submitted
- Periodically Listing Updates to Management (PLUM) Act §5321 (2022) (P.L. 117-263) —Requires OPM to annually publish an online list of senior government officials, including appointed positions, including information about those individuals and whether the position is vacant
- Financial Data Transparency Act (2022) §5801 (P.L. 117-263) — Requires federal financial regulatory agencies to adopt specified data standards with respect to format, searchability, and transparency
- Apportionment Transparency (2022) §204 (P.L. 117-328) — Requires OMB to publish online each document apportioning an appropriation, including accompanying footnotes, in an open government data format
- Courthouse Ethics and Transparency Act (2021) (P.L. 117-125) — Requires federal judicial officers, bankruptcy judges, and magistrate judges to file periodic transaction reports disclosing certain securities transactions and for that information to be publicly disclosed online
- Congressional Budget Justification Transparency Act (2021) (P.L. 117-40) — Requires federal agencies to publish their Congressional Budget Justifications online and directs OMB to compile this into a single searchable website, and to track when the reports are submitted
- Corporate Transparency Act (2021) §6401 (P.L. 116-283) — Requires certain business entities (each defined as a “reporting company”) to file information on their “beneficial owners” with the Financial Crimes Enforcement Network (“FinCEN”) of the U.S. Department of Treasury
- Taxpayers’ Right to Know Act (2021) §9601 (P.L. 116-283) — Requires OMB to create a public inventory of federal programs and provide for regular updates to the information
2019-2020
- Oversight.gov (2020) §621 (P.L. 116-6) — Provides funding for Oversight.gov, a website containing reports from most federal Inspectors General
- Grant Reporting Efficiency and Agreements Transparency Act of 2019 (2019) (P.L. 116-103) — Requires the establishment and use of data standards for information reported by recipients of federal grants and the publication of recipient-reported data collected from all agencies on a single public website
- Taxpayer First Act (2019) §3101 (P.L. 116-25) — Mandates electronic filing and online publication of 990 (nonprofit) tax forms
- Open, Public, Electronic and Necessary (OPEN) Government Data Act §201 (2019) (P.L. 115-435) — Defines the term open data, creates minimal standards for making federal government data available to the public, requires the federal government to use open data to improve decision making, establishes and formalizes Chief Data Officer (CDO) at federal agencies, and codifies data.gov
- GAO-IG Act (2019) (P.L. 115-331) — Requires federal agencies to report in their annual Congressional Budget Justifications information about open and closed GAO recommendations
2017-2018
- Equal Access to Congressional Research Reports Act §154 (2018) (P.L. 115-141) — Requires CRS Reports to be made publicly available as of the date of enactment
- Filing by Senate Candidates with Commission Division D, Title I (2018) (P.L. 115-244) — Requires all Senate candidates to file their election reports electronically with the FEC
2015-2016
- FOIA Improvement Act of 2016 (2016) (P.L. 114-185) — Strengths FOIA’s public disclosure provisions, requires records requested three times to be published online automatically, limits the timeframe wherein agencies can withhold agency communications, and codifies FOIA.gov
- Whistleblower Protection Enhancement Act of 2016 (2016) (P.L. 114-302) — Prohibits an FBI employee from taking or failing to take a personnel action (e.g., demotion) with respect to an FBI employee or applicant because of a protected disclosure, i.e., one concerning (1) a violation of a law, rule, or regulation; or (2) waste, fraud, or abuse
2013-2014
- The Digital Accountability and Transparency Act (2014) (P.L. 113-101) — Establishes a website where the federal government discloses its expenditures and sets data standards for those disclosures
- Intelligence Community Whistleblower Protections (2013) Title VI (P.L. 113-126) — Extends whistleblower protections to agencies the principal function of which is the conduct of foreign intelligence or counterintelligence activities; extends some reprisal protections; allows appeals of clearance determinations; creates a conflict of interest provision regarding an IG’s transmission of communications to Congress; etc.
2011-2012
- STOCK Act (2012) (P.L. 112-105) — Requires disclosures of stock trading by some government officials
2010-2011
- Reducing Overclassification Act (2010) (P.L. 111-258) — requires DHS to train and educate law enforcement on responding to requests for classified material; require the DNI to standardize formats for un/classified intel products to promote sharing of those products; allows agency heads to reward employees for properly classifying documents; directs the Information Security Oversight Office at the National Archives to assess whether agencies are properly administering classification practices; requires training for employees with original classification authority
