How can Congress get out of the mess it finds itself in? The approach I suggest is to provide Members and staff greater tools and resources do to their jobs. This will enable them to think long term and remove their undue reliance on special interests dedicated to the status quo. In an era where Congress will not spend more money on itself, resources can be freed up by moving Congress into the information age.
For that to be possible, we must answer difficult questions. What are the incentives and choices affecting legislators as legislators? What internal constraints push members of Congress and their staff act as they do? How do you help members of Congress think of themselves collectively as the first branch of government? How do you create enough space so Congress becomes capable of healing itself?
Today the Senate passed a Freedom of Information (FOIA) bill by unanimous consent. The legislation, officially known as the FOIA Improvement Act of 2015, was shepherded through the upper chamber by its original co-sponsors — Senate Majority Whip John Cornyn (R-TX) and Judiciary Committee Chair Chuck Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT). Its passage is a tribute to the willingness of members of the Judiciary Committee to work together in a bipartisan way — and partially thanks to the fortuitous fact that the president’s nomination to the U.S. Supreme Court has not yet been sent to the Senate.
The measure now moves to the House of Representatives, which itself passed similar legislation, known as the FOIA Act, earlier this year. That measure was originally authored by then Oversight and Government Reform Committee Chair Reps. Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MD), and enjoys the strong support of current Oversight Committee Chair Jason Chaffetz (R-UT).
Part 1: A Thought Experiment on Our Broken Legislature
Imagine astronomers discover a giant asteroid on a collision course for Earth, scheduled to collide in 100 years. It is possible to build the technology to deflect the asteroid if we spend $2 trillion dollars now. What would Congress do?
We can guess at the answer. Some members would say we need to study the issue more and defer action until a blue ribbon panel reports back. Others would deny we’re on a collision course. Members from districts that would build the technology to deflect the asteroid would argue the government should spend $4 trillion… just to be safe. Others would suggest we build deep trenches to escape the impact, because doing so would be a lot cheaper. Questions would be raised whether the asteroid is a Chinese or Russian plot. And each party would blame the other for not addressing the asteroid menace and using it to score political points.
While they’re arguing, the asteroid would come closer and closer. The costs of dealing with the problem would mount. And finally, long after the point where anything meaningful could be done, Congress would fund a private sector initiative to build deflection technology that would not work properly.
Today Senators John McCain (R-AZ) and Patrick Leahy (D-VT) and Representatives Leonard Lance (R-NJ) and Mike Quigley (D-IL) introduced in the House and Senate legislation directing the online publication of Congressional Research Service reports that are available for general congressional access. A coalition of 40 civil society and grassroots organizations, libraries, trade associations, think tanks, and businesses from across the political spectrum released this statement in support of the legislation:
The most powerful federal agency is one no one outside of Washington has heard of. It controls how agencies request money from Congress and spend it, oversees virtually all major rulemakings, controls multi-agency processes, sets federal information policy, and more. In some respects, it’s the tail that wags the White House dog. The agency is the Office of Management and Budget (OMB).
Seal of the Executive Office of the President. Credit: DonkeyHotey.
Over the course of the Obama administration we’ve made recommendations on how OMB should lighten up — I mean open up. We made recommendations to the administration’s National Act Plan, which is intended to contain actionable open government commitments, drafted guidelines on how agencies can improve proactive disclosure, and suggested how to make earmarks more transparent.
More than six years ago the Obama administration started a new process by which agencies release open government plans every two years. OMB oversees the process and is supposed to issue a plan as well. While OMB issued a plan in 2010, it failed to do so in 2012 and 2014.
Creating a machine-readable organization chart of the federal government. (This idea was adopted as part of the National Action Plan last year).
Fixing how the government gathers information through forms by making sure they’re well designed, catch input errors, flow easily into databases, and are built for maximum disclosure and reuse.
Set forth guidelines on how agencies can think through and proactively disclose information they hold.
Frankly, this is a fairly modest list. OMB should be leading on federal spending transparency by pushing forward DATA Act implementation, providing significant assistance to improve implementation of the Freedom of Information Act, rethinking its entire regulatory approval process, reexamining how it implements cost/benefit analysis, setting forth regulations mandating public access to information, and much more.
But there isn’t much useful time left in the administration. We hope OMB will act on the recommendations and issue a substantive open government plan soon, especially with Sunshine Week soon upon us.
Today is the day the White House sends the President’s budget to Congress. The proposal — dead on arrival — is an unintelligible mishmash of happy talk, legislative language, and columns of data.
Buried in the pablum is something useful: explanations of what the government does. Imagine, if you can, a plain language description of what each agency does or plans to do, replete with just enough detail to give a good idea of what’s happening. That, in short, sums up agency-produced documents known as “Congressional Budget Justifications” (or CJs, pehaps named after former White House communications director C. J. Cregg.)
In its CJ, an agency provides Congress a rationale for why the legislative branch should make money available for an agency to spend. It says what they’ve done and what they’re planning to do.
The White House’s consigliere, an agency known as the Office of Management and Budget (or OMB, pronounced Oh Em Bee), makes sure the budget proposal and its explanation reflect White House priorities.
OMB sets the rules for how agencies write the budget in a really tedious document known as OMB Circular A-11. Among many other things, it directs agencies to release the full congressional justification materials available to the public and to post them on the internet within two weeks of sending the stuff to Congress. (I’m paraphrasing section 22.6(c)).
There are a couple of problems with this approach to making budget information available to the public.
Unless you stay as home as much as I do, there’s probably no way to know the CJs exist.
The CJs are scattered across the internet. You have to know exactly what you’re looking for. And even when you do, mighty Google still can lead you on a wild goose chase.
Agencies publish the CJs inconsistently. Some departments publish all agencies justifications together as one giant PDF file — which can be so large it crashes your browser. And it’s not possible to do a track changes on PDFs to show how a CJ has changed from year to hear.
Over time, the CJs can be lost as agencies update their pages.
The White House has a central page for information about the federal budget — this one — filled with everything you’d want to know about the proposal except the Congressional Budget Justifications.
An association of people even nerdier than myself, the American Association for Budget and Program Analysts, usually compiles links to all the CJs. This should be a job for OMB, especially since it already is publishing everything else. Not everyone will find the AABPA website, it may not be complete or timely, and you have to know what you’re doing.
One purpose of open government is to make government accessible and understandable to everyone. OMB should publish explanatory information on the federal budget where the public, journalists, advocates, and policy experts would expect to find it. (The open government community has been asking them to do this for several years.)
Congress could get into the act, too.
The Budget or Appropriations Committee could gather up the documents — they are Congressional Budget Justifications, after all — and publish them on their websites, or encourage a legislative support agency like the Congressional Budget Office to do so. It would be a little weird, as why would Congress publish the White House’s public relations documents, but it would address the disclosure problem.
The Appropriators could also direct (i.e. require) OMB to update its regulation to publish the CJs on OMB’s website. It shouldn’t take an act of Congress to get OMB on the job, but what’s a little nudge between coequal branches of government?
The United States Senate is a creature of its rules. Through its standing rules, laws and resolutions, precedents, and the consent of its members, the upper chamber carefully controls how legislation can be promulgated and debate can take place.
Unlike the House of Representatives, which must vote on its rules every Congress, the Senate rarely reconsiders its standing rules in their entirety. An opportunity has arisen, however, with the current debate over changing how the filibuster works. Here are our major recommendations for updating the Senate’s rules.
In summary, they are:
Improve Public Access to Information about Legislative Proceedings
Improve Disclosure Around Committee Activities
Improve Transparency Concerning Senate Operations
Improve Public Understanding of Policy Matters
Adopt a “Public Access” Presumption
Catalog Information Held by the Senate
Improve Chamber-Wide Coordination on Open Government
→ Transparency Ombudsman
→ Advisory Committee on Public Access to Information
→ Strengthen Oversight of Legislative Support Agencies
Improve Public Access to Information about Legislative Proceedings
Information regarding legislation pending in the Senate is made available on THOMAS and Congress.gov, but it is not made available in the way that computers can most easily process it — in bulk. In addition to joining with the House to require that legislative data be made available in bulk, the Senate should require that all amendments are online in real-time.
All proposed amendments in the Senate should be available online in a useful format. Unfortunately, while the House releases this information to the public via the THOMAS/ Congress.gov website, the Senate only makes amendments available through the Congressional Record, which is more difficult to access and parse. This information shouldn’t be buried.
All information on presidential nominations filed with the Senate should be available online, except for personally identifiable information (such as home addresses, phone numbers, and social security numbers.)
The US House has incrementally moved toward having all legislation available online before floor consideration (even if the House sometimes waives these rules). The Senate, however, has made little to no progress. Legislation, including final committee reports, should be available online for 72 hour prior to a final Senate vote. While forcing the Senate to consider legislation in a particular way will necessarily be tricky (especially in a chamber that functions through unanimous consent), far more should be done to improve public access to legislation prior to votes.
Improve Disclosure Around Committee Activities
All committee and subcommittee hearings and meetings should be webcast except when logistically impossible. The House has a rule to this effect.
All markups should be available to the public at least 24 hours prior to consideration by the committee or subcommittee. To be considered as “publicly available,” they should be online.
Senate committees should write and publish oversight plans, with annually update reports. The House already has this requirement and it works well. See House Rule XI(d).
Improve Transparency Concerning Senate Operations
All public documents held by the Secretary of the Senate for public review should be published online. A list of those documents is available here. Currently, the documents can only be obtained by printing them during a visit to the Senate Office of Public Records on Capitol Hill.
The Senate should publish its semi-annual reports on its internal expenditures online as a downloadable database, and not just as a PDF. The House has just committed to doing this. Doing so would make the information more accessible to the public and facilitate reuse of the data.
“Dear Colleague” letters are one way that a Senator communicates with the rest of the Senate. They’re usually used to indicate support for legislation or other policy initiatives, and are often shared with the public or the press. All of these letters should be made available online on a central website by default unless an originating office decides to specifically exclude one of the letters.
The Senate should create an independent ethics watchdog along the lines of the Office of Congressional Ethics. The OCE has been an invaluable addition to the ethics process in the House, and will bring additional transparency and accountability to the Senate.
Annual, semi-annual and other regularly recurring reports from the legislative support offices (e.g. the Secretary of the Senate, Sergeant at Arms, Parliamentarian) all should be made available online as they are issued. While some legislative support offices do an excellent job of publishing their reports online, other offices have further to go. Access to this information makes it possible for the public to have confidence that the Senate is being operated effectively and efficiently, and also for academics, journalists, and others to make recommendations for improvement.
The Senate should publish a staff directory that includes each staffer’s name, job title, areas of responsibility, and the main phone number and address for the office — not the staffer’s email or direct phone number. This information is already available through pay services run by third-party vendors. It should be available to the public as well.
Improve Public Understanding of Policy Matters
Widely-distributed Congressional Research Service reports should be made available to the public by the Secretary of the Senate’s office. Thousands of CRS Reports are available online, and many more can be purchased through third party-vendors. These frequently-cited documents can help explain important policy issues to the public, and occasionally could benefit from public review for completeness and accuracy. However, they are not available to the public in a timely way, and public access is spotty. Legislation to this effect has frequently been introduced in the Senate (such as S Res 118) that addresses all the important aspects of making these reports freely available to the public. Former CRS employees, public interest groups, and Members of Congress are increasingly calling for public access. It is time to level the playing field.
All reports submitted to the Senate should be made available online, except in limited circumstances. The Senate should look to the draft Access to Congressionally Mandated Reports Act for guidance on implementation.
The Senate publication “The Constitution of the United States: Analysis and Interpretation,” available on the Senate’s intranet but not available to the public except in a printed format, should be made available online as it is updated. This legal treatise that explains the US Constitution as it has been interpreted by the US Supreme Court is an invaluable resource and should be more widely available to the public.
Adopt a “Public Access” Presumption
The Senate should adopt a rule creating a rebuttable presumption in favor of public access to all congressionally-held information. Members, committee and leadership offices, legislative support offices, and (when working on Senate issues) legislative support agencies should be encouraged to make information available to a requester unless there is a strong, clearly articulable reason that outweighs the public’s interest in access. In addition, a response to a requester should be timely, and information should be made available to a requester in the format that is requested unless doing so is not practical.
The Senate should also require the proactive online publication of information that is already available to the public, including historical information that’s stored in electronic form. The Senate should make a particular effort to make legislation, including amendments, available online in a timely fashion, perhaps adopting the successful model used by the House, docs.house.gov. The Senate should also work with the House to create open data standards for the publication of machine-readable information (including bulk access to that data).
Catalog Information Held by the Senate
The Senate creates and holds many documents and data sets. But with so many entities responsible for receiving and generating information, it is not clear to Members, staff, or the public what information is held by the Senate, who is responsible for it, and whether it can be made available to the public. Some thoughtful efforts have been undertaken to consider these issues. For example, legislation has been introduced to require GPO to create a central repository of all reports any office or Department is required to make to Congress. The Senate already compiles a list of ethics reports required to be filed in the Senate. And GPO has made efforts to compile a repository of official Senate documents, although its efforts are hindered by lack of access to the information.
The Senate should undertake an audit of the documents or other information that it holds, who is responsible for the information, the format in which it is stored, and where and how it can be obtained by the public. The House and Senate jointly undertook a related effort in 1992 as memorialized in S. Pub. 102–20. The audit should occur each congress, and be published online as an Index to Senate Information.
Improve Chamber-Wide Coordination on Open Government
Like many large institutions, responsibility for work on a particular issue is often spread out over many offices on the hill. This is particularly true for transparency issues, where leadership, committees, personal offices, and legislative support offices and agencies each have a small part. Unsurprisingly, efforts to coordinate among these offices are difficult, and institution-wide awareness of what’s going on is hard to come by. To improve coordination and awareness, we suggest the Senate consider the following steps.
Transparency Ombudsman
The Senate has key staff responsible for the needs of the chamber. Helping to make the Senate more transparent is a task that spans several of these offices, and is also the responsibility of leadership and several committees. But like most institutions, this diffusion of responsibility means that there is no central point of contact for congressional offices trying to be more transparent, or for those outside the institution to figure out who to contact.
We suggest that the Senate consider creating a transparency ombudsman. The Ombudsman’s responsibilities would include encouraging collaboration and information sharing among those responsible for different transparency efforts inside the Senate, to serve as a resource for those inside the Senate who wish to adopt best practices, to be a primary point of contact for those seeking information from the Senate, and generally to facilitate a more open and transparent Congress.
Advisory Committee on Public Access to Information
The Senate’s efforts to improve transparency are intended to be of benefit to other offices within Congress, co-equal branches of government, the public at large, journalists, academics, and others. There is no regular forum, however, where interested parties can get together and talk with representatives of congress about how to best meet everyone’s needs in the most efficient and effective manner.
We suggest that the Senate create an advisory committee (along the lines of the Advisory Committee on the Records of Congress) that provides advice and recommendations to the Senate regarding public access to information.
Strengthen Oversight of Legislative Support Agencies
The Joint Committee on the Library and the Joint Committee on Printing are responsible for coordinating oversight with the House over the Library of Congress and the Government Printing Office. Unfortunately, JCP and JCL no longer hold public meetings or hearings and have been hamstrung by the Chadha court decision.
In the past, these committees provided effective guidance and oversight for legislative support agencies, which are responsible for making much of the work of Congress (and the government as a whole) available to the American people. Now, much of the public-facing oversight work is performed by the Legislative Branch Appropriations Subcommittee or is subsumed into the responsibilities of the Senate Rules Committees, both of which have other responsibilities. In addition, we have found that different messages are sometimes communicated by the legislative support agencies to their respective House and Senate oversight committees, which may impede the ability to effectively oversee and direct their functions.
We recommend that the Senate explore ways to strengthen public oversight of the Library of Congress and the Government Printing Office. It should particularly focus on making sure that Congress has sufficient capacity to effectively ensure that these agencies are properly performing their roles of making information available to the public, and that the oversight process in performed in a way that the public can be properly engaged.
It also may be wise to look more broadly about creating a Chief Technology Officer for the United States Senate, whose office would look at campus-wide issues, including technology needs within the Senate as well as the legislative support agencies.
Appendix
We have more recommendations for improving Senate activities, but they are best accomplished through means other than Senate rules changes. Also, I wrote about this topic previously when I was at the Sunlight Foundation.
Over the last week the issue of public access to non-confidential CRS reports has come into focus. A grassroots effort has sent hundreds of emails from constituents to select Members of Congress over the last two weeks. Transparency organizations and former CRS employees called for public access. A panel of experts met to discuss the issue on Capitol Hill. And there have been a handful of news stories. I thought it might be helpful to round-up all that information.
We expect this issue will continue to be in the news, especially with all the changes contemplated at the Library of Congress. To be clear, we are advocating comprehensive public access to non-confidential CRS reports, addressing the serious issue of inequitable access by lobbyists and special interests when compared to the general public. We are not calling for public access to confidential memoranda or advice.
Last Thursday, the Congressional Transparency Caucus convened a discussion on public access. A panel addressed why non-confidential CRS reports should be publicly available; the legal and constitutional issues; the policy issues; and the CRS perspective. Video is available here. Participants included former Rep. Chris Shays (R-CT), Stan Brand, Kevin Kosar, Prue Adler, and me as moderator. Reps. Leonard Lance(R-NJ) and Mike Quigley (D-IL) both spoke; they have introduced House Resolution 34 in support of public access.
Also on Thursday, 22 former CRS employees with more than a collective 500-year tenure at the agency released this letter calling for public access. On average, each employee was with CRS for more than 25 years.
In late August, a coalition of more than 41 organizationscalled for public access to the non-confidential reports and rebutted any concerns with their release (see appendix).
In addition to this favorable New York Timeseditorial, and op-ed by Reps. Lance and Quigley, several news stories have come out recently.
And Hannah Hess dug in and reported on Member opinions and the underlying policy questions back in July in Roll Call.
Public access is a bipartisan issue everyone can support. We believe in a strong CRS that serves Congress, and Congress’ interests are helped by ensuring the non-confidential reports — not the memos or advice — are available to the general public.
More Resources
Backgrounder: H. Res. 34, amendment on the list of reports, and more
40+ organizations call for public access to non-confidential CRS reports, rebut commonly raised arguments (blog)
Member Statements
Candice Miller, Chair, Committee on House Administration Across the Capitol, House Administration Committee Chairwoman Candice Miller (R-Mich.), who has primary jurisdiction over the CRS, said in an interview that she’s been sidetracked this year by other issues but promised she’d give the legislation her attention soon. “I’ll take a look at it. I know there’s been a lot of talk about that over the years. There might be some of those reports that could be [released]. Others maybe not,” she said. — 10/29/2015, quoted in Politico.
Roy Blunt, Chair, Senate Rules Committee “I’ve never understood why those couldn’t be available to the public and I’m interested in looking at that,” said Sen. Roy Blunt, R-Mo., who was handed the gavel on the Senate Rules panel in January, and also serves as chairman of the Joint Committee on the Library. — 7/14/2015, quoted in Roll Call.
Gregg Harper, Vice Chair, Joint Committee on the Library “You could argue that both ways, and so I want to make sure that we give that a proper study, so we haven’t made a 100 percent decision on what works best,” Harper said. “You want to make sure they can speak openly and we can get the information we need. Now, do you want to release that to the public? That’s something that we’re still trying to work through.” — 7/14/2015, quoted in Roll Call.
Tomorrow, the Committee on House Administration will hold a markup on a resolution that governs member spending. As Politicoexplains, the “sweeping changes” to how Members of Congress spend money was prompted by stories on former Rep. Aaron Schock (R-IL), who reportedly misspent public money redecorating his office, filing inappropriate requests for travel reimbursements, and other misdeeds. Shock is under federal investigation.
The House formed a special task force, composed of Reps. Rodney Davis (R-IL) and Zoe Lofgren (D-CA), to tighten up reporting and disclosure rules. Demand Progress and representatives from other organizations were consulted by the task force as it considered recommendations.
If enacted, the resolution would:
Travel
Allow private/charter flights only when no commercial is alternative.
Prohibit private/charter flights between D.C. and anywhere else, without prior written authorization.
Permit private/charter flights between non-D.C. locations, but require written approval if the cost for the entire itinerary exceeds $7,500.
Set maximum reimbursement rates for privately-owned and privately-leased vehicles. Limit reimbursement to vehicles owned by the Member or employee.
Office
Require prior written approval for decorating expenses or furniture that exceeds $5,000 per item.
Reporting and Compliance
Instruct CAO to submit a proposal by Nov. 21 to publish House expenditure reports as digital spreadsheets, replacing the current PDF scan of tabular data. (This is a big deal for watchdogs!)
Instruct CAO to submit a proposal to retire “travel subsistence” as a catch-all reporting code, hopefully to be replaced with finer-grained reporting.
Require CAO to report on its internal controls and training regarding voucher reimbursements by Nov. 21.
We are particularly excited that the Committee will consider — and hopefully approve — the publication of House Expenditure Reports in an electronic format. Instead of publishing hundreds of pages of tables as a giant PDF, the House would now publish that information as a digital spreadsheet. (Of course, the House’s decision a few years back to publish the information online at all, even as a PDF, was a step forward.) This will allow watchdogs and others to easily review and analyze spending information.
We are still digesting the other proposals, but they are a welcome improvement. We commend the hard work of Reps. Davis and Lofgren and look forward to tomorrow’s meeting.
Yesterday, the Congressional Transparency Caucus announced it will host a panel discussion on public access to Congressional Research Service reports. The non-confidential reports explain current policy matters before Congress in a thoughtful, comprehensive way, but the reports are not systematically publicly available. The panel is set for Thursday, October 22, at 11 a.m. in room 2103 of the Rayburn House Office Building. It will be live-streamed here.
Reps. Lance (R-NJ) and Quigley (D-IL), who are hosting the conversation, have introduced legislation to publish all non-confidential reports online. As part of a coalition of 40 organizations, we have endorsed online access to the reports, as have many others, including the New York Times in a recent editorial.
In addition to opening remarks by Reps. Lance and Quigley, former Rep. Chris Shays (R-CT), who started pushing for public access in the late 1990s, will participate on the panel, as will former counsel for the House of Representatives Stan Brand.
The Honorable Chris Shays (R-CT) — Rep. Shays represented the fourth congressional district in Connecticut from 1987–2008. A member of the Government Reform, Financial Services, and Budget and Homeland Security Committees, Rep. Shays is well-known for his government reform efforts. In 2009, he co-chaired the Commission on War-Time Contracting.
Prue Adler — Ms. Adler is the associate executive director of the Association of Research Libraries, with a focus on information politics, intellectual property rights, telecommunications, and issues relating to access to government information. Prior to joining ARL in 1989, she was assistant project director for the Communications and Information Technologies Program in the Congressional Office of Technology Assessment.
Stan Brand — Mr. Brand is senior counsel with the law firm Akin Gump. His practice emphasizes defending the rights of witnesses involved in government investigations. From 1976–1983, Mr. Brand was general counsel to the U.S. House of Representatives and was the House’s chief legal officer responsible for representing the House, its members, officers, and employees in connection with legal procedures and litigation arising from the conduct of their official activities. He is a Distinguished Fellow in Law and Government at Penn State Dickinson School of Law
Kevin Kosar — Dr. Kosar is a senior fellow and governance project director with the R Street Institute, a free-market think tank with a pragmatic approach to public policy challenges. For 11 years, he was an analyst and manager at the Congressional Research Service. In January, he wrote an article in the Washington Monthly entitled “Why I Quit the Congressional Research Service.”
Daniel Schuman, moderator — Mr. Schuman is the policy director at Demand Progress and co-founder of the Congressional Data Coalition. He has written extensively on congressional capacity to perform its duties. In addition to serving as director of the Advisory Committee on Transparency while at the Sunlight Foundation, he was a legislative attorney with the Congressional Research Service.
