Open Courts Act

Timothy B. Lee at Ars Technica:

The US House of Representatives on Wednesday passed the Open Courts Act. The bill aims to modernize PACER, the website that provides public access to federal court records. It also aims to eliminate PACER's paywall by 2025.

The PACER system represented a big advance for judicial transparency when it went online in the 1990s. But the system hasn't kept up with the times, with a user interface that has changed little since the days of dial-up Internet.

Anthony Marcum at R Street:

In September, the House Judiciary Committee passed the Open Courts Act of 2020 (H.R. 8235) by voice vote. The bipartisan bill—co-sponsored by Rep. Hank Johnson (D-Ga.) and Rep. Doug Collins (R-Ga.)—seeks to knock down the current paywall around public federal court filings.

Today, the federal judiciary maintains online public court records, called the Public Access to Court Electronic Records system (PACER, for short). But, to view these records, PACER forces users to register for an account, provide credit card information, and then charges users 10 cents a page to download and view most public filings.

A paywall around public court records causes numerous problems. Not only is the PACER system outdated and challenging to navigate, but a paywall around public court filings also disadvantages indigent and pro se litigants and makes it difficult for researchers and journalists to gain comprehensive and accurate information about our federal courts.

The bipartisan Open Courts Act would ultimately make PACER free, allowing greater access for litigants and more research opportunities for researchers, journalists and nonprofits. The Act would also modernize the outdated PACER system, making it easier to search for records and public information.

Transparency v. Deliberation

Yuval Levin at AEI:

Members consequently use their positions to build personal brands and to excite fans and followers.

But these trends have been greatly exacerbated by a further transformation that does not get enough attention: the loss of protected spaces for deliberation in Congress in the name of transparency. Every institution needs an inner life — a sanctum where its work is really done. This is especially true in a legislature, where members must deliberate and bargain to reach practical compromises. There is no such thing as bargaining in public.

The American constitutional system owes its origins to its framers’ understanding of that fact. The Constitution was conceived by a convention held behind closed doors. “Had the deliberations been open,” Alexander Hamilton argued in 1792, “the clamours of faction would have prevented any satisfactory result.” The point was not to keep out the public’s interests and views—the members present still spoke up for their states. The point was to provide a protected arena to work out deals. By retreating to a private space to deliberate, the convention’s members were able to try out ideas, let proposals be floated, and avoid embarrassing one another in public or using one another as props. Decades later, James Madison told the historian Jared Sparks that he thought “no Constitution would ever have been adopted by the Convention if the debates had been public.”

But Congress has progressively lost its inner life, as all of its deliberative spaces have become performative spaces, everything has become televised and live-streamed, and there is less and less room and time for talking in private. By now, about the only protected spaces left are the leadership offices around midnight as a government shutdown approaches, so it is hardly surprising that this is where and when a great deal of important legislation gets made.

Administrative agencies offer another cloistered venue for negotiation and bargaining, and so significant legislative power has moved to those agencies, where it can be exercised effectively—but not legitimately. Conservatives rightly complain that legislative power without legislative forms can easily become tyrannical, but we tend not to notice that a major driver of this shift in recent decades has been Congress itself, which has altered its own forms and functions in ways that have crippled its ability to act legislatively.

All of this has happened in pursuit of transparency. And transparency is a good thing, up to a point. Without it, institutions that serve a public purpose can easily become debased and unaccountable. But every good thing is a matter of degree, and political reformers have treated transparency as a benefit with no costs, when in fact it can have enormous costs that have to be accounted for. In this case, the price can be measured in a loss of bargaining spaces, and the result of ignoring it is a Congress that increasingly has the appearance of a show.

Comparative Corruption

From Transparency International:

The United States has received its lowest score in eight years on the Corruption Perceptions Index (CPI) released today by Transparency International, dropping two points to score 69 out of 100. The Index draws from over a dozen independent expert assessments and surveys to measure perceptions of public sector corruption in 180 countries and territories. Scores on the CPI range from zero (very corrupt) to 100 (not corrupt).

Read the report

Gary Kalman, Director of the new U.S. office of Transparency International, said the following:

“Weaknesses in our laws are being exploited by a growing list of bad actors at home and abroad. From foreign despots to terror networks, drug cartels to human traffickers, some of the world’s most destructive forces are benefitting from gaps in U.S. law. Multiple corruption scandals in the last year alone have shown that transnational corruption is often facilitated, enabled, or perpetuated by countries toward the top of the Index, including the United States. Fortunately, bipartisan legislation currently before Congress, the ILLICIT CASH Act and the Corporate Transparency Act, would go a long way toward stopping these interests from using the U.S. as a laundromat for their dirty cash.”

VA Whistlblower Office Floundered

From the VA Inspector General:

The VA Office of Accountability and Whistleblower Protection (OAWP) was established in 2017 to improve VA’s ability to hold employees accountable and enhance protections for whistleblowers.1 This goal was to be accomplished, in part, by expanding VA’s ability to hold senior executives accountable for specified misconduct; preventing retaliation against whistleblowers and initiating action against supervisors who retaliate; and addressing senior executives’ poor performance.

...

Notably, in its first two years of operation, the OAWP acted in ways that were inconsistent with its statutory authority while it simultaneously floundered in its mission to protect whistleblowers. Even recognizing that organizing the operations of any new office is challenging, OAWP leaders made avoidable mistakes early in its development that created an office culture that was sometimes alienating to the very individuals it was meant to protect. Those leadership failures distracted the OAWP from its core mission and likely diminished the desired confidence of whistleblowers and other potential complainants in the operations of the office.

...  

From June 2017 to May 2018, the OAWP referred 2,526 submissions to other VA program offices, facilities, or other components that were not all equipped to undertake such investigations and without adequate measures to track the referrals or safeguards to protect whistleblowers’ identities.7 Of these, at least 51 involved allegations of whistleblower retaliation by a supervisor (and so properly within the investigative authority of the OAWP). Complainants were not always advised of these referrals. Without guidance, OAWP personnel did not take sufficient steps to protect complainants’ identities and prevent their concerns from being sent to the very facilities or network offices where the complainant worked or that were the subject of the allegations. The OAWP also failed to establish safeguards sufficient to protect whistleblowers from becoming the subject of retaliatory investigations. One troubling instance involved the OAWP initiating an investigation that could itself be considered retaliatory. At the request of a senior leader who had social ties to the OAWP Executive Director, the OAWP investigated a whistleblower who had a complaint pending against the senior leader. After a truncated investigation, the OAWP substantiated the allegations without even interviewing the whistleblower. In addition, former OAWP leaders made comments and took actions that reflected a lack of respect for individuals they deemed “career” whistleblowers. Moreover, at a time when the office was failing to meet its statutory requirements and purposes, then Executive Director Nicholas directed about 15 percent of the OAWP’s FY 2018 budget to be obligated for contracts beyond its core mission.

Corruption: International Data

From Transparency International:

The 2018 Corruption Perceptions Index (CPI) released today by Transparency International reveals the United States as a key country to watch in a global pattern of stagnating anti-corruption efforts and a worldwide crisis of democracy. With a score of 71, the US hasdropped four points since last year. This marks the first time since 2011 that the US falls outside of the top 20 countries on the CPI.

To view the results, visit: www.transparency.org/cpi2018

“A four point drop in the CPI score is a red flag and comes at a time when the US is experiencing threats to its system of checks and balances, as well as an erosion of ethical norms at the highest levels of power,” said Zoe Reiter, Acting Representative to the US at Transparency International. “If this trend continues, it would indicate a serious corruption problem in a country that has taken a lead on the issue globally. This is a bipartisan issue that requires a bipartisan solution.”

The 2018 CPI measures public sector corruption in 180 countries and territories, drawing on 13 expert assessments and surveys of business executives to give each country a score from zero (highly corrupt) to 100 (very clean). Five of the nine sources used to compile the score for the US showed a noteworthy drop in score*. The other sources showed no improvement.

Making the Legislative Branch Great Again

Many posts have discussed the role of Congress in the constitutional system.

From the R Street Institute and the Legislative Branch Capacity Working Group:

White Papers

• Kevin R. Kosar, Lee Drutman, Paul Glastris, Yuval Levin, Jonathan Rauch and Molly Reynolds, “Restoring Congress as the first branch“
• Anthony J. Madonna and Kevin R. Kosar, “Could the Senate manage an open-amendment process?“
• Kevin R. Kosar, “How to strengthen Congress“
• Kevin R. Kosar, “Three steps for reasserting Congress in regulatory policy“
• Philip Wallach and Kevin R. Kosar, “The case for a Congressional Regulation Office“
• Kevin R. Kosar and Adam Chan, “A case for stronger congressional committees“
• Russell W. Mills and Nicole Kalaf-Hughes, “Exit earmarks, enter lettermarks“
• Kevin R. Kosar and John Maxwell Hamilton, “Government Information and Propaganda: How to draw a line?“
• C. Jarrett Dieterle, “Regulatory Reform in the 114th and 115th Congress“

Selected Commentaries

• “A welcome message from the R Street Governance Project’s director“
• “Why does Congress diminish itself?“
• “The legislative branch’s big oversight problem“
• “Outsourcing oversight through open-government data“
• “Making oversight win-win“
• “Inappropriate appropriations: How Congress spends without authorization“
• “A revived Congress?“
• “Does America need more political dynamism?“
• “Whither the conference committee?“
• “How to put the ‘most complete and effectual weapon’ back in their hands“
• “Should we have a long-term budget for entitlements?“
• “For regulatory reform, look to Congress“
• “An Uncomfortable Reality: Congress needs more staff”
• “Eight good pieces of news about Congress“

A Spine Grows in Iowa?

A release from Senator Charles Grassley:

Senate Judiciary Committee Chairman Chuck Grassley called on President Donald Trump to “drain the swamp” and rescind an opinion by the Office of Legal Counsel (OLC) that attempted to insulate unelected government bureaucrats from questions by the people’s elected representatives in Congress.

In his letter to the President, Grassley excoriates the OLC opinion for its claim that congressional committees and committee chairmen are the only “constitutionally authorized” requests for information originating in the legislative branch.

To that, Grassley said, “This is nonsense.”

Grassley lays out a thorough case for the constitutional need for every member of Congress to request and receive information from the executive bureaucracy regardless of committee membership, chairmanship. Grassley also emphasizes the importance of oversight and inquiry regardless of partisan affiliation.

“I know from experience that a partisan response to oversight only discourages bipartisanship, decreases transparency, and diminishes the crucial role of the American people’s elected representatives,” Grassley said in his letter.

He further notes that the Obama administration continuously relied on “tenuous claims of privilege” to avoid scrutiny, leading to increased brinkmanship between the Legislative Branch and Executive Branch.

Grassley has long advocated for transparency in government and strong congressional oversight. Earlier this week, Grassley testified to the importance of unobstructed Congressional oversight in a hearing before the House Oversight and Government Reform Committee. The hearing covered the continuously obstructed and still-pending investigation into Operation Fast and Furious at the Bureau of Alcohol, Tobacco, Firearms and Explosives, a sad example of obstruction when oversight could make for better governance and improved accountability.

Full text of the letter follows.

June 7, 2017
VIA ELECTRONIC TRANSMISSION
The Honorable Donald J. Trump
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

In February, I wrote to you about the importance of empowering whistleblowers to help you “drain the swamp.”[1] Today, I write to urge you to encourage cooperation with congressional oversight as another key way to accomplish that goal and to alert you to a bureaucratic effort by the Office of Legal Counsel to insulate the Executive Branch from scrutiny by the elected representatives of the American people.

Our Constitutional system of separation of powers grants to Congress all legislative authority.[2] The Supreme Court has recognized time and again that the power of congressional inquiry is inherent in these vested legislative powers.[3] That is because without access to information held by the Executive Branch, Congress cannot legislate effectively or help assure the American people that their hard‑earned tax dollars are being spent wisely.

Every member of Congress is a Constitutional officer, duly elected to represent and cast votes in the interests of their constituents. This applies obviously regardless of whether they are in the majority or the minority at the moment and regardless of whether they are in a leadership position on a particular committee. Thus, all members need accurate information from the Executive Branch in order to carry out their Constitutional function to make informed decisions on all sorts of legislative issues covering a vast array of complex matters across our massive federal government.

Unfortunately, the May 1, 2017 Office of Legal Counsel (OLC) opinion authored by Acting Assistant Attorney General Curtis E. Gannon on this topic completely misses the mark. It erroneously rejects any notion that individual members of Congress who may not chair a relevant committee need to obtain information from the Executive Branch in order to carry out their Constitutional duties. It falsely asserts that only requests from committees or their chairs are “constitutionally authorized,”[4] and relegates requests from non-Chairmen to the position of “non-oversight” inquiries—whatever that means.[5]
This is nonsense.

The Constitution does not mention committees or committee Chairmen at all. The committee structure in Congress is simply how the Legislative Branch has chosen to internally organize itself. It works through committees “[b]ecause of the high volume and complexity of its work,” not for the purpose of cutting off the flow of information to members who do not chair those committees.[6] Unless Congress explicitly tells the Executive Branch to withhold information based on committee membership or leadership position, there is no legal or Constitutional basis for the Executive Branch to do so.

For OLC to so fundamentally misunderstand and misstate such a simple fact exposes its shocking lack of professionalism and objectivity. Indeed, OLC appears to have utterly failed to live up to its own standards. You are being ill-served and ill-advised. OLC’s best practice guidelines states:

[R]egardless of the Office’s ultimate legal conclusions, it should strive to ensure that it candidly and fairly addresses the full range of relevant legal sources and significant arguments on all sides of a question.
* * *
The Office must strive in our opinions for clear and concise analysis and a balanced presentation of arguments on each side of an issue.[7]

The most recent OLC opinion is anything but balanced. For example, it fails to cite and analyze any authority that challenges its conclusion.

As a result, the opinion takes an unduly restrictive and unsupported view of the responsibilities of Members of Congress and the nature of congressional oversight. In so doing, the opinion equates requests from individual members to Freedom of Information Act (FOIA) requests from unelected members of the public. But the powers vested in the Congress—both explicitly and inherently by the Constitution—impose significant and far-reaching responsibilities on the people’s elected representatives. They include the authorization and appropriation of federal funds, the organization of federal departments, the enactment of laws executing the enumerated powers, the confirmation of nominees, the impeachment and removal of officers, and the investigation of the execution of the laws and of waste, fraud, and abuse in federal programs. These responsibilities are all forms of oversight, all mechanisms that support the legislative check and balance of the executive power.[8] All members participate in deciding whether, when, and how Congress will exercise these authorities.

The United States Court of Appeals for the D.C. Circuit recognized in Murphy v. Dep’t of the Army that, “[a]ll Members [of Congress] have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information.”[9] Each member “participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.”[10] Yet, the OLC opinion ignores these points and authorities. It avoids good faith presentation of any significant arguments contrary to its conclusion. It utterly fails to acknowledge or respond to anything supporting the notion that a request from a Member of Congress might be entitled to greater weight than a FOIA request.

The OLC opinion also inexplicably asserts that this responsibility of congressional “oversight” is restricted to only certain inquiries made by Chairmen or full committees on the grounds that only those responses can be compelled. As the OLC opinion notes, the rules of the House and the Senate authorize its standing committees to conduct oversight. And that authority, as the Supreme Court has recognized time and again, is extremely broad.

It is true that through this process Congress can compel the production of witnesses and documents. However, the scope of information Members of Congress need from the Executive Branch in order to carry out their Constitutional duties is far broader than merely what is obtained through compulsory process. The vast majority of information Congress obtains, even through a Chairman’s requests, is obtained voluntarily, not by compulsion. Yet, reading the OLC opinion, it would seem oversight is only “oversight” if it’s mandatory.

Simply put, that’s just not how it works.

First, by declaring that non-Chairman requests are not “authorized,” OLC purports to speak for the Legislative Branch, an act which itself lacks any authority. It simply is not the province of another branch of government to say which information gathering activities by Members of Congress are “authorized” or not. Voluntary requests for information from the Executive Branch by members or groups of members without regard to committee chairmanship or membership have occurred and have been accommodated regularly since the beginning of the Republic.

As the court further recognized in Murphy:

It would be an inappropriate intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such information, as distinguished from its ranking minority member, other committee members, or other members of the Congress.[11]
It is just as inappropriate for the Executive Branch as it would be for the Courts. Receiving information in response to voluntary requests is completely different from compelling information, and Members of Congress need access to both in order to do their jobs effectively. But the OLC opinion unnecessarily conflates the two in order to reach its conclusions.

Second, as noted above, nothing in the committee structure or in our internal rules suggests that Congress meant to stifle the flow of information to non-Chairmen. In fact, the consideration of compulsory process generally requires the consent or other participation of non-Chairmen. That process almost always begins with voluntary requests and negotiations with the Executive Branch. Non-Chairmen need to, and often do, participate in receiving information voluntarily in the course of that process in order to determine whether, and when, compulsory process becomes necessary. And, the decision to enforce that process through contempt belongs to the whole body—a decision in which every Member participates.

Even a cursory review of House and Senate committee rules, which the OLC apparently did not perform, plainly shows that most committees’ rules envision or require the participation of the minority ranking member or even the full committee in the issuance of a subpoena.[12] Only a handful of committees have delegated the authority to a Chairman to unilaterally issue a subpoena without even consulting or notifying the Ranking Member. Thus, OLC’s distinction between Chairmen as “authorized” to seek information because such oversight can be compelled by a Chairman acting alone is mostly false. The Executive Branch’s so-called “longstanding” practice of responding only to Chairmen plainly does not, and cannot, depend on the voluntariness of such a response. The actual practice in almost every case, whether made to a Chairman or not, is that responses are fully voluntary.

The Executive Branch has in fact been voluntarily responding to requests from individual members for the entirety of its existence, whether or not those members did or had the power to unilaterally issue a subpoena. In most cases, congressional requests—even from Chairmen—never reach the compulsory stage precisely because of this process of voluntary accommodation. Traditionally, a subpoena has been used as a last resort, when the voluntary accommodation process has already failed. Thus that process begins, or at least ought to begin, well before a Chairman or a committee issues a subpoena or a house issues a contempt citation. OLC offers no authority indicating that courts expect the other two branches to cooperate with each other only when compelled to do so. Such a position would itself undermine the very purpose of comity and cooperation between the branches.

Moreover, in recent years, particularly under the Obama administration, the Executive Branch has sought to rely on increasingly tenuous claims of privilege and force congressional investigators to seek compulsory process and avoid scrutiny in the absence of a subpoena. The OLC opinion’s refusal to recognize a voluntary request as a legitimate, constitutionally-grounded part of the each Member’s participation in the legislative powers will only feed this unfortunate trend. It risks increased brinkmanship in Executive-Legislative relations and will result in less, not more, “dynamic . . . furthering [of] the constitutional scheme.”[13]
Imagine if the Congress took a similar position and refused to voluntarily disclose any information to an Executive Branch official unless the official was capable of compelling an answer. Imagine Congressional legal opinion instructing Members and staff to withhold all information about bills, nominations, or appropriations from most Executive Branch officials on the grounds that Congress has “no constitutional obligation to accommodate information requests from the Deputy Undersecretary of Legislative Affairs.” It’s absurd. It would never happen, but that is analogous to what this OLC opinion says. Members of Congress simply do not treat Executive Branch officials with such contempt and they do not deserve such treatment in return. This is especially true given that, unlike virtually all Executive Branch officials, Members are elected to Constitutional positions. Instead, the Executive Branch should work to cooperate in good faith with all congressional requests to the fullest extent possible.

Finally, the practical implications of the policy that this opinion is reportedly designed to support are extremely troublesome for the effective and efficient functioning of our constitutional democracy. Notably, leaving aside the fact that the contrived distinction between “oversight” and “non-oversight” requests makes little sense, the opinion does not say that determinations whether to comply voluntarily with an individual request depend or should depend upon the party of the requester. Nonetheless, I know that bureaucrats in the Executive Branch sometimes choose to respond only to the party in power at the moment. I also encountered significant problems in gaining answers to my requests from the Obama administration, whether I was in the majority or the minority.
I know from experience that a partisan response to oversight only discourages bipartisanship, decreases transparency, and diminishes the crucial role of the American people’s elected representatives. Oversight brings transparency, and transparency brings accountability. And, the opposite is true. Shutting down oversight requests doesn’t drain the swamp, Mr. President. It floods the swamp.

I also know from long experience that, even in a highly charged political environment, most requests for information—by majority and minority members—are not “partisan” or at least not intended to be so. Many requests simply seek information to help inform Members as they perform their Constitutional duty to legislate and fix real problems for the American people. That is the kind of information Republicans and Democrats in Congress need to be able to do our jobs on behalf of the people we all represent.

Therefore, I respectfully request that the White House rescind this OLC opinion and any policy of ignoring oversight request from non-Chairmen. It harms not just the Members who happen to be in the minority party at the moment, but also, Members in the majority party who are not currently Chairmen. It obstructs what ought to be the natural flow of information between agencies and the committees, which frustrates the Constitutional function of legislating.

Sincerely,
Charles E. Grassley
Chairman
cc: The Honorable Dianne Feinstein
Ranking Member

USAFacts

Liz Stinson reports at Wired:

Government data is available, but it’s not exactly accessible. A new project from former Microsoft CEO Steve Ballmer and Seattle design studio Artefact aims to change that. Called USAFacts, it’s an ambitious, $10 million effort to present government data in a way that’s open, non-partisan, and stupidly easy to understand. The website, launching today, organizes 30 years of data from more than 70 local, state, and federal government agencies into a well-designed, centralized hub that its creators hope will give people a clearer picture of how the government makes and spends money.

USAFacts shares the intent of previous open data efforts—the government launched Data.gov in 2009 to centralize its stats, and President Obama passed the DATA Act in 2014 to get record-keeping standards up to snuff)—but adds much-needed vitality. The platform looks nothing like its bureaucratic counterparts or startups like OpenGov, which also tries to organize and parse government data. Its typeface is pleasingly legible. The site navigation is intuitive. But most importantly, Artefact has made dry facts and figures actually feel engaging. Ballmer’s team spent two years combing through government websites, manually pulling data from PDFs, spreadsheets, websites, and reports, and entering them into hundreds of Excel spreadsheets and data tables. Artefact’s designers took that mountain of raw information and translated it into a series of infographics that help make the slog of data not just accessible, but comprehensible.

Trump Transparency

John Wagner reports at The Washington Post:

The Trump administration announced Friday that it will not follow former president Barack Obama's policy of voluntarily disclosing the names of most visitors to the White House complex, citing “grave national security risks and privacy concerns.”

The announcement — from an administration that has faced pointed questions about its commitment to transparency — marks a significant shift from the Obama White House, which released the names of nearly 6 million visitors, including scores of lobbyists.

Why is @BarackObama spending millions to try and hide his records? He is the least transparent President--ever--and he ran on transparency.

— Donald J. Trump (@realDonaldTrump) June 6, 2012

Trumpkins and the Media

At The Atlantic, Molly Ball writes of Kellyanne Conway:

When Conway’s critics pile on, she just keeps spinning. “She can stand in the breach and take incoming all day long,” Steve Bannon, Trump’s chief strategist, told me. “That’s something you can’t coach.” She’s figured out that she doesn’t need to win the argument. All she has to do is craft a semi-plausible (if not entirely coherent) counternarrative, so that those who don’t want to look past the facade of Trump’s Potemkin village don’t have to.

Secretary of State Rex Tillerson had only one reporter along on his trip to Asia: Erin McPike of the right-wing Independent Journal-Review:

RT: There’s not going to be anything, in terms of access, visibility is what we’re doing, there isn’t any other, that I can see, there’s nothing else to it.

EM: Right so your answer is you don’t intend to change this model for your next trip.

RT: It’s gonna be trip dependent. It doesn’t mean we won’t, but we’re gonna look at every trip in terms of what my needs are. Look my ... First and foremost is what is my mission and why am I going? How can I best accomplish that mission? What’s the most effective way for me to do that? I’m not a big media press access person. I personally don’t need it. I understand it’s important to get the message of what we’re doing out, but I also think there’s only a purpose in getting the message out when there’s something to be done. And so we have a lot of work to do, and when we’re ready to talk about what we’re trying to do, I will be available to talk to people. But doing daily availability, I don’t have this appetite or hunger to be that, have a lot of things, have a lot of quotes in the paper or be more visible with the media. I view that the relationship that I want to have with the media, is the media is very important to help me communicate not just to the American people, but to others in the world that are listening. And when I have something important and useful to say, I know where everybody is and I know how to go out there and say it. But if I don’t because we’re still formulating and we’re still deciding what we’re going to do, there is not going to be a lot to say. And I know that you’ve asked me a lot of questions here that I didn’t answer, and I’m not answering them because we have some very, very complex strategic issues to make our way through with important countries around the world, and we’re not going to get through them by just messaging through the media. We get through them in face-to-face meetings behind closed doors. We can be very frank, open, and honest with one another and then we’ll go out and we’ll have something to share about that, but the truth of the matter is, all of the tactics and all of the things were going to do you will know them after they’ve happened.

Fighting Deletion

Melissa Chan reports at Time:

An Arizona man who has published thousands of animal welfare documents on his website since the government purged the once-public information is pledging to keep digging up data until federal officials reverse course.

Russ Kick, a 47-year-old writer and anthologist, said he immediately sprang into action last week when the U.S. Department of Agriculture suddenly pulled from its website a slew of papers regarding animal welfare at thousands of facilities across the country. Since then, he has made public again more than 10,000 documents, and thousands more are set to hit the web soon.

“We have the right to know what’s going on,” Kick told TIME on Thursday. “The more we know about what’s going on, the better.”

For nearly a year, Kick has been running a website called thememoryhole2.org, where he has re-published information wiped from several agencies, including the Federal Aviation Administration and Environmental Protection Agency. His only goal, he said, is to increase transparency and make important government documents more easily available.

More about the site here. 

At CNN, Eli Watkins and Laura Jarrett writes about Trump's deleted tweets:

Deleting a tweet is commonplace -- Twitter does not allow users to edit their messages after they post. The question is whether Trump is violating the Presidential Records Act of 1978, which requires all the president's records be preserved for eventual release to the public on a delayed basis long after the commander in chief leaves office.

The National Archives and Records Administration is tasked with managing the records. Reached by CNN on Friday, NARA spokesman John Valceanu said the PRA should be followed but directed all questions about the current president to the White House.

Reached for comment, Kelly Love, a White House spokeswoman, said Saturday, "We have systems in place to capture all tweets and preserve them as presidential records; even if they have been deleted."

She did not immediately provide further details, including whether those "systems" would apply to Trump's personal account as stringently as they do the @POTUS account. The PRA specifically does not distinguish between personal and work efforts, and the last provision of the law prohibits personal communications unless there is government redundancy.

CRS

Darren Samuelsohn reports at Politico:

In classic Washington fashion, the Congressional Research Service's reports are officially available only to members of Congress and their staff. This doesn’t mean they don’t circulate: They’re shared with the administration, lobbyists, reporters, foreign diplomats and other Beltway insiders. A cottage industry of private firms has gotten in on the action, charging hundreds of dollars per year for subscriptions to tap into their own repositories of CRS reports. The Federation of American Scientists, a private outside group, maintains its own partial online database. But the reports aren’t officially announced or published online.

Now, members of Congress and a coalition that ranges includes good government and tea party groups, as well as academics and former CRS officials, are making a push to change the rules and open up public access to the thousands of CRS reports produced and updated every year.

“We have to recognize the American public is no longer informed by the likes of Cronkite and Murrow,” said Rep. Mike Quigley during a panel discussion in the Rayburn House Office building last week, arguing that the reports are a crucial source of unbiased information. "They're being informed by pundits and ideologues."

A bill co-authored by Quigley (D-Ill.) and Rep. Leonard Lance (R-N.J.) would set up a centralized digital database of CRS reports, making them open and searchable. Last Thursday, advocates released a letter in support of the effort from about two dozen former CRS officials urging key House and Senate congressional leaders to allow for "timely, comprehensive free public access" to the reports.

Former CRS analyst Kevin Kosar lists 15 reasons for making the reports public: 

1. Taxpayers pay more than $100 million to operate the CRS. It only seems fair that they have easy access to CRS reports. But they do not.
2. Beltway insiders easily can access CRS reports through pricy subscription services and get them from people who work on Capitol Hill. The average American cannot. This is grossly inequitable.
3. CRS reports do not contain classified, sensitive or secret information. No harm can come from their release.
4. The Internet is awash in lies and half-truths about government. CRS reports carry nonpartisan, factual descriptions and analyses that explain government agencies and programs. CRS also publishes guides that explain how Congress works. Making CRS reports widely available, then, can serve as an antiseptic to the toxic rumors and misinformation.
5. The media often get things wrong. Allowing broader access to CRS reports would help media avoid needless errors.
6. I have seen members of Congress hold up a CRS report and then mischaracterize its contents. Broad public access to CRS reports would increase the odds of such deception being exposed.
7. Expanding public access to CRS reports is not a partisan issue. It is good government and a matter of fairness. There is bipartisan support for publishing CRS reports on House.gov or one of the other public congressional websites. Reps. Leonard Lance, R-N.J. and Mike Quigley, D-Ill., are the most recent advocates.
8. Forty diverse groups, including those representing librarians, scientists and civil-liberty advocates, support more equitable public access to CRS reports.
9. Contrary to the claims of some individuals, there never has been a policy that CRS reports must stay secret. For decades, Congress has been releasing some CRS to the public. This1979 CRS annual report shows dozens of CRS reports published as congressional committee prints or introduced into the Congressional Record.
10. Making CRS reports more widely available to the public will not hurt their quality. Rather, it may well improve them, as CRS experts will be freed to share them with outside experts for feedback. That is how experts learn more and produce better work. Besides, CRS already produces information for public consumption, such as the Constitution Annotated, the bill summaries found at CRS.gov, a 400-page volume called The Evolving Congress and evendebate materials for high schoolers.
11. CRS.gov, the Congress-only website where CRS posts its reports, went down for the better part of a week last summer. Congress lost all access to CRS reports. Backing up CRS reports to a public site like Congress.gov would increase the odds that 24/7 congressional access to CRS reports would be maintained.
12. Retired and former CRS employees with more than 500 years of CRS service signed a letter supporting public release of CRS reports.
13. The current policy is bad for CRS employees. They cannot freely share their work with peers in academia, think tanks and other research environments. Unlike experts at the Government Accountability Office and Congressional Budget Office, CRS employees cannot list their publications on their LinkedIn pages. CRS Managers, who have much better things to do, are forced to police the release of their analysts’ work, which sows enmity among employees.
14. Creating a public CRS reports website would save tons of congressional and CRS staff time. Right now, the public writes Congress when it has a problem, the congressional staffer contacts CRS and then a CRS analyst or research librarian will send over a copy of a CRS report that answers the constituent’s question. This is grossly inefficient. The public should be free and encouraged to seek answers to basic questions about government (e.g., “How much is spent on the Department of Agriculture yearly?”) from Congress.gov or another public website that carries CRS reports.
15. Libraries should not have to pay for government-produced information. But they do. They must pay private subscription services to access CRS reports.

Deliberation, Local Government, and a Budget Simulator

David Nyczepir reports at Route Fifty:

The latest interactive infographic for state and local governments has won over cities in financial trouble or improving transparency.

Faced with a $49 million budget shortfall in April, Hartford, Connecticut’s city hall leadership wanted budget input from citizens.

After holding two live, informational events at the Hartford Public Library, the city became the first client to put its 2015-16 budget into Balancing Act—an interactive, online budgeting simulator for state and local governments’ residents.

Interactive government infographics are catching on, and in the next four-to-six weeks three more to-be-announced contracts are slated to adopt Engaged Public’s tool, including one of the 10 largest cities in the country.

“Hartford officials were wrestling with a very significant budget deficit, and in the spirit of democracy they wanted to share that reality with residents,” said Chris Adams, Engaged Public’s president. “They’re buying in because there’s going to be someone paying no matter what, but this allows for a more constructive conversation.”

Transparency, TPP, and TPA

Edward-Isaac Dovere reports at Politico:

If you want to hear the details of the Trans-Pacific Partnership trade deal the Obama administration is hoping to pass, you’ve got to be a member of Congress, and you’ve got to go to classified briefings and leave your staff and cellphone at the door.

If you’re a member who wants to read the text, you’ve got to go to a room in the basement of the Capitol Visitor Center and be handed it one section at a time, watched over as you read, and forced to hand over any notes you make before leaving.

And no matter what, you can’t discuss the details of what you’ve read.

“It’s like being in kindergarten,” said Rep. Rosa DeLauro (D-Conn.), who’s become the leader of the opposition to President Barack Obama’s trade agenda. “You give back the toys at the end.”

For those out to sink Obama’s free trade push, highlighting the lack of public information is becoming central to their opposition strategy: The White House isn’t even telling Congress what it’s asking for, they say, or what it’s already promised foreign governments.

Freedom of Information

Paul Farhi reports at The Washington Post:

When Dina Cappiello, until recently the national environment writer for the Associated Press, asked the Interior Department for federal data about bird deaths on wind-energy farms in 2013, she says, she met a stone wall. The industry-supplied information, the agency told her, was “protected” and couldn’t be released because it would harm a private interest.

Cappiello suspected a political motive for the department’s silence: The Obama administration supports the development of wind power, and release of the data might undercut public support if it showed that wind farms kill large numbers of protected species, such as eagles and falcons.

She filed a FOIA request for the records. No dice. “I still haven’t gotten an answer,” she said recently.

The reaction was even more aggressive when Cappiello began asking the Agriculture Department for interviews for a story about the environmental degradation caused by converting non-crop land into cornfields for ethanol production, another administration initiative.

The agency went on the offense, telling officials in the field not to talk to her and her co-writer. A public affairs official further instructed his colleagues not to provide the reporters with the names of farmers for interviews, as they had routinely done for other stories.

“We just want to have a consistent message on the topic,” the official, Jason Johnson, wrote in an e-mail. Cappiello filed another FOIA request for the directive — and noted the e-mail’s existence in her story about the land-conversion policy.

“I think the thread here is that all of these stories are questioning the goals and policies of the administration,” she said. “All of these have the potential to set off controversy.” While government press officials often talk about having “a consistent message,” Cappiello said, “they never seem to insist on having ‘a truthful message.’ I wonder why.””

The Center for Effective Government reports:

This is the second year we have conducted a very detailed comparative analysis of the performance of the 15 federal agencies that consistently receive the most FOIA requests. Combined, these 15 agencies received over 90 percent of all information requests for each of last two years. We examined their performance in three key areas:

• The establishment of clear agency rules guiding the release of information and communication with those requesting information;
• The quality and “user-friendliness” of an agency’s FOIA website; and
• The timely, complete processing of requests for information.

The number of requests each agency receives, the complexity of the requests, and the number of staff assigned within an agency to process them varies widely and can impact performance....

•  A majority of agencies – eight – improved their overall scores from last year. Performance at most agencies is moving in the right direction.
• More agencies received the highest grades possible (A) in each performance area than last year, with significant enhancements in websites, but timely request processing remains a challenge.
• The Department of Agriculture (USDA) was the top performer, with a B grade, and the Social Security Administration came in second with a B-.
• Despite these improvements, federal agencies are still struggling to effectively and consistently implement public disclosure rules.
• Ten of the 15 agencies did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points.
• The scores of five agencies – the Equal Employment Opportunity Commission, the Department of Health and Human Services, the Securities and Exchange Commission, the Department of Justice, and the Environmental Protection Agency – fell marginally.

Transparency and State Finance

A report from the Massachusetts Public Interest Research Group:

Every year, state governments spend hundreds of billions of dollars through contracts for goods and services, subsidies to encourage economic development, and other expenditures. Accountability and public scrutiny are necessary to ensure that the public can trust that state funds are spent as well as possible.

In recent years, state governments across the country have created transparency websites that provide checkbook-level information on government spending – meaning that users can view the payments made to individual companies as well as details about the goods or services purchased or other public benefits obtained. These websites allow residents and watchdog groups to ensure that taxpayers can see how public dollars are spent.

In 2015, all 50 states operated websites to make information on state expenditures accessible to the public and these web portals continue to improve. For instance, in 2015, all but two states allow users to search the online checkbook by agency, keyword and/or vendor, and 44 states provide checkbook-level data for one or more economic development subsidy programs. Many states are also disclosing new information and are making it easier for outside researchers to download and analyze large datasets about government spending.

This report, our sixth annual evaluation of state transparency websites, finds that states continue to make progress toward comprehensive, one-stop, one-click transparency and accountability for state government spending. Over the past year, many states have launched new and improved websites to better open the books on public spending, or have adopted new practices to further expand citizens’ access to critical spending information. Some states, however, still have a long way to go.

California ranks dead last.

A Lack of Transparency

On January 15, 2010, John Hoff wrote at AEI:

In a recent op-ed in the Washington Post, MIT economist Jonathan Gruber defended the tax on “Cadillac” plans in the healthcare overhaul bill passed by the Senate. The tax is supported by the administration. The op-ed did not disclose, as has since become known, that Gruber has received almost $400,000 under a consulting contract with the administration while touting its healthcare proposals.

The failure of the op-ed to disclose this compensation arrangement may be poor judgment. But Gruber’s analysis of the merits of healthcare overhaul and of the Cadillac tax is the greater error.

Gruber argues that the tax is not a new tax because it would simply eliminate the special tax break for health insurance that workers receive from their employer. He argues this new tax “is almost universally favored by health policy experts.”

This is not true. Gruber has wrongly translated experts’ view that the tax treatment of employer-provided insurance should be reformed into support for the Cadillac tax in the Senate bill. The proposed Cadillac tax he supports is a politically crafted device that goes in the opposite direction from what the policy experts advocate.

...
In fact, the ability to hide the tax from individuals is what made this tax attractive to senators. And it is precisely the reason that most policy experts who call for reform of the current tax treatment of employer-provided insurance to encourage greater choice by families oppose this contrived Cadillac tax.

The Cadillac tax will likely increase healthcare costs. It fails to give individuals choice. It does not address the tax exclusion for employer-provided insurance. It does not introduce more cost-effective incentives into the healthcare system. And it is intended to fund a government takeover of the healthcare system. It is the wrong way to reform the healthcare system.

In a 2011 video that recently surfaced, Gruber spoke of the tax subsidy:

"It turns out politically it's really hard to get rid of, And the only way we could get rid of it was first by mislabeling it, calling it a tax on insurance plans rather than a tax on people when we all know it's a tax on people who hold those insurance plans."

Lobbying the Attorneys General

At The New York Times, Eric Lipton reports on the the people who lobby state attorneys general.  Lawyers and lobbyists seek to influence the AGs on a wide variety of issues, though few revolving-door limits or disclosure laws apply.

A result is that the routine lobbying and deal-making occur largely out of view. But the extent of the cause and effect is laid bare in The Times’s review of more than 6,000 emails obtained through open records laws in more than two dozen states, interviews with dozens of participants in cases and attendance at several conferences where corporate representatives had easy access to attorneys general.

Often, the corporate representative is a former colleague. Four months after leaving office as chief deputy attorney general in Washington State, Brian T. Moran wrote to his replacement on behalf of a client, T-Mobile, which was pressing federal officials to prevent competitors from grabbing too much of the available wireless spectrum.
...
Private lawyers also have written drafts of legal filings that attorneys general have used almost verbatim. In some cases, they have become an adjunct to the office by providing much of the legal work, including bearing the cost of litigation, in exchange for up to 20 percent of any settlement.

Money gathered through events like the one in February 2013 at the Loews hotel is flooding the political campaigns of attorneys general and flowing to party organizations that can take unlimited corporate contributions and then funnel money to individual candidates. The Republican Attorneys General Association alone has pulled in $11.7 million since January.

It is a self-perpetuating network that includes a group of former attorneys general called SAGE, or the Society of Attorneys General Emeritus, most of whom are now on retainer to corporate clients.
...

The increased focus on state attorneys general by corporate interests has a simple explanation: to guard against legal exposure, potentially in the billions of dollars, for corporations that become targets of the state investigations.

It can be traced back two decades, when more than 40 state attorneys general joined to challenge the tobacco industry, an inquiry that resulted in a historic $206 billion settlement.

Strong Parties v. Polarization

At The New York Times, Thomas B. Edsall writes:

Nathaniel Persily, a professor of law at Stanford, is a proponent of strong, well-financed parties. Polarization, he wrote in an email to me, “is a cost of many of these good government reforms. It is almost an intended cost if you think about it.” Why? Persily argues that the purpose of

good government reforms is often to make politics more about ideas and less about material or private gain. Well, we have ideological parties now, with clear distinctions and a broad gulf between them. There is nothing wrong with that in the abstract. However, a separation of powers system requires compromise between the parties. Transparency, open meetings, bans on earmarks, and weaker party machines make compromise more difficult.

In “Strengthening Parties,” a chapter in the forthcoming volume “Solutions to Political Polarization in America,” Persily contends that in the case of campaign finance, “the good good-government reforms that have been tried have, if anything, made things worse.”

The claim that reforms have made things worse is based on the interaction between the 2002 McCain-Feingold Act, which regulated campaign finance, and two 2010 court decisions, the Supreme Court ruling in Citizens United and the Court of Appeals for the D.C. Circuit decision Speechnow.org v. F.E.C.

The McCain-Feingold Act prohibited political parties from accepting unlimited contributions from corporations, unions and rich people, which had come to be called “soft money.”

The federal court decisions, in contrast, explicitly allowed independent political groups – including both super PACs and politically active nonprofits – to accept all forms of soft money.

Pro-party advocates argue that McCain-Feingold in particular has undermined political parties, while court rulings have empowered donors and independent committees, many of whom have agendas more polarizing than those of the parties.

Tech, Lobbying, and Transparency

Julian Hattem reports at The Hill:

Tech companies spend millions of dollars on political donations and lobbying, yet they are also some of the least transparent, according to a new report.

A new analysis from the Center for Political Accountability and the University of Pennsylvania’s Zicklin Center for Business Ethics showed that the information technology sector ranked near the bottom of industries it reviewed, with an overall score of 44 out of 100.

Two tech companies — Netflix and Salesforce — were given a score of 0 on the organization’s annual list.

Derek Willis and Claire Cain Miller write at The New York Times:

To a large extent, the index represents a political maturity list. The top ranks are occupied by companies that have extensive contacts with the political world, usually through lobbying and campaign contributions, and who understand the public relations benefits of disclosing such information.

From that perspective, the index also illustrates the tech industry’s relative lack of political savvy. “Tech is really bad at figuring out how to contribute to political causes and issues,” said Josh Mendelsohn, a tech investor and co-founder of Engine, which does policy research and advocacy to help link Silicon Valley to Washington. “I don’t think it’s anything pernicious, but it’s us not being really sophisticated.”

Up until a decade ago, the tech industry wanted little to do with Washington, mostly because it seemed to epitomize the old-fashioned way of getting things done. Regulators don’t understand technology, tech executives often said. Washington moves too slowly to keep up with fast-changing technology, and technology can solve problems more efficiently than the public sector, many of them believed.

Yet Silicon Valley’s attitude has recently evolved from dismissive to grudgingly cooperative. It has realized it has no choice but to develop a relationship with Washington. Its companies are getting so big and powerful that they are attracting the attention of regulators and surveillance agencies. The industry has realized that Washington is the route to address issues it cares about, like net neutrality and the push for more visas for highly educated immigrants. Many companies have hired executives from deep inside government, opened Washington offices and increased their lobbying and political spending.