Whither Transparency in the Next Congress?

11/23/2010

When the 112th Congress convenes in January, attention will be focused on the newly Republican-controlled House. On transparency issues, House Republican leaders have sounded positive tones. However, it remains to be seen whether bipartisan consensus on meaningful transparency can be achieved or whether transparency will be wielded as a partisan weapon.

Undoubtedly, divided party control of Congress will mean a more adversarial relationship between Congress and the White House and between the House and the Senate. What remains unclear, however, is whether Republicans will support the administration's many positive efforts to improve transparency while criticizing the instances where it has fallen short or dragged its feet. The House could also fall prey to the political theater that often occurs when parties in divided government compete for the public spotlight.

Past is Prologue: The 111th Congress

While the years of the 111th Congress saw the launch of new transparency measures, many were executive efforts of the Obama administration rather than acts of Congress. Congress played little role in the Open Government Directive, the Attorney General's memo re-establishing a presumption of openness under the Freedom of Information Act (FOIA), or the executive order reforming the controlled unclassified information (CUI) system.

Congress was also not involved in White House efforts to modify disclosure under the Presidential Records Act, to address overclassification and declassification, to establish a searchable website of White House visitor logs, or to post the president’s and vice president’s schedules online. Nor has Congress engaged in the Obama administration’s actions to hire a chief technology officer and a chief information officer, to make better use of social media, or to create various dashboards such as the IT Dashboard.

However, Congress did advance some transparency policies. The Recovery Act set new precedents for spending transparency. After initially granting a broad FOIA exemption to the Securities and Exchange Commission (SEC) in the financial reform bill, Congress moved quickly to rein in the exemption. Bills to reduce overclassification in the Department of Homeland Security and improve the clarity of government documents also passed. With the exception of the Recovery Act, all of these provisions had bipartisan support.

Some additional transparency bills have passed one house of Congress but not the other, including whistleblower protections, faster FOIA processing, campaign finance disclosure, and a media shield law. Congress could yet act on those bills when it returns for the remainder of the lame-duck session after Thanksgiving.

Promises to Keep: The Pledge to America

The House Republicans' pre-election governing document, A Pledge to America, promised transparency in a Republican Congress. Promisingly, when asked if he supported any parts of the Pledge, President Obama pointed to transparency as common ground. However, as described in OMB Watch's analysis, the Pledge only offered one specific transparency proposal: "Read the Bill," which would require that the text of a bill be published online for three days prior to a vote.

At the same time, it should be noted that the Pledge calls for sharp reductions in spending. Transparency initiatives are not cost-free, although they often save money over time because of improved efficiency for agencies. Inadequate resources are often cited as reasons for limited or delayed implementation of transparency projects. For instance, the Office of Government Information Services, a sort of FOIA ombudsman housed in the National Archives and Records Administration, has only seven staff. By comparison, the Scottish Information Commissioner, which plays a similar role in Scotland, employs 24 staff – for a country with a population comparable to Minnesota. Planned Republican budget cuts could further tighten the squeeze on funding for open government measures.

New Leadership, New Sheriffs in Town

Several key leaders of the House Republicans have been supportive of transparency improvements both for the House itself and for the executive branch. Minority Leader John Boehner (R-OH), whom House Republicans have selected as the next speaker, has supported some transparency reforms, including the Open House Project and others as noted in OMB Watch's Pledge analysis. Rep. David Dreier (R-CA), currently ranking member on the Rules Committee, wants to broadcast the committee's meetings, something most other House committees already do.

The head of the 22-member House Republican transition effort, Rep. Greg Walden (R-OR), has discussed the importance of improving transparency in all House activities, which he hopes will strengthen governance. While many have expected the new leadership to do away with the Office of Congressional Ethics, the relatively new office that has been very effective in reviewing allegations of ethics violations, Walden has said that has not been the focus of his work. He told ABC News, “Our focus on the transition is looking at other things that are much more important. And that is how the House operates, how to open it up. We're not focused in on the ethics side of things at all.”

Additionally, Republicans will now hold the chairs of House committees and the accompanying subpoena power. Republicans have pledged vigorous investigations of the Obama administration. The question is, will the investigations shed more light on government operations or simply create more heat and partisan bluster?

The House Oversight and Government Reform Committee, which will be chaired by Rep. Darrell Issa (R-CA), will likely convene several of these investigations. Issa is co-chair of the Transparency Caucus and recipient of the Project On Government Oversight's 2010 Good Government Award. As the current ranking member on the committee, Issa released a report warning of "an oncoming tsunami of opacity, waste, fraud, and abuse" and calling for vigorous congressional oversight as a solution.

Issa has spoken out in favor of a number of transparency reforms. For instance, Issa played a leading role in calling attention to the SEC FOIA exemption. He has also called for providing public data in standardized formats, investigated the use of personal e-mail addresses by government officials to discuss public business, and advocated for greater investigative powers for inspectors general.

However, Issa has also voiced strongly partisan complaints, which could distract from meaningful transparency and accountability if allowed to dominate the committee agenda. His report on "propaganda" by the Obama administration included what Politico's Ben Smith called a "totally unsupported claim." A GAO investigation requested by Issa disagreed with the report's claims that the Department of Health and Human Services misused funds to produce propaganda. Issa also pledged to investigate the "Climategate" dust-up, despite several investigations that cleared the scientists involved of any wrongdoing.

Other incoming committee chairs have pledged their own investigations. Rep. Ron Paul (R-TX), currently the ranking member on a Financial Services subcommittee, vowed to audit the Federal Reserve if he assumes the chairmanship. Rep. Ralph Hall (R-TX), who now serves as ranking member on the Science and Technology Committee, called for strong oversight of scientific integrity. In contrast, other reports of possible Republican investigations suggested that more partisan investigations may be in store.