Accountability in government requires transparency in its operations and the start of a new presidential administration and new Congress are always opportunities to make new beginnings in these areas, as well as in many others. But the inauguration of Barack Obama and the convening of the new Congress may represent a unique chance to make the federal government vastly more accessible and thus accountable.
One very encouraging sign in this regard is a newly circulated memo from John Podesta, Co-Chair of the Obama-Biden Transition Project, directing transition team members to post on the Change.gov web site lists of people attending meetings of transition staff with outsiders, as well as all documents introduced during the meeting. To see what the web site posts from such meetings will look like, go here.
This is a significant milestone, but there are caveats. First, presidential transitions do not always say much about the policies a new administration will follow. Having served on one such transition team – Reagan’s at the General Services Administration following the 1980 election and then serving as a Senior Executive Service political appointee at another agency, the U.S. Office of Personnel Management – I can attest that policy recommendations from transition teams can be useful guides to what an incoming administration will do. But perhaps more often, transition team reports are tossed in the waste basket the first day the new administration’s permanent appointees show up for work.
Second, transition policies do not bind incoming presidential administrations. Podesta’s memo will hopefully create additional administrative momentum and public perception pressure on Obama administration policy makers to follow needed new transparency policies and procedures, but there is no guarantee that will happen merely because the transition staff did.
Third, the Podesta memo applies to meetings of three or more and only covers memo provided during a meeting. That means meetings of one or two transition team members with outside special interests are exempt, which in the real world of political lobbying can be a very significant loophole.
And what about memos and other documents provided extraneous to covered meetings or exchanged during exempt confabs? In other words, the Podesta memo isn’t mere window dressing, but it won’t be much of an obstacle to special interests seeking to cultivate influence in the incoming administration via its transition team.
My friend Daniel J. Metcalfe, who for many years was the Justice Department’s senior career executive on issues related to the Freedom of Information Act (FOIA), offers in Legal Times (registration required) a useful compilation of important opportunities for progress on open government that come during the early months of a new administration.
Among these are the inauguration speech Obama will deliver – no previous such address has mentioned FOIA or related issues, according to Metcalfe – following his swearing-in, an early executive memorandum from the new Chief Executive to his appointees regarding FOIA and transparency issues, and the memo traditionally issued by a new administration’s first Attorney General regarding how the Justice Department will oversee FOIA administration, most notably its willingness to defend agency decisions to withold or release requested documents.
Notably missing from Metcalfe’s listing is Congress applying the FOIA to itself. Nothing better illustrates the mentality that too often dominates both parties in Congress than the refusal to apply to themselves the same openness requirements they impose on the executive branch. Will Obama and the Open Government community push to remedy this in 2009?
There are other possibly more significant in the long run, opportunities now, thanks to the Internet, including guidelines from the new administration to agencies on what information and data is to be routinely posted on agency web sites. In some key respects, how the Obama administration handles this area of transparency policy will be most important in understanding the long-term impact the 44th president will have on government openness.
Unfortunately, there is a tendency towards a harmful partisanship evident in the Metcalfe oped in Legal Times which echoes the recurring theme of the Obama campaign specifically and the Left in general regarding the Bush administration on openness issues. This is evident in the opening graph:
“There is little doubt that we are now concluding the most secretive presidential adminis¬tration in American history. The old expression about something being “a tough act to follow” applies in the converse to the Bush administration, and in no area is that more true than govern¬ment secrecy. Simply put, there is a long way to go, and much that can be done, to undo what President George W. Bush and Vice President Dick Cheney have done over the past eight years.”
This is a dangerously simplistic assessment because it ignores the post-9/11 context in which the Bush administration had to address transparency and open government issues, and it ignores the terrible records of previous modern administrations, including Nixon and Clinton. The latter’s abuse of the FOIA in only one department – the Commerce Department under Secretary Ron Brown – provides a graphic insight into the attitude of the Clinton White House more generally on these issues.
I also believe it is simplistic because, whatever else the Bush administration did in this area – and there was indeed much that was objectionable – the out-going president can count one transparency accomplishment that far outweighs the positive achievements of previous presidencies – passage of the Federal Financial Accountability and Transparency Act (FFATA) of 2006.
The FFATA mandated establishment of USASpending.gov, the searchable, Google-like internet web where any citizen is within a few clicks of knowing how most of his or her federal tax dollars are being spent. The site is in its infancy and is only beginning to give inklings of its true potential. It sets the mark, however, for the immensely important principle that data and documents on spending of federal tax dollars should be publicly available via the Internet.
This partisan orientation is also evident in this passage from the Metcalfe oped:
“• Legislation. Lastly, there is the question of whether Congress will assert itself on a range of transparency-related issues, which depends greatly on the posture of the new adminis¬tration as it begins to work with a legislature boasting strong majorities of the same political party. After taking pains to restore its own reputation, President Obama’s rebuilt Justice Depart¬ment would do well to partner with Congress’s longtime FOIA champion, Sen. Patrick Leahy (D-Vt.), and to readily agree on a package of progressive FOIA amendments—such as one apply¬ing the Act to the Smithsonian Institution. Most significantly, in doing this Congress would break the mold of the FOIA’s “every 10 years” amendment cycle and set a new precedent for future reform. For the openness-in-government community, this alone would be very mean¬ingful change indeed.” (Emphasis mine)
Leahy is indeed a long-time FOIA champion but what about Sen. John Cornyn, the Texas Republican who took up the FOIA cause when the GOP controlled Congress and did so in partnership with Leahy? Not only was Cornyn an eloquent and persistent voice on behalf of FOIA reform under the GOP majority, he was also a precedent-setting FOIA advocate as attorney general of Texas prior to being elected to the Senate.
I have argued since long before being inducted into the Freedom of Information Act Hall of Fame in 2006 that excessive partisanship in the FOIA community since the Watergate era on behalf of Democrats has damaged the open government cause. True, Republicans should have risen above such considerations, given the importance of these issues, but the FOIA community has too often created unnecessary obstacles to genuine reform by allowing knee-jerk partisanship to color so many of its efforts and the tone and content of its communications.
It is vital that transparency and open government reform efforts be presented and pursued in as bipartisan a fashion as possible for the simple reason that doing so is essential to gaining “buy-in” from both sides of the aisle in Congress. Being bipartisan often makes such efforts more difficult and time-consuming, to be sure, but that is no reason not to be bipartisan.
Nothing better illustrates this fact than passsage two years ago of FFATA, more popularly known as “Coburn-Obama.” The campaign for Coburn-Obama was bipartisan from beginning to end, uniting Republicans and Democrats, conservatives and liberals. That’s the model for future success on open government reform, too, including our advocacy.
