SOURCE: AP/Alan Diaz

Dr. Rick Knabb, director of the National Hurricane Center, left, gives an update on Hurricane Isaac at the National Hurricane Center in Miami on August 28, 2012. Automatic federal budget cuts from last year's debt limit deal could reduce staffing at the National Hurricane Center and the National Weather Service.

It’s late August. The Republicans are having their national convention. A huge tropical storm is bearing down on the U.S. Gulf Coast. So what’s new? We have had major hurricanes bearing down on the United States during four of the past six Republican conventions: Andrew in 1992, Frances in 2004, Gustav in 2008, and this year, Isaac.

But the Republican problem with hurricanes seems to go well beyond convention timing. A number of hurricanes have erupted into huge political issues, and it has almost always been at the expense of Republican candidates. This is not a coincidence: Republicans seem determined to underfund, undermanage, and understaff the government agencies that respond to hurricanes, putting lives and property at risk, as well as their political careers.

Hurricane Andrew became a major factor in former President George H.W. Bush’s re-election effort. After leaving numerous vacancies at the Federal Emergency Management Agency unfilled during his term as president, President Bush was slow to react when Andrew, the most expensive hurricane in American history (at that time), crashed ashore a few days after the 1992 Republican convention concluded in Houston. Agencies that had prepared for the storm were not called into action, and within a week angry victims were ranting about the failed government response on every network news program, underscoring the impression that the president was “detached from domestic problems.”

President George W. Bush was a good deal luckier than his father on the question of timing. While Hurricane Frances marred his New York renomination convention, the meteorological event of his presidency would not come until August 2005, 10 months after his re-election in 2004. Hurricane Katrina and the hapless effort of his administration to respond to it redefined his entire presidency and contributed importantly to the Democrats gaining control of the Senate and picking up 31 House seats in off-year elections 14 months later.

The final two years of George W. Bush’s presidency were marked by a major controversy over budget cuts at the National Hurricane Center, a dispute that eventually cost the center’s director his job. But those controversies did not end with the conclusion of the Bush administration. When Republicans retook the U.S. House of Representatives in 2010, they made deep cuts in the President Barack Obama’s 2011 request for the Polar Joint Satellite System, a system of new satellites needed to replace the old ones, which currently provide 85 percent of the data used in hurricane forecasting. House Republicans proposed further deep cuts in the program in fiscal year 2012.

National Oceanic and Atmospheric Administration Director Jane Lubchenco called the cuts “insanity.” She said that failure to fund the satellites would create a significant gap between the time the existing satellites failed and the new system became serviceable. Lubchenco said that the gap would be like “going backwards in 20 years’ time” in hurricane forecasting.

Marion Blakey, who served as head of the Federal Aviation Administration under President George W. Bush and is now chief executive officer of the Aerospace Industries Association, explained the problem this way: “In one test last year, NOAA ran models forecasting the 2010 Snowmaggedon blizzard using 1960s-era sea buoys and weather balloons. Without satellite data, models misjudged the storm track by 200 to 300 miles and underestimated snowfall accumulations by 10 inches.”

Blakey also pointed out, “Imagine the damages we will suffer in the future if weather forecasting capabilities are degraded and communities are not given timely and accurate warnings of major storms coming their way.”

While the final conference agreement for this past year’s appropriation bills restored a portion of the funds, the satellites were still funded at about $150 billion below the request. Following that restoration, the General Accountability Office confirmed the damage to the satellite development schedule, saying that, “there will likely be a gap in satellite data lasting 17 to 53 months from the time NPP (the existing system) is projected to cease operations and the first JPSS satellite begins to operate.”

As uncomfortable as it may seem to spend one year to four years watching storms the size of Isaac race across the Atlantic Ocean and not have the capability to which we have become accustomed to project their path or predict their intensity, the problem may very well get much worse. Because the Tea Party faction of the Republican Party demanded deep guaranteed budget cuts as the cost for agreeing to 2011’s increase in the federal debt limit, we have a series of automatic spending cuts, otherwise known as “sequestration,” that are scheduled to go into effect on January 2, 2013. Those cuts would dramatically restrict the already dangerously slow schedule for deploying the new polar satellites, as well as the availability of aircraft and other equipment necessary to access hurricane direction and intensity. The cuts would also reduce the staff of the National Hurricane Center and the National Weather Service.

The across-the-board cuts will eliminate about $182 million from the Polar Joint Satellite System and other NOAA satellite programs in the coming fiscal year, as well as $1.6 billion from the National Aeronautics and Space Administration budget, which provides NOAA with the satellite launch capability. That will, without question, greatly increase the gap in polar satellite coverage, causing us to forecast the strength and path of hurricanes with less than half the amount of information that we have today.

In addition, about $90 million will be trimmed from the $1-billion-a-year budget of the National Weather Service, which will result in the elimination of about 600 jobs from their 4,500-man workforce. That means the Republicans were lucky that they had their convention in Tampa this summer and not next.

Sequestration hasn’t happened, though, and if Congress uses the remaining days before they leave for the fall campaign wisely, it may not happen. But the quality of weather forecasting will be one of the victims if sequestration goes through, and there are specific regions of the country and industries that will be disproportionately affected.

But back to the original question: Why do Republicans keep having this problem? The answer is that they have become so good at convincing themselves that the public sector doesn’t matter that when they run into problems such as hurricanes they simply don’t know what to do. If you admit that you need government to solve that problem, you might have to make concessions in other places, as well. On the other hand, if you treat agencies that manage such problems as though they don’t matter by appointing incompetent administrators and starving them of the resources necessary to provide adequate service, you end up in the kind of mess we have seen repeatedly in Republican handling with hurricanes.

As John Adams once said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

There are few facts bigger and more real than a hurricane.

Scott Lilly is a Senior Fellow at the Center for American Progress.

SOURCE: Center for American Progress

Download this testimony (pdf)

Endnotes and citations are available in the pdf version of this testimony.

Chairman Akaka, Ranking Member Johnson, and distinguished members of the committee, thank you for inviting me to testify on “State of Federal Privacy and Data Security Law: Lagging Behind the Times?”

I am the C. William O’Neill professor of law at the Moritz College of Law at Ohio State University. In 1999 I was named chief counselor for privacy in the U.S. Office of Management and Budget. In that role, I was the first—and thus far the only—person to have governmentwide responsibility for privacy policy. As chief counselor for privacy, I worked extensively with the Privacy Act of 1974, helped institutionalize the practice of Privacy Impact Assessments for federal systems, and addressed many other privacy and cybersecurity issues affecting federal agencies. Since then I have continued to write and speak extensively on privacy and security issues.

For this testimony, committee staff requested that I address a range of issues concerning federal agency privacy and data practices. As the other testimony for this hearing demonstrates, there are many different privacy-related challenges facing federal agencies today. My testimony addresses four topics, with the key points set forth in the introduction:

• The Senate should promptly confirm the five nominees for the Privacy and Civil Liberties Oversight Board. The most important short-term action the Senate can take on privacy is to confirm the five nominees for the Privacy and Civil Liberties Oversight Board, as voted out of the Judiciary Committee. All five nominees are supported by 9/11 Commission Co-Chairs Tom Kean and Lee Hamilton. Although there were dissenting votes in committee concerning the proposed Chairman David Medine, he is an outstanding and experienced nominee. By statute, only the chairman can hire staff, and the Senate should act promptly to put the Board into operation.
• Congress should create a federal chief privacy officer by statute to improve coordination of privacy policy across federal agencies. A federal chief privacy officer would notably improve the clearance process within the executive branch for privacy policy, as well as help coordinate the many transborder privacy issues that arise in our world of pervasively global data flows. Without statutory support, existing agencies may stymie creation of that position. I suggest that the federal chief privacy officer might take the lead for nonclassified federal information technology systems, while the Privacy and Civil Liberties Oversight Board could take the lead for classified systems.
• There is an important loophole in the Privacy Act, but the problem can best be addressed by changes to the E-Government Act. The proposed S. 1732 to update the Privacy Act correctly recognizes that the definition of “system of records” has an important loophole. The current definition applies only to records retrieved by name, and modern search engines often identify records even when the name does not appear in the search term. The proposed amendment would close the loophole but have the effect of requiring a far larger number of systems-of-records notices by federal agencies. In my view, this increase would create compliance burdens but not lead to significant privacy improvements. I believe a more promising approach would be to improve Privacy Impact Assessments under the E-Government Act of 2002. For instance, the Office of Management and Budget or an interagency council should post agency Privacy Impact Assessments to a unified web site so the public can compare agency assessments. Agencies should likely have a mechanism where public comments would be posted for the assessments. In addition, agencies could be required to respond to these public comments.
• The oversight process should focus more attention on the line between identified and deidentified data in federal agencies. Specifically, the Federal Trade Commission has proposed a promising approach for defining deidentified data when held in the private sector. An important question is how that approach might be modified for use in federal agencies.

In summary, this committee is performing an important service by focusing attention on the privacy practices of federal agencies. I hope that the comments here will be of use to the committee in its oversight and legislative efforts.

The Senate promptly should confirm the five nominees for the Privacy and Civil Liberties Oversight Board

Before turning to the long-term issues of privacy and the federal government, there is one pressing privacy item for action by the Senate as soon as possible. The Senate should confirm the five nominees for the Privacy and Civil Liberties Oversight Board, as voted out of the Judiciary Committee. This past week’s Senate vote on the cybersecurity bill makes confirmation even more urgent.

Currently, the Privacy and Civil Liberties Oversight Board is not in operation. The 9/11 Commission recommended implementing this type of board to increase oversight of the expanded information sharing practices among agencies adopted after the attacks of September 11, 2001. The Senate confirmed members of the Privacy and Civil Liberties Oversight Board in 2006, and the board began operation. Controversy emerged about the original board’s lack of independence. As a result, a revised structure for the board was established in 2007 as part of the Implementing Recommendations of the 9/11 Commission Act. The revised structure creates staggered six-year terms for each of the five members and requires the chairman to work full time for the board.

No members of the board have been confirmed since that time. The Senate Judiciary Committee voted and approved all five nominees this May, but no date has been scheduled for floor action. Having a functioning Privacy and Civil Liberties Oversight Board is important under any circumstances to ensure regular and effective examination of the information sharing and privacy practices for homeland security and other antiterrorism activities.

The importance of implementing the board becomes even greater, however, due to the expanded information sharing in the proposed cybersecurity legislation. A key purpose behind that legislation is to enhance information sharing as a tool for fighting cyber attacks. A key safeguard is for the board to scrutinize this type of information sharing. In my view, putting the board in place should be a required component of approving cybersecurity legislation.

The full slate of nominees has received a strong letter of support from the Bipartisan Policy Center, signed by Tom Kean, former Republican governor of New Jersey, and Lee Hamilton, former Democratic congressman from Indiana. Gov. Kean and Rep. Hamilton co-chaired the 9/11 Commission. In their letter this June, the authors wrote, “The Board is designed to play a crucial oversight role in preventing the intentional or accidental misuse of personal information across the government, and its establishment should be a high priority.” They thus wrote to “advocate for the confirmation of the five nominees” to the board, all of whom have been reported out of committee.

I would also like to comment specifically in support of the nomination of David Medine to serve as the chairman of the board. Medine received dissenting votes on his nomination in committee, although there are no public reports of any basis for opposition or concern. I have known him professionally for more than 15 years. From 1992 to 2000 Medine was the senior civil servant expert on privacy at the Federal Trade Commission, serving as the associate director for financial practices. Shortly after, he became a partner at the leading law firm WilmerHale, where he worked with private-sector clients primarily on privacy and data security. In this position, he counseled clients on how to comply with complex privacy requirements. I believe this real-world compliance experience is highly relevant to realistic privacy protection. Medine has experience both in enforcing to protect privacy and in the burdens that exist when privacy rules are overly strict or badly drafted. This balanced experience makes him an outstanding person to chair the Privacy and Civil Liberties Oversight Board.

The statute creating the board requires the chairman to work full time. In addition, the statute allows only the chairman to hire staff, specifically that, "The chairman of the Board … shall appoint and fix the compensation of a full-time executive director and such other personnel as may be necessary to enable the Board to carry out its functions." Clearly, the board cannot carry out its work as the statute intends if there is no chairman in place. The Senate should act promptly to confirm all five nominees.

The importance of coordinating federal privacy policy

The committee asked me to write about my experience as chief counselor for privacy, including the merits of having a federal chief privacy officer to coordinate and oversee privacy policy across the federal government. I support the proposal by Sen. Akaka in S. 1732 to create such an office. The discussion here explains some key reasons that I support creating such a position. It then suggests how to structure such an office, with the federal chief privacy officer taking the lead on nonclassified federal information systems and the Privacy and Civil Liberties Oversight Board taking the lead on classified systems.

Why the federal government should have a privacy policy office

In a piece prepared for publication in the Stanford Law Review in 2000 (but which was not ultimately published), I explained the role that the chief counselor for privacy played during the intense privacy policy debates of the late 1990s. Earlier this year I returned to the subject in a law review article on why the federal government should have a privacy policy office. That article highlights the role such a privacy policy office would play in the interagency clearance process and in coordinating a unified approach to the large number of international privacy issues.

First, the chief privacy officer is important for the clearance process. To ensure a unified administration position for congressional testimony, executive orders, and many other documents, drafts are circulated for clearance among the various agencies and components of the Executive Office of the President. Once comments are received, discussions are sometimes needed to resolve differences of opinion, with appeal to more senior officials if differences are not resolved at lower levels. In addition to these structured clearance procedures, agency experts on an issue such as privacy often get engaged earlier in the policy planning process in a variety of working groups and less formal methods of sharing expertise and views.

From my time as chief counselor for privacy, the number of privacy issues addressed by federal agencies is far greater than many people realize. Here is a list of the sorts of privacy issues that can arise in each of the cabinet departments:

• Department of Agriculture: Migrant worker records
• Departments of Defense and Veterans Affairs: Records of service members
• Department of Education: Education records, including for for-profit institutions
• Department of Energy: Smart grid
• Department of Health and Human Services: Medical records and many forms of human services records
• Department of Homeland Security: Numerous issues, including transportation safety and immigration
• Department of Housing and Urban Development: Public housing records
• Department of the Interior: National park reservations and other services provided online
• Department of Justice: Numerous issues
• Department of Labor: Records of union membership
• Department of State: International privacy issues
• Department of Transportation: Drone surveillance
• Department of Treasury: Financial privacy and money laundering

This list shows a wide variety of privacy issues and also that privacy issues emerge for new agencies over time. Surveillance by drones, for example, is becoming an important privacy issue as the Federal Aviation Administration permits expanded use of drones within the borders of the United States. For these kinds of emerging issues, I believe the expertise developed by a federal chief privacy officer would be quite useful.

Second, along with clearance, the executive branch needs effective coordination to develop and announce the administration position in international settings. Data flows today are pervasively global. We are reminded of this reality by the ongoing debates about the European Union’s draft regulation on data protection. A very wide range of Internet and other private-sector data practices would be affected if that regulation were to go into effect as currently written. For the public sector, there are also many cross-border issues such as passenger name records, law enforcement investigations, and many others. One of my current research projects analyzes how cloud computing, together with the widespread current adoption of encryption, is making international cooperation on law enforcement investigations much more important than it was in the past. For the federal government, the increasing number and complexity of transborder privacy issues means that coordination of privacy policy would be very helpful.

From my time at the Office of Management and Budget and in the National Economic Council, there certainly are existing mechanisms for policy coordination. The National Economic Council and National Security Council are experienced at bringing together the relevant agencies to coordinate on complex policy problems. I believe these policy mechanisms, however, are not a good match for the ongoing privacy challenges. Resolving privacy issues often requires crosscutting expertise, drawing on specific domains, including information technology, law, business practices, and policy. When this complexity is added to the complicated interagency and international dimensions of the issue, the policy councils do not have the staffing and infrastructure to do a good enough job on managing privacy issues over time.

How to structure federal privacy policy leadership

I believe that Congress should create, by legislation, the office of the federal chief privacy officer and similarly should require each major agency to have a chief privacy officer.

The administration’s recent Green Paper and White Paper on commercial privacy protection suggest the role that legislation can play here. The Green Paper in 2011 contained the idea of having an office in the Department of Commerce to coordinate privacy policy for commercial actors. That office was dropped from the 2012 White Paper. My sense is that this shift reflects the institutional difficulties in establishing a new office unless there is congressional support. Existing offices are reluctant to cede their current roles and budget. Congress mandated creation of the office of the chief privacy officer when it created the Department of Homeland Security, and the chief privacy officer in that department has been effective at having institutional support, compared to other agencies.

Based on my experience, I believe that the Office of Management and Budget is an effective location for the federal chief privacy officer. This fits the management responsibilities of the Office of Management and Budget. In 1999 after a survey found that privacy policies were lacking on many federal agency websites, we were tasked with defining acceptable privacy policies and then making sure that agencies posted them. That experience taught me and my staff the challenges of complying with rules and public scrutiny. That kind of experience helps the chief privacy officer be more realistic when developing policy that other organizations are expected to follow.

One topic that could benefit from further discussion is how to integrate a federal chief privacy officer with the Privacy and Civil Liberties Oversight Board. I suggest some ideas here, but other approaches are worth considering. One way to split responsibilities is for the federal chief privacy officer to coordinate policy and oversight for unclassified information technology systems, while the Privacy and Civil Liberties Oversight Board would take the lead on classified systems.This apportionment of responsibilities would parallel the existing different requirements for classified and unclassified systems generally. In terms of function, the federal chief privacy officer would take the lead on clearance and other issues of crossagency coordination. The Privacy and Civil Liberties Oversight Board is designed to be independent of the executive branch, and thus would not play that interagency coordination role. Instead, its principal responsibilities would include oversight and investigation of data used in connection with antiterrorism efforts.

There is an important loophole in the Privacy Act, but the problem can best be addressed by changes to the E-Government Act

I now turn to the topic of amending the Privacy Act of 1974 and related statutes that create the framework for privacy protection in federal agencies. Chairman Akaka has taken a leadership position in proposing ways to update the Privacy Act for our modern information environment—including in S. 1732, the Privacy Act Modernization for the Information Age Act of 2011. As just discussed, I support that bill’s approach to reconfiguring the management and coordination of privacy actions of federal agencies. I believe that a somewhat different approach may be more constructive, however, when it comes to amendments to the core definitions in the Privacy Act.

This portion of the testimony first provides a brief background about the Privacy Act of 1974. It next analyzes the “retrieved by name” loophole that S. 1732 seeks to close, before explaining why amendments to the E-Government Act of 2002 may be a more effective way to protect privacy while managing compliance costs of federal agencies.

Background on the Privacy Act of 1974

The Privacy Act was passed at the end of 1974, the year that President Richard Nixon resigned from office. Along with the Freedom of Information Act, it was enacted to address a pattern of secret government surveillance of American citizens. The history of this surveillance has been told before, but it is useful to periodically remind ourselves about actions such as the years of wiretapping of Martin Luther King, Jr., the domestic intelligence files created by the FBI on hundreds of thousands of Americans, and the use of IRS tax records against the president’s political enemies list. We should learn from this history so we do not repeat it.

The Privacy Act as enacted was based on a 1973 report from the Department of Health, Education, and Welfare, which proposed five principles for a Code of Fair Information Practices:

• There must be no personal data record-keeping systems whose very existence is secret.
• There must be a way for a person to find out what information about the person is in a record and how it is used.
• There must be a way for a person to prevent information about the person that was obtained for one purpose from being used or made available for other purposes without the person’s consent.
• There must be a way for a person to correct or amend a record of identifiable information about the person.
• Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuses of the data.

As enacted, the Privacy Act essentially codified these principles. Individuals start with a baseline right that their personal information can only be disclosed with their consent. An important aspect of the law was to publish systems-of-records notices in the Federal Register so that the general public could learn about the existence and nature of federal databases. These notices provide details such as categories of records maintained, ways for individuals to access their own records, and routine uses that permit additional disclosures by the agency without individual consent.

During my time at the Office of Management and Budget, I was the official responsible for answering questions about interpreting the Privacy Act, working closely with the Department of Justice office that publishes collections of Privacy Act cases. Based on my experience, the Privacy Act today continues to play a vital role in structuring federal agencies’ use of personal information. The privacy-related actions of federal agencies today are far better than they would be without the Privacy Act. Systems-of-records notices help agencies consider what uses of information are lawful and appropriate, especially where the notices are thoughtfully crafted and not boilerplate. In my experience, agency officers working with the Privacy Act thoughtfully apply the law’s fair information practices to individual disputes and situations as they arise.

The “retrieved by name” loophole in the Privacy Act

The core definitions of the Privacy Act today are the same as when the law was enacted 38 years ago. Our information processing technology today, however, is comprehensively different than it was in 1974, and so the committee is justifiably exploring whether key definitions should be updated. S. 1732 addresses the most glaring weakness in the existing definitions, which can be called the “retrieved by name” loophole. My view, however, is that there may be more effective ways to address that problem, notably through changes to the E-Government Act of 2002.

The definition of “system of records” is central to the Privacy Act because it is the main device for dividing what is covered by Privacy Act requirements and what is not. In any regulatory system, the definition of the scope of coverage is especially important—if something is outside the scope of a law, then agencies or other regulated entities do not have to worry about the other details of compliance.

Since 1974 the Privacy Act has defined “systems of records” to mean “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” For each system of records, the agency must publish a systems-of-records notice in the Federal Register.

The main problem with the definition of systems of records is that it applies only when “information is retrieved by the name of the individual.” This approach made sense in the days when records were kept primarily in a physical file drawer. If you wanted to access a record, you would thumb through the alphabetical list of file folders until you found the right person. This approach also made a certain amount of sense in the early world of mainframe computers. The IRS, for instance, would organize tax records by name or Social Security Number. The Privacy Act covers that type of highly structured systems of records because the records are retrieved by name or the person’s identifying number.

This definition, however, fails to cover many other ways that agencies handle personal information today. The 1977 Privacy Protection Study Commission gave the example of a search by the Veterans Administration by psychiatric diagnosis. Because the search was by diagnosis and not by name, the Privacy Act simply did not apply to the search. In essence, the Privacy Act definition applies to structured record sets listed by name but not to the other ways agencies can use records to identify and then act on individuals.

Due to increased speed and capacity of computer searches and data mining over the years, this gap in the Privacy Act’s coverage has widened significantly. Because search is a daily part of our lives today, sometimes it is hard to remember that Google was not incorporated until 1998. Individuals and federal agencies today complete an enormous number of searches without use of a name, but people’s names still pop up in the results. Data mining takes that concept even further—federal agencies sift through innumerable records in order to spot patterns and turn up suspects or individuals that are of interest for one reason or another. But the Privacy Act simply does not apply to the vast bulk of records where there is no organized retrieval by name or number.

To address this gap, S. 1732 would broaden the definition of systems of records to include “a group of any records maintained by, or otherwise under the control of any agency that is used for any authorized purpose by or on behalf of the agency.” The proposed amendment recognizes how records are actually retrieved today, often without explicitly searching by name or identifying number. The proposed amendment would close the loophole that has been recognized since the 1970s.

Under the new approach, the key trigger for Privacy Act coverage would be what qualifies as a record. The definition of “record” focuses on each individual, rather than on how records are grouped in an agency’s filing system. Under the Privacy Act, the term “record” applies broadly to “any item, collection, or grouping of information about an individual that is maintained by an agency.” The act provides examples of what count as records such as “his education, financial transactions, medical history, and criminal or employment history.” Finally, a record “contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.”

The proposed amendment would close the “retrieved by name” loophole but would quite possibly also lead to an enormous increase in the number of systems-of-records notices. S. 1732 would apply to a group of any records under the control of an agency. My concern is that there would be too many groups of any records. Records today are gathered and used for many purposes. Under the proposed revisions to the Privacy Act, agencies would have to go through the bureaucratic requirements of systems-of-records notices for each of those groups. These notices provide important functions such as notifying the public and ensuring that the full set of Privacy Act fair information practices apply. The Information Security and Privacy Advisory Board’s 2009 report on federal privacy protection, however, found that the notices “are difficult to understand, overly vague and general, and reach only a narrow audience.” I believe the Congress should consider other alternatives before acting to increase the number of systems-of-records notices in this way.

Consider improving Privacy Impact Assessments rather than directly amending the Privacy Act loophole

The discussion of the “retrieved by name” loophole shows an important flaw in the Privacy Act’s goals of providing notice about agency privacy practices and ensuring consideration of privacy risks. Rather than amending the Privacy Act, however, I think that better progress can likely be made by improving the E-Government Act of 2002.

The E-Government Act requires agencies to issue Privacy Impact Assessments in connection with the “development or procurement of new information technology.” Section 208 of the act requires Privacy Impact Assessments to be commensurate with the size of the information system, the sensitivity of the identifiable information, and the risk of harm from unauthorized release.

In considering the vast range of data used by federal agencies, my sense is that that the trigger for requiring a Privacy Impact Assessment is more practical than the proposed trigger for requiring a systems-of-records notice. A Privacy Impact Assessment is required when developing or procuring a new information technology system. In this way, the Privacy Impact Assessment is built into an ongoing process such as a procurement. Ideally, the assessment is completed early enough in the process to identify privacy risks, leading to a more effective and less privacy-intrusive system. In addition, the Office of Management and Budget has issued guidance under the E-Government Act that contains commonsense exceptions to the requirement that an agency do a Privacy Impact Assessment, including for minor changes to a system that do not create new privacy risks.

By contrast, the proposed amendment would trigger a systems-of-record notice for a group of any records controlled by the agency. My concern is that the number of systems-of-record notices would need to climb substantially to cover this apparently very broad language. The Office of Management and Budget has authority under the E-Government Act to create pragmatic exceptions to when a Privacy Impact Assessment is required, but it is not clear to me that the Office of Management and Budget has similar authority under the Privacy Act. In addition, the Privacy Act does not have the risk-based approach of the E-Government Act, where the level of privacy work by the agency is supposed to be commensurate with the privacy risks.

My related concern is that increasing the number of systems-of-record notices would not actually improve privacy protection. At least ideally, the goal of a Privacy Impact Assessment is to do a nuanced examination of the privacy risks in a new procurement or computer system. This sort of nuanced examination, however, is unlikely to occur if an agency has to slog through a huge number of routine Privacy Act systems-of-record notices. If the number of notices climbs sharply, I fear that agencies will adopt too much of a “check the box” approach to privacy protection, simply filing Privacy Act notices that are uninformative and do not adequately address actual privacy risks.

In 2003 the Office of Management and Budget issued a Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002. This guidance does a straightforward and reasonable job of implementing the E-Government Act as written. I have concerns, however, about how well the guidance has been implemented over time.

Going forward, this subcommittee and committee may find it useful to conduct oversight specifically on implementation for Privacy Impact Assessments of the E-Government Act and the Office of Management and Budget guidance. My sense of implementation of the assessments is similar to that found by the Information Security and Privacy Advisory Board. The Department of Homeland Security has done a notably good job in preparing and publishing Privacy Impact Assessments, in no small part due to the visible leadership and responsibilities of the department’s chief privacy officers, including Mary Ellen Callahan, who is testifying in this hearing today. Other agencies, however, have done a more superficial job in drafting their assessments. I am not aware of any major visible discussion about how to bring the quality of those other agencies up to the quality at the Department of Homeland Security.

I have two suggestions for improvement to the privacy parts of the E-Government Act. The first concerns making it easier to find and compare agency Privacy Impact Assessments. The act directs agencies to submit their assessments to the Office of Management and Budget. They are also directed to make their assessments publicly available, with certain exceptions for national security and other exceptions. Notably, these two requirements do not seem to be currently linked—I can find no easy way to find the Privacy Impact Assessments of different agencies in order to compare them. I think it would likely improve the quality and consistency of the assessments if the Office of Management and Budget or one of the interagency councils created a process for posting agency the assessments to a unified site that is publicly available.

Second, the E-Government Act could have more effective methods for public comment and input. As a first step,agencies should have a mechanism where public comments would get posted for PIAs. In addition, agencies could be required to respond to comments. The idea here is not to create full Administrative Procedure Act notice-and-comment, where a rulemaking cannot go forward until the comments are complete. Instead, my suggestion is a lighter-touch approach, where the agency would publish the public comments and give some response. This sort of nudge to an agency is consistent with the light-touch or nudge approach to regulation that Office of Information and Regulatory Affairs Director Cass Sunstein has brought to the Office of Management and Budget.

The oversight process should focus more attention on the line between identified and deidentified data in federal agencies

One increasingly important issue over time is determining how to draw the line between data that is identified or not. Privacy requirements apply where the links to a specific person are clear enough. By contrast, those requirements do not apply where the links are not clear enough such as where enough details are removed so that the information can be considered deidentified. The issue of deidentification has begun to receive significantly more attention in connection with personal privacy, as reflected this year in the administration’s White Paper and the Federal Trade Commission’s privacy report. My discussion here suggests that the oversight process should focus more attention on the line between identified and deidentified data in federal agencies. Specifically, the Federal Trade Commission has proposed a promising approach for defining deidentified data when held in the private sector. An important question is how that approach might be modified for use in federal agencies.

This spring the administration released a White Paper called “A Framework for Protecting Privacy and Promoting Innovation.” The White Paper applies to personal data held in the private sector. The title reflects the risks to individuals if privacy is not protected effectively. It also reflects the importance of creating good information rules in order to foster innovation and growth in our information economy.

The issue of deidentified data creates a vital opportunity to meet both goals—protecting privacy while using data for innovation, growth, and the other goals of the private and public sectors. At least in theory, deidentified data allows us to have our cake and eat it, too. With deidentified data, we strip out the name and other information that reveals identity, but we nonetheless can process the data, do research, discover patterns, and innovate in how we respond to the information.

In recent years, we have learned a great deal about when and how it is possible to “re-identify” data—to link a person’s name with supposedly deidentified data. Two big trends have made it harder to keep information deidentified. First, searching on the Internet has gotten much better and more accurate. Today’s search engines let anyone link together tidbits from previously hard-to-link data sources. Second, the amount of information on the web about a typical person has grown astronomically, including all of the personal details on a person’s blog or Facebook page.

The combination of efficient search tools and lots of data means that there is a higher likelihood today that a person’s records can be reidentified even if the name and other traditional identifiers are deleted. For instance, a deidentified medical record might state that a person in Ohio had minor hand surgery on April 3. In the past it would have been difficult or impossible for an outsider to figure out the patient’s name. Today an online search might turn up a social network thread about the hand surgery—there are multiple such surgeries in Ohio each day but not that many. A bit of follow-up research using the rest of the supposedly deidentified information might easily pinpoint the person who had the surgery.

As experts have analyzed these facts about reidentification, some have concluded that the entire effort to deidentify data has failed because of the risk of linking information back to the individual. Others have emphasized the limited actual success of reidentification efforts in practice and found that the benefits such as research and innovation are so great that they outweigh the privacy risks.

In response to public comments on the issue of deidentification, the Federal Trade Commission in its privacy report this spring proposed a promising approach for treating data as deidentified. The FTC provides what amounts to a safe harbor where: “(1) a given data set is not reasonably identifiable; (2) the company publicly commits not to re-identify it, and (3) the company requires any downstream users of the data to keep it in de-identified form.” A key part of the approach is that the entity holding the data promises not to reidentify it. For instance, even if the entity could theoretically investigate who had the hand surgery on April 3, it won’t do the investigation, and the data can be properly treated as deidentified.

I believe a similar approach could help federal agencies gain benefits from using data while holding it in deidentified form. The precise Federal Trade Commission approach will not work, however. Enforcement of that approach is based on the company’s public commitment not to reidentify the data. A violation of that commitment is enforceable under Section 5 of the Federal Trade Commission Act, which prohibits unfair and deceptive trade practices. That act applies only to commercial actors, though, and not federal agencies.

The question is how to take this approach of promising not to reidentify and apply it to federal agencies. This is a novel question, and I do not know today how best to translate the Federal Trade Commission approach to federal agencies. I believe it is a worthwhile endeavor, however, because such an approach could open agencies to more of the modern benefits of using data, while also protecting privacy and reducing compliance costs with privacy requirements. Federal agencies also face the issue that information might be reidentified in some instances for law enforcement, national security, or related purposes. To address this possibility, one might require agencies to notify the Privacy and Civil Liberties Oversight Board (assuming it is up and running) if they reidentify data for national security or related reasons.

The ability to deidentify is becoming more technically challenging, while the need for effective deidentification is increasing. The Federal Trade Commission has proposed an approach that combines promises not to reidentify with the available technical measures. This fall I will be conducting a project on deidentification with the Future of Privacy Forum, seeking to identify and improve best practices in the area. Along with efforts in the private sector, this committee in its oversight role can encourage the Office of Management and Budget and other federal agencies to create guidance and best practices for deidentification in the public sector.

Conclusion

I commend the committee for its attention to these important issues of privacy protection and federal agencies. Thank you for the opportunity to testify, and I welcome any questions you may have.

Peter Swire is a Senior Fellow with the Center for American Progress Action Fund.

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Endnotes and citations are available in the pdf version of this testimony.

SOURCE: Center for American Progress

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Chairman José Luis Gómez del Prado, distinguished members of the Working Group on the use of mercenaries, thank you for this opportunity to speak to you. My name is Pratap Chatterjee and I am a Visiting Fellow at the Center for American Progress, where I focus on government procurement reform as part of the “Doing What Works” team. I’m also a member of the board of directors of Amnesty International USA.

First, I’ll give you a sense of my background. I have traveled to the Middle East and Central Asia more than a dozen times since September 11, 2001, spending more than 16 months on the ground in the region to investigate military contractors. I have visited Afghanistan and Iraq four times each, starting in January 2002. I traveled to both those countries as a journalist and spent almost all my time in the so-called “red zones,” accompanied generally only by a fixer or translator. In addition, I have also embedded with the U.S. military and visited bases in Afghanistan and Iraq, as well as in Kosovo and Kuwait, to research military logistics and police training contracts with KBR and DynCorp. I have written two books on this subject—Halliburton’s Army and Iraq, Inc.—as well as numerous articles and reports such as “Outsourcing Intelligence in Iraq,” which was produced in collaboration with Amnesty International. In my role as managing editor of CorpWatch, a website tracking corporate malfeasance, I also commissioned and edited a number of other investigative reports such as “Afghanistan, Inc.” on reconstruction in that country. I would be happy to make copies of any of these materials available to the Working Group should you be interested.

I would like to begin my remarks by noting that in the United States the use of private contractors for military purposes is now firmly entrenched in the Defense Department and many other government agencies. The activities of these contractors range from low-skill tasks like janitorial, kitchen, and transportation services, to essential military logistical support functions like weapons maintenance and protection. These armed security contractors can be further divided into two categories: static and mobile. Static guards are mostly relegated to enforcing entry rules, although they do carry weapons. The mobile security contractors who provide convoy support have attracted the most attention because of the likelihood of conflict with local populations. Most of the first “static” group of workers do not pose such a threat to local populations since they are not typically armed. Yet it would be a mistake to assume that mobile security teams are the only group of private contractors that pose human rights threats in conflict zones.

There are several other groups worthy of attention, such as interrogators and translators, some of whom provide inherently governmental services and others that provide support for such work. The Working Group has reported on two such companies—CACI and L-3/Titan—yet it has not sufficiently addressed their work in the draft convention. I would also like to discuss briefly the inexperienced police officers that have been hired through companies like DynCorp and tasked to train local security forces.

Finally I would like to discuss the tracking of weapons and ammunition that were supplied by contractors, and the theft and misuse of weapons by security forces. Once again, these are matters that the Working Group has examined, but I feel has not sufficiently tackled.

Briefly, my recommendations to the Working Group are as follows: (i) Create a model register of private military and security companies, (ii) incorporate freedom of information into the draft convention, (iii) set up minimum standards and professional guidelines for translators, (iv) collaborate with the Arms Trade Treaty negotiators, and (v) start a "name and shame" campaign against private military and security companies that violate international humanitarian law.

Interrogators, translators, and police trainers

Let me start by giving you a few examples of the lack of qualifications of the employees of many private security and military companies that have been hired to work in the U.S. War on Terror.

You are already very familiar with the Abu Ghraib prison outside Baghdad in Iraq. The Working Group has already reported on the lawsuits against CACI and L-3/Titan, the two companies that supplied interrogators and translators to the U.S. military after the 2003 invasion.

Perhaps one of the key issues that emerged from the prison torture scandal that broke in May 2004 was that Steven Stefanowicz, a CACI interrogator accused of involvement in torture, was trained as a satellite image analyst and received no formal training in military interrogation, which involves instruction in the Geneva Conventions on human rights.

A subsequent report in July 2004 by Lieutenant General Paul Mikolashek, on behalf of the U.S. Army Inspector General, found that a third of the interrogators supplied in Iraq by CACI had not been trained in military interrogation methods and policies. The same report mentioned that of the four contract interrogators employed by a company named Sytex in Bagram, Afghanistan, only two had received military interrogation training, and the other two, who were former police officers, had not.

Let me give you another example of the lack of qualification of these contractors: I spent several nights in a tent in a U.S. base in Iraq some years ago with a group of Arabic translators working for L-3/Titan. One night we heard the usual loudspeaker announcing an attack with the words “incoming mortar.” I asked one of the translators, who was an American, how to say “incoming mortar” in Arabic. The American who had just finished undergraduate Arabic in Southern California had no idea so he asked a nearby Yemeni translator. Unfortunately, since the Yemeni translator spoke almost no English, he had no way to understand the American. Eventually a third translator, who was Lebanese, helped interpret between the first two translators.

I use that example to demonstrate how unqualified the translators were. Any soldier who spent time in Afghanistan will surely testify to the bravery of these translators but many will tell you their interpretation skills left much to be desired. The contract with L-3/Titan stipulated that the translators meet Interagency Language Roundtable, or ILR, Translation and Interpretation Skill Level Standards. The U.S. Defense Contract Audit Agency, or DCAA—which is charged with making sure taxpayer money is spent properly in the military—checked to see if the company had met this contract requirement of hiring qualified translators. Yet an initial survey showed there was little documentation to support this. Unfortunately, the audit on this subject was shelved.

Anecdotal information from translators and soldiers suggest that many night raids, arrests, and interrogations have gone awry—sometimes fatally—because of the lack of professional translators. Some surveys show that the vast majority of people imprisoned by U.S. forces over the last few years in Afghanistan and Iraq should never have been detained, in large part because of poor translation. It’s entirely plausible that more people have been injured or killed because of poor translation than in drive-by shootings by private security contractors.

Next, let me tell you about some of the police trainers that have worked in Afghanistan and Iraq. I have met with a number of DynCorp police trainers in Kabul—decent men who were perfectly qualified to work as police officers back in the United States. Yet one man from Texas told me that the first time he saw a mortar attack, he thought it was a fireworks display. Here is another example: Former Northern Illinois University police chief Don Grady was dispatched in 2006 to be the senior adviser to the Iraqi minister in charge of the police forces. Grady gave a presentation when he returned, which I attended, in which he explained how similar his job in Baghdad was to cleaning snow off sidewalks in Bloomer, Wisconsin. When I asked him about SWAT team training in Baghdad during his tenure, he was unaware of the training in question.

One message came across loud and clear in many conversations with police trainers and their supervisors in Afghanistan and Iraq: Few trainers were qualified in the complex field of Security Sector Reform that has evolved from the last several decades of work by a number of different multilateral forces in post-conflict countries. Most of the police trainers hired by the United States in Afghanistan and Iraq had working life experiences in small towns across America that were no more useful to them than if they had trained on the moon. They had never traveled outside the United States, they were unfamiliar with the local legal system and security conditions, and they rarely spoke a single word of the local language. At best, they acted as babysitters to make sure that abuses did not take place on their watch. Their success in even that role is questionable, since they were never allowed to live in the field.

Security contractors and weapons supplies

Let me briefly discuss a second topic: The United States has supplied tens of thousands of weapons and millions of rounds of ammunition to both Afghanistan and Iraq for the use of the local security forces. The U.S. government did so by paying a number of companies like AEY in Florida, Taos in Alabama, and Wolf in California. These companies bought large quantities of materiel from Eastern Europe and even from China to send to both countries. In February 2009, the U.S. Government Accountability Officesuggested that neither the government nor the contractors recorded the serial numbers for a large quantity of these weapons shipped to Afghanistan. Spot checks also indicated that many could no longer be found.

On two subsequent trips in 2009, I visited police training centers and stations in Afghanistan and looked into the tracking system for these weapons and ammunition. In one meeting my translator overheard the Afghan police officials discussing in Dari how to answer my question because they did not have proper systems to track the guns, let alone the ammunition. The biggest problem they faced was that most Afghan police officers are illiterate—at least 70 percent by the most optimistic estimate I heard and as much as 95 percent—and are unable to fill out forms to track the weapons. The second problem was that Afghan officials were shortchanged by some contractors, such as Efraim Diveroli of AEY, who was sentenced to jail in March for supplying 50-year-old ammunition.

I have been given anecdotal information about weapons being sold by unscrupulous police officers. I was even offered the opportunity to purchase a police gun. I recommend the work of Chris Chivers at the New York Times who has documented a number of cases of these weapons falling into the hands of the Taliban in the At War blog and in his new book, The Gun. Nor are guns the only items that are traded. It was common knowledge that one could buy Afghan police officer uniforms and boots at the Kohan Froshi market in downtown Kabul.

Weeks after my last trip to Afghanistan, news emerged of the case of Paravant, a Blackwater subsidiary, whose employees were hired to train the Afghan security forces in the use of weapons. You are undoubtedly aware of the incidents described to the U.S. Senate Armed Services Committee in February about Paravant employees allegedly raiding Bunker 22, the Afghan police armory, and taking a number of AK-47s for their personal use. In addition, diplomatic and intelligence personnel I met with in Kabul told me it was not just the weapons that have gone missing but also large quantities of 7.62 ammunition that can be used in the ubiquitous AK-47.

One does not even have to look into the actions of the Taliban to understand the implications of a failure to track ammunition and weapons transfers to Afghanistan. Justin Cannon and Christopher Drotleff, two Paravant employees, left their military base in May 2009 without authorization and opened fire into the back of a civilian car after a traffic accident. The driver of the car and a civilian bystander were killed. Drotleff and Cannon were convicted of manslaughter by a jury in Virginia in March. The two Paravant employees were found to have records of misconduct and violent behavior as well as terminations for alcohol and drug use. At least one former Paravant assistant team leader, Sebastian Kucharski, was even blacklisted from being hired by the company itself for his work in Iraq, yet he was given a job in Afghanistan.

Anywhere you go in Kabul you can see armed private security guards in front of businesses and major buildings, most of whom are Afghan. I have occasionally stopped to chat with them to ask them about where they come from. At least one group I met was comprised entirely of young men from the same village Vice President Fahim is from. They worked for his brother, who has multimillion-dollar contracts supplying fuel to the Kabul Power Plant. Everybody I talked to referred to the vice president’s brother’s security company as a militia.

This company is not unusual. Back in 2006, I commissioned and edited a report that revealed that a company called U. S. Protection and Investigations, or USPI, was hiring local thugs to protect U.S. construction contractors in Afghanistan working for USAID, thereby supplying money and weapons to some of the worst elements of society. Since then, Del and Barbara Spier, co-owners of USPI, pleaded guilty to defrauding the U.S. government, billing for nonexistent expenses from fictitious companies, and inflating the number of Afghan guards on their payroll.

You are also no doubt aware of the findings of the staff of the U.S. Senate Subcommittee on National Security and Foreign Affairs, who released a report entitled “Warlord, Inc.” about the actions of several trucking firms that made payments to private security firms controlled by local warlords to ensure safe passage of goods destined for U.S. bases.

These examples suggest that if the U.S. plans to finance private security companies and provide large quantities of ammunition and weapons to local security forces, it behooves the government to check the records of the companies they award work to, who they hire, and what happens to the lethal products that are provided to them. Otherwise, governments are likely to be funding conflict and people who commit human rights abuses.

I do not want to suggest that the majority of the individuals that the United States has hired are bad people. To the contrary. In the course of my work over the last 10 years, I have met several hundred contract workers in a number of the war zones. Some of them were U.S. truck drivers from places like El Paso, Texas; others were cooks from Pampanga in the Philippines; yet others were Arabic-speaking immigrants from Yemen. Almost all of them were honest people trying to pay their bills and support families; very few fit the media image of crooked gunslingers.

Recommendations

I want to close with one example of a government agency that did something right. You might be familiar with the name Robert Stein, a former felon from North Carolina, who was paid to oversee reconstruction in northern Iraq after the invasion. Stein awarded millions of dollars’ worth of contracts to his friends in Romania, but was caught, pleaded guilty to fraud in November 2005, and was sentenced to nine years in prison and ordered to pay $3.6 million in fines.

Most of the corruption Stein was involved in was stealing from the Development Fund for Iraq, which had no checks and balances. He used the money to buy weapons, a plane, jewelry, and even prostitutes. But what is most astonishing is not any of his sins. It’s that when he got a contract from the U.S. Agency for International Development, or USAID, to repair a police station in Al Hillah, which required him to turn in proof of work to get paid, this former felon actually did a reasonable job, according to a Special Inspector General Report for Iraq.

Just as Stein did a good job when doing so was a requirement for getting paid, governments need to make sure that the translators and police trainers are paid for good work, that the guns that they use are properly tracked, and kept safe.

How do governments make sure that contractors do not violate human rights? I believe that the draft convention on private military and security companies that you have developed and your work toward enacting such an international convention is paramount. It is not sufficient to have volunteer efforts by security companies to police themselves. We need international regulation as well as enforcement of criminal judgments against violators, such as de-licensing.

As proposed in Article 4 and Article 9 of the draft convention that you have drawn up, I agree that banning certain kinds of activities such as intelligence gathering and offensive operations because they are inherently governmental is one answer. For those activities that are permitted, good record keeping through a system of state registers that can be shared between governments is an important part of the solution, as you suggest in Article 13 and Article 30. Equally important are regular investigations of violators as you suggest in Article 34 and 37.

I recommend that the Working Group on the use of mercenaries support the following further strategies for creating regulatory frameworks for private military and security companies:

• This Working Group should study existing registration systems for private military and security companies and their individual employees and propose a model register based on best practices rather than wait till after the signing of a convention. The key criteria should be to find a system that establishes minimum qualifications and licensing to prevent violations.
• A freedom-of-information system needs to be incorporated into the convention whereby both governments as well as the general public should be allowed to examine the records of private military and security companies.

For example, the U.S. government has launched a new database called the Federal Awardee Performance and Integrity Information System, which allows government officers to examine a contractors past performance record. The public version of this database is not great so far but the idea is a good one. Had the contracting officers also been able to check if individual contractors had any prior convictions, Robert Stein’s criminal record would have come to light. So, too, might have the record of the Paravant employees.

Should governments deny work to those with prior convictions? Not at all, but if a government hires former felons like Robert Stein or startup companies like AEY and USPI, it needs to pay closer attention. The general public and the media play an equally important role because they can help monitor violations when states are unwilling or unable to track offenders.

• Establish a system of minimum standards and professional guidelines for translators, whether they work for the government or for contractors, to prevent human rights abuses and also to ensure that mistaken detentions or attacks do not take place.
• This working group should collaborate with the United Nations bodies working on the draft convention on common international standards for the import, export, and transfer of conventional arms, often known as the Arms Trade Treaty.
• Given that there is a substantial risk of leakage of weapons and ammunition from private security and military companies, it is important that the convention on private military and security companies reinforce the common international standards set up by this treaty.
• Begin a “name and shame” campaign against private security and military companies that violate international humanitarian law. The basis for such actions could be either existing state legal judgments or international investigations undertaken by this Working Group.

Thank you again for your invitation to speak at the Working Group and for your leadership in this matter. I welcome your questions.

Pratap Chatterjee is a Visiting Fellow at American Progress.

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SOURCE: Center for American Progress

John Podesta

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Mr. Chairman, members of the task force, I am pleased to be here today to celebrate enactment of the GPRA Modernization Act of 2010 and talk about the implementation challenges ahead. But first I want to talk about the broader government performance agenda, of which the new law is an important piece, and how it relates to our fiscal troubles.

As you know, the Congressional Budget Office is projecting a nearly $1.5 trillion federal deficit this year. The record-breaking size of this year’s deficit is mostly a product of past fiscal mismanagement combined with the enormous impact of the Great Recession. But that is behind us now. Virtually everyone agrees that we must return to balance over the long term.

That will be difficult under any circumstances, and more so if we act rashly. Economic recovery is underway, but it remains fragile. Harsh “austerity measures” in the United Kingdom may be pushing that country back into recession.

Nevertheless, we need to consider all of our options for deficit reduction. And though spending is only one side of the equation, we are facing hard choices and cuts are part of the solution.

Congress and the executive branch will have to make smart decisions about where to make cuts so that we continue to see growth and job creation while bringing down our long-term deficits. This requires, as President Obama has said, a scalpel, not a hatchet.

We should immediately cut programs and efforts that are ineffective, redundant, or low priorities. And we should support efforts that are working well, that boost American competitiveness and create jobs, and help us reach our goals on critical priorities such as education, health care, and energy.

This is not just rhetoric for us. The Center for American Progress has put forward a plan to bring the federal budget into “primary balance” by 2015, which includes nearly $130 billion in spending cuts. We are also pleased that President Obama is undertaking an effort to consolidate related federal agencies to strengthen American competitiveness, something CAP recommended in a December report. Similarly, the Government Accountability Office recently released a report on duplicative federal programs that identified opportunities for consolidation. These echo a number of similar recommendations we have made in recent months.

Improving government performance is not always about cutting budgets, of course. It’s about getting better results for the public. For example, like the GAO, we have recommended combining and streamlining the confusing array of federal nutrition assistance programs. The goal here should not be to reduce the deficit by taking food away from hungry people, but to redirect the savings into a more effective way to serve needy families. At a time when unemployment is just under 9 percent and millions more Americans are living in poverty, we must squeeze every ounce of benefit from the limited money we invest in helping our neediest fellow citizens.

Indeed, with fewer resources available generally, it’s more important than ever to maximize returns on spending, whether that spending comes in the form of direct outlays or as tax expenditures (which include special tax credits, deductions, exclusions, exemptions, and preferential rates).

To demonstrate how the government can use performance data to guide policy decisions, CAP in January launched a groundbreaking website that provides return-on-investment data for nearly every public school district in the country. We commend the president for proposing in his budget to allocate more funding to evaluate the returns on education spending achieved by states and local school districts. That kind of data will prove crucial for smarter budgeting.

The administration intends to use such information to help implement “pay for success bonds,” a public-private financing innovation that will ensure taxpayers only pay for social programs that meet performance targets and generate good outcomes. The White House plans to test these bonds in seven areas, including education, job training, and juvenile justice. CAP published last month the first detailed U.S. analysis of this model, which we believe can accelerate social innovation and improve government performance, while protecting taxpayers from the risk of wasteful spending.

We also have targeted inefficient and ineffective tax expenditures—many of which are giveaways to special interests such as big oil companies—that could save hundreds of billions of dollars a year if eliminated. Spending through the tax code totals roughly $1.2 trillion every year, more than twice as much as all nondefense discretionary spending.

In a CAP report this week, we identify the most wasteful tax expenditures and provide a blueprint to saving tens of billions every year by rooting out the lowest-performing tax “earmarks” to special interests.

Still more savings are possible by boosting government productivity and cutting operational waste. The federal government could save $400 billion over 10 years by improving the way it buys goods and services, according to a CAP report released in November. The Obama administration has also set an ambitious goal of reducing improper payments in programs such as Medicare by at least $50 billion by 2012.

Better use of information technology is a key part of the solution in combating waste, fraud, and abuse. The Veterans Administration, for example, used the administration’s new IT Dashboard to identify $200 million in overdue or overbudget IT projects. And Recovery.gov transparency is credited for significantly reducing fraud complaints, down to less than 2 percent of contracts and grants.

The federal government, unfortunately, has not always been so smart about information technology. As former administration officials Peter Orszag and Rahm Emanuel put it, “Too many government IT projects cost hundreds of millions of dollars more than they should, take years longer than necessary to deploy, and deliver technologies that are obsolete by the time they are completed.” As a result, government has failed to match the dramatic productivity gains achieved by the private sector. The good news is that we have significant room for improvement—and savings.

The administration’s move toward cloud computing holds much promise in this respect. The federal government now operates about 1,100 data centers. Networking these data centers in a shared “cloud” would allow us to reduce their number and save money on electricity and storage. The British government predicts it could cut its IT budget by 20 percent by adopting cloud computing and other related IT improvements. The U.S. government would save $16 billion a year if it did the same.

I believe the GPRA Modernization Act, if implemented well, can help us root out ineffective spending, cut operational waste, and improve results for the American people.

I’ll go into more detail later about how to best implement this important law, but first I want to draw your attention to the act’s emphasis on setting goals—because if agencies don’t get their goals right, nothing else will work.

Under the Government Performance and Results Act of 1993, agencies have been setting myriad goals covering almost every area of work. The current administration wisely asked agencies to narrow their number of goals. But there are still too many so-called “High Priority Performance Goals”—128, to be exact—and many are decipherable only to people inside government. Fewer, more resonant goals would raise their profile and better communicate government priorities to the public.

The GPRA Modernization Act gives us another chance to get this right. I think each agency should set no more than five high-priority goals—and that one of them should target operational savings and be assigned to the chief operating officer, who should have the necessary budget and decision-making authority to make it happen.

These goals should state in clear, quantifiable terms what the agency will achieve for the American people and how much money it will save by cutting waste in procurement, information technology, and other operations.

There’s good reason to believe the public will respond enthusiastically. Eighty-two percent of Americans believe requiring federal agencies “to set clear goals measured by real-world results” would be an effective or highly effective way to improve Washington, according to a CAP poll this past summer that surveyed public attitudes on potential government performance reforms. The goal-setting requirement rated highest out of the 16 possible reforms we tested.

The new law also asks for cross-government goals, which I believe is its most important feature. President Obama should use this opportunity to communicate what his entire administration is trying to accomplish, setting no more than five goals that are presented as a contract between himself and the American people. Goals “owned” by the president would capture public attention and provide direction and motivation for the entire administration.

Former British Prime Minister Tony Blair did something similar to great effect. He distributed credit card-size “pledge cards” that listed five easy-to-understand goals, with his signature underneath. He met his goals and earned his public’s trust in the process.

Finally, let’s note that these are not partisan issues. We all want a government that operates efficiently and effectively, that is guided by credible performance information, and that sets ambitious goals and is able to achieve them. CAP was pleased to work closely with my fellow witness, Robert Shea, who oversaw performance management in the Bush administration, in improving and supporting the GPRA Modernization Act. The fact that this legislation passed the Senate through unanimous consent shows the opportunity we have to make real progress—even in a divided Congress.

This task force can help make sure we seize this opportunity.

Key benefits of the GPRA Modernization Act

The GPRA Modernization Act provides a strong framework for moving forward. In particular:

• The act forces federal agencies and new political appointees to own their goals by aligning the timing of the strategic planning process with the presidential cycle. No longer can plans be written off as products of a previous administration.
• The act requires each agency to set clear goals over a two-year timeframe. Political appointees typically hold their positions for a short time. The two-year timeframe helps ensure that appointees will be accountable for achieving agency goals.
• The act requires goals to be set across government as well as within agencies. This provision will help make sure that agencies work together in setting and achieving overlapping goals. The administration’s High Priority Performance Goals initiative lacks this feature.
• The act requires agencies to seek Congress’s input in setting goals. Under your leadership as Virginia’s governor, Mr. Chairman, the commonwealth’s executive and legislative branches worked together to set “goals for government” as part of the Virginia Performs initiative. The act does not go this far, but it does encourage a more collaborative approach.
• The act requires agencies to identify, for each high-priority goal, the programs, tax expenditures, and regulations that contribute to the goal and what they contribute. This process will help identify programs and approaches that are most effective. It will also help make sure federal agencies are focused on delivering results, and not just administering programs.
• The act requires agencies and the Office of Management and Budget to conduct performance reviews at least once a quarter to track progress toward goals. The hope is that agencies will use these reviews to adjust programs and approaches as they go along. Such a process helps make sure decision-makers see and use performance data, increasing the chances that a goal will be accomplished.
• The act requires OMB to make key performance data available online in a single place. Such transparency can empower the public and provide a powerful incentive for agencies to improve their performance.
• The act codifies President Clinton’s designation of deputy agency heads as chief operating officers who are responsible for management and performance issues. This statutory responsibility will help ensure that nuts-and-bolts operations are not ignored.

Implementation challenges ahead

Now comes the hard part. The following are what I see as the key implementation questions. How we answer them will determine the new law’s success.

Does the new law reduce or add to agency burdens?

Performance measurement and reporting can, if overdone, actually hurt agency performance. You noted this problem, Mr. Chairman, at CAP’s Doing What Works conference in July, saying, “All we do, particularly from Congress’s standpoint, is be additive and we never take away.” The GPRA Modernization Act intends to reduce burdens on agencies by focusing measurement on what matters most and where it can make the most difference.

This does not mean, however, agencies will implement it this way. There is a risk they will focus on the act’s new requirements without reducing the voluminous reporting now done under GPRA. This task force will have to watch how this plays out, to make sure performance reporting itself delivers bang for the buck. Key in this oversight is the act’s requirement that OMB and agencies recommend ways to reduce the reporting burden.

How do we make sure agencies set meaningful goals?

The new law pushes agencies to set measurable, outcome-focused goals. But so did the administration’s High Priority Performance initiative. As I’m sure you know, Mr. Chairman, most agency high-priority goals leave much to be desired. Many are too technical and focus on activities over results.

Goals should be ambitious and connect to the American people: How is government improving our lives and advancing the national interest? Each agency should be able to point to a small number of goals—I recommend no more than five, as discussed earlier—that communicate quantifiable, results-focused objectives that anyone can understand. At least one of these goals should commit the agency to save taxpayers’ money through more efficient operations. And the chief operating officer created under the act should own this goal and have the budget authority to reach it.

This task force should identify and credit agencies that set strong goals and push others to follow their example.

How are cross-agency goals set and met?

There are at least processes in place for setting goals within agencies, whatever the quality of these goals. The executive branch has far less experience setting cross-agency goals. Agencies will also have to work together to achieve these goals. From my experience in the White House, I know how difficult it can be to coordinate action across government. Indeed, this requirement for cross-agency goals is probably the most difficult in the entire act—and yet one of the most important. This task force should track whether agencies and OMB are working well together to set and meet these goals.

What are the characteristics of good performance reviews?

Sir Michael Barber set up the world’s most renowned performance review system under former British Prime Minister Tony Blair. CAP Senior Fellow and former U.K. official Jitinder Kohli saw firsthand the benefits of this system. He has shared his experience with the Office of Management and Budget and federal agencies through a series of training sessions.

CAP also released a paper yesterday that looked for lessons at NASA, the FAA, the VA, and the IRS, which each have successful performance review processes that have survived transitions in political leadership. We hope this work will help agencies answer a number of important questions they now face. Among them: Are quarterly reviews sufficient, or should they be more frequent? Who should attend? What kind of incentives (such as linking employee pay to performance) should be built into a review’s design? Who should lead the review? And what kind of metrics should be used to track progress? This task force should look at what agencies decide, see what works, and help make sure agencies learn from each other.

How do we change the way agencies think?

The GPRA Modernization Act wants agencies to change the way they think—to put the focus on evidence and results over process, to be fast and creative in solving problems, and to look beyond narrow silos. This requires a culture change. The act will change what agencies do, but culture is more stubborn. Leaders in the administration and in Congress must stay vigilant and reinforce this culture change every day.

This can be as simple as asking the right questions. CAP yesterday released a major report that offers practical tools for the design and evaluation of programs. These tools ask decision-makers to answer a series of questions that force them to think about on-the-ground results. If these questions are asked enough, it should begin to feel less forced and more natural. When this happens, culture change may take hold.

How do we keep Congress engaged?

Congress passed the Government Performance and Results Act in 1994 and then acted as if the job was done. There was little interest in implementation or the performance information that was subsequently generated. The expression “use it or lose it” applies here. If Congress does not seek better performance information, agencies will not deliver it. And no fix in the new law will change this.

To be sure, there should be more opportunity for Congress to get involved. The executive branch must seek Congress’s input in setting goals. But Congress still has to use this opportunity.

I believe this task force has a critical role in making sure that Congress plays its full part in shaping goals and ensuring the act is implemented in a way that is relevant to congressional decision-making. As part of this, it will be important to reach out to other members and bring their input to agencies.

How is performance information connected to budgeting?

It doesn’t get more relevant than the budget process. GPRA intended to connect performance information to budgeting. Instead, agency performance shops would “feed the GPRA beast,” generating so much data that it overwhelmed rather than illuminated. OMB and congressional budget makers found no use in the information generated and threw up their hands.

What we have is a chicken-and-the-egg scenario. Budget makers won’t take performance information seriously if it is not packaged in a way that is useful to them. And agencies won’t take it seriously if budget makers don’t care.

The chief operating officer created by the act should be responsible and accountable for making sure performance information is useful to budget decisions. I believe budget makers must be more insistent this time around—especially given the imperative to address our budget deficit. We are trying to do more than generate data. We are trying to make decisions. If the information doesn’t help us do this, agencies should be sent back to the drawing board.

How do we enlist the public?

New information technologies provide government the opportunity to engage and interact with the public as never before. Thousands of extra eyes can be employed to spot problems, offer solutions, and bring fresh perspective. But for this to happen, we need tools to enlist the public in evaluating performance and providing input into the decision-making process.

There is great potential in the new law’s requirement for OMB to set up a central website for performance information. Careful thinking must be done, however, about what we want this website to deliver.

Just two weeks ago, the Center for American Progress released an interactive website that maps return-on-investment data for nearly every school district in the country. We did this by bringing together achievement data, spending data, student population data, and applying a return-on-investment formula.

I believe this tool provides a useful model for agencies and OMB. It shows how powerful performance information can be when it answers a relevant question and is presented in a clear, compelling way. The administration has started moving in this direction, beginning with Recovery.gov. This task force should work with the administration to make sure OMB’s new website provides more and better tools for public engagement.

How do we get the most out of the Chief Operating Officer?

Deputy agency heads, as chief operating officers, will be responsible for implementing the new law and for management and performance issues generally. This is a broad mandate that needs further discussion. I believe these COOs can help link the management side with the budget side. Above, I identified two ways to do this: First, COOs should be responsible for making sure performance information is useful to budget decisions, and second, they should have the necessary budget and decision-making authority to meet goals for operational savings.

Consider the opportunity on procurement. CAP Visiting Fellow Raj Sharma released a report in November estimating that federal spending could be cut by as much as $54 billion a year just by improving how government buys goods and services. He notes that procurement officials with no control of budgets or decisions that lead to waste are in charge of reform efforts. This is not good enough. Each agency’s COO should lead a procurement-reform SWAT-style team that is accountable for achieving the savings we know are there.

Conclusion

The administration is fortunate to have you, Mr. Chairman, and other members of this task force as partners in building a more efficient, effective government. Government reform efforts fail when Congress is not invested and we lose focus. That’s why your leadership and the work of this task force are so important. And that’s why the passage of the GPRA Modernization Act is so significant.

To be sure, many challenges remain—and I’ve listed some critical ones in this testimony. But I believe with your leadership and the commitment of others in Congress and the administration, we can rise to meet these challenges.

Thank you for the opportunity to testify.

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John Podesta is the President and CEO of the Center for American Progress.

SOURCE: Center for American Progress

John Podesta

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Mr. Chairman, members of this committee, I am pleased to be here during Sunshine Week to talk about the Freedom of Information Act, our bedrock law for ensuring government openness and accountability.

This hearing comes at a momentous time for FOIA. Last week’s Supreme Court ruling narrows the overbroad interpretation of FOIA’s Exemption 2, which allows the federal government to withhold information “related solely to the internal personnel rules and practices of an agency.” Lower court rulings have allowed federal agencies to use this as a catch-all exemption to hide information well beyond personnel matters. Now, thanks to the Court’s 8-1 decision, this is no longer acceptable.

We should celebrate this victory but the last several years show that agency culture and longstanding practice on FOIA are not easily upended, even when confronted with new policy and legal interpretation. Indeed, President Obama has delivered in many respects on his promise to have the most transparent administration in the nation’s history, but the results on FOIA remain disappointing.

That’s not because of FOIA policy—the administration has the right policy. Attorney General Eric Holder’s FOIA memorandum, issued at the president’s direction, gives federal agencies a simple instruction: “In the face of doubt, openness prevails.” And the Office of Management and Budget’s Open Government Directive instructs agencies to reduce significant backlogs of pending FOIA requests by 10 percent each year.

The problem is in the implementation. Federal agencies in the year after the Holder memo increased their use of legal exemptions to keep more records secret, according to the Associated Press. There is also evidence that agencies have reduced backlogs through administrative maneuvers, not by providing requested information. And the Justice Department continues to defend expansive agency interpretations of FOIA exemptions, including in the case that the Supreme Court just overturned.

The question we face now is this: How do we turn good policy into reality? I suggest three steps:

• First, require automatic Internet disclosure for most information.
• Second, build a searchable online database where the public can track FOIA requests and view agency responses.
• Third, improve the quality of information used to assess FOIA implementation.

Let’s take these one at a time.

Requiring automatic disclosure

When FOIA became law in 1966, then-Attorney General Ramsey Clark simply and profoundly summarized its core principles in these words:

• That disclosure be the general rule, not the exception
• That all individuals have equal rights of access
• That the burden be on the Government to justify the withholding of a document, not on the person who requests it
• That individuals improperly denied access to documents have a right to seek injunctive relief in the courts
• That there be a change in Government policy and attitude

These principles still guide us today but they should be updated for the digital age. Disclosure should be the general rule not just in response to requests but as a matter of course. And it should be done through the Internet—so everyone has actual access, not just the right to access. Government should bear the burden of justifying withholding not just information but also its dissemination via the Internet. Building on Clark’s final point, we need a change in government policy and attitude to expand automatic electronic disclosure.

The more information provided automatically through the Internet, the fewer FOIA requests government receives. Automatic disclosures not only reduce administrative burdens and costs; they improve the speed and quality of agency responses to FOIA requests that do come in.

The administration deserves credit for expanding Internet disclosure. The Open Government Directive instructed federal agencies to “proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.” Agencies were specifically required to disclose at least three new “high value datasets” through the web portal Data.gov, which has registered more than 300,000 government datasets since its creation in May 2009.

There is also far more information available on federal spending than when President Obama took office. Recovery Board Chairman Earl Devaney recently noted the game-changing nature of Recovery.gov. “For so many years, information on program spending was buried in the bowels of government,” he wrote in a blog post. “Just ask any news reporter or watchdog group that has filed an FOIA request and waited patiently, perhaps for a year or longer, before the government provided the information. There’s no need to file an FOIA request to get what you want from the Recovery Board.” Recovery funds are expiring but this approach to tracking and reporting spending promises to live on through USASpending.gov and other new online resources such as the IT Dashboard.

We should now take the same approach for other types of government records, including information related to regulation, legal actions, credit programs, budget decisions, government performance, ethics disclosures, and more. Americans still too often have to resort to FOIA requests for information that should already be in the public domain. It is not enough to direct agencies to proactively disclose information through the Internet—such discretion results in inconsistent disclosure and fractured presentation. Instead, we should set specific standards for what agencies must automatically disclose, and establish central portals, like Recovery.gov, where the public can find related information across agencies. The administration can do this on its own but congressional action may be necessary to add teeth.

Opening FOIA requests and responses

FOIA itself would benefit from automatic Internet disclosure. The public, in most cases, cannot see what FOIA requests have been submitted to federal agencies or what information was provided in response to requests. Only a handful of federal agencies and offices post their FOIA logs showing requests they have received, and even fewer provide their responses.

The administration is preparing to launch a “FOIA Dashboard” that will provide “report cards” on agency compliance with FOIA. The website, to be located at FOIA.gov, will show the number of FOIA requests received, granted, and denied by each agency—information already available through annual agency FOIA reports. This should make it easier for the public to understand and compare agency performance under FOIA but a compilation of aggregate data is unlikely to be a game changer like Recovery.gov.

For that, we need access to specific requests and responses. The Center for American Progress in November recommended that President Obama issue an executive order requiring federal agencies to automatically publish their FOIA requests, as well as information provided in response to requests, through a centralized, searchable, online database.

New technologies and recent FOIA advancements make this imminently doable. Indeed, the Mexican government already has such a system in place. And the executive branch should be well-positioned thanks to the Leahy-Cornyn OPEN Government Act of 2007, which requires agencies to assign tracking numbers to FOIA requests and provide information on the status of each request through a telephone line or Internet service.

A searchable FOIA database would have benefits for both the public and government. Before filing FOIA requests, members of the public could search for responses related to the information they are seeking. If the information is already provided, they wouldn’t have to go through the hassle of filing a FOIA request, and agencies wouldn’t have to respond to a duplicative request, reducing administrative burden and cost.

The database would also function as a window into agency FOIA compliance. Not only would we be able to see the number of requests granted or denied; we would be able to evaluate whether specific responses fulfilled the law’s requirements. A centralized system, moreover, would make it easier to track interagency referrals of FOIA requests, which are a frequent source of lengthy FOIA delays.

How to administer this tool and put it to use would be another matter to consider. As one possibility, a “FOIA Board,” similar to the Recovery Board, could be established to take responsibility for the website and provide oversight. An independent body, armed with this information, could push for better FOIA responses and provide interagency coordination to break the logjam of endless referrals.

Assessing FOIA implementation

To fully evaluate FOIA implementation, however, we need still more information. Annual agency FOIA reports provide useful data on requests granted and denied, reasons for denials, response times, backlogs, and more. But the Department of Justice does not disclose the number and percentage of FOIA denials it chooses to defend. Nor do agencies report what they have done to comply with the Holder memo and other FOIA policies, or how much money they spend on FOIA implementation. This information is needed to assess whether Justice Department lawyers are heeding the Holder memo, whether agencies are doing anything different as a result of the administration’s new policy, and whether resources are adequate for timely and forthcoming FOIA responses.

The Holder memo changed instructions for Justice Department lawyers deciding whether to defend agency denials of FOIA requests. The previous policy issued by the previous administration’s attorney general, John Ashcroft, promised agencies a legal defense “[w]hen you carefully consider FOIA requests and decide to withhold records, in whole or in part.” The Holder memo states that the Justice Department “will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

By this language, Justice Department lawyers should be less likely to defend FOIA denials. But the department refuses to provide data to assess whether this is true, and the anecdotal evidence suggests that it isn’t.

This should change not only so we can assess Justice’s compliance with the Holder memo but also to send a message to other federal agencies about their compliance. Agencies will be able to learn what is unacceptable by reviewing the cases Justice refuses to defend. And they will be more likely to grant requests if they see Justice may not offer a defense.

This message appears to be needed, judging by the National Security Archive’s Knight Open Government Survey, which reviews implementation of the administration’s FOIA policy. The archive, which just released its second annual survey results, has encountered tremendous difficulty answering this simple question: What changes have agencies made in guidance, training materials, or practices as a result of the administration’s new FOIA policy? Indeed, the archive had to submit FOIA requests to obtain this information. Only 13 out of 90 agencies surveyed for last year’s report provided documentation showing that changes were made.

After these results were reported, the White House issued a memo directing agencies to “update all FOIA guidance and training materials to include the principles articulated in the President’s Memorandum” (which directed the Holder memo). Now about half the agencies report concrete changes—an improvement, to be sure, but still way behind schedule.

Perhaps not surprisingly the archive finds “no clear upward trend in agency discretionary disclosures” under FOIA. In 2009 just four of the 28 agencies that handle most FOIA requests both released more documents under FOIA and denied fewer FOIA requests. In 2010 five agencies met these benchmarks—and they were entirely different agencies than 2009, again suggesting no clear trend.

These findings highlight the stubbornness of agency culture and disposition toward FOIA. But money is likely another contributing factor. If staffing and other resources are inadequate, FOIA responses may be slow and unforthcoming regardless of agency disposition. Last year’s White House memo also asked agencies to “assess whether you are devoting adequate resources to responding to FOIA requests promptly and cooperatively, consistent with the requirements for addressing this Presidential priority.”

These assessments, if they occurred, have not been disclosed in annual agency FOIA reports—budget numbers may be provided but there is little about whether resources are adequate. Nor do many agencies detail FOIA-related spending in their budget requests to Congress; instead, FOIA spending is counted with spending on public relations or other responsibilities. Agencies should be asked to publicly answer three simple questions at the end of every fiscal year: What did you spend on FOIA implementation? For what purposes did you spend this money (defending denials or fulfilling requests, for example)? And was this money adequate to meet the objectives of current FOIA policy?

Conclusion

As we look forward at how we can expand openness and accountability, we must also make sure we don’t backtrack. Two Senate bills introduced last month would broadly criminalize any disclosure of classified information to unauthorized people.

To be sure, protecting vital government information from improper disclosure is an important priority, but these proposals sweep too broadly. There is a serious risk that the bills, if enacted, would have a chilling effect on those who engage in legitimate activities, including informing the public about vital national security decisions. Government officials might come to fear that their everyday words and actions would later be used against them. We have come this far without an official secrets act, and cannot afford to sacrifice our hard-won progress to shortsighted doubts.

If the Freedom of Information Act teaches us one thing, it’s that the free flow of information is essential to a democratic society.

Indeed, our system depends on an engaged citizenry that has the necessary information to hold government accountable and to participate in the policymaking process. We know from experience that government is smarter, more responsive, and more ethical when its actions are open to public scrutiny. As former Supreme Court Justice Louis Brandeis famously said, sunlight is “the best of disinfectants.”

FOIA has provided sunlight but in the digital age it can provide even more. Seizing this opportunity requires not just wise policy but follow through and everyday commitment—from the administration and from Congress.

Mr. Chairman, as I know firsthand, your commitment cannot be questioned—and this hearing is more evidence of that. I am honored to be here today. Thank you for the opportunity to testify. And thank you for your leadership.

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John Podesta is the President and CEO of the Center for American Progress.

SOURCE: AP/Sue Ogrocki

Voters want to grow our economy, create jobs, and bring our fiscal house in order. That means looking after the future of our country, not trying to tear down the president.

There is no way to miss the point of yesterday’s midterm elections. The American people are deeply frustrated with how they are being governed. The political debate is at an all-time partisan low and the public over the last three election cycles are calling for something, almost anything, to change that. They want to see progress on the economy, on job creation, on taxes, and on the federal budget deficit. No matter how voters cast their ballots these are the issues that voters want their representatives in Congress to address. Now.

This overarching voter mandate to “fix it” delivers with it a set of responsibilities to the incoming Republican leadership of the House of Representatives and their strengthened minority counterparts in the Senate as well as to Democratic leaders in the Senate and President Barack Obama and his administration. For the Republicans this means they need to become partners in governing our nation. They can no longer be the “party of no” after yesterday’s vote. Republican leaders must craft serious legislative proposals to match the serious problems our country faces today and in the future.

For their part, Democratic leaders in the Senate and the Obama administration must be prepared to work with Republicans in search of meaningful compromises. Economists from the right, left, and center may agree that the Obama administration and a Democratic-led Congress rescued our economy from a second Great Depression but the voters made clear that is yesterday’s news in their eyes. Now they want Republicans and Democrats together to get our economy moving smartly toward sustained recovery and a job-creating expansion.

To reach the compromises that must be made, our president and commander-in-chief will need to be open to new ideas. But he also will have to set some clear bright lines beyond which political debate cannot stray. This may ring counter to the call to compromise but leadership in a divided government requires not only openness to the means of moving the country forward but also clarity of principle and purpose. With his Executive Branch powers, his Democratic colleagues in the Senate and the House, and his veto pen, President Obama will still set the policy direction of our country. We at the Center for American Progress Action Fund believe there are three bright lines to be drawn.

First, the immediate debate to come this month and next over tax policy must be guided by twin goals: Reform must produce strong growth and put the country on the path to fiscal discipline; and reform must be fair for the majority of Americans and their families. Meaningful tax reform must meet both tests. President Bush’s tax cuts for the very wealthy failed both.

Second, the debate about our long-term federal budget deficits simply cannot include the privatization of Social Security. Yesterday’s elections in no way constitute a mandate to gut this bedrock intergenerational American commitment to the common good. The goal of reform must be to strengthen and secure Social Security, not privatize it.

Finally, the president and Democrats must stand firm against the Republican pledge to repeal their singular achievement of the past two years—providing quality, affordable health care to every American. Implementation must proceed not just for the fiscal gains to be had over the next several decades but also for the critical health and social benefits it will deliver to the vast majority of Americans as different aspects of the law come into force. The new law deserves the time needed to make it work.

No doubt the emerging leaders of the Republican Party will have their own bright lines to present to the Obama administration and their colleagues across the aisle in Congress. But they should understand that with their new majority in the House comes responsibility to determine those bright lines in such a way that enables our government in Washington to get on with what the voters made clear they want to see happen. The voters want to grow our economy, create jobs, and bring our fiscal house in order. That means looking after the future of our country, not trying to tear down the president.

I’m optimistic this will happen because I know the American people want it to—and are clearly prepared to cast their votes to make Washington listen.

John D. Podesta is Chairman of the Center for American Progress Action Fund.

SOURCE: AP/Lawrence Jackson

The Senate has established rules for members to delay legislation, but recently the Republican Party has used these rules to the point of rendering the government dysfunctional.

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Unprecedented obstruction in Congress

Congress, particularly the U.S. Senate, boasts established rules for members to delay legislation. These rules have historically been reserved to ensure proper deliberation and consideration on the most important issues facing the nation. Recently, however, the Republican Party embraced these obstructionist tactics to subvert progressives so much that they have rendered the government dysfunctional.

This report is intended as a guide to understanding obstruction in the Senate. It will examine the tools used by Republicans to prevent the effective functioning of government via the filibuster and holds, how they’ve used these different tools in both policy debates and executive appointments, and which special interests benefit from such obstructionism.

In addition, this report attempts to take the debate out of the abstract and focus on its real life consequences. Recent obstruction has not only stopped Congress from providing help to people who need it the most, but also has kept key national security positions vacant and has prevented the Senate from considering legislation with significant bipartisan support.

The health reform debate highlighted the myriad of ways lawmakers can obstruct legislation. What resulted was 14 months of partisan gridlock and inaction. We are beginning to witness the same types of tactics as the Senate debates reforming Wall Street.

Obstruction tools: Cloture and the filibuster

Under the rules of the Senate, senators have the prerogative of unlimited debate that cannot be cut off unless a certain number of senators agree to end debate; currently that number is 60 senators. This is known as “invoking cloture.” If 60 senators do not invoke cloture by voting to end debate, a bill is successfully filibustered.

The filibuster is not part of the U.S. Constitution. In fact, the “cloture rule,” Senate Rule XXII, was not formally adopted until 1917. From 1917 through 1970, senators voted to invoke cloture an average of two times per Congress. Voting on cloture became more frequent since that time. What we have witnessed in the past several years, however, is a dramatic increase in the number of times the Senate has voted to invoke cloture. There were a record 112 votes on cloture motions in the 110th Congress (2007-08), more than double the amount of cloture votes from the 109th Congress. The current Congress has already had 49 cloture votes.

Obstruction tools: The hold

Another tool senators can use to obstruct legislation is a “hold.” A hold is a way for one senator to block legislation or nominations indefinitely. It indicates that a senator does not want a particular bill to be brought up for consideration and is willing to object to any “unanimous consent” requests to proceed on the bill, meaning the Senate will have to vote on these measures and it will in many cases be subject to filibustering. According to the Congressional Research Service, the origin of holds “appears lost in the mists of history. They probably evolved from the early traditions of comity, courtesy, reciprocity, and accommodation that characterized the Senate’s work.”

Sen. Richard Shelby (R-AL), for example, recently placed a “blanket hold” on at least 70 of President Obama’s nominations, a move that Senate aides said was “a far more aggressive use of the power than is normal.” Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington, noted that “one senator can subvert the entire democratic process. We don’t have the Senate confirming political appointees promptly, and that means decisions are not made at agencies.”

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SOURCE: Center for American Progress

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I want to begin by emphasizing how seriously President Obama and Vice President [Joe] Biden took the transition process. Despite an impending set of challenges that I believe were unprecedented in modern times, independent observers have noted that the 2008 transition was one of the most successful in history. President Obama and Vice President Biden’s leadership, and the hard work done by their team, are key reasons for its success. The professionalism and cooperation of the outgoing administration, along with the dedicated work of the staff at the General Services Administration, also deserve great credit for making the 2008 transition exemplary.

The president understood that the needs of the country demanded that we begin planning in earnest prior to the general election on November 4. National security risks have become heightened during periods of transition – in addition to September 11, both the U.K. and Spain suffered terrorist attacks near recent transfers of power – and this is one critical reason why transitions should proceed with full cooperation from all parties and with adequate institutional support.

In this regard, the Bush administration’s national security team deserves to be commended for their extensive assistance in assuring the transition occurred as seamlessly as possible. They  worked closely with us throughout the process to ensure that our team was in place, informed, and poised both to prevent potential acts of terrorism and handle an emergency situation if one were to arise. As a result of the Intelligence Reform and Terrorism Prevention Act of 2004, we were also able to accelerate the process of security clearances by submitting names and the requisite background information to the Department of Justice and FBI before the election. This enabled our key staff to receive approximately 150 security clearances and to dispatch 500 people into the agencies within a week of the inauguration.

In addition to the heightened risk of terrorist activity, as 2008 wore on it became increasingly clear that the Obama administration would inherit a host of extremely severe economic challenges. As housing prices plummeted, credit markets froze, and financial markets fell deeper into crisis, avoidance of outright economic collapse hinged on the administration’s ability to execute a range of policy initiatives immediately upon taking office. Over 700,000 jobs were lost in President Bush’s last month in the White House. Two of the big three auto companies were heading steadily towards bankruptcy. The economy was in the midst of contracting more than 5 percent for two subsequent quarters for the first time since the Great Depression. It was not only responsible, but imperative that the Obama campaign prepare as fully as was feasible for the possibility of governing in a time of crisis.

The ability of the incoming Obama administration to prepare to address these national security, economic, and other critical national issues was greatly assisted by President Bush’s executive order facilitating the transition (EO 13476, signed October 9, 2008), signed a month before the November election. President Bush’s approach built on the transition executive order issued by President Clinton in 2000, (EO 13176, signed November 30, 2000), widening the Presidential Transition Coordinating Council to include key White House policy advisors and encouraging their active involvement. 

The impressive cooperation between the incoming and outgoing administrations and the good work of the GSA is a success story that can hopefully be repeated during future presidential transitions. It was especially crucial in minimizing security vulnerabilities that were of concern due to changes in leadership. And although the country still faces economic challenges, the preparation for managing the many moving pieces of the financial and economic crisis was instrumental in returning to growth, stemming job losses, and improving credit conditions as quickly as possible in 2009.

Depoliticizing the transition process

The only risk to any party in preparing in this fashion was a political risk to Obama’s own campaign for president. Despite the complexities of transitioning the federal government, the urgent nature of mounting economic challenges, and the obvious probability that one of two Senators would be taking office, the risk to the Obama campaign of fallout from political attacks were a genuine complication to the transition team’s work.

President Obama himself conducted the transition in a way that prioritized process and experience over politics. Perhaps one indication of that was selecting me, a strong supporter of Secretary Clinton during the primaries, to guide the transition team. But the transition itself did not avoid becoming a political football. On the campaign trail and on the airwaves, Republicans accused Obama of measuring the drapes, tempting fate, and disrespecting voters by preparing prudently to govern.

The Bush administration, again very much to its credit, recognized the importance of preparing candidates for the duties of the executive prior to Election Day, a priority evidenced by President Bush’s executive order, which was issued nearly a full month before the general election and directed the coordinating council to assist major party candidates, instead of only the president-elect. Far from participating in campaign season rhetoric, Dana Perino, President Bush’s press secretary, stated in October 2008 that a seamless transition had never been more critical, and was “especially important as our nation is fighting a war, dealing with a financial crisis and  working to protect ourselves from future terrorist attacks." President Bush’s Chief of Staff Josh Bolten worked with us diligently to ensure the transition was as seamless as possible. After taking office, President Obama has rightly and repeatedly praised Bush administration officials, especially those officials at the Treasury Department and the National Security Council, for putting politics aside in the best interest of the country during a time of crisis.

My experience in the prior two presidential transitions confirms that, despite campaign sloganeering, both Democrats and Republicans have taken presidential transitions extremely seriously and kept their work from being overly affected by political influences. For example, in 1992 my predecessors as Staff Secretary in the Bush administration, Jim Cicconi and Phil Brady, were extremely helpful in preparing me for my assumption of responsibilities on January 20, 1993. Again in January 2001, along with my Deputies Maria Echaveste and Steve Ricchetti, I worked closely with incoming Chief of Staff Andy Card and Deputy Chief of Staff Blake Gottesman to ensure the same was true for the administration of President Bush.

The orderly transfer of power since the inception of our democracy is one of the characteristics that we as Americans should be most proud of and should not take for granted. Efforts to politicize the transition process should be strongly discouraged. Planning a presidential transition prior to Election Day, on the other hand, should be encouraged and considered appropriate regardless of poll numbers or political party.

That’s why The Pre-Election Presidential Transition Act, sponsored by Sens. Kaufman (D-DE), Voinovich (R-OH), Akaka (D-HI), and Lieberman (I-CT), is such an important step forward towards institutionalizing some of the activities that made the 2008 transition such a success. In addition to providing additional resources for transition activities, it will begin to create a new political climate where presidential candidates are rewarded, rather than punished, for preparing for the challenges that await the nation after Election Day. The new normal should be that we expect candidates to take the steps necessary to be thoroughly prepared for governing, rather than be criticized for it.

Preparing to govern

In total, President Obama’s transition team consisted of over 1000 people. It was governed by a transition board, which I co-chaired along with Valerie Jarrett and Pete Rouse, both of whom now serve in senior positions in the White House. There were 517 people working on agency review teams, 134 people in policy working groups, and scores of people working on public  outreach, personnel, communications, scheduling, advance, etc.

We endeavored to create a highly disciplined process that I believe contributed greatly to the transition’s overall effectiveness. As a result of our extensive planning in the pretransition phase, members of the various subteams were provided with specific guidance on the questions to which we sought answers, how to present information, and the amount of information required. The specificity with which their missions were defined ensured both that time was maximized and the work undertaken was relevant and actionable.

The bulk of the transition staff were on agency review teams. Ten teams of various sizes were organized around issues and agencies to provide the president-elect and his advisors with the information necessary to make policy, budgetary, and personnel decisions in advance of the inauguration. The concise reports they produced guided senior officials through the confirmation process and helped them take over their departments and begin implementing policy decisions in the first weeks of governing.

Seven policy working groups operated alongside the agency review teams to prepare initiatives for the administration to enact once in office. These groups were responsible for a number of early policy achievements, including the Lilly Ledbetter Fair Pay Act (signed January 29, 2009), the Children’s Health Insurance Program Reauthorization Act (signed February 4, 2009), and the American Recovery and Reinvestment Act (signed February 17, 2009). Within the  administration’s first 10 days, the president signed nine executive orders and nine presidential memoranda the policy working groups had helped to prepare.

One lesson learned during President Clinton’s incoming transition was the importance of designating not only Cabinet positions, but also key White House staff early in the process. While President Clinton selected his Cabinet staff in a careful and timely manner, many top White House posts were not filled until very late in the transition. The result—in addition to a degree of competition among transition staff for positions close to the president—was a team that did not have much experience working together in similar capacities as they would later in the White House.

During the Obama-Biden transition, on the other hand, there was a conscious effort to clarify White House, National Security Council, and National Economic Council positions early in the process to seamlessly shift between their responsibilities in the transition and their authority once in government. Long before the election, this team worked closely together, almost as a shadow government, to exercise cooperation, work on specific problems, and develop initiatives that would be implemented soon upon President Obama’s inauguration. This model was highly successful in ensuring critical members of the president’s staff were prepared to work together in the best interest of the country and the president once they began serving in the White House.

One other novel achievement of the Obama-Biden transition was its commitment to public  engagement and transparency, a commitment that began on the campaign, continued throughout the transition, and remains a priority in the White House. We made unprecedented use of the Internet to encourage talented people to work for the government, listen to the public’s concerns, share information on legislative initiatives, keep records of meetings between transition staff and outside groups, and disclose financial information. In a further effort to increase accountability and practice good government even before we were actually serving in government, the transition implemented the strictest ethics requirements in history, curbing the influence of lobbyists at the outset.

Financing the transition

The Obama-Biden transition received $5.2 million dollars in federal funding and raised over $4.4 million in private donations to pay for transition costs through a tax-exempt 501(c)(4) entity, The Obama-Biden Transition Project, Inc. We placed strict limits on individual contributions and did not accept corporate contributions or contributions from lobbyists, in accordance with our  internal ethics stipulations.

The fact that federal funds cover only slightly over half of the transition budget is an obstacle to achieving an optimal transition process and should be addressed, as the Pre-Election Presidential Transition Act is designed to do. The act would also release funds prior to Election Day, helping to stand up transition teams long before the 10 short weeks between the general election and the president’s inauguration. These changes would bring policy in line with the realities of carrying out a 21st century transition, both in terms of expanded support and facilitating a longer lead time in the run up to both Election and Inauguration Day.

Nomination challenges

At this point, a year and a quarter into office, one of the key challenges the Obama administration faces remains filling important positions. A new report from the Center for American Progress has taken stock of where the administration stands in this regard and why a number of administration positions remain unfilled. Although there are a variety of actions that could improve the appointment process, the Senate plays a critical role in agency appointments and has been responsible for significant delays in personnel confirmations.

Within the first 100 days of the Obama administration, 17 percent of Senate-confirmed executive agency positions were in place, compared to only 9.5 percent for President Bush and 12.6 percent for President Clinton. But after a year, the Obama administration fell behind all four administrations preceding it. The Senate has taken more time to confirm President Obama’s nominees to executive agencies than under the previous three administrations, and the gap between the number of nominations and number of confirmations was larger for the Obama administration than any other after one year. Sixty-four nominees were pending in the Senate, compared to 46 for President Bush and 29 for President Clinton after the same length of time.

As someone who served for many years on the Senate staff and has deep respect for Senate rules and traditions, I would urge the Senate to consider ending the use of the filibuster for executive branch appointees. The world is too dangerous and the issues facing the government too complex to deny the president his key appointments where they command majority support in the Senate. At the very least, the Senate should eliminate holds unrelated to the nominee to prevent abuse of the system by individual senators. Although holds involving concerns over an appointee’s qualifications or statements to the Senate could be appropriate, holds that are unrelated to particular nominees or placed to express opposition to a policy matter should not be allowed.

Again, I appreciate the opportunity to testify before you today. Thank you to the chairman and members of the subcommittee for your time this morning.

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John Podesta is the President and CEO of the Center for American Progress

 

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Sen. Tom Udall (D-NM) warned at a joint Center for American Progress Action Fund and Center for Congressional and Presidential Studies event last Friday that the Senate must be a “functional legislative body” or else it will become “a graveyard of good ideas.” Udall was joined on a panel by Scott Lilly, Senior Fellow at CAP Action, and Thomas Mann, senior fellow at the Brookings Institution. James Thurber, distinguished professor and director at the Center for Congressional and Presidential Studies at American University, served as moderator. The event focused on the modern Senate and how its current practices are affecting the quality of government.

Thurber argued that “There have been destructive changes beyond the filibuster in the Senate that have undermined the normal legislative process and made the functions of Congress—lawmaking, oversight, representation, deliberation, and education—difficult to impossible to achieve.”

He said these changes, which have morphed into trends, have “accelerated in the last two decades.” They include, among other things, increasing use of filibusters, amendments, and holds to clog the legislative works; delays in confirming executive branch officials; lack of debate in the Senate; breakdown of the budget process; excessive use of earmarks and riders added to appropriation and tax bills often as a crutch to act on significant policy issues; and withholding appropriations to fully fund authorization bills.

According to Thurber, these trends “led to disrespect for Congress, its processes, and the results of its lawmaking that eats that the very core of our democracy.”

Mann said Senate comity used to be “the oil that kept things going,” but now there’s no bipartisan trust or bond. The “changing character of the party system in recent decades” has reduced the number of moderates in the Senate and led to a “promiscuous use of holds,” he added.

But while “toxic partisanship…poisoned the system,” the filibuster in particular has become the “weapon of partisan warfare,” according to Udall. A recent CBS News/New York Times poll found that the majority of the public wants to get rid of the filibuster, which should come as no surprise considering this Congress has filibustered 112 times—more than ever before.

A proposed change to the filibuster rule can be filibustered, but change is possible with “the spirit of solutions,” Lilly said. Senator Udall advocated for using the option found in Article 1, Section 5 of the Constitution. It states that “each House may determine the Rules of its Proceedings” and also states that a “Majority of each [House] shall constitute a Quorum to do Business.”

In other words, the framers intended the Senate and House to adopt new rules by a simple majority vote as the need arose. Rule XXII, the filibuster rule, was last changed in 1975, meaning that only three sitting senators ever voted on the rule that has essentially prevented the Senate from passing meaningful legislation.

Lilly also proposed limiting debate to 16 hours as a way to ensure the deliberate and timely consideration of all appropriation measures. Debate on a single amendment could be limited to one hour. This reform would actually give senators more input in appropriation matters than they do presently.

Lilly offered similar steps to unclog the confirmation process: Committees should be discharged of further consideration of a nominee after two months unless the committee formally votes for further delay. Once a nominee moves through the committee process, consideration of confirmation should be in order without unanimous consent after 30 days.

Udall insisted that filibuster reform is necessary regardless of which party is the majority when “one senator is able to stop the entire show” without even stepping onto the floor. Americans can’t and shouldn’t have to wait for their elected leaders to do their jobs, and senators “need to be willing to give up a little for the good of all,” he said.

“The time has come to address rules reform again,” Udall continued. The Senate is currently bound by rules they’ve “acquiesced to,” but at the start of the next Congress Udall will offer a motion to use the constitutional option to reform all of Rule XXII—which governs the procedure of Senate motions—and modify the filibuster to respect minority voices while giving the American public the functioning government they want.

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Lets look back to 1991 when Congress was debating new highway legislation. Republicans were so outraged at the inclusion of 500 earmarked highway project they staged an all night talk-a-thon to deride the legislation. Current Republican Floor Leader John Boehner told the C-Span cameras that night,

I have only been here 7 months, but during my years of public service I have seen some pretty outrageous activities occur in legislative bodies. But I have never seen anything as outrageous as the 1991 highway bill…. I stand opposed to this legislation because spreading pork around to secure enough votes to pass this turkey is wrong.

Congressman Cass Ballenger promised, "When the Republicans control this body, the American people won’t have to wait while we squabble among ourselves over how to make the taxpayer foot the bill for pork…"

A year later, soon to be Speaker Newt Gingrich told the House "the Democrats…see no contradiction between adding $1.5 billion in pork barrel for the politicians and voting for a balanced budget."

In the years leading up to their seizure of power in 1994 it seemed that Republicans care about eliminating pork more than almost anything. But after the election was a different story. Not only did they not make good on their promise to banish earmarking they literally sent the process through the roof. Government programs that had never previously contained earmarks became saturated with them. Programs containing only a few earmarks became almost nothing but earmarks. The Labor-Health, Human Services and Education bill went from having no earmarks in 1994 to $33 million in earmarks in 1996, nearly a $100 million in 1998, half a billion in 2000 and more than $1 billion in 2002.

A report that I prepared along with others on the Appropriations minority staff in the fall of 2003 described how dramatically the practice had careened out of control. It indicated, fore instance that the number of earmarks in Defense Operation and Maintenance account had swelled from 33 before the Republican takeover to 232 by 2004. In Defense Research and Development the number of earmarks grew from 219 to 1299. This was happening in nearly every appropriation bill and it wasn’t just happening in Appropriations.

The report drew only snickers from Republicans who were committed to conquering new heights in the realm of earmarks. Perhaps the pinnacle was reached with the passage of the 2005 highway bill. Instead of containing 487 earmarks–the number that sparked the all night protest by Republicans on the 1991 highway legislation–the bill contained 6,371 earmarks controlling the expenditure of $23 billion in federal money. As a report I did for the Center for American Progress indicated, the bill not only contained more earmarks than any highway bill in history it contained more than all highway bills combined.

President Bush decided to travel to Speaker Dennis Hastert’s home state to sign the legislation and congratulate the speaker on a $200 million earmark to build a four lane highway near property the speaker had recently purchased.

Since they lost control of Congress, numerous reforms have been adopted. People requesting them have to post their requests and the justification for the request on the internet so the public and the press can find out who wanted them and why. Members must certify that neither they nor their family have a financial interest in the earmark. The number and size of earmarks have been substantially reduced from 2007 levels. Earmarks to for profit companies must be put up for competition by agencies managing the funds if they believe the recipient will not provide the government with best value. Now for profit earmarks are being eliminated altogether.

But none of that is enough. The party of "reform" is on the march again. It appears that their commitment right now is only to give up earmarks for this year. Since their Senate counterparts don’t expect to allow many if any appropriations pass before the election they probably aren’t giving up very much. The question is what will the policy be for 2012 when if all goes as planned they will be back in the drivers seat thanks in large part to the voters appreciation of their stalwart opposition to this sordid practice.

 

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“Republicans have chosen slogans and symbolism over substantive proposals,” said House Majority Leader Steny Hoyer (D-MD) at a Center for American Progress Action Fund event Monday. Hoyer spoke at the event about congressional Republicans’ “lockstep opposition” to working with Democrats on crafting and passing major pieces of legislation this year that deal with serious challenges facing the country, including health care, climate change, and the economic stimulus. This stubbornness has earned Republicans—who are the minority party in Congress—the nickname “the party of no.”

Hoyer listed several examples of Republican obstructionism this year. House Minority Whip Eric Cantor (R-VA) was quoted as saying that his party’s approach to the president’s agenda was going to be to “just say no.” Rep. John Boehner (R-OH) read a 300-page amendment to the House clean-energy and climate bill in June to delay a vote. And earlier this month Senator Judd Gregg (R-NH) circulated a “how-to” guide to all his Republican colleagues that outlined how Republicans can obstruct and hold up needed health care reforms in the Senate.

What makes this obstructionism worse, said Hoyer, is that Republicans aren’t putting forth any ideas of their own. Instead, they’re spending all of their energy criticizing Democrats and the president. Hoyer approached his friend and colleague Rep. Roy Blount (R-MO) and asked him for alternatives to the health care legislation the House passed last month. Blount didn’t offer Hoyer anything.

The Democrats may view the Republicans’ pigheaded strategy as benefitting them by causing the Republicans to be viewed as unproductive and negative. But Hoyer said “that is not good for Congress or our nation’s future.”

“When Congress doesn’t have two parties talking, less substance is debated openly,” Hoyer explained. Power devolves from Congress toward the Federal Reserve, the Environmental Protection Agency, and the courts. And the divisiveness does the public a disservice since people expect their representatives to do something about the issues they’ve deemed important, such as entitlement programs, out-of-control health care spending, and climate change.

Just because a party is in the minority doesn’t mean they have to unequivocally oppose everything the majority does. A “history of constructive minorities shows how much we should expect and demand of them,” Hoyer said. He pointed to the 1964 Civil Rights Act, when President Lyndon B. Johnson reached across the aisle to Senator Minority Leader Everett Dirksen (R-IL), who helped form a coalition to pass the bill and wrote parts of it. A more recent example is Senator Edward Kennedy’s (D-MA) push to help pass President George W. Bush’s No Child Left Behind Act in 2001.

Hoyer went on to say that, “I have not just talked this talk—I have walked it.” He has worked with Rep. Bob Ney (R-OH) on the Help America Vote Act and with Rep. Joe Barton (R-TX) on the Americans with Disabilities Act, among others.

Hoyer thought pressure from the public and within the Republican party itself could overcome the deadlock in Congress. “The rank and file of the Republican party is not comfortable with ‘the party of no,’” he said, and the public expects lawmakers to “engage constructively.” The pressures facing the nation at times prevail over the pressures that divide it—this was true when House Speaker Newt Gingrich and President Bill Clinton balanced the budget in the late 1990s.

Republicans were able to step up earlier this year, as well. Hoyer highlighted the Republicans who voted for the American Recovery and Reinvestment Act in February. “There are still those willing to act,” he said.

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SOURCE: AP/Lauren Victoria Burke

Congressman John Boehner's (R-OH, above) defense of Congressman Joseph's Wilson's (R-SC) behavior during the president's speech last week shows a higher obligation to a colleague instead of the institution he has sworn to defend.

Probably one of the most difficult moments during Congressman Joseph Moakley’s (D-MA) 74 years on this earth was while he was presiding over the House of Representatives on May, 15, 1984. His close friend and mentor, Speaker of the House Tip O’Neill (D-MA), gave Moakley the gavel and went into the well of the House to excoriate Congressman Newt Gingrich of Georgia for using political tactics O’Neill believed unbecoming of the body and destructive to the House’s ability to conduct fair and civil debate.

But O’Neill grew very emotional and carried his rebuke too far. He stated, “in my opinion, what you and your colleagues have done, what you”—he pointed to Gingrich—“have done, was the lowest thing I have ever seen in 35 years of politics.” Congressman Trent Lott of Louisiana immediately jumped to his feet to object that the rules of the House had been violated and that the speaker’s words “be taken down,” which means that they should be stricken from the record and that the individual who used them be barred from further participation in debate for the day on which the offense occurred.

It was up to Moakley to rule on whether his friend should be rebuked. While he was very much opposed to ruling against the speaker he sought the advice of the parliamentarian, an officer of the House who advises the chair on the precedents of the House and whether a ruling would be consistent with previous rulings in the history of the institution.

The parliamentarian was unequivocal—the speaker’s words were in clear violation of House rules. Moakley argued that what the speaker had said was in fact true. The parliamentarian countered that the presiding officer of the House could not determine the veracity of charges made within the chamber and that characterizations of another member’s conduct such as that made by the speaker lowered the standards of debate and decorum. Worse, if not rebuked it would become a future precedent for the standards of floor debate.

Reluctantly, Moakley picked up the gavel, ruled against his friend and ordered the words stricken from the record—the first time in the history of the House that a speaker had received such a rebuke.

Moakley’s difficult but correct choice stands in sharp contrast to the outrageous stance taken by House Minority Leader John Boehner (R-OH) and others who attempted yesterday to defend the indefensible conduct of Congressman Joe Wilson of South Carolina who not only used the House floor to call the President of the United States a liar—a violation of the rules under any set of circumstances—but did so while the president was speaking to a joint session of Congress.

Boehner to his credit attempted to get Wilson to apologize to the House for his outburst, but then reversed himself when the resolution disapproving of the conduct came to the floor yesterday. The floor leader’s failure to defend the institution in which he serves was appalling. His arguments for doing so could only be called pathetic.

He called the measure a “partisan stunt” despite the fact that it was supported by one of Wilson’s own South Carolina Republican colleagues, Bob Inglis, who saw little choice on the matter since he himself had ruled members out of order for less blatant violations of House rules when his party was in the majority. Boehner also argued that the House should not take time to discuss the matter while issues such as health care were before the country, and he seemed to think no one would remember that he and his colleagues had spent the entire summer attempting to filibuster the appropriation bills in order to delay the health care debate for as long as possible.

But his most egregious argument was that Wilson’s apology for rude behavior to the president somehow rectified the damage that Wilson had done to the rules and standards of civility of the institution in which he serves. Given that it was widely reported that Boehner attempted to persuade Wilson to apologize to the House for his gaffe he obviously does not himself believe that argument. But Boehner, like Joe Moakley a quarter of a century ago, had to decide whether he had a higher obligation to a colleague or the institution he has been sworn to defend.

The seriousness of the offense that Boehner was asked to judge was far greater and the courage required to confront the offender was far less given the discomfort Moakley must have felt in ruling against the man who had given him the gavel. Nonetheless Boehner got it wrong.

John Boehner is not naturally mean-spirited, divisive, or comfortable with the kind of behavior that Wilson displayed last week. He—unlike others who have served his party in leadership positions since Bob Michel left the House—has in the past demonstrated serious legislative ability and a capacity to reach across the aisle and fashion compromises when the national interest required it. It is unfortunate that he now leads a group that will not allow him to use those skills and in which he has to portray himself as being something quite different from the congressman and legislative leader he might have otherwise become.

Scott Lilly is a Senior Fellow at the Center for American Progress Action Fund. He previously served as clerk and staff director of the House Appropriations Committee and executive director of the Joint Economic Committee.

SOURCE: CAPAF

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On November 4, California voters will decide on 12 state propositions. Propositions 1A and 12 originated in the state legislature, and Propositions 2 through 11 are initiatives placed on the ballot by California citizens. Four of these measures seek to amend the state constitution. The following provides California’s progressives with a guide to the Center for American Progress Action Fund’s recommended vote on each of the 12 propositions.

Proposition 1A: Safe, Reliable High-Speed Passenger Train Bond Act.

CAP Action Fund Vote: YES

California’s current urban, intercity, and commuter rail service largely serves local and regional communities. Intercity rail is mostly provided by Amtrak for longer-haul travelers, with maximum speeds of 90 miles per hour. The current state-funded rail services provide for only minimal travel between northern and southern California.

This measure would authorize the sale of $9.95 billion in general obligation bonds to fund the construction of a high-speed passenger train system in California. Nine billion dollars would be used, together with any available federal monies, private monies, and funds from other sources, to develop and construct a high-speed train system that connects San Francisco’s Transbay Terminal to Los Angeles Union Station and Anaheim, and that links the state’s major population centers, including Sacramento, the San Francisco Bay Area, the Central Valley, Los Angeles, the Inland Empire, Orange County, and San Diego. The fiscal impact would be about $19.4 billion to pay off both principal and interest—about $647 million per year for more than 30 years.

For more information, please visit www.californiahighspeedtrains.com/

Support: California Alliance for Jobs; Los Angeles Area Chamber of Commerce; State Building and Construction Trades Council of California

Opposition: California Rail Foundation; Howard Jarvis Taxpayers Association; state Senator Tom McClintock (R-19th District)

Proposition 2: Standards for Confining Farm Animals.

CAP Action Fund Vote: YES

Over 40 million animals are raised for commercial purposes in California. In recent years, voters have voiced concerns regarding the treatment of animals, including the housing of certain farm animals such as hens and pregnant pigs in confined spaces and restricted enclosures. Many farming industries have already changed their practices, and there are some federal and state laws protect farm animals.

This measure would prohibit, with certain exceptions, the confinement of pregnant pigs, calves raised for veal, and egg-laying hens in a manner that prevents them from turning around freely, laying down, standing up, and fully extending their limbs. Violation of this law would result in a misdemeanor charge punishable by a fine up to $1,000 and/or imprisonment in county jail for up to six months. Potential fiscal impact could be millions lost in tax revenue.

For more information, please visit www.yesonprop2.com/

Support: The Humane Society of the United States; California Veterinary Medical Association; Sierra Club

Opposition: Association of California Veterinarians; California Teamsters Public Affairs Council; California Chamber of Commerce

Proposition 3: Children’s Hospital Bond Act.

CAP Action Fund Vote: YES

Many children’s hospitals in California provide services to low-income families. In 2004, California voters approved Proposition 61, which authorized the sale of $750 million in general obligation bonds to provide funding for children’s hospitals, many of which cater to low-income communities.

This measure would authorize the state to sell an additional $980 million in general obligation bonds under the same guidelines as Proposition 61 for capital improvements such as the construction, expansion, and remodeling of children’s hospitals. Eighty percent of the funding would go to hospitals that focus on, heart defects, diabetes, cystic fibrosis, sickle cell anemia, and leukemia and other cancers. The remaining 20 percent would go to University of California general care hospitals. The fiscal impact would be $2 billion over 30 years to pay off the principle and interest costs—about $64 million per year.

For more information, please visit www.imaginewithus.org/

Support: California Nurses Association; League of Women Voters of California; California Medical Association

Opposition: National Tax Limitation Committee; Assemblyman Ted Gaines (R-4^th District); American Conservative Union

Proposition 4: Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy

CAP Action Fund Vote: NO

Since 1953, minors have been able to receive the same care for pregnancy as adults, without parental consent. A legislative amendment to the law in 1987 would have required parental consent for a minor’s abortion, but it was never implemented due to legal challenges, and in 1997 the California Supreme Court struck down the law as unconstitutional. In 2005 and 2006, California citizens placed similar initiatives on the ballot, and it once again failed.

The measure is now on the ballot again. Proposition 4 would amend the state constitution to require parental notification by personal written or mail notification 48 hours before a health care provider performs an abortion on an unemancipated minor. For young women from abusive families, this measure would only allow a family member other than a parent to receive the notification if abuse had been reported to the authorities. Violation of the law would put the person who performed the abortion at risk for civil damages in a suit brought by the minor or her legal guardian or representative.

For more information, please visit www.NoOnProp4.org

Support: Friends of Sarah, the Parental or Alternative Family Member Notification Act; California Catholic Conference; Governor Arnold Schwarzenegger

Opposition: California Nurses Association; Planned Parenthood Affiliates of California; California Teachers Association

Proposition 5: Nonviolent Drug Offenses. Sentencing, Parole, and Rehabilitation.

CAP Action Fund Vote: NO

This measure would expand current drug treatment diversion programs for criminal offenders, modify parole supervision procedures, and expand treatment programs in prisons and for those on parole. In exchange for participation in rehabilitation programs, inmates can earn extra time off sentences and reduce certain penalties for possession of marijuana. The measure would change state law related to administration of rehabilitation and parole programs. These plans together may exceed $1 billion annually in state operating costs.

While Proposition 5 seems to expand resources for progressive treatment alternatives, there is little agreement on how the measure would work and how it would affect existing programs. The measure could undercut progressive reforms, including those enacted in 2000 under Proposition 36. Currently, no first time drug offender is subject to jail time in California. Proposition 5 would have other negative effects, such as compromising the ability of drug courts to intervene until an individual has committed multiple offenses and restricting the discretion of judges to impose or threaten sanctions, including jail time, when necessary to ensure compliance with drug treatment programs.

Issues of this complexity should be vetted and perfected through the legislative process; voters should not be left to wade through this massive, 36-page, single-spaced, fine-print proposal.

For more information, please visit www.noonproposition5.com/

Support: Service Employees International Union, California State Council; League of Women Voters of California; California State Conference of the NAACP

Opposition: Mothers Against Drunk Driving; U.S. Senator Dianne Feinstein (D-CA); former Governors Pete Wilson and Gray Davis, Attorney General Jerry Brown

Proposition 6: Police and Law Enforcement Funding. Criminal Penalties and Laws.

CAP Action Fund Vote: NO

This measure would increase penalties for certain crimes as well as create new misdemeanors and felonies related to gang participation and recruitment, possession and sale of methamphetamines, vehicle theft, and tampering with a GPS device. It would increase the amount of state spending for specified criminal justice programs by $365 million, mostly directed at local law enforcement including police, sheriffs, district attorneys, and jails.

This proposition goes too far in abridging civil liberties in the name of law enforcement.

For more information, please visit www.votenoprop6.com/

Support: California State Sheriffs’ Association; California District Attorneys Association; Association for Los Angeles Deputy Sheriffs

Opposition: Ella Baker Center for Human Rights; American Civil Liberties Union of Northern California and Southern California; California Labor Federation, AFL-CIO

Proposition 7: Renewable Energy Generation.

CAP Action Fund Vote: NO

California is currently a national leader in renewable energy goals, which it has carefully and deliberately developed. Proposition 7 has good intentions—to expand renewable energy generation—but it is badly structured, poorly written, and would have a detrimental effect on California’s progress toward renewable energy goals. Moreover, many other states closely monitor California, so any problems could be amplified nationally.

The current Renewable Portfolio Standard in California requires private utilities to generate 20 percent of their power from renewable sources by 2010 and 33 percent by the end of 2020. Proposition 7 would increase this requirement to 40 percent by 2020 and 50 percent by 2025 and extend it to government-owned utilities. This sounds good in theory but is problematic in several ways. First, the legislation contains a variety of loopholes that are vulnerable to manipulation, potentially making it harder for viable projects to receive financing and thus delaying the development of clean energy resources. With credit now tight, this barrier could mean the difference between completing good projects and abandoning them.

Second, the proposition discriminates against renewable projects smaller than 30 megawatts, thus shutting out numerous projects that are easier and quicker to bring online. Third, Proposition 7 proposes some major regulatory changes that would add further complexity and bureaucratic bottlenecks to the electricity market, including shifting authority over the renewables standard from the California Public Utilities Commission to the California Energy Commission. Proposition 7 also would bypass the existing Renewable Energy Transmission Initiative process in an effort to expedite permitting. While expedited permitting is a noble aspiration, it would ensure costly and prolonged legal battles. Lastly, the proposition creates a potentially costly pricing structure, which would allow power providers to charge 10 percent above market price for renewable energy, thus discouraging competition and innovation and artificially increasing consumer electricity costs. Nearly all the main environmental organizations—themselves adamantly dedicated to renewable energy and combating global warming—oppose Proposition 7.

For more information, please visit www.noprop7.com/

Support: Californians for Solar and Clean Energy; Dolores Huerta, co-founder of the United Farm Workers of America; Progressive Democrats of America, Monterey County Chapter

Opposition: California League of Conservation Voters; Sierra Club; Natural Resources Defense Council

Proposition 8: Eliminates Right of Same-Sex Couples to Marry.

CAP Action Fund Vote: NO

Currently in California, same-sex marriages are recognized as legal and valid. In May 2008, the California Supreme Court ruled that Proposition 22 and other statutes that limited marriage to one man and one woman were unconstitutional because they violated the equal protection clause of the California Constitution.

This measure would amend the California Constitution to take away the right to marry from committed same-sex partners. The measure would not require churches or individuals to support same-sex marriages or affect school curricula.

For more information, please visit www.noonprop8.com/

Support: California Family Council; Coalition of African American Pastors; Parents and Friends of Ex-Gays and Gays

Opposition: ACLU of Southern California; California State Conference of the NAACP; Parents, Families, and Friends of Lesbians and Gays

Proposition 9: Criminal Justice System. Victims Rights. Parole.

CAP Action Fund Vote: NO

This measure would amend the California Constitution to require that restitution be ordered from offenders in every case where the victim suffers a loss. It would increase notice and participation of victims in criminal proceedings. It would allow victims a constitutional right to confer with prosecutors and would return property to the victim that is no longer needed in proceedings. It also would allow victims and their families to refuse to divulge personal information to defendants or be interviewed. Other changes to the constitution include requiring judges to consider a victim’s safety when setting bail and expanding “safe schools” to include community colleges, colleges, and universities. Also, the proposition would require that sentences not be substantially diminished by early release and that sufficient funding be provided to house inmates to the full term of their sentences.

Proposition 9 is an attempt to tilt further the playing field against the accused. As written, the proposition would severely impair the defendant’s ability to gather information and present a full and unfettered defense. It would also unduly influence decisions made by the state by granting legal authority to individuals to engage in the disposition of the state’s case. These changes could ultimately taint the system in a manner that prevents justice for the accused, as well as victims and their families.

For more information, please visit www.votenoprop9.com/

Support: California Coalition of Law Enforcement Associations; California Farm Bureau Federation; Crime Victims United of California

Opposition: California Democratic Party; California Teachers Association; Ella Baker Center for Human Rights

Proposition 10: Alternative Fuel Vehicles and Renewable Energy. Bonds.

CAP Action Fund Vote: NO

Proposition 10 would raise $5 billion from general obligation bonds to fund consumer rebates for purchasing certain alternative or high fuel-economy vehicles; research in alternative fuel and renewable energy technologies; incentives for purchasing solar and renewable energy technology; grants to cities for renewable energy projects; and funding to colleges for academic and job training in renewable and energy efficiency technologies. On the surface, Proposition 10 is appealing. Yet it is too expensive and has too little impact on greenhouse gas emissions and other air pollutants from the California vehicle fleet. With interest charges, Proposition 10 would cost California taxpayers $10 billion over 30 years, an exorbitant sum in times of tight budgets. Moreover, California already has in place some statutes and is pursuing further legislation that will achieve equal or superior results with little or no cost to the taxpayer.

California is a world leader in passing clean-air regulations to reduce vehicle tailpipe pollution and increase fuel efficiency. The rebate program defined by Proposition 10 is poorly structured and heavily favors natural gas over other alternative fuels that could provide greater environmental benefits in both the short and long term, such as hybrid heavy-duty trucks or plug-in hybrid electrics. Unfortunately, natural gas vehicles are rare and expensive. Moreover, there is no fueling infrastructure for privately owned natural gas vehicles. Even with a generous rebate, they would be accessible primarily to upper-income consumers, raising important policy questions about equitable use of taxpayer dollars. A 10 percent reduction in the carbon intensity of all transportation fuels will soon be mandated under the Low Carbon Fuel Standard, and this policy should reduce emissions by an amount comparable to Proposition 10. Moreover, California has passed landmark legislation to reduce greenhouse gas emissions from automobiles, and the state is waiting for the federal Environmental Protection Agency to issue a waiver that allows California to implement these standards. Both Senators McCain and Obama have promised to issue this waiver.

For more information, please visit www.noonproposition10.org/

Support: Clean Energy Fuels; Chesapeake Energy; Westport Fuel Systems

Opposition: California League of Conservation Voters; Sierra Club; Union of Concerned Scientists

Proposition 11: Redistricting.

CAP Action Fund Vote: NO

Beginning with the 2010 census, this measure would amend the California Constitution to require that a 14-person commission draw state legislative district boundaries. These commissioners would be chosen by government auditors who would select 60 registered voters from the applicant pool; legislative leaders could disqualify up to 24 candidates from those 60 selected. The auditor would next randomly draw the first eight commissioners, who would then pick the final six. The commission must have five registered Democrats, five registered Republicans, and four members registered with another or no party. The fiscal impact is expected to be about $4 million in 2010.

Proposition 11 on its face is rational and attempts to provide fair, honest, and open elections. Electoral contests should not be predetermined or slanted by who controls the process during a redistricting year. Yet because of the many stipulations on its membership, the commission created by Proposition 11 is unlikely to be representative of the California population. Furthermore, the commission will not be held accountable to voters for its actions. Realigning legislative districts under the new requirements—a process which would have little oversight or redress—would likely benefit some voters’ representation at the cost of others, which undercuts the basic concept of fairness this measure is intended to address.

For more information, please visit www.noonprop11.org/

Support: Governor Arnold Schwarzenegger; former State Controller Steve Westly; California Republican Assembly

Opposition: U.S. Senator Barbara Boxer (D-CA); Speaker of the U.S. House of Representatives Nancy Pelosi (D-CA); California Democratic Party

Proposition 12: Veterans Bond Act of 2008.

CAP Action Fund Vote: YES

Voters have approved bonds for veterans 26 times in California’s history. The Cal-Vet Home Loan program issues low-interest home loans to military veterans.

Proposition 12 provides a $900 million bond for California veterans in the form of loans to purchase farms and homes. All of the principal and interest costs would be covered by the borrowers. Fiscal impact would be tax revenue lost on the bonds.

For more information, please visit www.cdva.ca.gov/

Support: Senator Mark Wyland; Governor Arnold Schwarzenegger

Opposition: Gary Wesley, attorney at law

Download the guide (pdf)

SOURCE: AP

Read the letter to the House of Representatives from historians urging Congress to strengthen the Presidential Records Act (pdf)

Read the letter to the Senate from historians urging Congress to strengthen the Presidential Records Act (pdf)

After resigning the presidency, Richard Nixon sought to retain personal control over his presidential records and to shield them from public view. Congress responded by enacting the Presidential Records Act of 1978, which provides that presidential records are the property of the United States. The PRA requires the president to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.”

The already formidable task of managing millions of presidential papers became far more complex with the introduction of electronic mail. In 1994, the Clinton administration instituted an automated records management system to archive the large volume of email messages generated by White House personnel, but due to technical malfunctions the system failed to retain a significant number of email files. Eventually, more than a million files were recovered, and by the time President Bush took office, an effective records management system was in place.

In 2002, the Bush administration decided to replace that system with one that proved both less reliable and less secure. A White House official acknowledged to the House Committee on Oversight and Government Reform that “the process by which email was being collected and retained was primitive and the risk that data would be lost was high.” In addition, the official informed the committee that until mid-2005, the stored files were “accessible to everyone on the EOP [Executive Office of the President] network,” and he could not verify that email records had not been altered.

The new system led to the loss of millions of emails over an 18-month period from January 2003 to July 2005. An analysis by the White House found approximately 700 days on which one or more components of the EOP reported an unusually low number of emails. For 473 of those days, one or more components reported no emails at all. There were 12 days for which no emails generated by the president’s immediate office could be found, and 16 days without any emails generated by the office of the vice president.

In addition, over 80 senior White House officials, including senior adviser Karl Rove, routinely circumvented the archiving system altogether by conducting official business through their Republican National Committee email accounts. Most of these emails were not preserved, and congressional investigators found that little or no effort had been made to recover them.

The “loss” of millions of email messages leaves an enormous gap in the historical record of our times. It presents a serious obstacle to historians and ordinary citizens seeking to understand the course of events and the actions and motivations of those who participated in them.

For this reason, we asked 30 of the nation’s most eminent historians to join us in urging Congress to enact legislation to strengthen the Presidential Records Act. In a letter to House and Senate leaders, they argue that such reforms are essential to ensure that presidential records are preserved for posterity. Their call for reform has been endorsed by the three leading associations of U.S. historians: the American Historical Association, the Organization of American Historians, and the National Coalition for History.

The House of Representations has already passed one measure that would begin to address the problem, although its prospects in the Senate are uncertain. The Electronic Communications Preservation Act, H.R. 5811, introduced by Rep. Henry Waxman (D-CA), would require the archivist to issue standards for preservation of electronic records and to report to Congress on whether agencies are complying with them. The bill also would require the archivist to establish electronic records management standards for presidential records, and to certify annually whether the controls established by the president meet the requirements.

H.R. 5811’s congressionally mandated standards and reporting requirements would be a step in the right direction. But the bill includes no real enforcement measures, and affords no remedy if the president fails to comply. The PRA cannot do its job if presidents are free to ignore it, and the preservation of the historical record is too important to be left to the sole discretion of the White House. The next Congress should consider ways to ensure that future presidents take seriously their duty to ensure that the nation’s history is preserved for future generations.

SOURCE: AP

The truth is out. Sarah Palin may have posed as an opponent of congressionally mandated earmarks, but when the slop was in the bucket, she was one of the first at Senator Ted Stevens’ (R-AK) trough.

The Seattle Times reported yesterday that she submitted 31 earmark requests totaling $197 million in the current (FY2009) budget cycle. According to that paper, it was “more, per person, than any other state.”

The Washington Post reports that in 2000, Palin took an extraordinary step as the mayor of Wasilla, Alaska, a town that had fewer than 5,500 residents—she hired a Washington lobbyist to seek congressional earmarks. According to the Post, she won a total of $6.1 million in earmarks for the city of Wasilla in 2002.

A review of the Taxpayers for Common Sense database from which the Post derived that number indicates that 2002 was actually a subpar year for Palin. Over the course of her four years she sought earmarks as city mayor and won an average of $6.7 million a year.

Both numbers need to be placed in some perspective. Fiscal year 2008 was the first year for which there was a complete listing of all earmarks contained in all appropriation bills. That information was loaded into several databases, including the one developed by Taxpayers for Common Sense. According to that data, the average state got about $50 per person in earmarked funds in 2008. Alaska, represented by Ted Stevens, the Senate’s earmarker-in-chief, got $506 per person—about 10 times the national average. Wasilla between 2000 and 2003 was getting well over $1,000 per person—twice the Alaska state average in 2008.

There is nothing particularly wrong with any of these actions. Yet Palin has advertised herself as a reformer and a skeptic of earmarking while maneuvering to become the earmark queen of the earmark state. The energy she has put into finding resources to help solve problems in her hometown and her state is admirable. She didn’t create the rules about how federal money is distributed—by competitive grants, formulas, or congressional earmarks—but once the rules were in place, she used them to the maximum advantage of those she was elected to represent.

That creates an odd juxtaposition between her and the man with whom she shares the ticket. Unlike most of his colleagues in Congress, Sen. John McCain (R-AZ) has not only tried to change the rules governing the use of earmarks—he has refused to pursue them on behalf of needy constituencies he was elected to defend even when it was clear that the rules would not be changed and millions of dollars that might go to Arizona would be headed to other parts of the country.

While Sara Palin’s constituents in Wasilla were getting about 20 times the national average in earmarked federal funding, McCain’s constituents in Arizona were getting less than half the national average. The data indicates that if Arizona had matched the national average, the state would have, in the current fiscal year, received more than $133 million dollars in additional federal investments in schools, hospitals, roads, and so forth. In fact, the database indicates that Arizona rates dead last among the 50 states in per capita earmarked funds at $18.70 per person. This is despite the best efforts of Senator Jon Kyl (R-AZ), who is also an opponent of the earmarking process, but unwilling to give up earmarked funds to other states just to protect rhetorical high ground.

A review of the earmarks that Kyl and others in the delegation brought home to Arizona in 2008 tells an interesting story. Kyl reached across the aisle to help Congressman Raul Grijalva (D-AZ) with a project for the community of Nogales, Arizona—a project intended to resolve a long festering safety and public health issue.

Nogales is a town of about 20,000, or roughly three times the size of Wasilla, but a third of the residents live in poverty compared to 12 percent nationally and 10 percent in Wasilla. Overall, per capita income in Nogales is about a third of the national average. But perhaps the biggest problem facing Nogales is its geography. It is one of the few places on the U.S.-Mexican border where the watershed flows north, and when tropical storms from the Pacific Ocean come raging across the Sonoran dessert as they do every couple of years. Nogales, Arizona, is inundated not only in water but animal waste, raw sewage, and debris from Mexico.

The U.S. Army Corps of Engineers has worked with the U.S. Geological Survey and the Environmental Protection Agency to develop a flood control plan for Nogales, but no money has been included in recent presidential budgets for such an effort. Kyl and Grijalva’s efforts added $4.6 million to the FY2008 budget to begin to address this critical need.

Kyl also worked with fellow Republican Rick Renzi (R-AZ) to add $750,000 to the Transportation and Housing Appropriation bill to repair a road on the Navajo Reservation running from Hardrock to Pinon. The current quality of the road is so poor that it is often impassible in winter months, residents are cut off from the outside world, and food and medical supplies must be airlifted to avert starvation.

This is not to say that everything that Kyl or others in the Arizona delegation do with respect to earmarking is perfect or even laudable. I am certain they directed funds at less urgent needs. But it does demonstrate that Arizona, like many states, has communities that desperately need help, and that McCain, unlike his running mate, has had the power to help those communities and has refused to do so. That is a rather remarkable decision, even if it makes one’s campaign message a little crisper. Perhaps there are things that John McCain can learn from Sara Palin during the course of the coming campaign.

“We all want to be able to pass on this world to our kids, to give them a better opportunity in life,” said Maryland Governor Martin O’Malley at a Center for American Progress Action Fund event about fiscal responsibility last Thursday. He discussed Maryland’s fiscal shortcomings prior to his administration, as well as the steps he has taken so far to correct it.

John Podesta, President and CEO of the Center for American Progress Action Fund, introduced O’Malley, pointing out the financial problems weakening the country and the lessons that can be learned from Maryland.

“Today, Americans are increasingly disillusioned with the state of our nation, and with good reason,” he said. Podesta explained that the deficit this year is projected to reach $482 billion, the highest in history. In addition, household debt is at an all-time high, unemployment rates are increasing, and mortgage foreclosure rates are growing.

Still, Podesta offered a glimmer of hope. “Governors and legislatures have taken the lead and done many things,” he said, citing an increase of the minimum wage and an expansion of health care access. In order to face this fundamental budget challenge, he said, investments in infrastructure, energy, health care, and education must be made.

Podesta held out O’Malley as an example, saying he puts “people above politics” and has been able to restore fiscal accountability in Maryland within 14 months by adopting this approach.

O’Malley discussed the “politics of posterity” in his speech, condemning a national tendency to pass the buck to future generations. Before O’Malley took office, the state had a $40 billion budget shortfall, and the government was carving into public safety, education, and health care.

When O’Malley became governor in January 2007, he had to decide “whether we would allow circumstances to change us or whether we would change circumstances,” he said. Most importantly, he wanted to make government work again.

“It’s a duty we have not only to our neighbors, but to our next generation,” O’Malley said, criticizing collapsing bridges, depleted military, ineffective classrooms, home foreclosures, unaffordable college tuition, and a weakened federal government.

O’Malley focused on three principles that guide his administration: strengthening the middle-class, expanding opportunity, and improving education. Before he took office, $2 billion of expenditures had been locked away from public use. “The chickens of our bad math were coming home to roost,” he said.

O’Malley took steps to reduce expenditures by cutting 700 government positions, closing the Maryland House of Correction, modernizing the tax code, raising the sales tax, and passing Maryland’s first progressive income tax. Although not all of these decisions were popular, 46 percent of Maryland residents found their tax burden reduced, said O’Malley.

In addition, this is the third year Maryland has frozen in-state college tuition in order to increase funding for community college and K-12 education. This also allows Maryland to embark on the largest expansion of health care and work for the health of the Chesapeake Bay, he said.

O’Malley has worked for progressive fiscal responsibility in his term as governor so far, balancing an inherited $1.7 billion structural deficit while making investments to protect Maryland’s priorities.

“By restoring fiscal responsibility, we’re now able to focus on the future again,” O’Malley said. “We’re investing in the talents and ingenuity of our people.”

For more about this event visit the event page.

Anyone who talks about earmarks as frequently as Sen. McCain must surely be aware that over the past year there have been two major efforts initiated to identify and track the number and cost of congressional earmarks. One effort began at the White House Office of Management and Budget at the direction of the President. The other was undertaken at the private, non-profit organization Taxpayers for Common Sense. Both of these efforts examined the Fiscal 2008 appropriation bills with a fine tooth comb and identified each provision or listing they classified as an earmark and tallied the number and cost of all identified earmarks.

Evidently, Sen. McCain’s problem with these two efforts is that they reveal that earmarking is less of a budget issue than his rhetoric has represented it as. The Office of Management and Budget analysis found earmarks totaling $16.9 billion, and the Taxpayers for Commonsense analysis found $18.3 billion. Both show that earmarks account for only about 0.6 percent of government spending. More importantly, neither earmark tally would put a dent in the massive spending cuts required to offset McCain’s tax proposals.

In order to get a bigger number, McCain and his staff turned to a three-year-old analysis by the Congressional Research Service, which examined earmarks in the fiscal year 2005 appropriation bills—the year that most people who follow this topic believe the practice of congressional earmarking reached its peak. But the big issue with the CRS analysis is not simply that it is out of date and not reflective of current spending levels, but that the Congressional Research Service used definitions for earmarking that are quite different from other organizations engaged in earmark analysis.

McCain’s obvious attraction to the CRS data is that the definitions they use in examining the various appropriation bills produced a much (about three times) bigger number for earmark expenditures. CRS makes it very clear in the introduction to their analysis that defining earmarks is a very tricky business. They do not contend that these expenditures were wasteful or inappropriate—simply that they were targeted by law to a specific purpose. Items counted by CRS as earmarks were often requested by the president and concurred on by the Congress. CRS identified $52.1 billion in the 2005 bills based on their definitions.

That number would go much further in paying for the proposed McCain tax proposals than the data generated by either of the two more recent analyses. The obvious question that almost any semi-cautious public official, speech writer, or policy advisor would demand to know, however, is what does CRS count as earmarks that is different from what other people are counting, and can we afford to propose eliminating those items?

The answer is that there is very little that CRS counts as earmarks above and beyond those found by OMB or Taxpayers for Common Sense that McCain would want to be associated with cutting. Assistance for Israel is only the most obvious example. It is doubtful that McCain would choose to start his presidency by terminating drug eradication funds for Colombia, the long standing assistance program to Egypt and Jordan, or humanitarian aid to Haiti.

Defense Secretary Robert Gates has recently testified that we rely too heavily on military force in our national security strategy and should increase, rather than reduce, diplomatic and assistance-based efforts. McCain has offered no indication that he disagrees with that thesis, but implementing his earmark proposals would not only eliminate the prospects for moving policy in the direction advocated by Gates; it would eviscerate nearly all of what the United States is currently doing in that area. All tolled, $14.4 billion, or two thirds of all foreign assistance, would be eliminated if McCain stuck with this proposal.

But other areas are equally problematic. Sen. McCain knows as well as any member of the Senate that military family housing on installations across the country and around the world is in a disgraceful state. Congress has led the way in replacing the worn out and dilapidated housing units that members of the armed forces and their families are forced to live in because we have not been willing to spend the necessary money to renovate or replace units in a timely fashion. For the most part, Congress has done so by using earmarks. The Congressional Research Service analysis counts not only the family housing units added by Congress as earmarks, but also those requested by the Pentagon and the White House.

CRS identified $6.6 billion in spending in the 2005 Military Construction Appropriation bill associated with earmarks. This included 205 units at Fort Huachuca at a cost of $41 million and 250 units at Davis-Monthan Air Base at a cost $48.5 million—both in McCain’s home state of Arizona.

In a different area, CRS identified critical government construction efforts such as a new Federal Bureau of Investigation building in Los Angeles and 12 facilities aimed at assisting U.S. border patrol and customs officials in fully screening all cargo and individuals entering the country—particularly those entering through previously under-manned checkpoints on the northern border. Each of these projects was requested by the president.

The question that Senator McCain must answer is which of the Congressional Research Service-identified earmarks he supports, and which would he actually eliminate. Until he has produced a complete and plausible set of spending reductions to cover the cost of his tax proposals, he should withdraw them, or at least concede that they will be paid for by yet more borrowing and a deeper sea of red ink.

The other question that Sen. McCain must now address is whether the shallow and sloppy work that went into the preparation of this latest economic plan is an aberration in an otherwise serious effort to have a serious debate about future policy choices facing the country, or emblematic of an approach to government in which the facts don’t matter.

Léalo en español

“When you think of the fact that every other presidential election has been a choice between white males, this election is a whole new situation,” University of Southern California Professor Roberto Suro declared at a Center for American Progress Action Fund event today. The historic nature of Hillary Clinton, Barack Obama, and Bill Richardson’s candidacies cannot be underestimated, particularly as states with significant African-American and Latino voting blocks come into play in the primary battle for delegates.

The first issue to recognize when discussing minority voting patterns in this election is that racial and ethnic groups are diverse communities whose actions cannot be presumed solely on the basis of race. Princeton University Professor Eddie Glaude warned event attendees to “avoid the generalized titles of the African American vote and the Latino vote” since these blocs mask the differences in these communities. African-American voters tend to split along lines of class and education, whereas Latino voters split on issues of language and geography. Looking at voters in a racial aggregate inevitably obscures the debate.

Still, racial politics and identities play a significant role in an individual’s decisions in the voting booth. Gebe Martinez, Political Columnist and Contributor to The Politico, argued that “when there was only one seat open to a minority, the African American tended to get it, and so the Hispanics learned to rely on Anglos,” a trend which has been reflected by Hispanic support of Hillary Clinton and John McCain.

Martinez did note that Clinton’s support among Latinos is grounded on the familiarity they have with the Clintons, but that if Senator Obama ends up being the nominee, Latino voters would support him.

Dr. Glaude also spoke to historical trends that affect current voting, citing the “complex way in which a new generation of African-American political voices are emerging,” ones which are less influenced by the civil rights struggle. These voices are focusing not on “galvanizing the electorate,” as was seen with Jesse Jackson’s 1984 campaign, but rather with electing a mainstream candidate—a significant paradigm shift.

“Political solidarities are made, and they can come quickly into and out of existence,” Glaude argued, citing a rapidly changing political climate for African-American and Latino voters. While there are “very real tensions between members of these different communities,” the focus needs to be on the democratic process.

As the political calendar moves to include more African-American and Latino voters in the primary elections, and well into the general election, an increased focus on democratic participation and awareness will continue to bring power to previously disenfranchised racial and ethnic minorities.

• Léalo en español

For more information on this issue, please see:

• Interactive Map: The Latino Vote in 2008
  

• View chart detailing oil and gas campaign contributions to all representatives

• View chart detailing oil and gas campaign contributions to representatives in close races

A clean energy incentives tax package, H.R. 2776, passed in the House of Representatives on August 4 as an essential element of New Direction for Energy Independence, National Security, and Consumer Protection Act, H.R. 3221. The tax package would eliminate $16 billion worth of tax loopholes that benefit big oil and recover unpaid royalties on oil and gas from federal waters off the Gulf of Mexico in order to fund billions of dollars in clean alternative energy technologies such as wind and solar power, clean alternative fuels, and energy efficiency.

The House passed legislation, H.R. 6, that closed the same loopholes and recovered lost royalties in January. But in the Senate, the oil lobby convinced enough members to oppose a similar clean energy incentives tax package that it was defeated by a 58-36 vote, with 60 votes needed to end debate and pass the package.

It is no surprise that the oil lobby fought hard to do the same thing in the House. The big oil companies scoured the halls of Congress in the days leading up to the vote hoping to convince a majority of representatives to oppose H.R. 2776. An important tool in big oil’s arsenal was the $29 million in campaign contributions that it donated to the representatives serving in the 110th Congress between 1989 and 2006. These contributions are a trivial investment compared to the $16 billion in tax loopholes and royalty relief that the big oil companies want to maintain.

The 189 representatives that voted with big oil and against the clean energy tax package received on average four times as many campaign contributions from the oil and gas industry as their colleagues who voted for it. These 189 representatives received an average of $109,277 in contributions from the oil and gas industry between 1989 and 2006. The 221 representatives that voted for the package received an average of only $26,277 over that same period. View an extensive breakdown of all oil and gas industry campaign contributions here.

Interestingly, there is a larger contribution difference between members who won a close race in 2006 than among House members as a whole. Close races are those with winners who garner 55 percent or less of the vote. Representatives that won by this narrow margin who voted against the clean energy tax package received an average of $101,270 from oil and gas entities. The victors in these narrow races who voted for the tax package received a paltry average of $9,837. In other words, close race winners who voted with big oil received 10 times more campaign contributions than their counterparts who voted for the tax package. View an extensive breakdown of oil and gas industry campaign contributions in close races here.

Opensecrets.org compiled this data based on Federal Election Commission records, and did not report any oil and gas contributions for 25 of the representatives who narrowly won in 2006. Twenty-two were Democrats, and three were Republicans. All of these members had one thing in common—they were running for their first term.

Of the three first-time winners that voted against the tax package, two ran for open seats and one beat an incumbent in the primary. On the other hand, 15 of the 21 members without reported oil contributions who won close races and voted for the tax package were challengers.[1] Many of their incumbent opponents—such as Resources Committee Chair Richard Pombo (R-CA) and Rep. Anne Northup (R-KY)—were well entrenched with a long record of support for the oil and gas industry and received a large amount of campaign cash that reflected their efforts.[2] Many of these challengers made support for clean energy a prominent element of their campaign and highlighted their opponents’ support for oil industry tax breaks and loopholes.

Do these campaign contribution differences demonstrate that representatives who voted against the clean energy tax package are on the take from big oil? Of course not. But it does show that representatives who receive significantly more oil and gas campaign contributions were significantly more likely to oppose a tax package that invests in clean energy for vehicles, fuels, and electricity. Given big oil’s $29 million in direct campaign contributions to representatives, it is unsurprising that when big oil knocks, many representatives answer the call.

Fortunately, a majority of the House stood up to big oil to vote for the clean energy tax package. Its fate will be decided as part of this fall’s Senate-House conference committee that will attempt to reconcile differences in the Senate and House versions of their energy bills. The Senate and House members of the conference committee haven’t been named yet, but undoubtedly several of big oil’s closest allies—and largest recipients of their campaign cash—will be among the handful of senators and representatives who will decide the fate of the clean energy tax package and the rest of the energy bill. Stay tuned.

• View chart detailing oil and gas campaign contributions to all representatives

• View chart detailing oil and gas campaign contributions to representatives in close races
  
  
  

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  [1] Rep. Ron Klein (D-FL) did not vote on the tax package.

  [2] Richard Pombo received $335,536 from the oil and gas industry from 1992-2006. Anne Northup received $311,827 from oil and gas from 1996-2006. Both of their successful 2006 opponents, Jerry McNerney and John Yarmuth, reported no oil and gas contributions on opensecrets.org.

There has been great consternation in recent weeks over a provision in the omnibus appropriations bill that would allow certain Appropriations staff access to individual tax returns and would exempt them from criminal penalties for revealing the contents of those returns.

That appears to be an outcome that no one was either aware of or intended. The omnibus is now being held in the Senate until the offending language is stricken, and the privacy threat it posed is now certain to be blocked. What remains, however, is what this episode tells us about the current process by which the Congress is doing the people’s business.

Since early last spring it has been obvious that the “regular order” for appropriations bills would once again be ignored. Allowing the individual appropriation bills to be considered separately, on their own merits, has become so unusual that it is difficult to even say that it is the “regular order.”

Instead, Congress goes through a pretend exercise each year in which only a handful of the appropriation bills are actually passed as free-standing legislation. In many instances major bills are not even brought to the floor for public debate in one or both houses. Many of the bills that are debated on the floor differ substantially from the final versions brought back in the many-thousand-page conglomerations that appear only hours before the Congress is scheduled to go home.

Thus ensues a mad scramble each fall involving thousands of budget and policy decisions that are hurriedly wrapped into one massive piece of legislation – legislation that no single person could begin to read, much less comprehend, in the time between its final assembly and its consideration on the floor of the two houses.

And even if one were able to read and understand these documents, an individual Member could do little about any item he or she disagreed with. Conference reports now present elected Representatives with only one choice: “Do you want to fund the government for the coming year or don’t you?”

Over the past decade, Congressional leaders have learned that amalgamating such a massive amount of must-pass legislation into one package makes it possible to not only do most of the work of an entire session in one fell swoop but to also pass numerous agenda items that do not have majority support – and which simply could not survive in any other form.

In other words, these omnibus appropriation bills have become a tool by which the democratic principles that underlie both Houses can be circumvented.

But such actions have consequences, and the provision discovered after this year’s omnibus cleared the House is a perfect example. The back-room process of putting together a 3,000-page bill in a matter of days or weeks is necessarily a process preformed almost exclusively by staff. Conferences serve merely as pro forma meetings at which massive amounts of paper are plopped before Members purporting to explain the decisions already made by staff. After a few “opening” statements, the conference chairman typically gavels the conference into recess and the members of the conference are asked to sign the report.

Nothing underscores the risks inherent in this approach more than the claim by the chairman of the Treasury-Transportation subcommittee that he had no idea that the offending provision had been included.

It might be understandable if he’d claimed that the impact of the provision was contrary to his understanding – but he insists that he had never even heard of it. That provides a dramatic contrast with the days when the full membership of each House and Senate subcommittee, and not just the chairmen, sat for days, if not weeks, to hash out their differences.

Of further concern is the fact that the provision Chairman Ernest Istook (R-Okla.) professes never to have heard of directly addresses his ability to conduct oversight and to assure his colleagues that the money he is asking them to take from the Treasury is actually being spent for the purposes intended.

His subcommittee appropriates more than $10 billion a year for the Internal Revenue Service, but currently neither the chairman nor his staff can enter Internal Revenue Service facilities to determine how these funds are spent. This was the issue that the offending language was attempting to address – but it appears to be an issue that the chairman was either unfamiliar with or uninterested in resolving.

In addition to taking policy choices out of the hands of the people who were elected to make them, the omnibus process has another consequence: It creates a high probability that serious and embarrassing mistakes will be made in compiling the final product.

The offending provision was introduced in an all-night staff negotiation and was discussed between 3 and 5 a.m. on the day before the final 3,000-page document was assembled. If it is the only screwup in this package, it would be a miracle. The language in question replaced an earlier version that would have granted appropriations staff the same access to tax returns as staff of the Ways and Means Committee now holds.

Appropriators do not write the revenue code, and they do not oversee IRS interpretation of the code. As a result, such authority would be unnecessary and inappropriate. But appropriators do pay the salaries of 100,000 IRS employees. They are responsible for paying hundreds of millions of dollars in IRS contracts and for the leasing of tens of millions of square feet of office space. The revised language now at the center of the controversy was drafted by IRS with instructions to narrow the authority in the earlier version and simply permit appropriators to enter IRS facilities.

Apparently no one realized, during those early morning hours, that not only did the new language fail to restrict access to tax returns, but it also inadvertently exempted appropriators from the criminal penalties to which the U.S. Code subjects any other government employee with similar access to tax returns. While the flawed language should have been spotted, the circumstances in which it was added make such mistakes almost inevitable.

Why do we conduct the people’s business this way? Some say it’s that Members of Congress have become too lazy to do their own work, and there may be some instances in which this is true. But my experience indicates that the vast majority of Members of both parties would love to revert to the old system in which the people elected to make these decisions actually do. I also know that nearly all of the staff who have been called on to participate in these exercises are deeply troubled by the process that has evolved.

The reason the old system of legislating no longer works is that the current leadership has not only assumed the role of passing the legislation required of Congress, but has also taken on the responsibility of insuring that the content of that legislation is consistent with a specific ideological criteria that is often not the will of a majority in the House.

They have committed to conservatives within the Republican Conference that legislation sent to the president will be consistent with the views of a majority of the Conference. On dozens of issues ranging from trade with Cuba to Canadian drug imports and the raising of the minimum wage, the majority position in the Republican Conference is not the majority position of the full House. Preventing the House from producing legislation that reflects the views of its Members requires circumventing a body of rules and procedures developed in the past 215 years.

The House was intended to be the centerpiece of our democracy. It can again function as a democratic institution if we return to the “regular order.” When even subcommittee chairmen don’t know the content of the legislation bearing their own name, the role of elected representatives has been diminished to the point that ordinary citizens can have little confidence that their views have any weight in decisions made by Congress.

Scott Lilly is a senior fellow at the Center for American Progress. In 1994 he served as clerk and staff director of the House Appropriations Committee. From 1995 to this past March he served as the committee’s minority staff director.