A Facebook for Federal Bureaucrats, or What Real Government Transparency Might Look Like

LikeWatching Aneesh Chopra rather lamely defend the Obama Administration’s record on its use of information technology on The Daily Show this week, I was struck by the same problem that Stewart was struggling with — the very slow pace of change, and the unmistakeable disappointment that has set in concerning the early promises that were made by the incoming Obama folks way back when about sunshine in government.

More recently, the debacle of the Obamacare rollout became Exhibit A of government’s incompetence at a time when faith in government to take action about Things That Matter was the issue being debated. Of course, those serious hiccups have now been more or less resolved, and millions have used the Web and other means to enroll in the much-demonized health care coverage.

Although not without its flaws, this is a major advance, both for the country and for covered families and individuals. Perhaps one day soon (though presumably not before we all re-live it via the next election cycle), these significant positives will block out our collective trauma over that massive technical fail.

Yet the overall picture — including Stewart’s example of rampant mismanagement of the databases on veterans at the Department of Defense and Veterans Affairs — is dismal. While some groups at the state and federal level like the Sunlight Foundation continue to make progress on interactive tools for impacting proposed legislation in Congress or a statehouse, the federal agencies today remain largely impenetrable fortresses, accessible to lobbyists and others who know the ropes, but inexplicably mysterious for most Americans.

The federal departments, commissions and agencies preside over the details of all the rules that most affect the lives of millions of Americans, deciding everything from auto and consumer safety standards to environmental and business rules. While they do have to conduct a public process (called notice-and-comment rulemaking) on the most significant decisions, much of their internal workings remain shielded from any real public disclosure. Only the true Washington cognoscenti — and the allies they inform — are aware of the timing of rules and the process for commenting.

The text of these proposed rules, and I’ve suffered through more than 70 of them over the years, are written in dense bureacrat-ese, typically with lamentable passive voice and ample application of jargon. Although they all live on-line at regulations.gov, understanding the issues and what’s at stake in particular decisions is a form of inside baseball that is so complex that it almost always gives organized corporate stakeholders an outsized role in decisions.

Even if the public at large would benefit from a decision, they are simply unlikely to know about or be able to join the debate in a manner that evens the playing field. Underpowered non-profits like the ones I’ve worked for struggle along, staging battles on principle and always aware of their limited resources and the political realities.

Of course, the public’s larger interest could be represented by the Congress, which doles out assignments to the agencies. And sometimes a very strongly written law does result in a rule that is not too watered down by the inevitable industry response. But many of the best laws were enacted by a prior version of Congress, often several decades ago or longer, and some are showing their age.

Yet advocates are, for the most part, too frightened by the politics and dysfunction of the current Congress to suggest that they be re-written. Thanks to the Supreme Court’s war on campaign finance limitations, the money of corporate donors speaks even more loudly on the Hill today than it does within the agencies.

Of course, for better or worse, the agencies also answer to an elected official — the President. They could be much more vigorous defenders of the public interest if allowed to be. Although they must heed the language handed to them by Congress, within those terms, they have tremendous power and discretion over their enforcement activities and priorities. But whenever they do wield power in ways that business interests find unreasonable (often with rules that merely require business to internalize the costs of their actions), the conventional script allows them to be accused of unaccountability, facelessness and all the rest.

It occurs to me, then, that the real goal of government’s use of information technology should be to give the government a face. Or Facebook. Or Facebook-like tool, without ads or annoying apps.

The real information gap in Washington is not about databases that should be shared by federal agencies, though that should certainly be addressed forthwith. The problem is that the map of influence and power — identifying the decision makers, their powers, and the ways to engage them — is utterly obscure except to an elite few.

Today, agencies often hide their internal processes behind an exemption in the Freedom of Information Act that covers agency “deliberation.” This is a legal privilege that can be — though need not be — invoked if a federal agency wants the freedom to think about an issue inside the government before coming to a decision. The notion has some merit, as we do want agencies to think.

But it would be no impediment to require the federal agencies that conduct public business to publish information on a Web site about which employees within an agency are tasked with which decisions, and to put all of their meetings and meeting notes with outside parties also on-line as a routine matter. The expertise of government employees, their backgrounds and work history could be included in this “map” of who is thinking about what. Not everyone would need to be listed, of course, just those with decision-making power. And perhaps there’s other information that would belong on these pages as well.

Simply put, it should be far simpler for ordinary citizens to understand the arcane workings of an agency on an issue of concern to them, and to contact the right official if they have relevant information. When I worked on automotive safety, one of the best sources of information were retired engineers, a few of whom had worked for automakers and knew how their decisions happened. They sometimes had extraordinary amounts of information about industry’s bad habits, but no one to tell. A truly transparent government structure might similarly elicit troves of surprising and useful information from sources that remain unidentified today.

Unlike combining millions of government records, this system could be built fresh across the agencies as new hires are made. I’m a staunch believer in the idea that most of our government’s civil servants are nobly trying to do the right thing. It would be of great assistance to our tired political debate about the “role of government” if the agencies looked less like blobs and more like real people doing their jobs — you know, the ones that Congress (and therefore, we the people) gave them.

With the unleashing of the money rules for elected officials thanks to SCOTUS, it’s also our next best line of defense. But the agencies today are under siege, and have been for decades. Figuring out how to engage the public far more directly in their important decisions would better equip them to stand up for their legal principles, and defend the actual public interests at stake. Who knows? It might even lead to some stronger health, safety and environmental rules, thereby showing government at its best.

The agencies have breathed life into accomplishments ranging from the Clean Water Act to the rules that took lead out of gasoline. It’s not that they don’t make mistakes (see No Child Left Behind), but we should be able to talk to them when they are screwing it up more directly. We need them to succeed and be understood, and not to be so easily demonized. As long direct conversations with agency officials are generally reserved for issue experts and corporate lobbyists, the democracy part of our project remains an up-hill fight both inside and outside their walls.

So innovate on that, please. Information transparency is nice — all well and good. Figuring out a workable, clear system to create influence transparency, however — now that’s a ticket for institutional transformation.

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Welcome to the Plutocracy

PlutocracyAs you may have heard, the Supreme Court yesterday ruled in McCutcheon v. FEC that wealthy individuals cannot be limited in the overall amount they can give to political candidates. The First Amendment, which last time I checked does not mention money at all, allegedly now bars any limitation on the total amount of moola that rich folks can shovel in the direction of elected officials.

The 5-to-4 decision split along political lines and overturned decades of settled law, as well as many state limits grounded in anti-corruption principles. The majority decision is rife with such broad (and utterly daffy) generalizations about the nature of speech and political life that it also makes clear that the Court is frighteningly likely, in the not-so-distant future, to strike down any kind of contribution limit.

The former aggregate contribution limit of merely $123,000 per federal election was such a drag on my own political giving, as I’m sure it was on yours. I totally had more money than that saved up to spend on every election cycle (I’ve been clipping coupons!), and I’m glad to see that all that green stuff I have laying around in piles can finally go to good use buying influence for my pet projects.

In truth, out of a country of 314 million, only 1,300 people maxed out the prior cap on political contributions in the last election cycle. What a crisis! I can see why the Supremes thought this decision was worth their time.

Of course, some of these large donors may be cursing the outcome, as their phones are already ringing off the hook, and now they won’t be able to escape pols’ persistent dial-a-thons until they’ve dished out $3.2 million, or 30 times the old limit. As Lawrence Lessig put it on Diane Rehm this morning, the decision narrowed the number of people who are at all politically relevant in the money race from the old high of a mere 120,000 people to an even smaller pool of 40,000, or about the number of people in the U.S. named Sheldon.

The Court’s majority opinion is an activist one in the classic sense, yet is oddly disingenuous about its impact on established law. The majority is also not above boot-strapping: yesterday’s decision relies on the secret flow of campaign funds created by Citizens United as a basis for taking down yet more limits, without acknowledging the situation was actually created by the Court.

And in a hypocritical break with oft-hyped principles of constitutional textualism, the Court ignored a key brief filed by Lessig that analyzed the Framer’s uses of the term “corruption,” instead delivering a decision out-of-step with the historical record. Indeed, the case is a harbinger of bad decisions to come because it signals that a key idea — that political money can create an “appearance of corruption” — has evaporated as a matter of law.

Even the dissenters appeared surprised that the Court’s official definition of political corruption now contains only outright bribery. (In fact, the erosion began when then-Solicitor General Elana Kagan threw a key case on appearance of corruption under the bus during the oral argument for Citizens United. Now the damage from abandoning a broader description for political corruption is plain.)

Still, cramped legal arguments aside, the level of cluelessness from the conservative majority about how Washington already more-or-less operates is breathtaking. What we all know in our hearts to be true is actually the case, and not just on House of Cards. To state the painfully obvious: I’ve been in a room in the Congress with a handful of big-money political donors, and seen with my own eyes how their influence is greater than that of 1000 mere voters, even when the money is merely in the background, and not on the table. These are the folks that Roberts thinks need protecting because they are despised — you know, like flag-burners and Nazis.

What he fails to acknowledge is that they are at the heart of the system, not its outskirts. The rich get different meetings, including sometimes in the Oval Office or with committee chairs, and with actual elected officials instead of staff flunkies. They get their phone calls returned, promptly. Meanwhile the rest of us, even those lucky Washingtonians who are officially designated advocates working on issues that a member of Congress or two is supposedly interested in, twiddle our thumbs, waiting around nervously for a return call like a shy schoolgirl from the 1950s.

As a 2012 brilliant TAL episode on the Washington shake-down pointed out, the open secret in Washington is that elected officials need donors more than donors (except, perhaps, the most craven ones) need them. The parties impose fundraising quotas on everyone, including specific levels of money to be raised by new members, committee chairs, and for leadership positions, and every lawmaker also must raise their own dough or look like a sitting duck. The post-Citizens United explosion in Super-PAC spending made this considerably worse — making every candidate more insecure because any one of them could face unknown amounts of last-minute spending by shadowy front groups.

Lifting the aggregate limits, as the Court just did in McCutcheon, may be even more damaging than the inevitable move to eliminate the remaining limits on direct contributions to candidates. Why? Because it substantially raises the potential value of very wealthy donors for larger groups of party electeds. The value of a donor, in the mind of every politician, is their ability to give early and often to the enterprise. Being able to turn-key a political gift to another pol through a joint fund-raising committee or other means is almost as good — and in some cases, might be even better — than collecting it for yourself, because it creates a new ally and obligation while supporting the party. Back-scratching, log-rolling, call it what you will — that’s the actual coin of the realm.

These factors also explain the inherent limits in the power of small donors under the current set of operating rules. And while the growth in smaller donors has been significant in Presidential elections, smaller gifts are harder to collect in less-publicized races. Even the recent efforts to organize smaller donations would have been unlikely to take root without many of the very reforms being struck down by the Court, reforms that, for a brief time, required political parties to look elsewhere besides to the rich and powerful for funds.

The major push for collecting political money emanates from and around Washington, not from individuals clamoring in the marketplace of ideas to be heard, as Roberts and his ilk conjure up in the opinion. When I was, briefly, a legislative director for an organization with a small PAC, I suddenly started getting voicemails from elected officials on my personal cell phone. “Hi, I’m Representative So-and-so,” they would say. “I would really love to talk with you about coming to my event next week.” After a decade of working around Washington advocating on important issues of public health, it was gratifying that actual members of Congress were now so keenly interested in my “political speech”!

I actually don’t fault politicians: it’s currently impossible to know who is really in Congress for the right reasons, because this is how we define their job. But the notion that this kind of routine exchange between two functionaries — sickening, undignified, and clearly self-interested in the narrowest sense — is about anybody’s First Amendment freedom is ludicrous. It’s a classic shake-down, often loathed by both sides, and legalized by an elaborate tap-dance that keeps everyone, barely, on the right side of what otherwise might look a lot like bribery.

Thankfully, in our own dear country (unlike in many places around the world) there is no shortage of political speech, either through money or the more traditional act of actually speaking. If anything, we talk our problems to death, until the solutions expire of boredom and inaction. Instead, the problem with the ineffectiveness of our politics has been, to mangle George Orwell, that some folks’ speech is more equal than others’.

Those who oppose change are often the ones who have the most to gain from stasis. So it makes sense that amassed wealth is inherently anti-reform, both because money represents a victory under the current rules of the game, and because the wealthy have the most — quite literally — to lose. When lawmakers’ livelihoods are roped inextricably to the continued success of the wealthy donors they must court to stay in office and keep their standing in Congress, there is little doubt that democracy has been replaced with something else, and that real change, no matter how justified, will be far harder to achieve.

It’s hard to see why a democracy captured by a few billionaires would care about the callousness of auto companies that fail to repair a defect that would have cost 90 cents per vehicle to fix and cost at least 13 people their lives, as in the recent case of the Chevy Cobalt. Or begin to address the pending catastrophe of climate change, or enact meaningful chemical reform, or do a thousand other difficult things that need to be done but impose real costs on the current economic winners in our system as it is.

Already in America, rich folks live more than a decade longer than the poor. While Roberts is waxing poetic about the First Amendment needing to pad further protections around the wealthiest .0004 percent (or 1300 out of 314 million), we must be building a movement for real and lasting change.

Although I’d been a skeptic on this strategy prior to this moment, I’m now hoping that the Court’s latest boneheaded decision will be enough to jump-start a social movement for a Constitutional Amendment clarifying that corporations really are not people and that the First Amendment doesn’t mean “freedom of money” when it clearly just says “freedom of speech.”

Without these eminently reasonable clarifications, we’ll have a Constitution and a Congress that only work for corporations and the very, very rich. While it’s a long haul to get an Amendment passed, where the Court is headed is clear. We can start to fight today, or lose our country as we know it someday soon.

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