Posted by Jonathan Adler:
The End of Transparency (Before It Ever Began):
http://volokh.com/archives/archive_2009_06_21-2009_06_27.shtml#1246058209
Earlier this week, the White House officially abandoned [1]President
Obama's "Sunlight before Signing" pledge (which I discussed [2]here
and [3]here). As the NYT [4]reported:
During the presidential campaign, Barack Obama promised that once a
bill was passed by Congress, the White House would post it online
for five days before he signed it.
�When there�s a bill that ends up on my desk as president, you the
public will have five days to look online and find out what�s in it
before I sign it, so that you know what your government�s doing,�
Mr. Obama said as a candidate, telling voters he would make
government more transparent and accountable.
When he took office in January, his team added that in posting
nonemergency bills, it would �allow the public to review and
comment� before Mr. Obama signed them.
Five months into his administration, Mr. Obama has signed two dozen
bills, but he has almost never waited five days. On the recent
credit card legislation, which included a controversial measure to
allow guns in national parks, he waited just two. . . .
Now, in a tacit acknowledgment that the campaign pledge was easier
to make than to fulfill, the White House is changing its terms.
Instead of starting the five-day clock when Congress passes a bill,
administration officials say they intend to start it earlier and
post the bills sooner.
�In order to continue providing the American people more
transparency in government, once it is clear that a bill will be
coming to the president�s desk, the White House will post the bill
online,� said Nick Shapiro, a White House spokesman. �This will
give the American people a greater ability to review the bill,
often many more than five days before the president signs it into
law.�
The Administration also [5]appears to be backing off its promises for
greater access to government documents under the Freedom of
Information Act (FOIA).
One argument for modifying (abandoning) the "Sunlight before Signing"
policy is that the public no longer has any meaningful opportunity to
influence prospective laws once legislation has passed Congress. Yet
this is only true if the White House does not intend to be responsive
to public concerns. Further, the original pledge was about ensuring
that the executive branch did its part to ensure transparency and
accountability in government, and was never pitched as a substitute
for actions Congressional leaders could take to increase legislative
transparency.
The explanation of the policy change also presupposes that there is
meaningful opportunity for public involvement while legislation is
still pending and subject to revision. Yet as the debate over the
Waxman-Markey climate change bill illustrates, this is not a fair
assumption. As [6]Jim notes below, the House is preparing to vote on
an 1,000-plus-page bill that was subject to a 300-page amendment last
night -- an amendment that was not even available to many members of
Congress until today. Most members of Congress have had no meaningful
opportunity to read, let alone digest, the bill. The same is true for
most legislative staff. Forget the public.
If legislation of this sort, which establishes the first-ever
regulatory controls on the most ubiquitous byproduct of modern
industrial society, imposes new efficiency requirements on all-manner
of appliances and consumer products, could trigger the imposition of
tariffs on foreign products (likely in violation of U.S. trade
commitments), furthers the federal government's environmentally
destructive love affair with corn-based ethanol, contains numerous
provisions drafted or urged by various special interest groups, and
(at least in one version) contained provisions designed to create a
[7]national housing code, can be adopted by a House of Congress within
hours of being written (let alone becoming public), then any claim of
transparency in government is a farce.
References
1. http://www.youtube.com/watch?v=o5t8GdxFYBU
2. http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234995205
3. http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1240847775
4. http://www.nytimes.com/2009/06/22/us/politics/22pledge.html
5. http://www.newsweek.com/id/202875
6. http://volokh.com/archives/archive_2009_06_21-2009_06_27.shtml#1246047107
7.
http://www.volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244473348
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