Will UK Scandal Impact Congressional Transparency?

          Although it has not received a great deal of attention here, a major scandal has rocked the British Parliament in recent weeks.  The scandal has its roots in a request several years ago by a free-lance journalist named Heather Brooke, who used the newly enacted British Freedom of Information Act to ask for records of taxpayer-funded expenses of Members of Parliament.   To enforce her rights, Ms. Brooke was forced to go to court, where she ultimately prevailed.  Before the House of Commons actually complied with the court ruling, however, someone provided a British newspaper with a breakdown of MP expenses, which revealed what the NY Times called “a rich tale of politicians exploiting a lax system of expenses to claim a mind-boggling array of benefits.”  (My favorite is an MP named “Hogg” who was reimbursed for the cost of clearing the moat at his country home). 

            It is worth noting that although the United States has had FOIA for decades longer than Britain, our version does not apply to the legislative branch at all.  This has led some journalists to “wonder if Brooke’s work in England could come back to haunt the U.S. Congress.”  Last week Paul Blumenthal of the Sunlight Foundation drew the connection between the lack of transparency in Britain and that in the U.S. Congress.  He pointed out that the Sunlight Foundation had been asking for months that the House put online the Clerk’s Quarterly Statement of Disbursements, which is currently available to the public only in hardcover volumes which can be viewed at the Legislative Resource Center or purchased from GPO.

And what do you know, Speaker Pelosi decided yesterday to send a letter to the Chief Administrative Officer of the House directing him “to publish the quarterly Statement of Disbursements for the House of Representatives in an online format at the earliest date.”  As John Wonderlich of Sunlight notes. “Speaker Pelosi’s move should be interpreted as a recognition that public information — even potentially embarrassing information about how Members spend public funds — should be truly accessible to the general public, which means online.”  One might also interpret the move as reflecting a need to show a commitment to transparency in light of what has occurred in Britain.

The fact remains, however, that American citizens who wish to obtain access to non-public information from the House or Senate cannot use FOIA for that purpose.   No doubt there are many MPs today who wish that the same were true in Britain.

CREW to Me- Don’t Confuse Us with the Facts

            The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky.  Entitled “WITH VISCLOSKY’S SUBPOENA, CREW ASKS — WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?,” the essence of CREW’s point seems to be that it is per se improper for House Counsel to be involved with Speech or Debate or other privilege issues in connection with a criminal investigation of a Member of Congress.  According to CREW director Melanie Sloan, “Although members of Congress campaign against the ‘culture of corruption,’ behind the courtroom door — and out of the public eye – the House Counsel, acting on behalf of both the Speaker of the House and the Majority Leader, routinely steps in to protect members who have abused their offices and the public trust from prosecution. The Republicans and Democrats may not see eye-to-eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”

            As a former senior counsel in the House Counsel’s office, I know a little bit about this subject so I telephoned Naomi Seligman, who is listed as the CREW contact person for this issue.  Had Ms. Seligman cared to speak with me, I could have explained to her the House Counsel does not represent Members of Congress in criminal investigations.  If Visclosky is a potential target of the grand jury investigation (which appears to be the case), the House Counsel will be unable to represent him due to the potential conflict between his personal interests and those of the House as an institution.  Accordingly, CREW’s statement that “if recent history is any guide, the House Counsel will soon step in and move to quash the subpoena” is simply false.

            If Visclosky should decide to move to quash the subpoena in whole or in part, the motion would be made by his personal counsel.  It is not uncommon for personal counsel to consult with House Counsel on this issue, given the latter’s expertise in Speech or Debate issues, but in my experience the decision is in no sense made by House Counsel (or by the Speaker to whom the House Counsel reports).  It is true that if a motion is filed, and an issue deemed of institutional significance to the House is raised, the House Counsel may file an amicus brief on behalf of the Speaker and/or the Bipartisan Legal Advisory Group.  

            Perhaps CREW has intentionally distorted its news release for purposes of making its point in the most simplistic way possible.  But if it were interested in actually understanding the process it is criticizing, I would have been happy to explain it to them.  But the gentleman who answered the phone refused to allow me to speak with Ms. Seligman, saying that she only speaks with “the press.”  Nor was he willing to let me speak with anyone else knowledgeable about the release (despite my explaining the reason for my call). 

            I guess that CREW is too busy preaching openness and transparency to practice it.

Stimulus “Lobbying” by Members of Congress

            As mentioned in my last post, it is possible that the new guidelines on stimulus lobbying will apply to Members of Congress and thus prohibit agency officials, during the period that competitive grant applications are being evaluated, from engaging in oral communications with Members and their staffs about the applications.  (This thought was suggested by Senate staffer Tom Jones on the google group of the Open House Project).  As a policy matter, this would make sense because using congressional influence would be an obvious way for applicants to try to affect the award of stimulus funding.  This is particularly true if applicants are limited in their ability to approach agency officials directly. 

            Enforcing such a limitation on Members of Congress and congressional staff, however, is tricky.  As a practical matter, it is difficult for agency officials to refuse to take meetings with Members and staff, or to demand that the subject matter of such meetings be limited.  Even if there were a prior agreement to respect the restrictions of the executive branch rules, it would be relatively easy to circumvent them.   As in, “I know that I am not allowed to talk to you about my constituent’s excellent grant application, but I just wanted you to know that I will be very disappointed if it is not approved.” 

            Moreover, it is unlikely that congressional actors would suffer any consequences even if they were to blatantly violate the executive branch rules.  Although the House and Senate Ethics Manuals warn Members that certain types of administrative proceedings do not permit ex parte communications with agency officials, they stop short of suggesting that such communications would violate congressional rules or result in disciplinary action.  In fact, as the Senate Ethics Manual points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.”  (This statement must now be qualified by the fact of the Senate Ethics Committee’s admonishment of Senator Domenici, but it is doubtful that this precedent would be applied in the absence of aggravating circumstances beyond merely providing assistance to a constituent).    

            So how can the administration ensure that Members of Congress do not undermine the intended effect of the stimulus lobbying restrictions?  One possibility would be to require agency officials to publish information about stimulus-related contacts by Members of Congress, just as they are required to do with respect to contacts by registered lobbyists.  The published information could identify instances where Members or congressional staff sought to communicate about specific grant applications in violation of the executive branch rules.  Such disclosure might deter congressional attempts to circumvent the rules or, at a minimum, would alert competitors to the tactics being used in order to win grant proposals.

Changes to Obama Policy on Stimulus Lobbying

            John Wonderlich of the Sunlight Foundation posts regarding potential changes to the Obama policy on stimulus lobbying.   There are two basic aspects to these changes, as announced by WH special counsel Norm Eisen on May 29, 2009.  First, the administration proposes to extend the ban on oral communications regarding certain stimulus matters “to contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.”  This means that whatever the restrictions are on oral communications, they will apply equally to registered lobbyists, non-lobbyists with an interest in stimulus projects (e.g., company executives), and others who might want to influence the process (Members of Congress?). 

            Second, there would be a narrowing of the subject matter covered by the ban on oral communications.  According to Eisen, the restriction on oral communications would be limited to the period “after competitive grant applications are submitted and before awards are made.”  This seems to be a much narrower restriction than under the current policy, which applies, without time limitation, to all oral communications regarding “particular projects, applications, or applicants for funding” under the stimulus bill. 

            As Wonderlich points out, the first change suggests a recognition by the Obama administration that its attempt to distinguish between communications of registered lobbyists and those of non-lobbyists is unrealistic and unfair:

            Relying on the distinctions of the Lobbying Disclosure Act (which defines who must register as a lobbyist) was too easy to skirt, since the influential are often not lobbyists. This was one of the main complaints from CREW, ACLU, and ALL, who suggested lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.” 

            One wonders whether the administration will revisit some of its other policies that arbitrarily discriminate against registered lobbyists. 

It is also worth noting that by applying equally to both lobbyists and non-lobbyists, the new policy would also seem to be an improvement from a First Amendment standpoint.  The main First Amendment concern with the current policy is that it arbitrarily prevents one group from petitioning the government.  The new policy, on the other hand, restricts all oral communications from any source during the period when specific applications are being evaluated.  This seems much more like a requirement that a particular proceeding be conducted “on the record,” which would not appear to raise any serious constitutional concerns.