The federal Information Quality Act and the Office of Management and Budget’s implementing guidelines require federal agencies to “ensur[e] and maximiz[e] the quality, objectivity, utility, and integrity of information” disseminated by the federal government. Supporters believe that the government often disseminates (and bases regulatory decisions on) low-quality and substandard information, and some say judicial review is essential to hold agencies accountable for implementing the law. Opponents see “the prospect of judicial review as another method to delay agencies from enacting important environmental protections.” They prefer that the law be unenforced by anyone. Both supporters and opponents understand that, like everyone else, government agencies pay less attention to laws that aren’t enforced.
But courts are not the only enforcement tool. Today’s story about secret holds preventing a Senate vote on, of all things, a bill mandating greater government transparency, offers some interesting parallels.
Senator Tom Coburn and (to date) 28 Republican and Democrat colleagues have sponsored S. 2590, which would require all recipients of federal funds in excess of $25,000 to be publicly disclosed through a searchable website. By January 1, 2008, OMB would be required to:
|ensure the existence and operation of a single searchable website, accessible by the public at no cost to access, that includes for each Federal award–
The primary purpose of this proposed website is to enable the public to track “earmarks,” special provisions inserted by Members of Congress usually to benefit their home districts. Earmarks have become a big issue among budget hawks and reformers. Definitions of earmarking vary, and S. 2590 would require public disclosure of all federal grants and contracts such that all plausible definitions of the term would be included.
The bill was approved unanimously by the Senate Committee on Homeland Security and Governmental Affairs. But according to an ironically titled Federal Times story (“Transparency bill subjected to secrecy”), it has encountered a snag because one or more senators has a secret hold on the bill, preventing it from being considered by the full Senate:
An unknown number of senators have blocked legislation to create a public, searchable Web site of all federal grants and contracts. Senate rules permit any senator to anonymously block consideration of a bill on the floor, effectively killing the measure.
The Senate itself helpfully defines a “hold” as:
[a]n informal practice by which a Senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The Majority Leader need not follow the Senator’s wishes, but is on notice that the opposing Senator may filibuster any motion to proceed to consider the measure.
Thus, the identity of the Senator(s) responsible for the hold is known by Sens. Frist and Reid, the Majority and Minority leaders, respectively, and probably numerous other Members. It is thus not a true secret, but rather information that the Senate prefers be kept secret from the public.
The editorial page of the Wall Street Journal draws attention to the hold (subscription may be required):
There’s a desperate new manhunt across the country, and the suspects are no less than 91 Members of the world’s greatest deliberative body. One of these Senators has a big secret, and we should all have some fun as the foes of government pork try to run the mystery politician to ground..
The Journal editorial board hopes to help flush out the identity of “the Senate’s masked spender,” believing that secrecy alone is what permits it to be sustained. Along with Porkbusters, the Journal is pressuring senators to publicly deny that they are responsible for the hold. So far, 13 Members have done so (including four since the Journal editorial was published today). As of 5:00 PM EDT, the list of senators deemed “in the clear” included seven who have sponsored S. 2590 and six who have not.
Of the bill’s 28 cosponsors, 21 are unwilling to publicly state that they do not have a secret hold preventing it from being considered on the floor. The list of sponsors communicating mixed messages is here.
Neutral Source doesn’t normally follow budget debates, but this one intersects with the our coverage of Information Quality Act implementation. The case may offer a lesson about whether judicial review is necessary to achieve IQA objectives. Judicial review is best understood as a regulatory tool in which affected parties would petition the courts to adjudicate disputes with Executive branch and independent agencies.
In the case of Senate holds generally (and S. 2590 specifically), judicial review is not a feasible regulatory tool. The policies and procedures of the United States Senate are not, and never will be, subject to judicial review. So other tools must be contrived if the conduct of senators is going to be regulated. What Porkbusters and the Wall Street Journal editorial board are testing is whether public disclosure (and potential public embarrassment) can be an effective regulatory tool. If public disclosure either unmasks the holder(s), or causes them to drop their holds to avoid public exposure, then we have a useful metric for success.
The Federal Times story says OMB supports the bill:
OMB spokeswoman Andrea Wuebker said the administration has long supported making federal grant and contract data publicly accessible.
“OMB’s goal is to ensure this information can be easily searched at a single location online, and we support these efforts to make government resources work more effectively for our taxpayers,” she said.
Of course, OMB does not need an act of Congress to compel the creation of this website. OMB’s Office of Information and Regulatory Affairs administers the Paperwork Reduction Act. The law directs OMB to:
oversee the use of information resources to improve the efficiency and effectiveness of governmental operations to serve agency missions, including burden reduction and service delivery to the public
In performing this function, the law says OMB shall “develop, coordinate and oversee the implementation of Federal information resources management policies, principles, standards, and guidelines.” See 44 U.S.C. 3504.
Developing a comprehensive database such as S. 2590 would require appears to be well within OMB’s existing statutory authority.
Sponsors and Cosponsors of S. 2590
|Coburn (OK)||Obama (IL)|
|McCain (AZ)||Carper (DE)|
|Santorum (PA)||Clinton (NY)|
|DeMint (SC)||Bayh (IN)|
|Sununu (NH)||Lieberman (CT)|
|Isakson (GA)||Kerry (MA)|
|Allen (VA)||Reid (NV)|
|Cornyn (TX)||Durbin (IL)|
|Frist (TN)||Boxer (CA)|
|Collins (ME)||Landrieu (LA)|
|Sponsors and Cosponsors||Non-sponsors|
|Coburn (R-OK)||Cantwell (D-WA)|
|Cornyn (R-TX)||Inhofe (R-OK)|
|Landrieu (D-LA)||Murray (D-WA)|
|McCain (R-AZ)||Shelby (R-AL)|
|Obama (D-IL)||Thomas (R-WY)|
|Sessions (R-AL)||Wyden (D-OR)|
|Allen (VA)||Bayh (IN)|
|Alexander (TN)||Boxer (CA)|