D.C. Court Rejects OMB Assertion of FOIA Exemptions

 

Today, the DC Circuit court reissued an opinion in Public Citizen v. OMB that rejected the agency’s use of exemptions 2 and 5 of the Freedom of Information Act (FOIA).  OMB had attempted to withhold information from Public Citizen that detailed which agencies submit materials to Congress without clearance by OMB.  This court case adds an important legal support to the FOIA practice of discretionary disclosure.

Exemption 2 of the FOIA allows agencies to withhold information concerning internal personnel rules and practices while exemption 5 applies to inter- and intra-agency materials that are pre-decisional and deliberative.  However, the DC Circuit found that the records have nothing to do with OMB’s internal practices.  Further, for exemption 5 to apply the records must be both pre-decisional and deliberative which do not apply in this instance.  Therefore, neither exemption can apply to these records in full.

This case is an important one in that it limits the way these specific FOIA exemptions can be used by agencies to withhold information from the public.  Government openness advocates have long argued that these exemptions are applied too broadly by agencies. 

Although the Obama administration has attempted to better define the applicable uses of these exemptions, advocates have not seen a decline in their actual assertions.  The Office of Information Policy at the Justice Department released a memorandum last May that instructed agencies to exercise greater discretion to release information under both of these exemptions if there would be no reasonably foreseeable harm from release.  Far too often, agencies will use exemption 5 to withhold records in their entirety when only part of the information in an entire document might actually fall under that exemption.  Further, agencies usually take vast liberties to apply exemption 2 broadly and withhold information that could inform the public in regard to activities of the government.  Hopefully this case will help push agencies to better comply with executive branch FOIA policy.

(Roger Strother 03/12/10; 0 comments)

More Congressional Hearings to Address Citizens United

 

The Senate Judiciary committee held a hearing tilted, "We the People? Corporate Spending in American Elections after Citizens United." During the hearing opponents of the ruling argued that the case exemplified that the Roberts Court has abandoned judicial restraint. Conversely, witness Bradley Smith, described the responses to the Citizens United decision as "hysteria." Smith also caused hysteria during the hearing when he referenced Vermont legislators as "freaking out" about the decision. This incited a heated exchange between Smith and Chairman Patrick Leahy (D-VT). Leahy interrupted Smith, disagreeing with the characterization of Vermont legislators.

Substantially, the panelists somewhat agreed that it will be very difficult to pass any major legislative changes. Any new campaign finance law is likely to face a legal challenge.

According to BNA Money and Politics ($$), Democratic senators maintained that the decision "represents a major boost to corporate influence in American politics, which is deeply unpopular with their constituents."

In addition, the House Financial Services subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises held a hearing which primarily focused on the issue of whether corporations should have to report their expenditures to shareholders. A member of the committee, Rep. Mike Capuano (D-MA), has introduced the Shareholder Protection Act of 2010, (H.R. 4790) requiring shareholder approval of corporate expenditures and boards of directors would have to vote on political spending over $50,000.

Again, any legislation is sure to face an uphill battle and possible future litigation. The expected measure from Sen. Chuck Schumer (D-NY) and Rep. Chris Van Hollen (D-MD) after the release last month of a summary of their proposals has yet to be introduced. CQ ($$) reports that the lawmakers are "sorting through the concerns of labor unions, nonprofit organizations and lawmakers as they try to write legislative language and line up cosponsors from both parties."

(Amanda Adams 03/11/10; 1 comment)

Vehicle Greenhouse Gas Rule Sent to White House for Final Review

 

The Obama administration is nearing completion of a major federal regulation of greenhouse gas emissions for the first time in U.S. history. The Environmental Protection Agency and Department of Transportation will jointly issue a rule regulating vehicle emissions by mandating increases in fuel efficiency over the coming years.

Tuesday, EPA and DOT’s National Highway Traffic Safety Administration submitted a draft final rule for review by the White House Office of Information and Regulatory Affairs (OIRA), the last step in the rulemaking process before publication. The rule must be published by April 1 in order to give automakers enough time to comply with the rule’s requirements for model year 2012 vehicles.

In the proposed rule, EPA estimated the standards would reduce climate changing greenhouse gas emissions by 950 million metric tons and 1.8 billion barrels of oil for cars sold in the model years covered (2012-2016).

The environmental gains aren’t the only benefits worth noting; drivers’ budgets will benefit too. Under the proposed rule, DOT estimated fuel cost savings of more than $150 billion.

The joint rules have the support of both environmentalists and the auto industry who came to an agreement in May 2009. Environmentalists persuaded the administration to use California’s vehicle emissions program, which had never been implemented, as a model for the federal regulations. Even though automakers had objected to the California plan, they signed on because they wanted one standard applied to all 50 states.

(Matthew Madia 03/11/10; 0 comments)

Advisory Council Provides Recommendations on Faith-Based and Community Organizations

 

The Chronicle of Philanthropy ($$) details the President's Advisory Council on Faith-Based and Neighborhood Partnerships' new report offering suggestions for the government in its work with charities. The panel provided a 164-page document which included recommendations to ensure that religious charities use government money only for secular activities.

The panel was split on whether houses of worship should be required to set up separate organizations to receive federal money. The report also suggests the federal government "clarify how the constitutional separation of church and state applies to charities that receive government grants and contracts." Charities are not allowed to use direct government money for "inherently religious activities" but, the council proposed that wording be changed to "explicitly" religious activities.

One of the report's recommendations dealt with the proposed Partner Vetting System (PVS), a program that OMB Watch has opposed. PVS would require grant applicants to submit detailed personal information on "key individuals" to be shared with intelligence agencies and screened against terrorist watch lists. The panel rightfully advises that the government work with nonprofits to create an alternative to PVS. "PVS as currently designed would significantly harm partnerships with local communities and compromises the safety of U.S. PVO [private voluntary organizations] personnel."

(Amanda Adams 03/11/10; 1 comment)

Earmarks: Inherently Bad or Just Broken?

 

You can always tell when the appropriations season is approaching because, somehow, earmarks, the shadowiest part of the appropriations process, always find a way of sneaking back into the political discourse. True to form, as we wait for Congress' budget resolution, today saw both the Democrats and Republicans announcing their own earmark reform plans. The House Democrats, through Congressman David Obey, chairman of the Appropriations Committee, announced that they would be forbidding earmarks to for-profit organizations. At the same time, House Republican Leader John Boehner announced that his caucus was considering an outright ban on earmarks from House Republicans.

Both actions seem like an overreaction. While there was indeed earmark abuse, all for-profit entities were not abusing them, and the House Democrats' actions seem to be punishing those who were following the rules. Also, as a recent New York Times article on the Congressional Black Caucus Foundations suggested, not all non-profits are perfect angels. And banning all earmarks completely won't get rid of corruption or influence-peddling; the most famous recent such scandal, involving Jack Abramoff, wasn't about earmarks.

We at OMB Watch don't take a strong stance either way on earmarks, so we're not going to endorse either party's proposal. What we care about is transparency. As long as everything is transparent and above-board, we're okay with it. But right now, the earmark process could be a lot more transparent.

The problem is that it can be difficult to tell who requests which earmark. In 2009, Congress mandated that Members disclose their earmark requests online. This should have solved the transparency problem, but instead of providing the data in one place, the new rule left it up to each Member to post their earmarks on their individual websites. This meant that there were now 535 different websites listing earmark requests.

To help fix this new problem, Obey's announcement banning earmarks for for-profits also included a promise to provide a "one-stop" link to all Members' earmark requests. While it's not clear what how this promise will be executed (one page with every Member's earmark requests, or one page with links to each Member's website which lists their requests?), we're hopeful it's similar to the principal behind a petition OMB Watch just signed onto. The petition calls on Congress and the Obama administration to make public all earmark information, in one place, in a data-readable format. This information, the "who, what, when, where" of every earmark, could be used by everyone from journalists to advocates to ordinary citizens to actually make the earmark process transparent. It's a great idea, and getting support for the petition is important. Even if Obey releases all earmark information in one place, we still need the Senate data, since Obay's power is only over the House appropriations bills. So go sign the petition, and help bring transparency to the earmark process.

Image by Flickr user johnmuk used under a Creative Commons license.

(Sam Rosen-Amy 03/10/10; 0 comments)

CTJ Shows Tax Proposals in Rep. Ryan's 'Roadmap' Lead to Disaster

 

In a report released yesterday, Citizens for Tax Justice (CTJ) critically examined the tax policies proposed recently in Rep. Paul Ryan's (R-WI) budget alternative, titled conventionally, "A Roadmap for America's Future." Claims of the proposal "balancing the budget" and "reforming entitlements" have already been thoroughly debunked, but CTJ has contributed a valuable analysis of the young Republican's tax policies, which will actually cost the government "$2 trillion over a decade even while requiring 90 percent of taxpayers to pay more" than they already do in taxes.

Luckily, No One was Hurt...

How does Ryan, the ranking member on the House Budget Committee, accomplish this stunning feat? Steve Wamhoff, the report's author, argues that Ryan's proposal reduces federal receipts and outlays to recklessly low levels, while pumping money into the pockets' of the nation's wealthiest citizens. Ryan, according to Wamhoff, structures this disaster of a budget proposal around four main tax policies: extension of all Bush Tax Cuts; introduction of a "simplified" tax as an alternative to the personal income tax; elimination of the estate tax; and replacement of the corporate tax with a value-added tax (VAT).

I know we're just beginning to see signs of an economic recovery, but that doesn't mean that it's time to start providing tax relief to those making over $250,000 a year. Extension of the Bush Tax Cuts for the wealthiest Americans makes little sense when you examine the cost to government in the form of lost revenue and the unsustainability of claims that rich people use most of their money to create jobs. In light of Ryan's other regressive tax policies in the proposal, though, I suppose we should be grateful that he just didn't reverse President Obama's plan and only extend the Bush Tax Cuts for those making over $250,000.

The effects of Ryan's "simplified" income tax competing with the traditional income tax make the proposal, according to Wamhoff, anything but simple. The plan reduces taxes for all but the poorest Americans and takes more money from you the wealthier you are, but the benefits of the system are extremely regressive compared to the current income tax structure. Moreover, the competition of the "simplified" tax would actually complicate matters as people tried to shift from one system to the other depending on which one required the least amount of tax liability.

I have exhaustively chronicled how elimination of the estate tax would benefit only the wealthiest of Americans and drastically hurt the government's bottom line, all while discarding one of the only checks on the accumulation of wealth – and, therefore, power – in this country. Replacement of the corporate tax with a consumption or VAT for business would create a regressive tax that would overwhelmingly hurt the poor and middle class, as businesses would be able to shift what was once a tax on them onto consumers.

Critics have been beating up on Rep. Ryan's budget proposal since he released it back in February, but, as Matt Yglesias noted earlier today, it's important to consider that in the not-too-distant future, Ryan could be writing budgets for a GOP majority, "presumably animated by the same moral principles that led him to this idea." That is a scary thing.

Image by Flickr user Juan Nosé used under a Creative Commons license.

(Gary Therkildsen 03/10/10; 1 comment)

Fun with Recovery Act Tax Expenditure Graphs!

 

The Recovery Board, via the Office of Tax Analysis, has a new set of snazzy charts and graphs breaking down Recovery Act tax obligations, from March to December 2009. There isn't anything particularly newsworthy in these charts, since we've known the relative sizes of the expenditures for a while now, but they are very useful in seeing the expenditures over time, which is a new trick. I added part of one of the more interesting charts below; just be aware that more current estimates place the tax expenditure amount obligated closer to $120 billion.

The main take-away from the chart is that thus far, the Making Work Pay credit is far larger than any other single credit, with only all business tax credits combined coming close to it. This should continue for the rest of the Act's life.

Speaking of charts, I have to admit that the Board has been pretty good about putting up visual guides to the Recovery Act. Each new release of recipient data is accompanied by a set of charts showing the composition of the current release, and comparing it to earlier quarters. But the Board has an almost bewildering amount of data at its disposal, and I'd love to see them do more with it. For instance, it would be great to see a set comparing the federal agencies by project status. The site has an excellent set of charts on the late reporters, showing them by funding type (grant, loan, or contract) and by recipient type (prime or sub), but what if they expanded it out to include by agency or by state? I know ideas like these are why the Board made the recipient reports available for public download, so that groups like OMB Watch can take the data and do interesting things with it, but while we're working, why can't the Board take a crack at it itself?

(Sam Rosen-Amy 03/09/10; 0 comments)

What Happened to Obama’s Commitment to Scientific Integrity?

 

Today, March 9, is the one-year anniversary of President Obama’s scientific integrity memo which instructed his staff to produce within 120 days recommendations for ensuring independence of federal scientists and limiting political interference in their work. 365 days later, we’re still waiting.

expect delays The Union of Concerned Scientists is critical of the delay. Francesca Grifo, director of UCS’s scientific integrity program, had this to say:

While the new administration has been generally supportive of scientific integrity values, it's moving too slowly to establish badly needed reforms. The current system still discourages scientists from communicating about their research results, for example. It still keeps the public in the dark about the scientific basis for policy decisions, and it still rewards staffers who keep quiet about political interference in science. 

The criteria Obama laid out in his March 9, 2009, memo are admirable: hiring and keeping qualified scientists; defining new policies to ensure integrity; using “well-established scientific processes” like peer review; disclosing scientific findings; ensuring that scientific integrity principles are being adhered to; and adopting additional policies like whistleblower protections.

But by failing to follow up with a concrete set of reforms, Obama and John Holdren – the Director of the Office of Science and Technology Policy who was tasked with developing recommendations – are sending a terrible message to those who believe scientific integrity ought to be a priority for this administration.

Interference in science reached new heights under President George W. Bush; but just because Bush is gone does not mean the problems go away too. As OMB Watch discusses in the latest issue of our e-newsletter The Watcher, a new report from the Project on Scientific Knowledge and Public Policy (SKAPP) proves that much work remains. SKAPP interviewed federal scientists during both the Bush and Obama administrations, and found that although there were a few bright spots in scientists' views of the changes that had occurred, a majority felt similar frustrations.

Couple this delay with the now year-plus delay on Obama’s effort to improve the regulatory process by writing a new executive order, and my outlook on the administration’s commitment to government reform is dimming.

Photo by Flickr user davidfntau. Used under a Creative Commons license.

(Matthew Madia 03/09/10; 0 comments)

Outspent: An influx of Money to the U.S. Chamber of Commerce

 

The LA Times reports on the U.S. Chamber of Commerce's growing grassroots initiative, Friends of the U.S. Chamber, which "has begun to rival those of the major political parties, funded by record-setting amounts of money raised from corporations and wealthy individuals."

"The chamber has signed up some 6 million individuals who are not chamber members and has begun asking them to help with lobbying and, soon, with get-out-the-vote efforts in upcoming congressional campaigns."

According to the article, the group's successful fundraising can be attributed to the administration's legislative initiatives and the recent Supreme Court ruling that corporations may now directly advocate for the election of candidates for federal office. "Industries that are the most directly affected by Washington policies and regulations -- pharmaceuticals, for example -- have always spent lavishly on lobbying and politics. But many others have held back, deterred by concern over violating the complex laws on campaign spending and by a general sense that putting money into politics might open companies to criticism."

As predicted, corporations will increasingly contribute money to the chamber, which then produce ads targeting candidates without disclosing the identity of the donors. Inevitably, the article suggests this system "suggests a rocky road for legislation to require more transparency."

(Amanda Adams 03/09/10; 0 comments)

ACUS Chairman Confirmed

 

On March 3, the Senate confirmed Paul Verkuil to serve as chairman of the Administrative Conference of the United States (ACUS). The confirmation was approved by unanimous consent. The term for ACUS chairman lasts five years.

Most recently, Verkuil worked for the law firm Boies, Schiller & Flexner LLP. Click here for a bio.

ACUS was created in 1968 as an independent agency with a small staff assisted by outside experts in administrative law, government processes, judicial review and enforcement, and agency regulatory processes. The conference had a reputation for producing high-quality, independent, nonpartisan analysis and is credited with issuing more than 200 recommendations, many of which were implemented, as well as a variety of reports and studies on how to improve government. ACUS advocates say that the reforms ACUS recommends save the government more money than it takes to fund the agency (usually only a few million dollars). ACUS was dismantled in 1995 as part of Newt Gingrich’s contract with America.

ACUS was resurrected in 2008, but, without a new leader, it has been unable to get to work. President Bush did not nominate anyone to lead ACUS, and President Obama did not nominate Verkuil until Nov. 3, 2009.

Now, it looks like ACUS can finally get on its feet. The agency has a $1.5 million budget for the remainder of FY 2010, which goes until Sept. 30, 2010. However, any leftover funds may be used in FY 2011.

I think it’s important that ACUS begin working before Congress starts voting on FY 2011 spending bills, otherwise, it may risk losing funding next year. (At the very least, ACUS could launch a website, even a primitive one, quickly and cheaply.) In a year when politicians will be apt to seize upon any reason to make it appear as though they are cutting spending, it’s critical that ACUS have something tangible to show appropriators.

(Matthew Madia 03/09/10; 0 comments)