Thoughts on a draft WH order on campaign finance disclosure

[Daniel Schuman]

Hi everyone,

We're interested in your thoughts on a draft (leaked) WH executive order that attempts to respond to the huge gaps in public disclosure revealed by the Citizens United decision. John's blogpost is below, and the EO is here http://bit.ly/fyqyXT. We've called for 72 hours for the public to examine and revue any EO that is intended as a response to Citizens United.

Looking forward to your thoughts. Thanks,

Daniel

Daniel Schuman
Director | Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

Recent Blog Posts

Sunlight: White House Should Release Executive Order Online Before Issuing It

John Wonderlich

April 20, 2011, 11:52 a.m.

We found out yesterday that the White House is considering issuing an Executive Order in response to last year's Citizens United decision.

Presidential action would be an appropriate response to the huge gaps in public disclosure revealed by the Citizens United decision, and the Senate's subsequent blockage of the DISCLOSE Act response.

If the White House is going to pursue remedies through an Executive Order, though, the public should be included in that process as well. Campaign finance disclosure should be designed to serve the public, so some public scrutiny and discussion of any CU EO should precede its issuance. (Yesterday's release is insufficient.)

Sunlight is calling for at least 72 hours for the public to examine and review any EO in response to CU.

It's likely that the opposition to this EO will paint it as motivated by partisanship and not transparency, and posting the draft online would demonstrate some good faith in preparing an executive response.

Sunlight certainly has specific issues we'd like to see addressed in the response, as we're sure others do as well. (Timely disclosure of contribution and expenditures comes immediately to mind) But for right now we'd like for everyone to have a chance to evaluate an official proposal before it is released.

Executive Order: Disclosure of Political Spending by Government Contractors

[Mark Tapscott]

At risk of - again - being the skunk, folks, the Politico hed says it all - the White House wants to limit (some) political donations (but not others). The effort to find a way around the Citizens United decision in order to use the full force of federal might to silence a form of political speech reminds me of W.C. Fields, who upon being found thumbing through a Bible explained that he was "looking for loopholes."

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[Daniel Schuman]

I'm kinda curious about what this rule does and doesn't do. It appears to require all kinds of disclosure, but I don't see where it is going to silence political speech. Are you concerned that fact of disclosure itself is going to make people less reluctant to talk; or is it that you are concerned about the burden necessary for disclosure; or is it something else?

Daniel

Daniel Schuman
Director | Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

[Mark Tapscott]

Both and more. There are legitimate reasons for anonymity (fear of official reprisal being the first to come to mind). The increased regulatory burden in and of itself. And most important, further legitimizing government regulation of speech (Camel under the tent, though it's at about the first hump now).

Do you think it's appropriate for the government to establish a political litmus test for the awarding of its contracts?

[Daniel Schuman]

For me, and I'm not speaking for anyone else, imposing a disclosure requirement on those who contribute or expend $5k annually is not unreasonable when balanced against the public's right to know and the usefulness of deterring corruption and the appearance thereof. (This is underscored by the fact that we already require disclosure over $250 in other contexts.)  I would be more persuadable if you made a first amendment argument against a ban on contributions or expenditures, but no ban is contemplated in this draft EO.

Similarly, I think there are burdensome and relatively burden-free ways to impose reporting requirements. Without more info, I (speaking for myself, again) would want to see how the reporting requirements would be structured, but such a requirement in the abstract is not a dealbreaker.

As for the question of litmus tests, the government already imposes all sorts of requirements on those it does business with. The Byrd amendment, for example, banned the use of appropriated funds by recipients of a "Federal contract" for purposes of influencing or attempting to influence federal officials in connection with a "Federal action." That seems entirely appropriate. We also impose all sorts of other requirements on contractors, from having a certain percentage of minorities and women, to complying with environmental regulations in a certain way, to not doing business with other countries that are our enemies.

So the ship has already sailed on the question of whether to impose political litmus tests on the awarding of contracts. Like everything else, those tests (in my opinion) are politically legitimate even though I may disagree with their ends or whether they are effective. 

I think the question that you're getting at is whether it's appropriate for the gov't to pick political winners and losers through the use of selective disclosure of the political contributions of those doing business with the government. If so, I dispute the premise of that's what's going on here. Instead, I would argue that it is reasonable for the gov't to make sure the contracting process is free from corruption and undue influence by requiring at least the remedy of disclosure of where the political dollars flow.

 
I think we may fundamentally disagree on whether people should be able to secretly put large sums of money into the campaign finance system. If you accept the premise that disclosure is valid at least in some cases, I'm not sure why you would draw the line here. 

Daniel

Daniel Schuman
Director | Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

[Mark Tapscott]

Daniel, are there, in your judgement, any amounts above $250 that could legitimately be left in anonymity? And why make the threshold $250 instead of $500? Or $1,000? What is the standard for determining the appropriate threshold?

[Daniel Schuman]

It was the judgment of Congress that $200 is the proper reporting level (I wrote $250, but I think it is $200). The standard for determining the appropriate threshold is ultimately a political one (made within our constitutional framework).

Were I king (putting aside the fact that these contributions and expenditures would no longer be necessary), I would weigh the disclosure burden upon individuals and any realistic chilling effects against the importance of limiting corruption, avoiding the appearance of corruption, and giving people reason to have confidence in their democracy. Weighing those factors, I would identify the least amount of money that could be politically salient. I'd probably say $100 for the primary and general election together, but $200 seems equally reasonable. Ultimately we'd count noses (or count congressman), compromise, take a vote, and end up with a number. 

Let's put the issue a different way. What's the most amount of money you would feel comfortable about flowing anonymously into the political system? $500? $1,000? $10,000? $100,000? When I see large numbers like $100,000  I get very worried that more is going on than the expression of a political preference. Where would you draw the line?

Daniel

Daniel Schuman
Director | Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

[Samuel Drzymala]

Please keep partisan missives off this list.  

Thanks very much.

[Bill Allison]

Couple of things that jumped out at me...

1) Why is there no disclosure for the political giving of grantees? 

2) What sort of enforcement mechanism (if any) would exist? My sense is that most contractors could get away with listing nothing more than what FEC disclosures already list and have little to worry about--or would the IRS check compliance by going through the nonpublic donor lists of 501(c)4 organizations? I suspect not, but if it did, would the partisans among us feel comfortable about the IRS fishing for information on political activity in the tax returns of groups that this or that administration might not like? (Aside for data enthusiasts: Imagine all the problems encountered in name matching...).

3) Contractors are already supposed to file disclosures indicating when they've hired an outside lobbyist to help them secure a contract (this is also covered in the Byrd Amendment Daniel refers to above). This is statutory language, and it's also worth noting that it applies to grantees as well as contractors. These lobbying disclosures are supposed to be open to public inspection. My colleague Anu and I spent a few months trying to get such disclosures, and never managed to--they didn't exist, they weren't filed, etc., even though we had quite a few LDA filings by outside lobbyists listing explicit contracting and grant-making actions they lobbied on. My sense is that contractors and the agencies that are wholly dependent upon them to function aren't particularly concerned about following every disclosure requirement, which makes me ask again, what kind of enforcement mechanism is envisioned?

4) If the spouse of the CEO of Lockheed Martin--or the gardener, chauffeur or cook--contributed $1 million to the Chamber of Commerce, would that have to be disclosed? As far as I know, there are no straw man provisions for donations to 501(c)4s in the same way that there are straw men provisions for campaign contributions, and the EO as drafted doesn't seem to address the question of disclosure for spouses. Another possibility: Part of the $1.1 million Lockheed Martin pays to an outside lobbying firm is donated to the Chamber of Commerce--would that have to be disclosed? That said, the Chamber gets most of its money straight from company treasuries, and I imagine that if the EO were followed, what we would mostly see is disclosure of the Chamber's donors, and those of other corporate trade groups. By no means am I opposed to that as it relates to political activities by the Chamber, but I would like to cast a much broader net. 

5) I find this language interesting, that requires disclosure of... "Any contributions made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications." We have already seen an independent expenditure committee that lists its sole donor as a 501(c)4 organization (my colleague Ryan Sibley wrote about the phenomenon here: http://reporting.sunlightfoundation.com/2010/dead-end-disclosure-super-pacs-biggest-giver-shadowy-nonprofit-l/). If I'm the CEO of Lockheed, and I contribute $1 million to the Daniel Schuman Better Government Committee, a 501(c)4 which does not make independent expenditures or electioneering communications, but does contribute funds to the Mark Tapscott Better Government Committee, an independent expenditure only committee, do I have to report the donation? From my reading of the EO, I don't think so--I gave to Daniel's group, whose mission is to support political engagement and the free market economy, but prominently advertises that it does not run political ads. It appears to me that this EO is aimed more at getting donors to groups like the Chamber of Commerce to disclose their donations, and makes shady operations like Daniel's (sorry, shady hypothetical operations) much more attractive. 

6) All that said, I don't have a problem with disclosure, and, pace Mark, I would like to have more information about the donors to Super PACs and 501(c)4s, and I don't think that's a partisan position at all (Mark, wouldn't you want to know whether the donors behind a group claiming to be conservative while viciously attacking the most electable conservative presidential candidate in Iowa or New Hampshire are actually longtime supporters of Democratic causes intent on sabotaging the candidate they worry most about?). That said, I do have a problem with poorly designed disclosure regimes, and if I can figure out (without breaking a sweat) a couple of ways around the E.O., I'm sure there are smarter people than me who have a dozen sharper schemes than mine. I suspect it would be wiser to develop a bipartisan approach through Congress rather than have the administration attempt to implement this on its own, as it opens the door, fair or not (I'm agnostic on this question), to criticisms exactly like Mark's.

[Jon Henke]

These are all interesting questions and points, but I wonder what the slippery slope looks like here. Are we counting hard and soft money donations? What about donations that go to political causes, but not electoral campaigns? What about in-kind donations?

If an anonymous donor gives $100,000 to distribute a publication saying "support this candidate/legislation", they have to disclose, right? What if that "publication" is a website? Does this mean gov contractors are forbidden from blogging anonymously? What about public sector unions or employees?

At what point does "government transparency" turn into "government mandates to restrict public privacy"? Cause it seems like we're getting awfully close to turning "government transparency" into a political weapon that can be used against political opponents.

Daniel Schuman <dsch...@sunlightfoundation.com> wrote:

>It was the judgment of Congress that $200 is the proper reporting level (I
>wrote $250, but I think it is $200). The standard for determining the
>appropriate threshold is ultimately a political one (made within our
>constitutional framework).
>
>Were I king (putting aside the fact that these contributions and
>expenditures would no longer be necessary), I would weigh the disclosure
>burden upon individuals and any realistic chilling effects against the
>importance of limiting corruption, avoiding the appearance of corruption,
>and giving people reason to have confidence in their democracy. Weighing
>those factors, I would identify the least amount of money that could be
>politically salient. I'd probably say $100 for the primary and general
>election together, but $200 seems equally reasonable. Ultimately we'd count
>noses (or count congressman), compromise, take a vote, and end up with a
>number.
>
>Let's put the issue a different way. What's the most amount of money you
>would feel comfortable about flowing anonymously into the political system?
>$500? $1,000? $10,000? $100,000? When I see large numbers like $100,000 I
>get very worried that more is going on than the expression of a political
>preference. Where would you draw the line?
>

>Daniel
>
>Daniel Schuman
>Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
>Policy Counsel | The Sunlight Foundation <http://sunlightfoundation.com/>

>o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

><http://www.facebook.com/sunlightfoundation><http://twitter.com/sunfoundation><http://www.youtube.com/sunlightfoundation><http://sunlightfoundation.com/join/><http://blog.sunlightfoundation.com/feed/rss/>

>
>
>
>On Wed, Apr 20, 2011 at 4:40 PM, Mark Tapscott <mark.t...@gmail.com>wrote:
>
>> Daniel, are there, in your judgement, any amounts above $250 that could
>> legitimately be left in anonymity? And why make the threshold $250 instead
>> of $500? Or $1,000? What is the standard for determining the appropriate
>> threshold?
>>

>>> I think the question that you're getting at is whether it's appropriate

>>> for the gov't to pick political winners and losers through the use of
>>> selective disclosure of the political contributions of those doing business
>>> with the government. If so, I dispute the premise of that's what's going on
>>> here. Instead, I would argue that it is reasonable for the gov't to make
>>> sure the contracting process is free from corruption and undue influence by
>>> requiring at least the remedy of disclosure of where the political dollars
>>> flow.
>>>
>>> I think we may fundamentally disagree on whether people should be able to
>>> secretly put large sums of money into the campaign finance system. If you
>>> accept the premise that disclosure is valid at least in some cases, I'm not
>>> sure why you would draw the line here.
>>>

>>> Daniel
>>>
>>> Daniel Schuman
>>> Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
>>> Policy Counsel | The Sunlight Foundation <http://sunlightfoundation.com/>

>>> o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

>>> <http://www.facebook.com/sunlightfoundation><http://twitter.com/sunfoundation><http://www.youtube.com/sunlightfoundation><http://sunlightfoundation.com/join/><http://blog.sunlightfoundation.com/feed/rss/>

>>>
>>>
>>>
>>> On Wed, Apr 20, 2011 at 3:51 PM, Mark Tapscott <mark.t...@gmail.com>wrote:
>>>
>>>> Both and more. There are legitimate reasons for anonymity (fear of
>>>> official reprisal being the first to come to mind). The increased regulatory
>>>> burden in and of itself. And most important, further legitimizing government
>>>> regulation of speech (Camel under the tent, though it's at about the first
>>>> hump now).
>>>>
>>>> Do you think it's appropriate for the government to establish a political
>>>> litmus test for the awarding of its contracts?
>>>>
>>>> On Wed, Apr 20, 2011 at 3:39 PM, Daniel Schuman <
>>>> dsch...@sunlightfoundation.com> wrote:
>>>>
>>>>> I'm kinda curious about what this rule does and doesn't do. It appears
>>>>> to require all kinds of disclosure, but I don't see where it is going to
>>>>> silence political speech. Are you concerned that fact of disclosure itself
>>>>> is going to make people less reluctant to talk; or is it that you are
>>>>> concerned about the burden necessary for disclosure; or is it something
>>>>> else?
>>>>>
>>>>>
>>>>> Daniel
>>>>>
>>>>> Daniel Schuman

>>>>> Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
>>>>> Policy Counsel | The Sunlight Foundation<http://sunlightfoundation.com/>

>>>>> o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

>>>>> <http://www.facebook.com/sunlightfoundation><http://twitter.com/sunfoundation><http://www.youtube.com/sunlightfoundation><http://sunlightfoundation.com/join/><http://blog.sunlightfoundation.com/feed/rss/>

>>>>>
>>>>>
>>>>>
>>>>> On Wed, Apr 20, 2011 at 2:07 PM, Mark Tapscott <mark.t...@gmail.com
>>>>> > wrote:
>>>>>
>>>>>> At risk of - again - being the skunk, folks, the Politico hed says it
>>>>>> all - the White House wants to limit (some) political donations (but not
>>>>>> others). The effort to find a way around the Citizens United decision in
>>>>>> order to use the full force of federal might to silence a form of political
>>>>>> speech reminds me of W.C. Fields, who upon being found thumbing through a
>>>>>> Bible explained that he was "looking for loopholes."
>>>>>>
>>>>>> On Wed, Apr 20, 2011 at 12:28 PM, Daniel Schuman <
>>>>>> dsch...@sunlightfoundation.com> wrote:
>>>>>>
>>>>>>> Hi everyone,
>>>>>>>
>>>>>>> We're interested in your thoughts on a draft (leaked) WH executive
>>>>>>> order that attempts to respond to the huge gaps in public disclosure

>>>>>>> revealed by the *Citizens United* decision. John's blogpost is below,

>>>>>>> and the EO is here http://bit.ly/fyqyXT. We've called for 72 hours
>>>>>>> for the public to examine and revue any EO that is intended as a response to
>>>>>>> Citizens United.
>>>>>>>
>>>>>>> Looking forward to your thoughts. Thanks,
>>>>>>>
>>>>>>> Daniel
>>>>>>>
>>>>>>> Daniel Schuman

>>>>>>> Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
>>>>>>> Policy Counsel | The Sunlight Foundation<http://sunlightfoundation.com/>

>>>>>>> o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

>>>>>>> <http://www.facebook.com/sunlightfoundation><http://twitter.com/sunfoundation><http://www.youtube.com/sunlightfoundation><http://sunlightfoundation.com/join/><http://blog.sunlightfoundation.com/feed/rss/>

>>>>>>>
>>>>>>> Recent Blog Posts Sunlight: White House Should Release Executive

>>>>>>> Order Online Before Issuing It<http://sunlightfoundation.com/blog/2011/04/20/sunlight-white-house-should-release-executive-order-online-before-issuing-it/> John
>>>>>>> Wonderlich <http://sunlightfoundation.com/people/jwonderlich/> April

>>>>>>> 20, 2011, 11:52 a.m.
>>>>>>>

>>>>>>> We found out<http://pajamasmedia.com/blog/leaked-obama-executive-order-intends-to-implement-portions-of-disclose-act/>
>>>>>>> yesterday <http://www.politico.com/news/stories/0411/53445.html> that

>>>>>>> the White House is considering issuing an Executive Order in response to

>>>>>>> last year's *Citizens United* decision.

>>>>>>>
>>>>>>> Presidential action would be an appropriate response to the huge gaps

>>>>>>> in public disclosure revealed by the *Citizens United* decision, and
>>>>>>> the Senate's subsequent blockage of the DISCLOSE Act response<http://sunlightfoundation.com/blog/2010/09/22/voters-will-be-victims-of-disclose-act-defeat/>

>>>>>>> .
>>>>>>>
>>>>>>> If the White House is going to pursue remedies through an Executive
>>>>>>> Order, though, the public should be included in that process as well.
>>>>>>> Campaign finance disclosure should be designed to serve the public, so some

>>>>>>> public scrutiny and discussion of any *CU* EO should precede its

>>>>>>> issuance. (Yesterday's release is insufficient.)
>>>>>>>
>>>>>>> Sunlight is calling for at least 72 hours for the public to examine

>>>>>>> and review any EO in response to *CU*.

>>>>>>>
>>>>>>> It's likely that the opposition to this EO will paint it as motivated
>>>>>>> by partisanship and not transparency, and posting the draft online would
>>>>>>> demonstrate some good faith in preparing an executive response.
>>>>>>>
>>>>>>> Sunlight certainly has specific issues we'd like to see addressed in
>>>>>>> the response, as we're sure others do as well. (Timely disclosure of
>>>>>>> contribution and expenditures comes immediately to mind) But for right now
>>>>>>> we'd like for everyone to have a chance to evaluate an official proposal
>>>>>>> before it is released.
>>>>>>>
>>>>>>> Executive Order: Disclosure of Political Spending by Government

>>>>>>> Contractors<http://www.scribd.com/doc/53440033/Executive-Order-Disclosure-of-Political-Spending-by-Government-Contractors>

>>>>>>>
>>>>>>> --
>>>>>>> You received this message because you are subscribed to the Google
>>>>>>> Groups "Open House Project" group.
>>>>>>> To post to this group, send email to
>>>>>>> openhous...@googlegroups.com.
>>>>>>> To unsubscribe from this group, send email to
>>>>>>> openhouseproje...@googlegroups.com.
>>>>>>> For more options, visit this group at
>>>>>>> http://groups.google.com/group/openhouseproject?hl=en.
>>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>> --

>>>>>> *Mark Tapscott

>>>>>> Editorial Page Editor
>>>>>> The Washington Examiner
>>>>>> 1015 15th Street NW
>>>>>> Suite 500
>>>>>> Washington, D.C. 20007
>>>>>> 202-459-4968 (Newsroom)
>>>>>> 301-275-6645 (Cell)
>>>>>> mark.t...@gmail.com
>>>>>> mtap...@dcexaminer.com
>>>>>> http://www.dcexaminer.com/
>>>>>> Proprietor,
>>>>>> Tapscott's Copy Desk blog
>>>>>> http://www.dcexaminer.com/opinion/blogs/TapscottsCopyDesk/
>>>>>> "Tether the state in the morning and by noon it knows the full length

>>>>>> of its tether." ---John Cotton (Paraphrased, actually)*

>>>>>>
>>>>>> --
>>>>>> You received this message because you are subscribed to the Google
>>>>>> Groups "Open House Project" group.
>>>>>> To post to this group, send email to openhous...@googlegroups.com
>>>>>> .

>>>>>> To unsubscribe from this group, send email to
>>>>>> openhouseproje...@googlegroups.com.
>>>>>> For more options, visit this group at
>>>>>> http://groups.google.com/group/openhouseproject?hl=en.
>>>>>>
>>>>>
>>>>> --
>>>>> You received this message because you are subscribed to the Google
>>>>> Groups "Open House Project" group.
>>>>> To post to this group, send email to openhous...@googlegroups.com.
>>>>> To unsubscribe from this group, send email to
>>>>> openhouseproje...@googlegroups.com.
>>>>> For more options, visit this group at
>>>>> http://groups.google.com/group/openhouseproject?hl=en.
>>>>>
>>>>
>>>>
>>>>
>>>> --

>>>> *Mark Tapscott

>>>> Editorial Page Editor
>>>> The Washington Examiner
>>>> 1015 15th Street NW
>>>> Suite 500
>>>> Washington, D.C. 20007
>>>> 202-459-4968 (Newsroom)
>>>> 301-275-6645 (Cell)
>>>> mark.t...@gmail.com
>>>> mtap...@dcexaminer.com
>>>> http://www.dcexaminer.com/
>>>> Proprietor,
>>>> Tapscott's Copy Desk blog
>>>> http://www.dcexaminer.com/opinion/blogs/TapscottsCopyDesk/
>>>> "Tether the state in the morning and by noon it knows the full length of

>>>> its tether." ---John Cotton (Paraphrased, actually)*

>>>>
>>>> --
>>>> You received this message because you are subscribed to the Google Groups
>>>> "Open House Project" group.
>>>> To post to this group, send email to openhous...@googlegroups.com.
>>>> To unsubscribe from this group, send email to
>>>> openhouseproje...@googlegroups.com.
>>>> For more options, visit this group at
>>>> http://groups.google.com/group/openhouseproject?hl=en.
>>>>
>>>
>>> --
>>> You received this message because you are subscribed to the Google Groups
>>> "Open House Project" group.
>>> To post to this group, send email to openhous...@googlegroups.com.
>>> To unsubscribe from this group, send email to
>>> openhouseproje...@googlegroups.com.
>>> For more options, visit this group at
>>> http://groups.google.com/group/openhouseproject?hl=en.
>>>
>>
>>
>>
>> --

>> *Mark Tapscott

>> Editorial Page Editor
>> The Washington Examiner
>> 1015 15th Street NW
>> Suite 500
>> Washington, D.C. 20007
>> 202-459-4968 (Newsroom)
>> 301-275-6645 (Cell)
>> mark.t...@gmail.com
>> mtap...@dcexaminer.com
>> http://www.dcexaminer.com/
>> Proprietor,
>> Tapscott's Copy Desk blog
>> http://www.dcexaminer.com/opinion/blogs/TapscottsCopyDesk/
>> "Tether the state in the morning and by noon it knows the full length of

>> its tether." ---John Cotton (Paraphrased, actually)*

[Mark Tapscott]

Fair question. Were I king rather than you, nobody in our domain would feel the need to contribute any amount because all would be peaceful and happy!

My answer here in the real world is, as you pointed out, recognition that the determination of the appropriate level of disclosure is a political question. That being the case, my object is always to minimize the amount of government intrusion into the process of political expression.

My main problem with this DISCLOSE EO, at least as it is reported and my admittedly tentative reading of the text suggests, is that extends the disclosure process beyond the issuance of corporate funding to individual officers, directors, etc., which is right next door to erecting a partisan political litmus test for the awarding of federal contracts. I just don't see how you guys can achieve your end - comprehensive disclosure of corporate funding of political expression - without such an invasive procedure involving individual expression and the invitation created thereby to the contract award problem.

I am open to persuasion and I don't consider your comments here, Daniel, to be "partisan" at all. I thought this kind of back and forth assessment of oepn government proposals by people of widely differing perspectives on other issues was among the key reasons for having this listserv in the first place. I especially appreciate your detailed responses, Daniel, and those of Bill Allison who probably knows more about these matters than I ever will.

 

[John Wonderlich]

All good points, except that the Congressional ship has sailed, and to
bad too. Even the "clean" DISCLOSE was rebuffed. No one expects this
House to enact new CF transparency.

The other questions all look to me like additional reasons an EO
should be *officially posted before issuing.

Vetting a transparency measure thtough a leaked trial balloon is no
way to handle such a complex issue.

On Wednesday, April 20, 2011, Bill Allison

<ball...@sunlightfoundation.com> wrote:
> Couple of things that jumped out at me...
> 1) Why is there no disclosure for the political giving of grantees?
> 2) What sort of enforcement mechanism (if any) would exist? My sense is that most contractors could get away with listing nothing more than what FEC disclosures already list and have little to worry about--or would the IRS check compliance by going through the nonpublic donor lists of 501(c)4 organizations? I suspect not, but if it did, would the partisans among us feel comfortable about the IRS fishing for information on political activity in the tax returns of groups that this or that administration might not like? (Aside for data enthusiasts: Imagine all the problems encountered in name matching...).
>
> 3) Contractors are already supposed to file disclosures indicating when they've hired an outside lobbyist to help them secure a contract (this is also covered in the Byrd Amendment Daniel refers to above). This is statutory language, and it's also worth noting that it applies to grantees as well as contractors. These lobbying disclosures are supposed to be open to public inspection. My colleague Anu and I spent a few months trying to get such disclosures, and never managed to--they didn't exist, they weren't filed, etc., even though we had quite a few LDA filings by outside lobbyists listing explicit contracting and grant-making actions they lobbied on. My sense is that contractors and the agencies that are wholly dependent upon them to function aren't particularly concerned about following every disclosure requirement, which makes me ask again, what kind of enforcement mechanism is envisioned?
>
> 4) If the spouse of the CEO of Lockheed Martin--or the gardener, chauffeur or cook--contributed $1 million to the Chamber of Commerce, would that have to be disclosed? As far as I know, there are no straw man provisions for donations to 501(c)4s in the same way that there are straw men provisions for campaign contributions, and the EO as drafted doesn't seem to address the question of disclosure for spouses. Another possibility: Part of the $1.1 million Lockheed Martin pays to an outside lobbying firm is donated to the Chamber of Commerce--would that have to be disclosed? That said, the Chamber gets most of its money straight from company treasuries, and I imagine that if the EO were followed, what we would mostly see is disclosure of the Chamber's donors, and those of other corporate trade groups. By no means am I opposed to that as it relates to political activities by the Chamber, but I would like to cast a much broader net.
>
> 5) I find this language interesting, that requires disclosure of... "Any contributions made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications." We have already seen an independent expenditure committee that lists its sole donor as a 501(c)4 organization (my colleague Ryan Sibley wrote about the phenomenon here: http://reporting.sunlightfoundation.com/2010/dead-end-disclosure-super-pacs-biggest-giver-shadowy-nonprofit-l/). If I'm the CEO of Lockheed, and I contribute $1 million to the Daniel Schuman Better Government Committee, a 501(c)4 which does not make independent expenditures or electioneering communications, but does contribute funds to the Mark Tapscott Better Government Committee, an independent expenditure only committee, do I have to report the donation? From my reading of the EO, I don't think so--I gave to Daniel's group, whose mission is to support political engagement and the free market economy, but prominently advertises that it does not run political ads. It appears to me that this EO is aimed more at getting donors to groups like the Chamber of Commerce to disclose their donations, and makes shady operations like Daniel's (sorry, shady hypothetical operations) much more attractive.
>
> 6) All that said, I don't have a problem with disclosure, and, pace Mark, I would like to have more information about the donors to Super PACs and 501(c)4s, and I don't think that's a partisan position at all (Mark, wouldn't you want to know whether the donors behind a group claiming to be conservative while viciously attacking the most electable conservative presidential candidate in Iowa or New Hampshire are actually longtime supporters of Democratic causes intent on sabotaging the candidate they worry most about?). That said, I do have a problem with poorly designed disclosure regimes, and if I can figure out (without breaking a sweat) a couple of ways around the E.O., I'm sure there are smarter people than me who have a dozen sharper schemes than mine. I suspect it would be wiser to develop a bipartisan approach through Congress rather than have the administration attempt to implement this on its own, as it opens the door, fair or not (I'm agnostic on this question), to criticisms exactly like Mark's.
>
>
>
> On Wed, Apr 20, 2011 at 3:55 PM, Samuel Drzymala <drzy...@gmail.com> wrote:
>
> Please keep partisan missives off this list.
> Thanks very much.
>
> On Wed, Apr 20, 2011 at 3:51 PM, Mark Tapscott <mark.t...@gmail.com> wrote:
> Both and more. There are legitimate reasons for anonymity (fear of official reprisal being the first to come to mind). The increased regulatory burden in and of itself. And most important, further legitimizing government regulation of speech (Camel under the tent, though it's at about the first hump now).
>
> Do you think it's appropriate for the government to establish a political litmus test for the awarding of its contracts?
>
> On Wed, Apr 20, 2011 at 3:39 PM, Daniel Schuman <dsch...@sunlightfoundation.com> wrote:
> I'm kinda curious about what this rule does and doesn't do. It appears to require all kinds of disclosure, but I don't see where it is going to silence political speech. Are you concerned that fact of disclosure itself is going to make people less reluctant to talk; or is it that you are concerned about the burden necessary for disclosure; or is it something else?
>
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> Daniel
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> Daniel Schuman

> Director | Advisory Committee on Transparency <http://transparencycaucus.org/>
> Policy Counsel | The Sunlight Foundation <http://sunlightfoundation.com/>

> o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman
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[Nancy Watzman]

What John said, about congressional ship having sailed.

Also, can't it be argued that the general stance by many GOPers against any kind of campaign finance regulation benefits *them* politically?

Political types act in their own self interest. That's hardly a shock. The trick is how to leverage that toward good public policy.

[Gregory Slater]

I don't see that this comment should be inhibited on the grounds that it is partisan, even if it was motivated by partisan ideology.  But the question of how much disclosure the government should pursue or require is one at the very core of the goals of the transparency movement.  There should be a full airing of views on this.  I happen to think radical transparency is the only way to get any useful benefit at all from transparency.  I completely disagree with Tapscott, and I think his position is distinctly pro-secrecy and anti-transparency.  But I'd like to feel free to argue that point with him in this forum because it is a crucial question for this forum.

 - greg slater

---

From: Samuel Drzymala <drzy...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 12:55:38 PM
Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance disclosure

[Mark Tapscott]

Greg, do you favor protecting anonymous speech only if it cost nothing to distribute?

On Apr 20, 2011 6:44 PM, "Gregory Slater" <ten...@pacbell.net> wrote:

I don't see that this comment should be inhibited on the grounds that it is partisan, even if it was motivated by partisan ideology.  But the question of how much disclosure the government should pursue or require is one at the very core of the goals of the transparency movement.  There should be a full airing of views on this.  I happen to think radical transparency is the only way to get any useful benefit at all from transparency.  I completely disagree with Tapscott, and I think his position is distinctly pro-secrecy and anti-transparency.  But I'd like to feel free to argue that point with him in this forum because it is a crucial question for this forum.

 - greg slater

---

From: Samuel Drzymala <drzy...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 12:55:38 PM
Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance disclosure

Please keep partisan missives off this list.  

Thanks very much.

On Wed, Apr 20, 2011 at 3:51 PM,...

--
You received this message because you are subscribed to the Google Groups "Open House Project" ...

[Gregory Slater]

personally i'd make everyone's donations public - we are a hopelessly secretive and nefarious society.  But certainly donations that are two sigma and more above the mean for individuals should be made public because the whole problem in our government is the elite tail wagging the general public dog. - greg slater

---

From: Mark Tapscott <mark.t...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 1:40:35 PM

Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance disclosure

[Gregory Slater]

I say disclose it all and let God sort it out. Radical secrecy (the current
system) is infinitely more destructive to democracy as we have endlessly seen,
and the general welfare than radical transparency. Can you possibly have too
much mother's milk and apple pie?
- Greg Slater

----- Original Message ----
From: Jon Henke <jonh...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 2:47:21 PM
Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance
disclosure

[Gregory Slater]

I should think a little about this before shooting off my mouth in response, but in general, it is my view that the most egregious distortions and corruptions of the democratic process are enabled by the enormous asymmetry in access to the press that is provided by the enormous disparities in money available to the participants.  So while the issue is a complex and many-facted one, such a criterion would not particularly upset me.  But certainly when you have one lobbying party able to muster orders of magnitude more money than an opposing view - which translates directly into orders of magnitude more media exposure, such a situation is absolutely toxic to informed decisions by the voting public.  If one has a good argument in favor or against an issue or candidate, it should be able to win the day with an equivalent amount of air time to its opposition rather than a gross disparity.  Why is that not simply the essence of fair play in any domain of intellectual and rational policy debate?  i would much rather be on the side of resource equity in the sphere of public debate.   There are many caveats of course, but that should be the starting point rather than one of gross disparity as the starting point.

but let me think about it....

 - greg slater

---

From: Mark Tapscott <mark.t...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 3:54:03 PM

Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance disclosure

Greg, do you favor protecting anonymous speech only if it cost nothing to distribute?

On Apr 20, 2011 6:44 PM, "Gregory Slater" <ten...@pacbell.net> wrote:

I don't see that this comment should be inhibited on the grounds that it is partisan, even if it was motivated by partisan ideology.  But the question of how much disclosure the government should pursue or require is one at the very core of the goals of the transparency movement.  There should be a full airing of views on this.  I happen to think radical transparency is the only way to get any useful benefit at all from transparency.  I completely disagree with Tapscott, and I think his position is distinctly pro-secrecy and anti-transparency.  But I'd like to feel free to argue that point with him in this forum because it is a crucial question for this forum.

 - greg slater

---

From: Samuel Drzymala <drzy...@gmail.com>
To: openhous...@googlegroups.com
Sent: Wed, April 20, 2011 12:55:38 PM
Subject: Re: [openhouseproject] Thoughts on a draft WH order on campaign finance disclosure

Please keep partisan missives off this list.  

Thanks very much.

On Wed, Apr 20, 2011 at 3:51 PM,...

--
You received this message because you are subscribed to the Google Groups "Open House Project" ...

--

[Jon Henke]

Transparency should be an obligation of government to its citizens, not a mandate that government imposes against citizens.  As soon as "transparency" is turned outward, we have lost sight of the point of transparency.

_______

Jon Henke

202-595-4323

Twitter: @jonhenke

[Jon Henke]

Some additional thoughts:

1. For some people, political contributions feel much closer to shake downs. Do we really want contract applicants submitting their "brag sheet" of political donations?  Or not getting involved in politics, because they are afraid of being discriminated against?  Obviously the statutes keep political hands off many of these -- although certainly Congress and political appointees have figured out how to generate pressure -- but do companies have any guarantee that, say, the applications aren't being processed by an AFSCME member or an AFGE member who dislikes people who give to the Right? 

2. As Allison notes, contributions from grantees aren't included. And the WSJ reported that AFSCME was the largest spender in the 2010 election. One of their officials even said, "we are the big dogs, but we don't like to brag." What provisions would Sunlight recommend to prevent apparent conflicts there?

3. At the same time that the administration is doing this, they repealed Bush administration rules on union disclosure. This is government asking someone to submit less data. Is there any intellectual consistency here?

________
Jon Henke

[Daniel Schuman]

Thanks to everyone who has commented thus far. I think this is a useful discussion, and it's great that we have a place where we can intelligently discuss the important issues that help animate the transparency movement.

[As an aside, I don't think any of the comments here have been partisan. As best I can tell, they represent genuinely held ideological beliefs. Indeed, it's good to be the king. But I digress....]

I'd like to explore the points raised by Mark and Jon.

Mark wrote:

"My main problem with this DISCLOSE EO, at least as it is reported and my admittedly tentative reading of the text suggests, is that extends the disclosure process beyond the issuance of corporate funding to individual officers, directors, etc., which is right next door to erecting a partisan political litmus test for the awarding of federal contracts."

I'm not sure I entirely follow the concern. Forgive me if I'm reading into this too much, but you don't seem to be raising a concern with disclosure of the use of corporate funding as contributions to campaigns (which is illegal) and via independent expenditures (which is now permitted under CU).  Rather, the concern apparently has more to do with making disclosures by corporate officers, directors, and so on. The language used in the EO is "directors, officers, affiliates, or subsidiaries within its control." 

From where I sit, and this is (again) my opinion only, the language as to who would have to report is somewhat unclear, and it could be (in my opinion) overlybroad. That said, let's give the EO a reasonable construction for purposes of argument here, and assume that we can define subsidiaries within its control, for example, in a common-sense way. 

Corporations often act politically through their board of directors, officers, and via affiliates and subsidiaries. As a technical matter, corporations cannot give their officers/board members money to contribute to political campaigns. As a practical matter, no one needs to tell these high level folks to make these donations. Such coordinated behavior would be illegal if it were explicit, but these wink-wink nod-nod arrangements may occur nonetheless. (This may be particularly true in private corporations.) Indeed, people are often recruited to corporate boards because of their political acuity and connections (including fundraising prowess.)

Consequently, it doesn't seem unreasonable to me that it would be helpful top publicly disclose how those who are closest to corporations are engaging the political system. This would help us ferret out corporate influence behavior channeled through its board and officers.

[By the way, I assume that the term "corporations" includes unions, as they are corporations under 501(c)(5) of the tax code.]

The leap in logic that doesn't make sense to me is when Mark says that disclosure of contributions/expenditures by individual officers and directors is "right next door to erecting a partisan political litmus test for the awarding of federal contracts"

Firstly, that litmus test may already exist and be hidden. If so, disclosure would help reveal it. 

Secondly, if there is no litmus test, disclosure would help reassure the public and eliminate the appearance of corruption.

In either of those scenarios, we are achieving a desirable result. (The question of  how this is achieved was raised earlier in our discussion, and my thought is that we'd have to wait to see how burdensome the regulation would be in practice.) 

The only scenario that I can think of that would not be what we want is that disclosure somehow causes the creation (or further development) of a partisan litmus test. (I'm interpreting "partisan litmus test" as pro-Democrat or pro-Republican candidate or party.) I'm not sure how that makes sense here.

If a corporation (either directly or through its board or officers) contributes to a candidate, the candidate would know it. If a corporation makes an independent expenditure to help a candidate's campaign, it's likely that the candidate would know that as well. 

Conversely, if a corporation doesn't contribute to a candidate, the candidate would know it. It's unclear to me is whether a candidate would know when a corporation has made an independent expenditure on behalf of his opponent. Making this information publicly available could allow for a candidate to retribute against a non-supporting corporation.  But disclosure would make that connection apparent as well. The result is a wash.

The most likely result is that corporations and those closest to them will contribute to the partisans on both sides of the political system that they believe will help them the most. It looks a lot like pay-to-play. The thing is, we have that system now. Disclosure, in this context, will make those transactions obvious to everyone. There doesn't seem to be a downside (except, of course, the increased transaction costs that disclosure would impose on those contributing more than $5,000 to fund campaigns.)

This email is already too long, and I still haven't addressed Jon's slippery slope argument, which ask at what "point does 'government transparency' turn into 'government mandates to restrict public privacy'?"

We can only address the question that's in front of us. Would the EO, as drafted, overstep the rationale that supports government transparency and unduly invade personal privacy? 

Justice Scalia addressed this issue squarely in a concurrence in Doe v. Reed, a case having to do with public access to signatories to a ballot, in which he examines the history of voting. He wrote:

"Requiring people  to stand up in public for  their political acts  fosters civic  courage, without which democracy is doomed.  For my part, I do not look forward to a society which,  thanks to the Supreme Court, campaigns anonymously and  even exercises  the  direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of  criticism.  This does not resemble the Home of the Brave."

I would not go so far as Scalia. Even so, it seems reasonable that the price for putting money into political campaigns is disclosure of that act.  This applies to people in some instances and corporations in some instances. I have difficult seeing why it should not apply to all, bounded only by limitations of practicality.

At the same time, I am very sensitive to privacy arguments, but it putting money into the system seems to be a public act. Is there a good reason why we should treat it as a private one?

Also, let me add one very big caveat: just because I think disclosure of corporations engaging in the political space is a good idea, this does not mean that I have reached an opinion as to the wisdom and validity of this EO.

 

Daniel

Daniel Schuman
Director | Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman

[John Wonderlich]

Jon:

1. For some people, political contributions feel much closer to shake downs. Do we really want contract applicants submitting their "brag sheet" of political donations?  Or not getting involved in politics, because they are afraid of being discriminated against?  Obviously the statutes keep political hands off many of these -- although certainly Congress and political appointees have figured out how to generate pressure -- but do companies have any guarantee that, say, the applications aren't being processed by an AFSCME member or an AFGE member who dislikes people who give to the Right? 

For this, see Daniel's point:

Firstly, that litmus test may already exist and be hidden. If so, disclosure would help reveal it. 

Secondly, if there is no litmus test, disclosure would help reassure the public and eliminate the appearance of corruption.

In either of those scenarios, we are achieving a desirable result. (The question of  how this is achieved was raised earlier in our discussion, and my thought is that we'd have to wait to see how burdensome the regulation would be in practice.)  

2. As Allison notes, contributions from grantees aren't included. And the WSJ reported that AFSCME was the largest spender in the 2010 election. One of their officials even said, "we are the big dogs, but we don't like to brag." What provisions would Sunlight recommend to prevent apparent conflicts there?

Sunlight's initial proposals in response to the CU decision included strengthening DOL union disclosure rules.  Other than that, we're not distinguishing between unions and corporations. As Daniel noted, unions are corporations.

 

3. At the same time that the administration is doing this, they repealed Bush administration rules on union disclosure. This is government asking someone to submit less data. Is there any intellectual consistency here?

Do you have more detail on this?  This is the first I've heard of it.   

I'd add that we're not claiming the adminsitration is being intellectually consistent.  We're not defending the EO -- we don't even know what's in it yet.  The leaked draft is dated a week ago.

All I've defended is that executive action to try to create more disclosure on political spending is appropriate, given the clear public interest in knowing who is spending enormous sums to influence our politics (and government), and given Congress's inaction.  

And as to this:

Transparency should be an obligation of government to its citizens, not a mandate that government imposes against citizens.  As soon as "transparency" is turned outward, we have lost sight of the point of transparency.

...that's a holdable view, but far, far outside well established norms. American government is full of public disclosure requirements applied to non-governmental actors, that have been serving the public interest well for years, without controversy.

Additionally, you can make the case that this IS government transparency -- if a contractor wants to do government work, then enhanced disclosure requirements are even more justified than they would be otherwise.

[John Wonderlich]

There's a parallel to stimulus reporting here.

ARRA recipients had to report when they received federal funds.  This is a transparency requirement applied to the private sector, largely through Obama administration OMB guidance.  Conservatives supported this accountability regulation of the private sector, and the related reporting requirements, despite the risk of a burden, or the potential embarrassment to companies that failed to create jobs.  (that embarrassment was sometimes very real.)

[Jon Henke]

All fair points.  Some quick thoughts:

On the first question: There are several kinds of government contracts. The DoD procurement process may be politicized, but is paperclip procurement? Does submitting a list of political contributions by people who may or may not have any involvement in the process make more of an appearance of corruption or less of an appearance. 

Much of this comes down to a difference in perspective. Are politicians and bureaucrats, like Duke Cunningham or Vincent Fumo, demanding money for actions, or are lobbyists pressuring members of congress to do things? It comes down to your theory of corruption. If you believe that politicians are coercing private sector actors - and clearly, this happens very often - then this looks like giving the government additional tools to coerce the private sector.

On the last question:

http://www.dol.gov/ocia/notifications/20100204-T1.htm

http://washingtonexaminer.com/blogs/examiner-opinion-zone/2009/04/rep-conaway-introduces-resolution-preserve-bush-lm-2-reforms

So, for example, the Wisconsin Teachers unions don't have to report their expenses because NEA does. Except that the reports aren't complete. 

_______

Jon Henke

202-595-4323

Twitter: @jonhenke

[james a. jacobs]

Budget reductions are hitting information collection and dissemination across the board.

I just posted this on FGI.

<http://freegovinfo.info/node/3282>

Reductions in EIA's Energy Data and Analysis Programs

Along with reductions at the Census Bureau and reductions in federal openness websites, we now have word from the Energy Information Administration (EIA) that budget reductions will "require significant cuts in EIA's data, analysis, and forecasting activities."

The press release has a long list of projects and publications that will reduced, terminated, and curtailed:

• Immediate Reductions in EIA's Energy Data and Analysis Programs Necessitated by FY 2011 Funding Cut, EIA, APRIL 28, 2011. Press Release EIA-2011-07. <http://www.eia.gov/pressroom/releases/press362.cfm>

Cuts include:

• Do not prepare or publish 2011 edition of the annual data release on U.S. proved oil and natural gas reserves.
• Curtail collection and dissemination of monthly state-level data on wholesale petroleum product prices, including gasoline
• Terminate updates to EIA's International Energy Statistics
• Halt preparation of the 2012 edition of EIA's International Energy Outlook.
• Eliminate annual published inventory of Emissions of Greenhouse Gases in the United States.

Note that information is the primary mission of EIA, not a byproduct of regulatory activities.
<http://www.eia.doe.gov/about/mission_overview.cfm>

Jim Jacobs
Data Services Librarian, Emeritus
University of California San Diego