Obama's Five-Day Promise - Status to Date

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Jim Harper

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Apr 10, 2009, 8:23:16 AM4/10/09
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I've written a post on the Cato@Liberty blog, looking at the White House effort so far to implement President Obama's campaign pledge to hold bills five days before signing.

http://www.cato-at-liberty.org/2009/04/09/a-flagging-obama-transparency-effort/

The surprising (ly unfortunate) finding? He has held two bills the requisite five days before signing them, but didn't post them on Whitehouse.gov for public review! 

I'll write a little more about the five-day pledge soon.

Jim Harper

Patrice McDermott

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Apr 10, 2009, 11:37:30 AM4/10/09
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That is bizarre and not good. May be because they are still getting their technological act together – but that excuse holds very little water now.

 

Patrice McDermott
OpenTheGovernment.org


Clay Shirky

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Apr 10, 2009, 11:49:26 AM4/10/09
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On Fri, Apr 10, 2009 at 11:37 AM, Patrice McDermott
<pmcde...@openthegovernment.org> wrote:
> That is bizarre and not good. May be because they are still getting their
> technological act together [...]

Doubt it. I think the logic of the situation is instead manifesting itself.

The only reason you'd publish the text of a bill in advance of its
becoming law is if you wanted a *different outcome*, which is to say
if you wanted public pressure to alter the current process. This is
the essential rationale of transparency, and it doesn't fit in the
framework of the 5-day promise, because by the time a bill gets to the
WH, they already know what's in it, and they already have a bias about
signing it. 5 days of transparency in the Executive Branch isn't
actually very useful because of the 'up or down' nature of the
interaction between POTUS and the proposal. Public involvement at that
point is an invitation to all kinds of system gaming.

Meanwhile, the place the Founders decided to host most of the system
gaming is in Congress, where factions are to be contained, to contend
with the construction of legislation _before_ it goes to the WH.
That's where legislative transparency might make a difference. I think
the Obama promise was meant to model the appropriate attitude towards
transparency, but I'm willing to bet that they've made implementing
useful (read: legislative) transparency harder, because they've tried
to demonstrate its efficacy in a place and manner that won't produce
many good outcomes, and it will be hard to extrapolate from that to
the idea that transparency will be good elsewhere in the system.

-clay

J.H. Snider

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Apr 10, 2009, 12:54:20 PM4/10/09
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It's ironic that Jim Harper's survey finds that the DTV Delay Act was the most transparent of the 11 bills, albeit only in the context of White House transparency (see my Open Government Rhetoric Versus Reality). 

 

Reaffirming Clay Shirky's skepticism about the five-day comment period, I submitted comments to the White House website the day the DTV Delay Act was posted on its website.  I made two central points: First, delaying the DTV transition was inconsistent with the Obama Administration's broadband rollout goals because the spectrum that would be freed up from the DTV transition was ideal for rural broadband rollout.  Second, John Podesta, the Obama Administration's champion of the DTV delay, had a serious ethical conflict of interest because of his family's extensive and long-term lobbying on behalf of the broadcast industry (over a ten year period the National Association of Broadcasters was the Podesta Group’s biggest client).  I never got any type of reply, even just acknowledging receipt of my comment.  In contrast, I usually get a reply when I write a thoughtful letter to my local representatives.

 

Why not at least ask the White House to disclose the number of comments submitted on each bill?   

 

A more controversial idea would be to add a check box: do you support or oppose the bill, and then make that information available, too.  When I worked in a U.S. Senate office, that was exactly the type of information the senator got on a weekly basis: how many constituents called or wrote on a particular measure and how many were in support or opposition.  On the other hand, this wouldn't be a statistically valid survey and it could easily be gamed.  Moreover, I cannot see publicly releasing this information as in any way helpful to an office holder.  Thus, it is undoubtedly a bad idea. 

 

However, it would be nice to add at least a little accountability to this system of public comment, just as the Administrative Procedures Act requires agencies to not only make public comments publicly available but also explicitly take account of significant public comments in their rulemakings. 

 

--Jim

 

J.H. Snider, MBA, Ph.D.

President

iSolon.org

 

 

Jim Harper

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Apr 10, 2009, 1:00:24 PM4/10/09
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In partial response to Clay's thoughtful comments, here's a snippet from a short piece that I'll (maybe, probably, hopefully) have out Monday:

Members of Congress are highly skilled political risk balancers, and the President’s firm insistence on leaving bills sitting out there, unsigned, after they pass Congress would have a significant effect on congressional behavior. It would threaten to reveal excesses in parochial amendments and earmarks, which could bring down otherwise good bills. Recognizing the negative attention they could draw to themselves, Representatives and Senators would act with more circumspection, and last-minute add-ons to big bills would recede. A firm five-day rule at the White House would also inspire the House and Senate to implement more transparent and careful processes themselves.

In the lab, it's true that the only reason to publish the text of a bill is to change its content, but out on the campaign trail, President Obama promised to do it, creating another set of reasons. Failure to implement the promise could draw down his credibility on other fronts. The New York Times reported on the White House's failure to implement the five-day pledge last Saturday.

I plan to continue respectfully highlighting this campaign promise. If others continue as well, we can make the cost of walking away from the promise high. It's up to the pro-transparency community to decide whether President Obama delivers. We could each blog about it each time he signs a bill without the promised five days of public review and the drip, drip, drip would grow defeaning.

Jim

Jones, Tom (Commerce)

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Apr 10, 2009, 1:11:22 PM4/10/09
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I think I may have mentioned this before, but if the President was really serious about catching sketchy language before it makes it into law he'd post it for five days before the Vice President (or through delegation the President Pro Tempore of the Senate) enrolls the bill and sends it to the WH.

If say something was tucked in somewhere that didn't get noticed during the house or senate consideration, the bodies could do an enrolling correction (essentially an joint (or is it concurrent) resolution) instructing the clerks to remove the offending language before it is enrolled and sent to the President.

Presumably if this is the WH policy the VP would follow suit (although technically he's not bound too...but that's just a technicality)

This would be an actual way for the legislative process to function but be able to root out stray offensive provisions without having to pass another act. Additionally the POTUS would have more leverage by being able to control the process before enrollment.

This all assumes this 5 day thing was more than just a feel good campaign promise.


From: openhous...@googlegroups.com <openhous...@googlegroups.com>
To: openhous...@googlegroups.com <openhous...@googlegroups.com>
Sent: Fri Apr 10 13:00:24 2009
Subject: [openhouseproject] Re: Obama's Five-Day Promise - Status to Date

N.Z. Bear

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Apr 10, 2009, 1:30:07 PM4/10/09
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Let me speak for the cynics amongst us when I say: Big Assumption !

Clay Shirky

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Apr 10, 2009, 5:17:39 PM4/10/09
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I'm less cynical than Rob.

I think that this isn't cynicism but a mistaken view of fungibility of public interaction. I've always said, in publc and private, that the difference between legislative transparency and executive transparency is the difference between opening a door on the process vs. opening a window, and that the two modes shouldn't be confused.

So instead of cynicism, I'd ascribe this to the administration believing that 'showing' is a reasonable proxy for 'involving' in terms of public perception, and then discovering that in fact, it isn't.

-c

On Apr 10, 2009 1:30 PM, "N.Z. Bear" <be...@truthlaidbear.com> wrote:

Let me speak for the cynics amongst us when I say: Big Assumption !

 

From: openhous...@googlegroups.com [mailto:openhous...@googlegroups.com] On Behalf Of Jones, Tom (Commerce)
Sent: Friday, April 10, 2009 10:11 AM
To: 'openhous...@googlegroups.com'

Subject: [openhouseproject] Re: Obama's Five-Day Promise - Status to Date

  I think I may have mentioned this before, but if the President was really serious about catchin...

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N.Z. Bear

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Apr 10, 2009, 5:32:00 PM4/10/09
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Well, if I can paraphrase your comments down to “don’t ascribe to malice what can be explained by cluelessness”  then I agree in part.

 

But: if they have indeed discovered that what they’re doing isn’t sufficient, doesn’t that imply that they should fix it? At least by a measure such as that Tom proposes --- and ideally, by leaning hard on Congressional leadership to impose real measures in the legislative end of the process (which would be more the ‘open door’ model you describe)?

 

If we agree that it is obvious the current measures are inadequate, and they do nothing to fix them, I think we have to conclude that they are either a) too stupid to see the obvious, or b) don’t actually care.

 

PS: They are not too stupid.

 

-Rob

Clay Shirky

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Apr 10, 2009, 5:51:58 PM4/10/09
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> Well, if I can paraphrase your comments down to “don’t ascribe to malice
> what can be explained by cluelessness”  then I agree in part.

A fair gloss.

> But: if they have indeed discovered that what they’re doing isn’t
> sufficient, doesn’t that imply that they should fix it? At least by a
> measure such as that Tom proposes --- and ideally, by leaning hard on
> Congressional leadership to impose real measures in the legislative end of
> the process (which would be more the ‘open door’ model you describe)?

I've always felt that way, and said so to some folks in the
administration after the election but before the inauguration. My bet
has always been that they would lose a game of chicken with the
Legislative branch, b/c Executive transparency was the wrong lever to
press.

> If we agree that it is obvious the current measures are inadequate, and they
> do nothing to fix them, I think we have to conclude that they are either a)
> too stupid to see the obvious, or b) don’t actually care.

I don't think either of these things are true. I think they have made
the Parenting 101 mistake, which is to announce you are going to do
something that, in practice, doesn't actually create the effect you
want, but whose failure to be executed erodes your authority.

Because they promised, they don't want to back down, but because what
they proposed isn't useful, they don't want to execute either.

The obvious solution, as so often, is "Don't have done that", but that
is the one solution off limits to them. Now they have two crappy
alternatives. I think you and I are in agreement that Alternative A,
_pretending_ to do this, by exposing the one bill in twenty that
really doesn't matter, will create long-term erosion of support for
what is really an important principle.

Sadly, though, Alternative B, is to spend some of their political
capital to get to the place they should have started from in the first
place. This would be good for the republic but bad for the
administration. The odds on that kind of thing are always 12-5
against.

-c

N.Z. Bear

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Apr 10, 2009, 6:00:18 PM4/10/09
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How boring that we are pretty much in complete agreement Clay !

Except: I'm unconvinced that actually making a stand on this stuff would be
bad for the administration. Going up against Pelosi & Reid (who last I
checked, had approval ratings that are too low to be detected by current
science) on a feel-good issue like this would probably be a huge political
success for Obama --- who certainly has the personal stature/approval to
sell it. I'd see it as a net win for Obama politically. (And consider: if
this stuff can't be driven by a President THIS popular through a Congress
THIS unpopular --- when, exactly, do we hope circumstances would ever be
better?)

And this is coming from someone who doesn't particularly want this
administration to achieve political success, so consider it an argument
against interest...


-----Original Message-----
From: openhous...@googlegroups.com
[mailto:openhous...@googlegroups.com] On Behalf Of Clay Shirky
Sent: Friday, April 10, 2009 2:52 PM
To: openhous...@googlegroups.com
Subject: [openhouseproject] Re: Obama's Five-Day Promise - Status to Date


Jon Henke

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Apr 10, 2009, 6:12:56 PM4/10/09
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I keep coming back to incentives here. Does the administration agree with us on transprency? Probably so.

Do they prioritize that enough to expend time and political capital on it? Probably not.

As important as it may be, what's their political incentive to move the ball forward on that? It seems to me expending political capital against the legislative branches status quo just makes it a bit more difficult for the administration to accomplish their other goals.

So, as good as the arguments for transparency may be - and as good as the administration's leverage may be - I just don't see how the incentize line up for transformational changes. If we want the legislature to incorporate more transparency, I suspect the leverage may have to be partisan advantage.

_________
Jon Henke


-----Original Message-----
From: "N.Z. Bear" <be...@truthlaidbear.com>

Date: Fri, 10 Apr 2009 15:00:18

Jim Harper

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Apr 10, 2009, 7:30:40 PM4/10/09
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Translation: Vote Republican in 2010!, huh, Jon?  ;-)

Jon Henke

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Apr 10, 2009, 7:51:30 PM4/10/09
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That actually had not occurred to me, though that's certainly one potentially useful path. The administration could beat Congressional Republicans senseless over transparency issues, and I'd be first in line cheering that on.

However, I was thinking more in terms of the incentive (for either Party) to unilaterally adopt transparency measures within their own caucus, because it makes the other Party look bad in comparison.

Here's another idea: perhaps we just need a Transparency Caucus - a voluntary group of Representatives/Senators who adopt practices that should be universalized, but can, in the meantime, be done by individual offices - e.g., standardized xml publication of earmark disclosures, lobbying contacts, votes, etc. Drawing a defined and visible line between Members who embrace transparency and those who prefer to play in the dark should have a constructive impact. At the least, it would help us define the good guys and bad guys.


_________
Jon Henke


From: Jim Harper
Date: Fri, 10 Apr 2009 19:30:40 -0400

Jay dedman

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Apr 10, 2009, 8:30:02 PM4/10/09
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> However, I was thinking more in terms of the incentive (for either Party) to
> unilaterally adopt transparency measures within their own caucus, because it
> makes the other Party look bad in comparison.

Jon wrote a good blog post about Republicans doing just this:
http://www.thenextright.com/jon-henke/rebuild-the-party-new-guards-for-transparency

I do not encourage partisanship when it comes to Transparency, but I
agree that it's really a big win that either party could easily grab.
But we keep seeing how deeply entrenched the darkness is.

Jay

--
http://ryanishungry.com
http://jaydedman.com
http://twitter.com/jaydedman
917 371 6790

Thomas Lord

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Apr 10, 2009, 5:55:26 PM4/10/09
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On Fri, 2009-04-10 at 14:32 -0700, N.Z. Bear wrote:
> they are either a) too stupid to see the obvious, or b) don’t
> actually care.
>
>
> PS: They are not too stupid.
>



You left out a possibility:

c) they care for any upside win for them that actually happens
but aren't anxious to take on the risks of aggressively
pursuing the effort. They care about what they can
gain from it, not what it can achieve, yet fear what
they can lose from it and fear what it might mean
for them.


-t


Thomas Lord

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Apr 10, 2009, 8:03:45 PM4/10/09
to openhous...@googlegroups.com, Jon Henke
On Fri, 2009-04-10 at 23:51 +0000, Jon Henke wrote:
>
> Here's another idea: perhaps we just need a Transparency Caucus - a
> voluntary group of Representatives/Senators who adopt practices that
> should be universalized, but can, in the meantime, be done by
> individual offices - e.g., standardized xml publication of earmark
> disclosures, lobbying contacts, votes, etc. Drawing a defined and
> visible line between Members who embrace transparency and those who
> prefer to play in the dark should have a constructive impact. At the
> least, it would help us define the good guys and bad guys.

That's brilliant.

It needs demonstrated consumption and effective
reaction to the data the members of the Transparency
Caucus put forward, doesn't it? They have
to be seen to be getting votes on the basis of that
effort, not just kudos.

-t

Thomas Lord

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Apr 10, 2009, 8:03:45 PM4/10/09
to openhous...@googlegroups.com, Jon Henke
On Fri, 2009-04-10 at 23:51 +0000, Jon Henke wrote:
>
> Here's another idea: perhaps we just need a Transparency Caucus - a
> voluntary group of Representatives/Senators who adopt practices that
> should be universalized, but can, in the meantime, be done by
> individual offices - e.g., standardized xml publication of earmark
> disclosures, lobbying contacts, votes, etc. Drawing a defined and
> visible line between Members who embrace transparency and those who
> prefer to play in the dark should have a constructive impact. At the
> least, it would help us define the good guys and bad guys.

That's brilliant.

Thomas Lord

unread,
Apr 10, 2009, 8:03:45 PM4/10/09
to openhous...@googlegroups.com, Jon Henke
On Fri, 2009-04-10 at 23:51 +0000, Jon Henke wrote:
>
> Here's another idea: perhaps we just need a Transparency Caucus - a
> voluntary group of Representatives/Senators who adopt practices that
> should be universalized, but can, in the meantime, be done by
> individual offices - e.g., standardized xml publication of earmark
> disclosures, lobbying contacts, votes, etc. Drawing a defined and
> visible line between Members who embrace transparency and those who
> prefer to play in the dark should have a constructive impact. At the
> least, it would help us define the good guys and bad guys.

That's brilliant.

Jon Henke

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Apr 10, 2009, 8:53:53 PM4/10/09
to Open House/Senate Project
Or (d) it's one of 1,000 issues they really care about and support, and so it gets 1/1,000th of their political capital. Which just isn't enough to make a marginal difference.

_________
Jon Henke


-----Original Message-----
From: Thomas Lord <lo...@emf.net>

Date: Fri, 10 Apr 2009 14:55:26
To: <openhous...@googlegroups.com>
Subject: [openhouseproject] Re: Obama's Five-Day Promise - Status to Date



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