GOP Govt Transparency Bill Flunks Reality Test

Before he sat on the Supreme Court, Louis Brandeis penned a collection of essays that was published as a book called Other People’s Money.  One quote particularly stands out: “Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.”  This maxim has served as an inspiration for all sorts of government transparency; from campaign finance reform to lobbyist registration.

Congressman Blake Farenthold, a freshman GOP member and former talk radio host, wants to apply Brandeis’ maxim to the entire federal government.  Farenthold’s basic premise is intriguing: all federal agencies should publish receipts and expenditures on their web sites every two weeks.

In an email on his proposal to the Republican Study Committee (RSC), Farenthold explained that “all too often, federal agencies and Congress have failed to publish their information online.  At other times, information has been published in formats that are not easily searchable, sortable, and downloadable.”

Fair enough.  Unfortunately, Farenthold’s proposed bill (crafted with help from the RSC), H.R. 1061, fails to properly handle this problem.

The bill suffers from an acute case of massive oversimplification.  During the debate over President Obama’s healthcare reform, many conservatives complained that the bill, weighing in at thousands of pages, was too complex for lawmakers to understand or read.

Perhaps as a response to this movement, Farenthold’s proposed law--which would dramatically change the way the federal government keeps its books and informs the public--is 149 words long.  And that’s including introductory language and section titles.  The operative provisions of the law are a scant 87 words.  So, in what I believe is an FF first, I will quote the entire operative section of a proposed bill:

(a) Requirement- Each Federal agency shall publish on the official public website of the agency, at the end of each two-week period, a statement of all funds received and spent by the agency during that two-week period.
(b) Federal Agency Defined- In this Act, the term ‘Federal agency’ has the meaning given the term ‘executive agency’ in section 133 of title 41, United States Code.
(c) Implementation- The requirement of this section shall be implemented beginning not later than 30 days after the date of the enactment of this Act.

A few immediate problems:

1. There is no Section 133 of Title 41 of the United States Code.  However, “executive agency” is defined in the Code at Section 403 of Title 41.  (To be fair, this may have been a problem with the Hill’s legislative counsel office, and not Farenthold’s staff.)

The Section 403 definition is all encompassing: it includes the 15 Cabinet departments, all of the military departments (“the Department of the Air Force”, etc.), "independent establishment" executive branch agencies, and wholly owned government corporations, such as the Tennessee Valley Authority.

Side note: oddly excluded under the 403 “executive agency” definition, the United States Postal Service and the Government Accountability Office.

2. What is an “expenditure” or “all funds received”?  The statute simply does not define it.

Under Chevron deference -- the Supreme Court’s standard for judging an agency’s interpretation of their governing statutes -- if a statute is too vague for its plain meaning to be discerned, then the court defers to the “reasonable” interpretation of the agency.  Without a standard definition of “expenditure” or “all funds received”, each executive agency will get to determine its own “reasonable interpretation” of the statute.

This is a recipe for legal battles and obfuscation, not transparency.

3.  A Hill staffer suggests that “all the independent agencies and all the national security agencies would immediately seek an exemption from this bill.”

Unfortunately, no such exemption procedure is obvious in Farenthold’s bill.  In his email to the RSC, Farenthold said that “[u]nder this bill, Americans will be able to track every dollar of government agency spending, scrutinize the goals and performance of every federal program.”

Here’s one of many, many future agency objections: What does this mean for classified programs?  For R&D research by our military agencies?

Do all classified programs or R&D research projects get lumped in one or two sections of the disclosure statement, must they be individually itemized, or can they be exempted under an agency’s definition of “expenditure”?

Remember, every two weeks each agency, including the Department of Defense, has to list their expenditures.  And Farenthold’s email seems to intend that under H.R. 1061 Americans would see “every federal program” and its expenditures.

What does all this mean?  Unfortunately, in an 87 word statute, we just don’t know.

4. There is no common format for disclosures.

In his email to the RSC, Farenthold expressed concern that when federal agencies have disclosed their financial information, it is “published in formats that are not easily searchable, sortable, and downloadable.”  He also says that H.R. 1061’s goal is to create an environment where Americans can “perform searches of millions of forms and filings in a similar cohesive manner.”

Unfortunately, his 87 word statute does not achieve this goal.  Unlike SEC filings, there is no general form.  How should expenditures be categorized?

Heck, there is no guidance as to where on their websites or in what document format that agencies have to post their information.  Do they have to provide a link on their main page, or can it be hidden in another section?  Does it have to be in PDF or Word format, or both?  Neither?

Let’s be clear: Congressman Farenthold has struck upon a neat idea.  There should be more transparency in the federal government’s expenditures, and citizens ought to be able to evaluate how programs work.

Unfortunately, his proposal is not a serious one.  Indeed, H.R. 1061 is a crucial reminder that Republicans need to elect candidates to office that are willing to really roll up their sleeves and get down to the nitty-gritty business of governing.  Republicans cannot be caught shouting bumper sticker slogans on the floor or writing 87 word statutes that bear no resemblance to reality.

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