Earlier this week, the White House officially abandoned President Obama's "Sunlight before Signing" pledge (which I discussed here and here). As the NYT reported:
During the presidential campaign, Barack Obama promised that once a bill was passed by Congress, the White House would post it online for five days before he signed it.The Administration also appears to be backing off its promises for greater access to government documents under the Freedom of Information Act (FOIA).
"When there's a bill that ends up on my desk as president, you the public will have five days to look online and find out what's in it before I sign it, so that you know what your government's doing," Mr. Obama said as a candidate, telling voters he would make government more transparent and accountable.
When he took office in January, his team added that in posting nonemergency bills, it would "allow the public to review and comment" before Mr. Obama signed them.
Five months into his administration, Mr. Obama has signed two dozen bills, but he has almost never waited five days. On the recent credit card legislation, which included a controversial measure to allow guns in national parks, he waited just two. . . .
Now, in a tacit acknowledgment that the campaign pledge was easier to make than to fulfill, the White House is changing its terms. Instead of starting the five-day clock when Congress passes a bill, administration officials say they intend to start it earlier and post the bills sooner.
"In order to continue providing the American people more transparency in government, once it is clear that a bill will be coming to the president's desk, the White House will post the bill online," said Nick Shapiro, a White House spokesman. "This will give the American people a greater ability to review the bill, often many more than five days before the president signs it into law."
One argument for modifying (abandoning) the "Sunlight before Signing" policy is that the public no longer has any meaningful opportunity to influence prospective laws once legislation has passed Congress. Yet this is only true if the White House does not intend to be responsive to public concerns. Further, the original pledge was about ensuring that the executive branch did its part to ensure transparency and accountability in government, and was never pitched as a substitute for actions Congressional leaders could take to increase legislative transparency.
The explanation of the policy change also presupposes that there is meaningful opportunity for public involvement while legislation is still pending and subject to revision. Yet as the debate over the Waxman-Markey climate change bill illustrates, this is not a fair assumption. As Jim notes below, the House is preparing to vote on an 1,000-plus-page bill that was subject to a 300-page amendment last night — an amendment that was not even available to many members of Congress until today. Most members of Congress have had no meaningful opportunity to read, let alone digest, the bill. The same is true for most legislative staff. Forget the public.
If legislation of this sort, which establishes the first-ever regulatory controls on the most ubiquitous byproduct of modern industrial society, imposes new efficiency requirements on all-manner of appliances and consumer products, could trigger the imposition of tariffs on foreign products (likely in violation of U.S. trade commitments), furthers the federal government's environmentally destructive love affair with corn-based ethanol, contains numerous provisions drafted or urged by various special interest groups, and (at least in one version) contained provisions designed to create a national housing code, can be adopted by a House of Congress within hours of being written (let alone becoming public), then any claim of transparency in government is a farce.
UPDATE: FWIW, the Waxman-Markey climate bill passed 219-212. Any guess how many of those 219 (or, for that matter, the 212) really know everything that is in the bill?
SECOND UPDATE: As it turns out, there was not even a copy of the final bill language available in any form when the bill passed. Rather, as David Freddoso reports, the House Clerk had a copy of the 1090-page bill that emerged by committee and a copy of the 300-page set of amendments agreed upon at 3am Friday morning, and many provisions in the latter consist of the likes of "Page 15, beginning line 8, strike paragraph (11) . . ." In other words, it is highly doubtful that more than a handful of member of Congress knew the contents of the legislation they voted on. (LvPL)