The End of Transparency (Before It Ever Began):

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.

"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."

The Administration also appears to be backing off its promises for greater access to government documents under the Freedom of Information Act (FOIA).

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)


Just Read the Bill:

First there was Now there's Just Read the Bill, Already! Could this be a trend?


Climate Protectionism?

Tyler Cowen criticizes the Waxman-Markey bill for imposing tariffs on goods from countries that do not reduce their greenhouse gas emissions. (See also VC contributors linked at the end of this post (and scroll down).) Tyler gives lots of good reasons why trying to punish (say) China would be counterproductive. Clearly, doing so is not costless: we can punish China only at great cost to ourselves in the short term. But the fact is that there is no alternative.

To see why, recall that climate change is a collective action problem. In the most extreme form of the problem, a single nation or a group of nations can do nothing about climate warming, because if they tax emissions (directly or through a cap and trade scheme) industry will simply migrate to other countries and export back to the regulated countries. Costs go up, with no gain for the climate.

In an ideal world, a treaty would be negotiated, one that would require all states (or, at least, all states capable of hosting industry) to reduce emissions. States like China would have to be persuaded that they can't afford to stay out of the treaty. China appears to realize that global greenhouse gas abatement serves its long-term interests, but prefers other countries to pay most of the cost—through financial and technological assistance, which has been its bargaining position so far. But the rest of the world can't afford to pay China to reduce its emissions to an adequate level. Only tough bargaining will ensure that China signs on at reasonable cost for the rest of the world. Note also that any realistic climate treaty would provide for sanctions against states that violate their obligations. Bombing harbors and seizing customs houses having gone out of fashion, these sanctions would almost certainly take the form of trade sanctions.

Many people have criticized Waxman-Markey for putting the cart before the horse. We should first negotiate a climate treaty, and then pass laws implementing its limits. This has been my view but I wonder whether it is too ivory-tower. The administration seems to think that it will not have a credible negotiating position unless it signals that the U.S. is capable of passing a climate bill, even a minimal one that doesn't do much for the climate like Waxman-Markey. The fact that this law imposes costs on the United States while providing no real benefits is consistent with the classic signaling model, with the United States trying to persuade the rest of the world that the public will support climate regulation. If this is true, and it is plausible even if not obviously correct, then unilateral restrictions could be desirable, but they also create a problem by simultaneously weakening the American bargaining position. The U.S. having taken abatement steps, China and others can hold out for even more. This may well be a rationale for threatening to punish states that don't climb onto the climate bandwagon. The U.S. will move first (at least, relative to China, not to Europe) but its threat to disrupt trade relations makes it clear that China will pay a price if it tries to take advantage of the U.S. move by holding out for an even better deal in climate talks.

Then why does the Obama administration say that it opposes the tariff? It may fear that the provision will start a trade war, injure relations with China and other countries, and cause much more mischief at a time of economic fragility. Given everything that is going on, it may be impossible to send a good message about climate without sending a bad message about other forms of international cooperation. Therefore, the messages need to be ambiguous. Maybe this is right, but sooner or later, the United States and other countries will have to make it clear that they are prepared to impose sanctions on states that refuse to take on climate obligations and to comply with them—eve at the risk of ending up at the worst equilibrium in which trade is disrupted and a climate deal is not reached. This is a high-stakes game but there is no clear alternative.


Even Less Sunlight Before Signing:

A few weeks ago, the Obama Administration officially abandoned the President's "Sunlight before Signing" campaign pledge that the White House would post all legislation passed by Congress for at least five days before the President would sign it. In making this announcement, the Administration maintained that it would comply with the spirit, if not the letter, of the original commitment by posting legislation on the White House site once it became clear legislation would eventually pass and make it to the President's desk. This new commitment, they suggested, would actually provide even greater sunlight, as some bills would be available for review earlier and for a longer time. Well, this promise is no longer operative either, as the Cato Institute's Jim Harper details. Since the White House announced its new sunlight policy, nine additional pieces of legislation have been signed into law by the President and yet, as of yesterday, not one had been posted on the White House web site.


Read the Bills Before You Vote:

House Majority Leader Steny Hoyer laughs at the idea they should read substantive legislation before they enact it. Jeff Jacoby doesn't think its funny.

Senators and representatives who vote on bills they haven't read and don't understand betray their constituents' trust. It is no excuse to say that Congress would get much less done if every member took the time to read every bill. Fewer and shorter laws more carefully thought through would be a vast improvement over today's massive bills, which are assembled in the dark and enacted in haste. Steny Hoyer chortles at the thought of asking members of Congress to do their job properly. It's up to voters to wipe the grin off his face.