The 112 th Congress: The Good, The Bad, The Ugly With the end of the 112 th Congress, it is time to take stock of how Congress performed on issues of concern to CREW. Much has been written already about the 112 th Congress, most of it negative. Washington Post columnist Ezra Klein, for example, listed 14 reasons why this is the worst Congress ever, focusing on its poor record of productivity (worse than the Do Nothing Congress of 1947-48), its record low approval ratings, the increased polarization among members, and the epic failure of a super committee to solve our nation s economic woes. i Congress also deserves poor marks for failing to make any substantive reforms in the areas of transparency, ethics, money and politics, and corporate reform. Even Congress success in passing the STOCK Act was marred by the shameless tactics of House Majority Leader Eric Cantor, who gutted the bill before bringing it to the floor for debate. The resulting legislation was a hollow shell of what could have been one of the most substantive government reform measures in nearly a decade. More generally, the 112 th Congress has failed to offer any meaningful reform of the Senate, where filibusters are wildly abused to block senators from debating legislation and passing laws the job they were elected to do. Two years ago, CREW fiercely advocated for significant changes in the filibuster process. But what started as a promising proposal ended with nothing more than a paltry gentleman s handshake agreement that did little to end the paralysis plaguing the chamber. Failure to pass real filibuster reform led to four more years of gridlock. In the current session there have been 113 cloture motions to stop filibusters. In the 2009-2010 session there were 137 cloture motions, and 139 in the session before that. While Congress may be content with its record-low approval ratings, the American public should not be. Survey after survey shows voters care about these issues, and Congress should care too. In closing the book on the 112 th Congress with little, if anything, to celebrate, we can only hope the 113 th Congress offers new opportunities for meaningful reform. What follows is our assessment of four areas: transparency, ethics, money and politics, and corporate accountability. 1
Transparency Accomplishments: New Online Database. The 112 th Congress began on a positive note when the Committee on House Administration adopted the Standards for the Electronic Posting of House and Committee Documents & Data. Effective as of January 1 2012, it requires the Clerk to maintain a single website where the public can access all House bills, amendments, and resolutions for floor consideration. While there is still much to do, this was an excellent first step towards making the House of Representatives legislative data available in machinereadable formats, thereby enabling greater transparency and public review. New House Transparency Rules. Speaker Boehner deserves credit for implementing some key transparency reform rules for the House, including the 72 hour rule, whereby all bills must be posted online for three days before a vote. Unfortunately, members did not always adhere to these rules, notably when seeking swift passage of controversial bills. The rules also require committees to post notice of markups three days in advance, and to post online committee votes, amendments, disclosures about witnesses who testify, and webcasts of hearings and markups. Freedom of Information Act (FOIA). We achieved some important, but limited victories on the FOIA front. Exemption 3 of the FOIA authorizes agencies to withhold information prohibited from disclosure by another federal statute. Exemption 3 statutes are often inserted surreptitiously into bills, making them difficult to track. Nevertheless, CREW and other reform groups were able to thwart provisions in versions of the cybersecurity legislation that would have denied public access to anything shared through a cybersecurity exchange, and to a broad range of critical infrastructure information. Ultimately, the entire legislation failed to pass. We were also successful in narrowing the scope of a (b)(3) provision and ensuring the addition of a public interest balancing test before material can be withheld in the National Defense Authorization Act. Further, we succeeded in narrowing a provision in an FDA reauthorization bill that would have barred public access to important drug and safety information. Electronic Government Fund. CREW and other good government groups were successful in thwarting proposed cuts to the Electronic Government Fund, which would have virtually eliminated crucial transparency programs like data.gov and usaspending.gov. Congress approved funding for the Fund of $8 million in FY 2011, and $12.4 million in FY 2012. Near Misses: DATA Act. The Digital Accountability and Transparency (DATA) Act of 2011 was introduced and passed in the House. This critical legislation would have allowed the public and watchdog organizations to track government spending much more easily by requiring uniform, online 2
reporting of all federal agency spending. Groups like CREW would have been better able to identify waste, fraud, and abuse. The Sunlight Foundation s Clearspending project identified more than $1.3 trillion in misreported federal spending. Despite a major push by transparency groups and key supporters in Congress, the DATA Act fell just shy of being taken up in the Senate. The White House, for its part, offered tepid support. Testifying before the House Oversight and Government Reform Committee, Office of Management and Budget (OMB) Controller Danny Werfel expressed concern over certain provisions, while noting the president and the administration are in complete agreement with the act s objectives. New Transparency Caucus. Rep. Mike Quigley (D-IL) and Rep. Darrell Issa (R-CA) formed a highly touted Congressional Transparency Caucus in March of 2011, which quickly garnered more than 30 bipartisan members. Sadly, the caucus did little of substance during the 112 th Congress, although it ended the term with a panel on transparency under the Obama Administration that examined some important questions. In the 113 th Congress we will look to the caucus to serve a more visible role in bringing transparency and accountability issues to the forefront. Failures: A slew of good government legislation supported by CREW was introduced, but saw little or no action. The Access to Congressional Mandated Reports Act was introduced in both chambers with bipartisan support and support from the Government Printing Office (GPO), charged with implementing its provisions. The legislation would have required the GPO to put federal agency reports to Congress online, in bulk, open formats. Similarly, the Public Online Information Act (POIA), strongly supported by CREW and others, was introduced in both chambers, but never saw daylight in committee. POIA would have required executive branch agencies to publish on the internet all publicly available information in a timely fashion and in a user friendly format. The House again failed to take up and consider the Transparency in Government Act, sponsored by Rep. Quigley. This legislation would have updated current congressional disclosure requirements to mandate that more information about lawmakers and lobbyists, congressional staff, and the executive branch be accessible to the public online. The Senate tried but failed to pass the Senate Campaign Disclosure Act sponsored by Sen. Tester (D-MT). This legislation would have required Senate candidates to electronically file campaign finance disclosure reports required by federal campaign finance laws. Currently, all federal candidates, party committees, and federal PACs are required to file their campaign finance disclosure reports electronically, with the sole exception of Senate candidates, who still file paper reports. 3
CREW and other groups called on Congress to improve and modernize public access to legislative information on THOMAS, the free, online portal Congress created. A 2010 Pew Research Center report found that one in five adults who use the internet had downloaded or read legislation during the past year. THOMAS, however, is very cumbersome and prone to error. While Congress expressed support for an improved and modernized THOMAS, the Library of Congress, which oversees THOMAS, has yet to act. Finally, the 112 th Congress brought no meaningful reform to the earmarking process. Shortly before the 112 th Congress began, CREW convened a diverse group of lobbyists and government reform groups to generate ideas on reforming the earmarking process. That effort led to suggested reforms that, among other things, would have limited campaign contributions from earmark beneficiaries, created a new database of all congressional earmarks, and required random audits by the GAO to ensure taxpayer money has been spent appropriately. Rather than rationally and systemically address the problems with the earmarking process, however, Congress instead instituted a moratorium on earmarking. As a result, the earmarking process is now almost exclusively the purview of the executive branch. Some members of Congress still contact federal agencies directly to solicit earmarks for their districts, but are under no obligation to make these contacts public. Meanwhile, K Street lobbyists have found a way around the moratorium by meeting directly with executive branch officials to secure federal funding for their clients, again with no transparency. It remains to be seen whether the moratorium will continue into the 113 th Congress. Accomplishments: Ethics STOCK Act. After a 60 Minutes segment aired on alleged insider trading by members of Congress and congressional staff, the Stop Trading on Congressional Knowledge Act (STOCK Act) was put on the fast track for enactment. The version the Senate passed would have been one of the most significant pieces of government reform legislation in a decade. Most significantly, it incorporated bipartisan legislation CREW has long advocated for after the Supreme Court s misguided ruling in Skilling v. United States, which eviscerated a critical public corruption statute known as the Honest Services fraud statute. The Public Corruption Prosecution Improvements Act, sponsored by Sen. Leahy (D-VT) and Sen. Cornyn (R-TX), along with companion legislation in the House sponsored by Rep. Sensenbrenner (R-WI) and Rep. Quigley, would have given law enforcement officials the tools they need to detect and prosecute public corruption such as self-dealing. It also would have amended the illegal gratuities statute to prevent public officials from accepting gifts given because of their governmental positions, and would have made clear public officials who accept private compensation may be subject to prosecution. Inexplicably, Majority Leader Eric Cantor removed this provision from the House version and refused to even allow any consideration of it during debate of the bill. Consequently, it did not make it into the final bill signed into law. 4
Another amendment incorporated in the Senate version of the STOCK Act was the Congressional Integrity and Pension Forfeiture. Sponsored by Senator Richard Blumenthal (D-CT), the amendment would have ensured that, going forward, no present or former member of Congress convicted of a public corruption felony while serving in elected office regardless of when it was committed would receive federal pension benefits. The amendment would have added 22 new public corruption offenses to a law that revokes congressional pensions for convicted lawmakers, and would have ensured that former members of Congress forfeit their pensions if convicted of committing public corruption crimes while serving in any other elected office. Unfortunately, Majority Leader Cantor stripped this provision from the bill as well, leaving the final bill much weaker. As passed, the STOCK Act prohibits members and employees of Congress from using nonpublic information derived from their official positions for personal benefit. In addition, it requires members to report their stock trades within 45 days on their websites, rather than once a year as they do now, allowing the trades to be compared with congressional activity. This increased transparency is likely to deter members from trading on confidential information. Failures: Honest Services. As described above, critical legislation to reform the Honest Services fraud statute in the wake of Skilling v. United States was gutted from the STOCK Act by Majority Leader Cantor. Yet despite unanimous approval by the House Judiciary Committee and nearly unanimous approval in the Senate Judiciary Committee, Congress failed to find another avenue to pass the Public Corruption Prosecution Improvements Act. CREW will be actively advocating for passage of this legislation in the 113 th Congress. Lobbying Reform. The Lobbying Disclosure Enhancement Act, supported by many good governance groups, was introduced in the House by Rep. Quigley and Rep. Jared Polis (D-CO), but also saw no action. The bill would have required lobbyists to report not only who they lobbied, but also what the lobbyists discussed, and when the lobbying contact took place. It also would have closed a loophole concerning who needs to report by amending the Lobbying Disclosure Act s definition of "lobbyist" to eliminate the exemption of certain lobbyists who work for a client on a part-time basis. Because the current law says reporting is only necessary if lobbyists spend more than 20 percent of their time lobbying for any particular client, the public is completely in the dark about the lobbying activities of many of these so called policy advisors who work for law firms or lobby shops. Near Misses: Money and Politics Presidential Public Financing. We witnessed attempts by the 112 th Congress to eviscerate the presidential public financing system. The House of Representatives voted to end public 5
financing of presidential elections without any committee hearings or markup prior to consideration. Fortunately, cooler heads prevailed in the Senate and the system remains intact. CREW sent a letter to Speaker John Boehner and Majority Leader Cantor respectfully opposing any attempt to abolish this valuable program, and instead urging reform and expansion of the current public financing system. Failures: DISCLOSE Act. Clearly one of the biggest defeats in the 112 th Congress was the failure to pass critically needed disclosure legislation, the DISCLOSE Act. The DISCLOSE Act would have created robust reporting requirements for Super PACs, corporations, unions, and nonprofit organizations that decide to make campaign expenditures. It also would have required reporting of transfers by those groups to others making such expenditures, whereby Super PACS can launder contributions through 501(c)(4) organizations, allowing the donors to remain secret. Despite the flood of secret money influencing this year s elections, the Senate s effort to take up and debate the DISCLOSE Act was obstructed by Senate Republicans refusing to allow even debate on the bill. In the House, Majority Leader Cantor refused to even consider bringing the bill to the floor. Fair Elections Now Act. Other campaign finance legislation introduced in an effort to respond to the Supreme Court s Citizens United decision had little chance of being considered. Most notably, Sen. Dick Durbin (D-IL) introduced the Fair Elections Now Act to help empower small donors to counteract the big donations from wealthy special interests. This legislation would have allowed federal candidates to run for office without relying on large contributions, big money bundlers, or donations from lobbyists, freeing them from constant fundraising to focus on what people in their communities want. Under this bill, candidates who raise a minimum level of small individual contributions of $100 or less from people in their state would qualify to receive a 5 to 1 match from a fund derived from a 0.5% fee on federal contractors that earn $10 million or more per year from federal contracts. Empowering Citizens Act. More robust public financing legislation was introduced in late 2012 by Rep. David Price (D-NC) and Rep. Chris Van Hollen (D-MD), and may serve as a vehicle for future overhaul of our campaign finance system in the 113 th Congress and beyond. The Empowering Citizens Act (ECA) is comprehensive reform legislation that would have modernized the presidential campaign financing system and created a voluntary small donor program for congressional races. Similar to the Fair Elections Now Act, this legislation also offers a 5 to 1 match. More significantly, it strengthens rules prohibiting coordination between candidates or parties and outside spending groups by forbidding candidate-specific Super PACs from acting as operating arms of campaigns of candidates they are supporting. FEC. Appointing new commissioners to the Federal Election Commission (FEC) once again took a back seat to other priorities. Most senators seemed content with the current structure of 6
the FEC and President Obama s corresponding failure to make new appointments. Although the president, not Congress, has the constitutional power to appoint commissioners, an informal understanding between the president and Congress has led to party leaders selecting FEC nominees. This tacit understanding has only enhanced the partisan nature of the process, with party leaders nominating only commissioners who further their political interests, including some who are openly hostile to the very laws they would be charged with enforcing. While CREW and other outside groups urged the president to break the logjam, few members of Congress echoed this call. As a result, five of the six FEC commissioners have long expired terms and the commission as a whole hopelessly deadlocks on any issue of substance. Failures: Corporate Accountability Shareholder Protection Act. In yet another front in the fight against Citizens United, the Shareholder Protection Act was introduced in both chambers, but saw no action. The need for the legislation is clear. In corporate governance, there are no rules or procedures established in the United States to ensure that shareholders those who actually own the wealth of corporations are informed of, or have the right to approve, decisions on spending their money in politics. The Shareholder Protection Act would have provided a framework to rein in some of the damage in this new, troubling political landscape thanks to Citizens United. Looking Ahead to the 113 th Congress As expected, the first big debate of the new Congress will again be an effort to procedurally reform the Senate. Majority Leader Reid and others already have offered modest yet necessary filibuster reforms, including immunizing from filibusters motions to debate a bill or nominations (or motions to proceed) and motions to move a bill to conference with the House. Other proposals include shortening the time it takes to break a filibuster, and requiring those seeking to filibuster to actually hold the Senate floor and talk. Whether these substantive reforms are enacted will have a huge impact on the Senate s ability to conduct business. Much of the legislation discussed above will certainly be re-introduced, and CREW will continue to vocally advocate for these and other reforms. We will be going back to the drawing board on the Honest Services fraud front to push for legislation that holds corrupt public officials accountable for their self-dealing. CREW also will be focusing on money in politics, finding ways to shine a light on those who seek to secretly influence our democracy. 7
i Ezra Klein, 14 Reasons Why this is the Worst Congress Ever, The Washington Post, July 13, 2012, http://www.washingtonpost.com/blogs/wonkblog/wp/2012/07/13/13 reasons why this is the worst congressever/. 8