The Volokh Conspiracy

It sounded like an April Fool’s joke: President Obama accepted a “transparency” award behind closed doors. Only as many are learning, it’s easier for a Presidential candidate to promise transparency than it is for the federal government to deliver. (Ditto for Congressional leaders.) As Charles Ornstein and Hagit Limor wrote in the Washington Post this week:

The day after his inauguration, President Obama promised a new era of “openness in government.”

“We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration,” he wrote in one of his first memos to federal agencies. “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

But the reality has not matched the president’s rhetoric. We, presidents of two of the nation’s largest journalism organizations, and many of our thousands of members, have found little openness since Obama took office. If anything, the administration has gone in the opposite direction: imposing restrictions on reporters’ newsgathering that exceed even the constraints put in place by President George W. Bush.

They note that the Obama Administration has led the way in ensuring that more government data is available online, but argue this is not enough to ensure real openness and transparency.

The Obama administration has put reams of data online detailing many aspects of government operations. This information is useful, but it’s merely a matter of the government posting what it wants when it wants, on sites most citizens would never think to visit.

Meanwhile, reporters’ questions often go unanswered. When replies are given, they frequently are more scripted than meaningful. Public employees generally are required to obtain permission to share their expertise, and when interviews are allowed, a media “handler” is listening in to keep control over what is said. And when replies come via e-mail, it’s unclear who has written them.

Their focus is on health policy, but others argue this is a broader problem. It seems that when it comes to government transparency, we’ve had more hope than change.

Last week, I posted a link to this video of one woman’s experience with airport security after asking to have her breast milk visually screened instead of x-rayed (as TSA procedures allow).  At the time, I said I’d like to hear the TSA’s side of the  incident, as the video appears to show TSA employees engaged in fairly egregious conduct.  I also contacted the TSA directly seeking their response to the incident and associated allegations.

The TSA has now responded on the TSA blog — and the response is not particularly reassuring.  Rather than provide any detail or clarification of the events on the video, the post acknowledges the woman in question was unhappy with her “screening experience” and “experienced an out of the ordinary delay,” claims the TSA investigated the incident, and reports that “the officers received refresher training for the visual inspection of breast milk.”  Really?  That’s it?  What’s offensive about the video is not the officers’ apparent lack of familiarity with the protocol for visual inspection of breast milk, but the apparent retaliation against a traveler who sought to avail herself of established TSA procedures.

If the TSA really has investigated this incident, it should, at the very least, make the investigation’s conclusions public and report on any disciplinary measures taken (or provide an explanation for the failure to discipline those involved).  If, as the TSA claims, it is official TSA policy to “strive to provide the highest level of customer service to all who pass through our security checkpoints” and its “policies and procedures focus on ensuring that all passengers are treated with dignity, respect, and courtesy,” then it should be more forthcoming about incidents like this.

UPDATE: It appears the TSA needs to provide “refresher training” about checkpoint photos as well.  Although the TSA permits photographing airport security checkpoints, TSA personnel keep detaining people who try to take pictures, as detailed here and here.

FURTHER UPDATE: The TSA denies reports body-image machines were taken out of use for Thanksgiving travel.

Has the distribution of simulus funds been influenced by political factors?  A study by Veronique de Rugy suggested a partisan tilt in the disbursement of stimulus funds; she found a strong correlation, but no definitive evidence of causation.  This prompted a response from Nate Silver at FiveThirtyEight.  de Rugy replied here, prompting a surreply from Silver. And here’s a comment from Nick Gillespie.

Here is de Rugy’s bottom line:

my take on the data has always been the following: The regression analysis shows that district’s party representation matters. However, I cannot say how much it matters compared to other factors (such as the formula used by different agencies). I said it loud and clear each time I presented my findings. . .

If it is not possible to nail down the precise amount that party affiliation matters, does anyone truly want to argue that there are no political factors influencing this stimulus or stimuli in the past (whether put into place by Republicans or Democrats)? There is a lot of literature in economic-history journals on similar patterns in New Deal spending, and it consistently shows that New Deal spending correlated rather strongly and negatively with the margin of votes in the previous election. Areas where Roosevelt won by a little got more New Deal bucks than ones where he won by a lot. (I was directed to one article in particular by a reader this morning, and it is worth looking into: Price V. Fishback, Shawn Kantor, and John Joseph Wallis’s “Can the New Deal’s Three Rs Be Rehabilitated?: A program-by-program, county-by-county analysis.” Explorations in Economic History 40 (2003), pp. 278-307.)

I am confident that a similar pattern can be found with President Bush’s stimuli, which, by the way, I was publicly and consistently against. . . .

my predisposition toward limited government and sound fiscal policy hardly means that I rig my data or designs. Rather, it simply means that I am particularly skeptical when anyone claims that politicians (of all parties) do not programmatically seek to advantage their allies while punishing their adversaries. That was a useful guiding assumption under George W. Bush and, under the current administration, no less so.

And Silver, who is skeptical, summarizes his view:

For me, personally, the notion that the allocation of stimulus funds could have reflected a broad-based and widespread effort to benefit districts represented by Democrats seems implausible — something which is well worth examining but something which should have received especially rigorous scrutiny. This is particularly so given that many of the funds were intermediated by state governments, not all of which are controlled by Democrats, as well as federal agencies that were constrained by formula rules.

There are two other variations that I find less impluasible:

I find it less impausible that the funds could have been directed toward those sorts of districts which tend to vote Democratic (e.g. as measured by PVI or by Obama vote share) — even after controlling for other demographic variabes — a possibility that de Rugy raises in her response but which was not the focus of her hypothesis. The difference is that that this could have resulted from a sort of unconscious bias in the design of the stimulus rather than a deliberate conspiracy.

I also find it less implausible that some *particular* projects could have been directed toward those districts that had a Democratic representative who was either especially influential or who a key swing vote in the House. (This is what we call pork.) However, de Rugy ran various tests on the types of Democratic districts that benefited from the stimulus and did not find any relationships with the characteristics of the Democratic members of Congress that tended to represent them.

One point on which they both agree is that the quality and comprehensiveness of the data on Recovery.gov is quite poor — we’re not getting our $18 million worth here.  As Silver notes:

I share de Rugy’s disappointment with the quality of the data available at recovery.gov. Frankly, I am not sure that testing her hypothesis to a peer-reviewable level of robustness is possible given the middling quality of data and the inherent ambiguity with how particular projects must be assigned to particular congressional districts.

CBS News has been reporting on what the government spent to send over twenty members of Congress, along with staff, spouses, and others, to the Copenhagen climate conference, and what they’ve uncovered isn’t pretty.  More here.

In other news, the Washington Post reports that Transportation Security Administration nominee Erroll Southers has withdrawn his name from consideration.  I assume the next nominee will not have violated the federal Privacy Act nor provide false testimony to the Senate Government Affairs Committee.  I think Radley Balko would also like the next nominee to replace the official TSA blogger.

Note: I don’t expect every nominee to have a spotless record.  We’re all human.  Nonetheless, some transgressions should disqualify individuals from certain types of jobs, even if not from high-level government positions generally.  Furthermore, I think it is reasonable to expect nominees to be truthful and forthcoming about their past transgressions, and not to submit false or misleading affidavits.  A particularly exacting standard this is not.

Congressional leaders may dispense with the traditional House-Senate conference to reconcile the two chambers’ competing health care bills in favor of less formal negotiations.  Whatever form the process takes, C-Span would like to be there.  On December 30, C-Span CEO Brian Lamb sent a letter to Congressional leaders requesting that his network be able to provide live coverage of the negotiations.  The congressional leadership has yet to respond.  According to Politifact.com, during the presidential campaign, then-Senator Barack Obama repeatedly promised to allow C-Span coverage of negotiations over health care reform.

UPDATE: Conferences for highly contested bills may be a thing of the past.

“There has never been a more open process for any legislation,” according to House Speaker Nancy Pelosi.  Even if true, that would not be saying much.  The Republicans did not set so high a bar.  Also, TPM: “Oh, Snap!”

SECOND UPDATE: Igor Volsky of Think Progress thinks televising any House-Senate negotiations would bea bad idea and Ezra Klein is conflicted.

Over at NRO’s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill’s reforms, there may not have been enough votes for cloture on the bill.

while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen and sworn” (60 senators when all seats are occupied), cloture on any proposed change to the Senate’s standing rules takes “two-thirds of the Senators present and voting,” or 67 senators if all 100 are on the floor.  (Both of these requirements are in Senate Rule XXII.)  Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present.  But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate’s standing rules.  Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill—because it contains at least one change to the Senate’s standing rules.

This creates an interesting wrinkle.  Under Senate Rule XXII, “a measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting” to end debate.  Yet there were only 60 votes for cloture on the Reid bill.  So unless there is some basis for giving special treatment to rules changes that are buried into other legislation, it would seem that either a) cloture was not achieved, or b) the entrenchment provisions do not actually alter the Senate rules.

The Senate health care bill contains provisions that purport to prevent a future Congress from revising portions of the legislation my majority vote.  Specifically, at pages 1019-1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board.  The relevant language is below.  As noted here, some Senators are upset by this provision.  My questions are 1) Is there much precedent for this sort of thing, specifically altering Senate rules in substantive legislation? and 2) Can the current Senate bind future Senates in this way?

(3) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS.—

(A) IN GENERAL.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(B) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS IN OTHER LEGISLATION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(C) LIMITATION ON CHANGES TO THIS SUBSECTION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

(E) APPEALS.—An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph.

The AP reports President Obama is likely to sign an executive order before year’s end to create a National Declassification Center to review Cold War era documents for potential declassification and discourage the classification of documents going forward.  This would be a very welcome step.

CBSNews.com reports that, at least by some measures, the U.S. has exceeded the legally authorized debt limit, but this doesn’t mean the government is about to shut down or stop spending money — at least not yet.

The ceiling was set at $12.104 trillion dollars. The latest posting by Treasury shows the National Debt at nearly $12.135 trillion.

A senior Treasury official told CBS News that the department has some “extraordinary accounting tools” it can use to give the government breathing room in the range of $150-billion when the Debt exceeds the Debt Ceiling.

Were it not for those “tools,” the U.S. Government would not have the statutory authority to borrow any more money. It might block issuance of Social Security checks and require a shutdown of some parts of the federal government.

Congress is expected to increase the debt limit by $290 billion, if not more, in coming weeks.

UPDATE: The end of the story has a qualification I omitted: “Technically, not all of the National Debt is subject to the Debt Limit – a small percentage is exempt.”  The number cited in the story is the National Debt, not the Public Debt Subject to Limit, so as a legal matter we may not be “over the limit.”  However, as this graph shows, only a very small percentage of the National Debt is excluded.

N.Y. Times:

A spokesman for Senator Max Baucus, Democrat of Montana, said early Saturday that the senator nominated his girlfriend, a lawyer who worked for him at the time, for a United States attorney position last March.

The girlfriend, Melodee Hanes, worked for Mr. Baucus as his state office director and as a field director between 2003 and 2009.

Baucus eventually withdrew Hanes’ name from consideration.  Because he thought better of his obvious ethical lapse? Hardly.

Mr. Baucus and Ms. Hanes then decided that she should withdraw her name from consideration because the couple wanted to live together in Washington, Mr. Matsdorf said.

Matsdorf, it should be noted, is Baucus’s spokesman, and that’s the best he could do!

In his statement, Mr. Matsdorf said Ms. Hanes was recommended for the United States attorney position solely on the basis of her credentials.

“With an extensive background as a prosecutor and extensive legal experience, Ms. Hanes submitted her name for consideration for the U.S. Attorney position from Montana,” he said. “Her name was one of six that was submitted for review by Senator Baucus to an independent, highly respected Montana attorney who reviewed the applications. After an

extensive evaluation of all the applicants’ qualifications, Ms. Hanes was one of three applicants the third-party reviewer recommended for consideration.”

I don’t know anything about Hanes’s background, nor do I know how “independent” the third-party reviewer was. But spending the last six years working as a Senator’s field office and state office director (i.e., not even working as a lawyer) hardly seems like the kind of credentials one expects from a U.S. attorney candidate, and certainly not one purportedly recommended “solely on the basis of her credentials.”

And even if Hanes was the single most qualified individual in Montana for the position, it’s obvious that Baucus should have had no part in nominating his girlfriend to a U.S. attorney position. (The fact that Baucus and Hanes were both married (but separated) at the time is getting much of the attention in newspaper headlines, but is hardly the core of the public scandal.)

Baucus has abused his position and the public trust, and has proven himself unworthy of being a Senator.  He should resign.  Unfortunately, the voters won’t have a chance to kick him out until 2014.

UPDATE: Credit goes to the website Main Justice for breaking the story and forcing Baucus’s admission.  Hanes’s c.v. can be found here.  And there is this nugget: “‘She was recommended for the position because of a very close and personal relationship with Max Baucus and she withdrew because of a very close and personal relationship with Max Baucus,’ Thomas Bennett, Hanes’ ex-husband, told Main Justice.”

FURTHER UPDATE: The Daily Kos reviews Hanes’ background, and concludes that she and Bennett “left Iowa in disgrace.”  The Eighth Circuit later wrote about one of Hanes’s cases:

Every court that has reviewed this case has been struck by certain aspects of the trial and actions of prosecutors that violate the fundamental notions of fair play on which our legal system is based. For example, the Iowa District Court for Polk County, addressing Morales’s application for post-conviction relief, found prosecutor Hanes’s instruction to withhold medical records from the defense team prior to the second autopsy “suspicious at best” ….

The treating surgeon has now recanted his trial testimony, at least to the extent of placing any reliance on the opinions of the Medical Examiner [Bennett, Hanes's then-husband]. Defense counsel failed … to make an adequate offer of proof regarding the romantic relationship between a prosecutor [Hanes] and the Medical Examiner [Bennett].

Finally, fwiw, Hanes lists herself on her c.v. as an adjunct professor at Drake Law School from “1990-present.”  Seems odd to me that someone living in Montana could be an active adjunct professor in Des Moines, and a search of Drake’s website retrieves no results for “Hanes,” nor do the classes she purports to teach appear in Drake’s course list.

ANOTHER UPDATE: Some commenters think I’m being too harsh on Baucus, given that Senatorial appointments are full of conflicts of interest, personal favors, favoritism to friends, relatives, political allies, donors, friends and relatives of donors, etc.  Perhaps.  But I suspect that if I knew more of what went on behind closed doors in the Senate, my reaction would not be that this absolves Baucus, but that more Senators should resign, not that Baucus should be off the hook.

About 600 or so.

How successful has the stimulus been at creating jobs?  So successful that it’s created jobs in Congressional districts that do not even exist!  More from Nick Gillespie.  (HT: Instapundit)

The United States has agreed to recognize the results of this month’s election.  Ousted President Zelaya will be allowed to return to Honduras, and the legislature will vote on whether to allow him to serve out the remaining three months of his term, albeit without control over the military.

Meanwhile, it seems some members of the U.S. Senate objected to a Law Library of Congress report that largely supported the legality of Zelaya’s ouster.  According to this report, Senator John Kerry (D-MA) and Representative Howard Berman (D-CA) asked the Library of Congress to retract the report because it “”contains factual errors and is based on a flawed legal analysis that has been refuted by experts from the United States, the Organization of American States and Honduras” and “has contributed to the political crisis” in Honduras.  The Library of Congress stands by the report, however, and is preparing a response to Senator Kerry and Representative Berman.

If the two lawmakers belive the Law Library of Congress report is flawed, there are better responses than seeking a retraction.  For one, they could demonstrate the report’s failings, perhaps by pointing to alternative analyses that are more persuasive.  Perhaps, they could even encourage the State Department to release the memorandum written by Harold Koh supporting the U.S. government’s position that the removal of President Zelaya constituted an illegal coup.

James Kirchik, writing in a recent issue of The New Republic, ponders the Administration continued insistence that there was a “coup” in Honduras.  He concludes:

In the immediate wake of Honduras’s constitutional crisis, it was understandable that the administration, caught by surprise, might jump the gun in its denunciation of the military action as a “coup.” Now, three months later and with legal repudiation from within its own government, U.S. policy has become a mistake in search of a rationale.

Among other things, Kirchik notes the Law Library of Congress analysis (noted here):

according to a recently released and widely overlooked report drafted by the Library of Congress, the actions the Honduran government took in removing Zelaya were consistent with that country’s constitutional procedures. Although the constitution does not contain specific information as to how a president can be impeached, the report did find that the Honduran Congress “used several other constitutional powers to remove President Zelaya from office.” Furthermore, the report also found that the country’s “Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.” In conclusion, the report, which was prepared by the Congressional Research Service’s Senior Foreign Law Specialist, determines “that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.”

In other words, far from fitting the administration’s description as a “coup d’état,” the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous. The Obama administration’s position, predicated on its hasty conclusion that Zelaya’s removal was illegal, now appears squarely contradicted by the only known official analysis of the constitutional issues involved.

This last bit may need to be revised, as there appears to be another “official analysis” of the relevant legal issues, albeit one that has yet to be released.  According to an op-ed by Senator Jim DeMint, who just returned from a trip to Honduras, there is a State Department report authored by State Department legal advisor Harold Koh.

In a day packed with meetings, we met only one person in Honduras who opposed Mr. Zelaya’s ouster, who wishes his return, and who mystifyingly rejects the legitimacy of the November elections: U.S. Ambassador Hugo Llorens.

When I asked Ambassador Llorens why the U.S. government insists on labeling what appears to the entire country to be the constitutional removal of Mr. Zelaya a “coup,” he urged me to read the legal opinion drafted by the State Department’s top lawyer, Harold Koh. As it happens, I have asked to see Mr. Koh’s report before and since my trip, but all requests to publicly disclose it have been denied.

If this report is indeed the basis for the Administration’s insistence that there was a “coup” in Honduras, and its decision not to recognize the pending November elections in which Zelaya could not be a candidate even were he to be reinstated, it should be released to Congress and the public.  In the unlikely event that the legal analysis depends upon sensitive classified information, such material could easily be redacted.

The Honduran government has made numerous missteps, from forcibly removing Zelaya from the country to restricting press freedoms, but I have yet to see a legal analysis to plausibly explain how Zelaya’s removal from office (as opposed to his forced exile) was illegal or unconstitutional, and I have seen no analysis, legal or otherwise, that explains why the already scheduled November elections should not proceed as planned.   Yet Harold Koh is quite smart — and I readily admit he knows far more about this subject than I ever will.  So if he has an analysis that would support the Administration’s otherwise-implausible position, let’s see it.  If not, then the U.S. government should let Honduras determine the course of their own affairs.

UPDATE: For a legal analysis that supports the Administration’s position, see this article by Douglass Cassel of the University of Notre Dame Law School.  Harold Koh’s memo may well make similar arguments, but we can’t know for sure unless and until the memo is released.

The papers are filled with stories (like this one) about the Congressional Budget Office’s conclusion that the Baucus health care reform bill will cost some $829 billion but not increase the federal deficit over the next ten years due to a combination of taxes, fees, and medicare cuts. Only there’s a catch. As the CBO analysis notes on the first page: “CBO and JCT’s analysis is preliminary in large part because the Chairman’s mark, as amended, has not yet been embodied in legislative language.” And again, on pages 8-9 for those who missed it the first time, the analysis notes:

The Chairman’s mark, as amended, has not yet been converted into legislative language. The review of such language could lead to significant changes in the estimates of the proposal’s effects on the federal budget and insurance coverage.

The CBO further notes that some provisions are not included in the analysis costs to be funded by future appropriations, including some implementation costs, are not included, and these could cost several billion dollars. There is also little discussion of the bill’s likely effect on state budgets, which could be quite significant.

The key point here is not the particulars of CBO’s scoring or the merits of the proposed reforms, but the fact that the Senate Finance Committee is poised to consider — and likely vote on — a bill that does not exist.  William Jacobson screams this point from the rooftops: “There is no Baucus Bill!”   I repeat, there is no bill, and yet the Washington Post reports there could be a committee vote on it as early as tomorrow.

Set aside my naive belief that legislators should actually read legislation before they vote on it and that reading is necessary (if not always sufficient) for understanding. Here Senators are preparing to vote on a bill that does not even exist. I am sure someone will say this is okay, because the Senators have been briefed by their expert staff, read summaries, and thus understand the legislation they have not read.  But the expert staff won’t have read the bill, and the summaries are based on some ideas, not actual legislative language.In this case, no one has read the bill.  Not the sponsor, not his staff, not the CBO — no one.  Their votes on whether to advance legislation to overhaul a substantial portion of the American economy will be based upon nothing more than expert assurances that as-yet-unwritten legislative language will achieve everything as planned.

A bill that has not been written cannot be understood. Until the conceptual outline of the Baucus bill is actually reduced to legislative language, it is impossible to determine what the bill will actually do, let alone what it will cost.  Even if legislators don’t need to read legislation in order to understand it, someone does.  But no one has read this bill as it is not written, so no one can say, with any assurances, they understand all that it is likely to do or what it will actually cost.  And yet we pretend.  This is how representative democracy ends — not with a bang, but a whimper.

[An aside: For my academic colleagues who believe reading a bill is unnecessary to understand it, do you feel this way about legal documents? Can your students really understand the cases and other materials assigned for class if they haven't read them, but instead relied upon the expert analyses found in outlines, headnotes, and the like? And, if not, are we really at the point where we expect less of our elected representatives than our students?]

UPDATE: Is the above a bit overheated?  Perhaps.  And my concerns about this particular legislation may be a bit premature.  As one of the commentators notes, one could view what the Senate Finance Committee is doing as nothing more than delegating to committee staff the drafting of legislation and a committee report along certain lines.  That’s a fair point.  There is nothing sacrosanct about a particular committee structure, and no reason to insist upon specific committees handling their responsibilities in particular ways, so long as the actual legislative language is published and available before the Senate as a whole considers the bill.  My concerns are twofold.  First, many people are treating this CBO analysis as if it anything more than a preliminary assessment of what the bill would actually cost (a highly questionable assumption for these reasons, among others).  Second, and more importantly, I believe the bill will be fast-tracked (much as Waxman-Markey was in the House) such that neither legislators nor the public will have a clear understanding of what it will do when it comes up for a vote.  If this is not what occurs, and the bill text is published and available before the final vote, I will be satisfied this aspect of the process worked as it should, and I will post something accordingly.