When he came into office Barack Obama made sweeping changes in favor of transparency in general and openness on the web in particular. One important promise the administration made has not been kept, however, according to a study released this week.
On the day the Presidency changed hands the White House made a blog post that included a promise that all non-emergency legislation would be posted online for five days before the President signed it into law so as to "allow the public to review and comment before the President signs it." That hasn't happened so far; Obama has signed 11 bills into law and only 1 spent 5 days online between Congress and his office. Now some observers say it doesn't matter and that it was a wrongheaded promise in the first place.
Tracking the specific bills and the dates they were posted online was done by the Cato Institute's Jim Harper. He's posted an excellent chart with links to the specifics here.
Harper summarized his findings as such:
Of the eleven bills President Obama has signed, only six have been posted on Whitehouse.gov. None have been posted for a full five days after presentment from Congress.
One bill, the DTV Delay Act, was posted after it was cleared for presentment by Congress February 4th, with the President signing it February 11th. This arguably satisfies the five-day promise, though presentment - a constitutional step in the legislative process - would be a better time to start the five-day clock. (Congress presented it February 9th.)
Several times the White House has posted a bill while it remains in Congress, attempting to satisfy the five-day rule. But this doesn't give the public an opportunity to review the final legislation - especially any last minute amendments. Versions of the children's health insurance legislation, the omnibus spending bill, and the omnibus public land management bill were linked to from Whitehouse.gov while making their ways through Congress, but not posted in final form.
Does This Matter?
Shirky argues there that posting legislation online for 5 days between Congress approving it and the President signing it is of very limited utility. He says in fact that transparency would be more appropriately applied to bills while they are in Congress, and the 5-day promise of posting before the President signs bills did more harm than good.
...the place the Founders decided to host most of the "system gaming" is in Congress, where factions are to be contained, to contend with the construction of legislation before it goes to the White House.
That's where legislative transparency might make a difference. I think the Obama promise was meant to model the appropriate attitude towards transparency, but I'm willing to bet that they've made implementing useful (read: legislative) transparency harder, because they've tried to demonstrate its efficacy in a place and manner that won't produce many good outcomes, and it will be hard to extrapolate from that to the idea that transparency will be good elsewhere in the system.
In response Harper writes that legislators would be much more cautious about throwing in last minute wasteful spending if they knew their work was going to sit out in the light of day for 5 days before it got signed. He also argues that it's important to hold the President to his campaign promises.
What do you think? Is it important that legislation be posted on the web for 5 days between when it's completed by Congress and when it's signed by the President? It's one thing to applaud Obama's use of the web and historic stance of transparency, but when it comes down to brass tacks - there are tactical decisions that need to be thought through. Presumably there are some things about using the web from the White House that the new administration is going to learn on the fly. Making a promise to take a particular step and not doing it at all doesn't seem good though, and arguments like Shirky's could have been foreseen before the promise was made.