President Obama promised on the campaign trail that he wouldhave the most transparent administration in history. As part ofthis commitment, hesaid that the public would have five days to look online andfind out what was in the bills that came to his desk before hesigned them. It was his first broken promise, and it’s the promise thatkeeps on breaking. He has now signed 11 bills into law and gone, atbest, 1 for 11 on his five‐day posting promise. The Obamaadministration should deliver on the Web‐enabled transparency hepromised and post bills for five days before signing.
To the thrill of technology and transparency advocates,candidate Obama promised sunlight before signing: “As president,” his campaignwebsite said, “Obama will not sign any non‐emergency bill withoutgiving the American public an opportunity to review and comment onthe White House website for five days.”
But nine days after taking office, he signed a bill into lawwithout posting it on Whitehouse.gov for five days. Since then,10 more bills have become law over thepresident’s signature, and only one has been posted online for fivedays — and that was for five days after it cleared Congress, notafter formal presentment. Two bills have been held by the WhiteHouse for five days before signing — but they weren’t postedonline!
It is easy to dismiss the five‐day promise as an idea that wouldnot have changed much anyway. Bills coming out of Congress arefaits accomplis, aren’t they? They are not.
Members of Congress are highly skilled political risk balancers,and the president’s firm insistence on leaving bills sitting outthere, unsigned, after they pass Congress would have a significanteffect on congressional behavior. It would threaten to revealexcesses in parochial amendments and earmarks, which could bringdown otherwise good bills. Recognizing the negative attention theycould draw to themselves, representatives and senators would actwith more circumspection, and last‐minute add‐ons to big billswould recede. A firm five‐day rule at the White House would alsoinspire the House and Senate to implement more transparent andcareful processes themselves.
Whitehouse.gov has seen some bills posted, and some have been postedbefore the president signed them, but a few things have to happenfor the president’s promise to see real fulfillment.
There should be a standard location on Whitehouse.gov — astandard URL structure — where the bills presented by Congress areposted for comment. With a standard location in place, members ofthe public would know where they could return to look at each billthe president receives.
The president’s promise rightly excluded emergency legislation.Transparency can take a step back when life or death is at stake.It is important, however, that the definition of “emergency” not bethe exception that swallows the rule. Most major legislationaffects health and welfare in some way. “Emergency” should belimited to cases where the health or safety of specific individualsor categories of individuals would be in immediate jeopardy withoutlegislation — a rare occurrence as nearly every true emergency isalready accounted for by existing law.
What about economic “emergency”? The Recovery Act was not treated as emergencylegislation by Congress or the president. Congress waited threedays after its Friday passage to present it to the president, andhe enjoyed a weekend visit to Chicago before signing the bill fourdays after it passed (one day after presentment).
The Recovery Act certainly could have benefited from morethorough examination. The provision that allowed AIG executives tocollect millions of dollars in bonuses was one of those last‐minuteamendments that a regularized, mandatory public review process could have caught.
The Obama administration can choose any definition of“emergency” it wants if it just commits to publishing it onWhitehouse.gov in a prominent place. Putting it in the “five‐dayreview” section of the site will commit the administration to usinga definition that passes the smell test — and to abide by it. Letthe public be the judge on the “emergency” question.
Another question is when the five‐day clock should start. At onepoint the White House posted a copy of the SCHIP legislation whileit was still in Congress, hoping to meet the five‐day pledge thatway. This did not pass muster. The White House also triedto post the Recovery Act early.
The natural point to start the clock is at presentment, which isthe distinct, constitutional step in the legislative process whenCongress presents a bill to the president that both houses haveapproved. As they pass through the House and Senate, bills change.Last-minute amendments, in particular, are a hive of troublesomelegislative behavior. The spirit of President Obama’s pledge was togive the American public an opportunity to review and comment onthe relevant version of legislation. This is the version presentedto the president. The five‐day count should begin atpresentment.
There is reason to hope that the president will deliver on histransparency promise and change how legislation is handled for thebetter. In early February, the White House blog reported that the five‐day policy would beimplemented in full soon. In mid‐February, White House PressSecretary Robert Gibbs said, “We are working out a seriesof procedures to ensure that … people do have five days to lookat the legislation that’s been passed by Congress before it’ssigned into law. We’re working through the technicalities of howthat happens and we’ll get a process together.”
And an April 4 New York Times story featuring thepresident’s repeatedly broken promise reported: “[Obama SeniorAdviser David] Axelrod said the president remained committed toopenness and vowed that the government would grow more transparent.‘Have we achieved everything we want to achieve yet? No. We’veactually been a little preoccupied.’ ” When the panicked spendingspree of recent months ends, perhaps the White House will turn todelivering on President Obama’s widely supported and frequentlypledged promise.
Transparency is a matter of pan‐ideological popularity. Libertarians andlimited‐government conservatives believe that transparency willreveal excesses and waste in government, suggesting that privatesolutions are better. Liberals believe transparency will validategovernment programs and root out corruption. Transparency is awin‐win bet. A functional, cleaner government is better than adysfunctional, wasteful, and corrupt one — even tolibertarians.
Rather than break a campaign promise hundreds of times over thecourse of his presidency, President Obama should implement hispromise to post bills online for five days before signing them.