To the thrill of technology and transparency advocates, candidate Obama promised sunlight before signing: “As president,” his campaign website said, “Obama will not sign any non‐emergency bill without giving the American public an opportunity to review and comment on the White House website for five days.”
But nine days after taking office, he signed a bill into law without posting it on Whitehouse.gov for five days. Since then, 10 more bills have become law over the president’s signature, and only one has been posted online for five days — and that was for five days after it cleared Congress, not after formal presentment. Two bills have been held by the White House for five days before signing — but they weren’t posted online!
It is easy to dismiss the five‐day promise as an idea that would not have changed much anyway. Bills coming out of Congress are faits 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 out there, unsigned, after they pass Congress would have a significant effect on congressional behavior. It would threaten to reveal excesses in parochial amendments and earmarks, which could bring down otherwise good bills. Recognizing the negative attention they could draw to themselves, representatives and senators would act with more circumspection, and last‐minute add‐ons to big bills would recede. A firm five‐day rule at the White House would also inspire the House and Senate to implement more transparent and careful processes themselves.
Whitehouse.gov has seen some bills posted, and some have been posted before the president signed them, but a few things have to happen for the president’s promise to see real fulfillment.
There should be a standard location on Whitehouse.gov — a standard URL structure — where the bills presented by Congress are posted for comment. With a standard location in place, members of the public would know where they could return to look at each bill the 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 be the exception that swallows the rule. Most major legislation affects health and welfare in some way. “Emergency” should be limited to cases where the health or safety of specific individuals or categories of individuals would be in immediate jeopardy without legislation — a rare occurrence as nearly every true emergency is already accounted for by existing law.
What about economic “emergency”? The Recovery Act was not treated as emergency legislation by Congress or the president. Congress waited three days after its Friday passage to present it to the president, and he enjoyed a weekend visit to Chicago before signing the bill four days after it passed (one day after presentment).
The Recovery Act certainly could have benefited from more thorough examination. The provision that allowed AIG executives to collect millions of dollars in bonuses was one of those last‐minute amendments 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 on Whitehouse.gov in a prominent place. Putting it in the “five‐day review” section of the site will commit the administration to using a definition that passes the smell test — and to abide by it. Let the public be the judge on the “emergency” question.
Another question is when the five‐day clock should start. At one point the White House posted a copy of the SCHIP legislation while it was still in Congress, hoping to meet the five‐day pledge that way. This did not pass muster. The White House also tried to post the Recovery Act early.
The natural point to start the clock is at presentment, which is the distinct, constitutional step in the legislative process when Congress presents a bill to the president that both houses have approved. As they pass through the House and Senate, bills change. Last‐minute amendments, in particular, are a hive of troublesome legislative behavior. The spirit of President Obama’s pledge was to give the American public an opportunity to review and comment on the relevant version of legislation. This is the version presented to the president. The five‐day count should begin at presentment.
There is reason to hope that the president will deliver on his transparency promise and change how legislation is handled for the better. In early February, the White House blog reported that the five‐day policy would be implemented in full soon. In mid‐February, White House Press Secretary Robert Gibbs said, “We are working out a series of procedures to ensure that … people do have five days to look at the legislation that’s been passed by Congress before it’s signed into law. We’re working through the technicalities of how that happens and we’ll get a process together.”
And an April 4 New York Times story featuring the president’s repeatedly broken promise reported: “[Obama Senior Adviser David] Axelrod said the president remained committed to openness and vowed that the government would grow more transparent. ‘Have we achieved everything we want to achieve yet? No. We’ve actually been a little preoccupied.’ ” When the panicked spending spree of recent months ends, perhaps the White House will turn to delivering on President Obama’s widely supported and frequently pledged promise.
Transparency is a matter of pan‐ideological popularity. Libertarians and limited‐government conservatives believe that transparency will reveal excesses and waste in government, suggesting that private solutions are better. Liberals believe transparency will validate government programs and root out corruption. Transparency is a win‐win bet. A functional, cleaner government is better than a dysfunctional, wasteful, and corrupt one — even to libertarians.
Rather than break a campaign promise hundreds of times over the course of his presidency, President Obama should implement his promise to post bills online for five days before signing them.