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OpenGov Voices: Bringing transparency to earmarks buried in the budget

Authors Matthew Heston, Madian Khabsa, Vrushank Vora, Ellery Wulczyn and Joe Walsh.

Last week, President Obama kicked off the fiscal year 2016 budget cycle by unveiling his $3.99 trillion budget proposal. Congress has the next eight months to write the final version, leaving plenty of time for individual senators and representatives, state and local governments, corporate lobbyists, bureaucrats, citizens groups, think tanks and other political groups to prod and cajole for changes. The final bill will differ from Obama’s draft in major and minor ways, and it won’t always be clear how those changes came about. Congress will reveal many of its budget decisions after voting on the budget, if at all.

We spent this past summer with the Data Science for Social Good program trying to bring transparency to this process. We focused on earmarks – budget allocations to specific people, places or projects – because they are “the best known, most notorious, and most misunderstood aspect of the congressional budgetary process” — yet remain tedious and time-consuming to find. Our goal: to train computers to extract all the earmarks from the hundreds of pages of mind-numbing legalese and numbers found in each budget.

Watchdog groups such as Citizens Against Government Waste and Taxpayers for Common Sense have used armies of human readers to sift through budget documents, looking for earmarks. The White House Office of Management and Budget enlisted help from every federal department and agency, and the process still took three months. In comparison, our software is free and transparent and generates similar results in only 15 minutes. We used the software to construct the first publicly available database of earmarks that covers every year back to 1995.

Despite our success, we barely scratched the surface of the budget. Not only do earmarks comprise a small portion of federal spending but senators and representatives who want to hide the money they budget for friends and allies have several ways to do it:

  • They can insert earmarks in the text of an appropriations bill. Finding those earmarks may require you to wade through hundreds of pages of text.
  • They can place earmarks in the explanatory report attached to the bill. Few Americans even know these reports exist, let alone that Congress allocates money through them.
  • They can call or write the bureaucrats who make budget decisions in an attempt to steer money. Good luck getting a copy: If call logs or letters exist, they are heavily redacted for the public. (The Senate Judiciary Committee unanimously approved a FOIA reform bill that might help. Read this post for more info.)

To simplify the problem, we decided to focus on tables, where 85 percent of observable earmarks reside. We ignored free text in the bills and reports as well as phone calls and letters. We cannot estimate how many earmarks we’re missing because the call logs and letters are not public, but Minnesota Democrat Sen. Al Franken’s office says letter writing is “fairly routine,” and it’s likely becoming more common given Congress’ stated ban on earmarks since 2010. A 15 percent miss rate might be low.

One challenge we faced was the variety of table formats used. The Government Printing Office provides congressional bills and reports as plain text files where tables appear as blocks of formatted text. Indentation, whitespace and occasionally dots and dashes are used to format tables. Our program finds the tables by searching for these text patterns, but Congress could easily hide a table from our script by, say, using semi-colons instead. Even small changes can reduce government transparency.

Another challenge is the lack of information these documents provide about each earmark. (We have provided an example below.) We get a recipient, an intended purpose and a dollar amount, but neither a sponsor nor a justification. Finding those requires more digging.

Advocates will also be disappointed to know that this tool cannot help them rapidly respond to most earmark requests. Bills often go up for a vote before anyone has a chance to thoroughly review them. Congressional leadership recently gave members less than a week to review a 1,600-page appropriations bill and less than 48 hours to review a 959-page farms bill before voting. Members of the public who wanted to contact their legislators about the content of those bills had even less time for review. Although our software can parse these documents in less than 15 minutes, nearly 95% of observable earmarks are found in the congressional reports and memos attached to spending bills — and those reports and memos often aren’t released until after the vote.

The problems we encountered will ring familiar to professionals in the transparency sector. In one of our favorite examples, the IRS converts machine-readable charity tax filings to PDFs to make them more difficult to read. Even when government agencies try to be transparent, they often disappoint. For example, it recently came to light that USASpending.gov did not “include $619 billion worth of grants and awards.”

Governments could solve many of these problems by adopting machine-readable formats. That’s what President Obama’s 2013 executive order and the Library of Congress’ legislative-data challenge (among others) were intended to do. Unfortunately, implementation has been slow and spotty, leaving concerned citizens looking for alternative ways to learn more about their government. We continue to develop computer programs that reduce the barriers to public information, but we recognize their limitations and hope that governments will adopt more enlightened data-sharing policies.

Interested in writing a guest blog for Sunlight? Email us at guestblog@sunlightfoundation.com


What it takes to be a major player in policymaking

Both Presidents Obama and Bush succeeded in passing major health care legislation. They shared an important ally: The AARP supported both the Medicare Modernization Act (the prescription drug benefit program) in 2003 and the Affordable Care Act (Obamacare) in 2009. Each White House sought their endorsement and helped craft provisions designed to win their support.

AARP is one of a small subset of interest groups that can command this level of attention from policymakers. It has become a well-known major player in government. Data from Sunlight’s Influence Explorer show that it has spent hundreds of millions on lobbying and is also a major campaign contributor (when including employee contributions). Although it is natural to assume that the money bought the influence, the organization has other important assets like 19 million members and a long history of policymaking involvement.

Despite considerable scholarly attention, political scientists have found it surprisingly difficult to show that spending more money on campaign contributions or lobbying consistently helps pass or defeat legislation. Studies of the influence of money on final votes in Congress have been mixed at best. An exhaustive study of resources on each side of 98 policy issues found no consistent evidence that more lobbying or campaign dollars led to victory. Our best evidence of the systematic influence of more spending comes from studies of direct economic benefits secured for specific interests, such as earmarks and tax loopholes.

Campaign and lobbying dollars may still have effects on broader policy change. Studies have shown that they influence the time that legislators spend on an issue and recent evidence shows that identifying as a donor improves a group’s access. Better data at the state level has allowed studies that show more direct effects of money on the progress of legislation.

My own view is that the capacity for influence on significant policy is a rare commodity possessed only by the major players in the interest group community. Securing major policy change is a difficult enterprise, and few groups seem up to the task. The status quo usually wins; only a few groups pushing for large policy changes are likely to succeed.

In my first book, The Not-So-Special Interests, I show that the distributions of media prominence and policymaking involvement are highly skewed, with a small subset of groups accounting for most opportunities for influence.

Figure 1 below visualizes these distributions. The vast majority of interest groups are clustered at the bottom of the distribution; they rarely have a voice in public discussion or policymaking. The two factors that best predict which organizations end up at the top of the distribution are longevity (how long have they been in Washington) and political staff size (internal lobbyists), rather than campaign contributions or use of lobbying firms.

Figure 1. Graphic credit: Matt Grossmann/Sunlight Foundation

My new book, Artists of the Possible, takes a long-term view of policy change since 1945. I find reported interest group influence on policy highly concentrated. Policy historians credited nearly 300 different interest groups with at least one policy change, but fewer than 10 percent of them were responsible for three or more policy changes. A few longstanding major players like the AFL-CIO, the National Association of Manufacturers and the U.S. Conference of Mayors were credited with several policy changes over decades.

When policy historians credited interest groups with policy change, the most common mechanism was advocacy or an endorsement. Specific groups were credited with developing ideas, writing legislation or publicly working on behalf of policy change. Figure 2 below reports what percent of major policy changes involved each type of interest group influence (as reported by historians explaining it). Congressional lobbying and mobilizing calls to Congress were also mentioned frequently, but usually in conjunction with general advocacy. The story, at least as told by policy historians, was about a well-known group taking a leadership role, rather than one side having a lot more resources than the other.

Figure 2. Graphic credit: Matt Grossmann/Sunlight Foundation

Other research also points to the outsized influence of a few established interests. Interest groups seek to build identities and a few are seen as representatives of constituencies and expert stakeholders. The degree of disagreement among major interest groups in an issue area, rather than the relative resources of each side, often determines whether any legislation can pass. A new study of more than 1,200 issues finds that the positions of the top 25 interest groups and 10 industries in Washington influence what policies Congress adopts.

Evidence from other branches of government points in the same direction. Even though interest groups cannot give directly to federal administrators and judges, agencies and courts still listen to their input. In notice-and-comment rulemaking, agencies usually change the rules in the direction interest groups ask and water down the regulations on business. Federal courts respond to the interest groups with powerful reputations (rather than just to the number of groups on each side) and their opinions lift language directly from the most prominent interest group briefs.

Of course, interest groups do not become major players without sizable resources. Even if there is no universal way to translate money into policy results, the interest groups that become the most central players still spend a fortune building their reputations. AARP serves as a useful demonstration: It has become taken for granted as the representative of older Americans and the defender of entitlements. Achieving that status required a lot of work and resources — and it still spends heavily on lobbying every year. Given its long-term reputation, however, each dollar they spend is now worth more. Conservative groups claiming to represent older Americans occasionally spend significantly on campaigns or lobbying, but they have little chance to supplant AARP. For a small subset of groups with reputations like AARP, an endorsement can matter for the fate of legislation.


Erring on the side of shady: How calling out “lobbyists” drove them underground

By most accounts, the business of lobbying has been waning in recent years.

But not really. Lobbying contracts don’t just disappear, they just go unreported.

More and more, lobbyists are following former Senate Leader Tom Daschle’s lead and simply not disclosing their lobbying. The reason shadow lobbyists can get away with it is simple: The definitions of “lobbyist” and “lobbying” suffers from well-recognized loopholes. They justify not lobbying because they do not meet the law’s “20% threshold,” meaning they must be engaged in lobbying activities for 20% or more of their time on behalf of a client; otherwise, they are simply offering strategic political advice. Or something like that.

But what is puzzling is why this has become a trend in only the last few years.

A graph showing the number of registered lobbyists from 1998 and 2013.
Graphic credit: Sunlight Foundation

Why does the decline start around 2008? The loophole-ridden Lobbying Disclosure Act became law in 1995.

During a series of interviews with lobbyists, trade association executives, lobbying shop managers, political law compliance attorneys and lobbyist headhunters in Washington, I have uncovered several competing explanations for this sudden decline in lobbyists and lobbying revenues.

Two transparency steps forward, one step back into the shadows

The most commonly mentioned reasons are the Honest Leadership and Open Government Act (HLOGA) of 2007 and the Obama administration’s executive order on ethics. As one lawyer put it:

Prior to HLOGA — and prior to the Obama administration — I would say that most of us in town who advise clients erred on the side of telling them to register [under the LDA]. There wasn’t much of a struggle with “Is this 20% or not?”

The logic is simple: Before these changes in the rules, individuals registered under the LDA just in case. There was no downside. Now, being a registered lobbyist subjects people to additional campaign finance disclosure and gift rules, as well as steep civil and criminal penalties for non-compliance. So, political lawyers simply say don’t register.

Apparently, there’s no risk for doing so. (Though there seems to be some slight risk for registering and screwing up the paperwork.) As Lee Fang reports, even the U.S. Attorney admits, “We have no ability to know if somebody doesn’t register.” Even though we do. Rather, it seems the Department of Justice just has little interest in investigating these cases.

We are left with two explanations for the same problem. But is it fair to blame HLOGA and Obama’s executive order equally?

In a recent conference on lobbying reform sponsored by American University, former White House Counsel Bob Bauer defended the executive order from recent criticism. In doing so, Bauer admits:

To preserve their career options, [lobbyists] don’t want to be lobbyists anymore, at least in name, and they are retreating to more back door or back room types of strategizing for clients.

By shutting lobbyists out from plum White House jobs or advisory boards, the administration may have driven them even further underground.

Bauer objects. He points to evidence of deregistration beginning before 2009. That’s true. As the data show, the trend started in 2008.

A graph showing the percent change in registered lobbying from 1998 to 2013.
Graphic credit: Sunlight Foundation

Coincidentally, candidate Obama famously made that campaign promise that the executive order institutionalized in Iowa — in 2007. It’s possible that savvy lobbyists may have applied one of the tricks of their trade — monitoring how political developments affect businesses and occupations — to themselves. It’s possible, but not likely. Especially since the administration has offered so many waivers to its own policy.

Clearly, HLOGA — and the legal advice to err on the side of shady — is the primary reason. To be clear, these ethics and open government reforms made significant transparency improvements. But they ignored the key culprit: redefining what “lobbying” and “lobbyist” is.

Alternative explanations

It’s the economy, stupid: Another frequently mentioned reason for the decline in lobbying revenues and the number of lobbyists is the “Great Recession.” As the economy declined, businesses and associations cut their budgets, including their lobbying expenditures. This makes sense, but absent better evidence about the lobbying profession specifically, I remain skeptical. According to a 2013 report from the George Mason University Center for Regional Analysis, higher-wage jobs in the business services sector — like lobbying and law — actually grew during the Great Recession. And in any case, the recession was at its peak in 2009, after the decline began.

Partisan gridlock: Political polarization is rightly at the center of any conversation about modern American politics, so it stands to reason that Congress’ apparent inability to do anything could also explain the decline in Washington lobbying. Why hire an expensive lobbyist or open up a Washington office when Congress isn’t doing anything anyway? This is unlikely as well. Recall that Obama enjoyed unified government for two years, so Republican intransigence didn’t really begin until Rep. John Boehner, R-Ohio, took the Speaker’s gavel in 2011. More importantly, Congress does get things done. They just do so under contrived deadlines. So, if anything, that means organized interests need to have constantly vigilant lobbyists ready to act when Congress does. Even political scientists learned this lesson the hard way.

Earmarks: Congress’s moratorium on earmarks means appropriations lobbying specialists have lost their raison d’être. If earmarks in fact did go away, this would be a logical cause for a decline in lobbying. But there’s reason to believe that earmarks are alive and well. They just take different forms. And, if the moratorium dried up business on K Street, then reported lobbying on Federal Budget and Appropriations and Taxes wouldn’t be the most commonly mentioned issues. They are. Just as they have been every year since LDA records have been kept.

In the end, the most plausible explanation for the decline in the registered lobbyist population is HLOGA itself. Even Bauer seemed open to more transparency:

The Executive Order is tied to the definitions under federal law, which seems reasonable. Should federal law have to be amended to provide for a broader, more inclusive definition of lobbyist—and this is a difficult issue, on which there are entirely reasonable differences of opinion—then the policy could be amended along with it.

Why it is such a difficult issue? Even an American Bar Association task force and lobbyists themselves recommend changing it. Though there is more Congress could do to make lobbying more transparent, improving these definitions and insisting on better enforcement are great ways to bring lobbying back out of the shadows.

Now, if only we could find a lawyer with close ties to the White House to make the case…


Let them eat earmarks

It seems that we can’t go two weeks without some pundit lecturing us that if only Washington were a bit more corrupt, we’d all be better off. Jonathan Rauch is the latest intrepid scold to insist that dishonesty and good government go hand in hand, but he’s hardly the first to suggest as much.

A close-up of a handshake by two men in business clothes.

Rauch calls for a return to back room dealmaking by unaccountable political machines, but that’s the sort of politics that produced a series of unpopular measures including the the Wall Street bailout, the Affordable Care Act and the still pending pro-business immigration reform bill, perhaps the only piece of major legislation that will get through Congress this year. Congress has so many gangs running around — small groups of lawmakers writing major pieces of legislation that are then foisted on their colleagues and backed by lots of party pressure — that we might need a new crime bill just to address them.

Sunlight is just as concerned about the influence of big money coming from outside groups as Rauch, but we can’t help notice that the political parties are no slouches at raising and spending huge sums of money themselves. The National Republican Congressional Committee has reported raising $66 million so far this year, while American Crossroads has pulled in just $3.6 million to date. And the influence — the behind closed doors influence that Rauch thinks is missing — is alive and well in the nation’s capital.

In the final hours of the last Congress, for example, it passed and the president signed an extension of various tax provisions to avert what was known as the fiscal cliff, which would have raised taxes on millions of middle class families. So far so good, except that among the provisions that was allowed to expire was payroll tax relief, which predominantly benefited working Americans. A series of “temporary” business tax breaks that collectively cost the treasury an estimated $280 billion last year remained in place. Special interests pushed for the tax breaks, which were inserted and voted out without a chance for public comment or criticism.

In that same gridlocked election year of 2012, Congress also managed to pass — by overwhelming margins — a bill to extend the life of the Export-Import Bank, an institution that provides billions in financing to giant corporations like Boeing, General Electric and Deere & Co. Not surprisingly, they were among the biggest backers of the bill, which President Barack Obama, who in his 2008 campaign labeled the bank “little more than a fund for corporate welfare,” signed.

And Rauch’s favored “political hacks cutting deals behind closed doors” included in their spending bill, passed in January, specific language requiring the Pentagon to keep spending tens of billions of dollars each year on a drone that the Air Force does not want and cannot use in combat zones — or in bad weather. But the company that makes it, Northrop Grumman, lavished campaign contributions on nearly 300 members of Congress in 2013, and one of its lobbyists co-hosted the annual golf tournament of Sen. Barbara Mikulski, the Maryland Democrat who chairs the powerful Appropriations Committee.

And of course there is today’s report from Politico that the titans of Wall Street are threatening to withhold campaign cash from Republicans in response to the tax reform proposal of House Ways and Means Chairman Dave Camp, R-Mich. In the unlikely event it should become law, Camp’s plan would raise levies on banks and on carried interest — the loophole that famously allows the likes of Warren Buffet to pay a lower tax rate than his secretary. Majority Leader Eric Cantor, R-Va., assured lobbyists that Camp’s handiwork was just a draft, and other GOP leaders rushed to assure the financial industry that they wouldn’t be the proverbial “fellow behind the tree” on whom new taxes would land.

Rauch argues that those party leaders should be strengthened: “The next round of political reform should make party bosses and political machines stronger, not weaker. The candidate-selection process should be tweaked to reduce the sway of grass-roots activists and return power to party grandees.”

By grass-roots activists, Rauch means you.

Say what one will about the Tea Party now, what drove ordinary Americans to its banner five years ago was the certainty that something has gone terribly wrong in Washington. Incomes are stagnant for all but the wealthiest; able-bodied Americans are sitting idle; an alarmingly high percentage of recent college graduates have low-paying jobs that require no degree; and the American Dream is unreachable for more and more of our citizens. Letting rank-and-file members of Congress steer federal dollars to a few pet projects will not address those problems, nor will back room deals to which only insiders have access. Corruption is alive and well in Washington — and letting it flourish won’t solve our problems.


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