Checking in on “The President’s Super-Regulators”

August 24, 2012

By Elizabeth

On Monday, I attended a panel discussion on the Office of Information and Regulatory Affairs (OIRA). Titled “The President’s Super-Regulators: What’s next for OIRA?” and hosted by the Advisory Committee on Transparency in conjunction with the Sunlight Foundation, the panel set out to discuss OIRA’s role in rulemakings, its evolution, openness, and future. Little-known outside the beltway but wielding significant influence, OIRA reviews regulations that impose more than $100 million in annual compliance costs for affected industries. The office develops guidance on information policy, collection of information, regulatory matters, and statistical programs and standards. Most recently, AALL has worked with OIRA on implementing the Obama Administration’s National Action Plan.

As “The President’s Super-Regulators,” OIRA’s small staff is housed in the White House’s Office of Management and Budget. With OIRA’s administrator, “regulatory czar” Cass Sunstein, having just departed for Harvard, there is occasion to evaluate the Obama administration’s approach to rulemaking and its level of transparency in the process. The panel of experts included both advocates and critics of OIRA: Susan Dudley, a former OIRA administrator under President Bush, and Michael Fitzpatrick, a former associate administrator under President Obama spoke of their experiences leading the 50-person office in its work, while Curtis Copeland, former specialist with the Congressional Research Service, and Robert Weissman, President of Public Citizen led the discussion on OIRA’s shortcomings and opportunities for greater transparency.

Needless to say, the panelists were not in consensus. Fitzpatrick and Dudley stood firm in their belief that the office provides a “dispassionate and analytical second opinion” to improve regulations before they go out the gate (Dudley’s words). Having received criticism from both the left and the right, industry groups and consumer advocates, Fitzpatrick suggested of the attacks that, “It’s a pretty good indication you’re doing your job right.” While the Obama administration has finalized fewer regulations overall than either Clinton or Bush during the same point in their first terms, Fitzpatrick pushed through more rules with more than a $100 million impact. Pointing out that OIRA staff is made of career civil servants without political agendas, Dudley pointed to several transparent steps the office has taken. OIRA is required to make public all meetings held with outside groups and posts regulations before and after they’re finalized. Each six months, a regulatory agenda is released.

According to Weissman and Copeland, though, there are plenty of opportunities for OIRA to do more on the openness front. During the informal review process, agencies are advised not to document the changes made to regulations. As a result, it’s nearly impossible to tell how significant the changes made were in the first place, thanks to the “black box”-like secrecy of the process. Weismann also took to task the perceived bias of OIRA towards lobbyist and industry interest groups, a claim which Dudley and Fitzpatrick adamantly refuted.

The panelist did agree, however, that with more attention—be it greater resources or a critical reassessment, depending on who you ask—there is plenty of opportunity for the President’s Super Regulators to wield their influence in a way that is fair, transparent, and significant.

The Continued Push for Whistleblower Reform

August 21, 2012

AALL recently signed on to this open letter to members of Congress to urge completion of the landmark, decades-long legislative effort to restore credible whistleblower rights for federal employees. While the Senate passed its Whistleblower Protection Enhancement Act (WPEA), S. 743, in May 2012, the House has not yet considered its bill, H.R. 3289. Signed by 141 diverse groups ranging from the Sierra Club to the National Organization for Women and including the Southeastern Chapter of AALL (SEAALL) and Susan Nevelow Mart, director of the William A. Wise Law Library at the University of Colorado at Boulder, the letter calls for swift action to “send a final bill to the President’s desk that includes the best of both H.R. 3289 and S. 743—not a watered-down version.”

AALL has long supported the need for improved protections for federal whistleblowers. Whistleblowers protect taxpayer dollars and help to ensure government accountability by speaking out against waste, fraud, and abuse. Government employees who blow the whistle also act as an alert system for problems and issues within the government that can impair the public’s right to know.  In fact, it was an Environmental Protection Agency (EPA) whistleblower that first alerted AALL to the proposed closure of the EPA libraries in 2006.

Since Congress last revised the Whistleblower Protection Act in 1994, a series of court decisions and a flawed administrative process have eroded the law so that it no longer adequately protects government whistleblowers. The current law must be enhanced to provide better protections for federal employees who wish to legally report problems at their agencies.  By passing a strong bipartisan whistleblower reform law, Congress would ensure more efficient, transparent, and accountable government and save taxpayer money.

For more information on the Whistleblower Protection Enhancement Act, see AALL’s advocacy one-pager, written in January 2012 by Emily M. Janoski-Haehlen of the 2012-2013 Government Relations Committee.  Be sure to also check out AALL’s Formal Statements for the latest on our legislative positions and coalition work, including that on the WPEA.

Taking Advantage of the August Recess

August 17, 2012

You’ve likely noticed it around your office and during your morning commute. Even at your local grocery store and community pool, you’ve felt the effects. It’s August and it seems that just about everyone is on vacation. Where crowds once were, there are now only the few and far between.

Congress, too, has emptied out as August recess sends legislators across the county back to their home districts and states. With the November election looming, your members of Congress will be spending much of their time campaigning at home, talking with constituents and hearing the concerns of voters.

Not on vacation? You can take advantage of the August lull by getting active in advocacy. With your members of Congress at home, now is the perfect time to put to practice the belief that “all politics is local.” Invite your legislators to tour your library and tell them about the need for adequate funding. Meet with your representative to urge them to support public access to Congressional Research Service reports. Call your senators to ask them to vote for full funding for the Government Printing Office and Library of Congress. The relationships you build this August will serve you well in months to come.

Be sure to consult AALL’s Advocacy Toolkit and contact the Government Relations Office for help getting started. Don’t worry; we’re not on vacation, either.

Redesigned ODNI Website Aims for Greater Transparency

August 15, 2012

The Office of the Director of National Intelligence (ODNI) recently unveiled changes to its website that aim to increase transparency.

Created with an open source content management system, the overhauled site seeks to provide more accurate, up-to-date information to the public and bolster the office’s web presence.  Featured changes include links to all intelligence community members, video, photographs, podcasts and subscription content from throughout the intelligence community. Meanwhile, back-end updates “provide a scalable and flexible architecture to empower innovative, efficient distribution of key information while reducing the costs of future investments,” according to an ODNI news release.

While the new ODNI site does not focus on mobile technology, progress has been made by members of the intelligence community. In response to the growing use of mobile devices, the Central Intelligence Agency launched a new mobile site last week. Readers can now access mobile-friendly versions of materials on small screens.

The new ODNI site does focus on web 2.0 tools like Facebook, reflecting the agency’s aim to make its content available to a broader audience. The efforts of ODNI’s federal, state, industry and global partners are highlighted on the site for greater reach and transparency.

A laudable step towards increased transparency, the ODNI site redesign is not yet complete. Additional features and content will be added in the coming months, including archived congressional testimonies and other relevant news from before 2005. In all, the new site is worth a look and indicative of a trend we hope the intelligence community at large will continue.

Will Privacy and Civil Liberties Oversight Board Finally Begin Its Crucial Work?

August 10, 2012

On August 2, the Senate voted to confirm four nominees to the Privacy and Civil Liberties Oversight Board (PCLOB).  While the nomination of David Medine to chair the PCLOB has yet to be considered, this unanimous Senate vote marks progress towards enabling PCLOB to undertake its critical work.

Created in 2004 by the Intelligence Reform and Terrorism Prevention Act (P.L. 108-458) at the recommendation of  the 9/11 Commission, the PCLOB is charged with reviewing privacy and civil liberties issues impacted by the government‘s national security policies and programs. But hampered by politicking, the board has made little progress in its eight years of existence. The PCLOB was originally formed as part of the White House and therefore, was not independent. In 2007, Congress enacted legislation to reconstitute the PBLOB as an independent agency with subpoena power. Nonetheless, the board continued to stall. Since 2007, the PCLOB has existed only in name, lacking any members due to inaction by Congress.

In 2011, the Obama administration announced an effort to revitalize the board as a check against its proposed cybersecurity policies and measures. At the same time, House bill H.R. 3523, the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), made the PCLOB responsible for reporting on privacy and civil liberty intrusions under its information sharing program. Specifically, CISPA proposed that the PCLOB issue annual reports on the civil liberties and privacy impact of CISPA’s provisions for the sharing of cyber threat information and intelligence between the government and private companies.

AALL has for several years expressed concern that without nominated and confirmed members, the PCLOB cannot perform its critical mission to ensure post-9/11 intelligence collection efforts  do not improperly infringe on Americans’ rights. We applaud the recent confirmation of four of the five PCLOB members: Republicans Elisebeth C. Cook, an attorney at WilmerHale and former assistant attorney general for the Department of Justice, and Rachel L. Brand, chief counsel for regulatory litigation at the U.S. Chamber of Commerce; and Democrats  James X. Dempsey, vice president of the Center for Democracy and Technology, and Patricia M. Wald, a retired federal judge. However, without a chair—the board’s only full-time member and authority to hire a staff—it is unclear whether the board can begin its work.

The New York Times Caucus blog speculates that objections of unnamed senators precluded the confirmation of the board’s full-time chairman, David Medine, a Democrat and lawyer who long worked at the Federal Trade Commission and now is working temporarily at the Securities and Exchange Commission while awaiting Senate action. The Times reports:

One theory circulating in Washington is that the delay is Republican strategy: if Mitt Romney becomes president and the job is not yet filled, he will be able to appoint a member of his party to a six-year term as chairman.

It remains to be seen whether PCLOB will be able to overcome the history and politics plaguing its progress.

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