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The First & Next 100 Days

Biden Made Some Progress in First 100 Days: Here’s What He Should Prioritize in His Next 100 Days in Office

Implementing measures based on return to a pre-Trump status quo are steps in right direction but fall short of meaningful reform

Since his first days in office, President Joe Biden has made strides in several areas related to accountability, including restoring ethics requirements, revoking harmful Trump administration orders, and reversing COVID-19 pandemic secrecy. But as the clock winds down on his first 100 days, his administration has yet to make a substantive commitment to transparency and oversight. What Biden does in the next 100 days is paramount, as he exits the honeymoon period and sets the tone for the remainder of his presidential term, which he has declared will adhere to the “highest standard of transparency.” Long before the start of his presidency, in 2020, a broad coalition of more than 40 good government organizations and experts from across the political spectrum convened to produce Accountability 2021, a wide-ranging set of recommendations for the Biden administration to set the federal government on the path to true accountability and repair the critical gaps in transparency, ethics, and oversight the previous administration exposed.

We will continue to call on the Biden administration to prioritize the following action steps in his next 100 days to forge an enduring path toward long-standing transparency and accountability in government.

Commit to Open Government Principles
Gaps in the public record of our government’s decision-making prevent accountability and exacerbate corruption when political agendas dictate what type of, or even whether the information is made public. The lack of reliable records of what has been said or promised behind closed doors or in virtual meetings stymies Congress’s ability to conduct oversight and undermines our democracy. The public has the right to complete, accurate, and timely information necessary to hold officials accountable and to participate fully in government.

The Biden administration can demonstrate its commitment to transparency by appointing a Chief Accountability Officer to elevate transparency and ethics measures throughout the federal government because secrecy fosters rights violations and abuses. Additionally, a directive from the president to Attorney General Merrick Garland to issue a memo to agencies on the implementation of the Freedom of Information Act and how to fully comply with the law, especially its presumption of openness, will strengthen transparency. Biden can put a stop to the Department of Justice’s Office of Legal Counsel’s practice of secret law by directing the agency to make public all formal written legal opinions. As an alarming spate of Americans, especially Black Americans, are killed in encounters with police, the administration must require the DOJ to create a comprehensive federal database of use of force incidents involving police and civilians – and tie federal grant funding to compliance with reporting the data.

Elevate Ethics as a Core Value
Biden issued the strongest ethics order of any U.S. president on his first day in office. His order bars senior officials “shadow lobbying”— working behind the scenes to support lobbying activity while avoiding registering as a lobbyist—for a year after leaving the administration. This was a first for a presidential ethics order. Biden also imposed restrictions on “golden parachutes,” payments individuals receive from their employers when they leave to work in government—another first. Yet Biden still has more work to do on ethics and accountability issues. He should prioritize lasting ethics reform and work with Congress on legislation that would codify the rules in his ethics order into law that strengthen the government oversight and accountability system for the long term.

As Biden transitions into the next 100 days of his administration, prioritizing the fulfillment of his campaign promise to relaunch ethics.gov would ensure the public’s access to all ethics documents and elevate ethics as a core value throughout the federal government. He can do so in tandem with establishing a Lobbying Reform Task Force to improve lobbying disclosures and reporting, while enforcing current ethics and conflicts of interest laws such as the Hatch Act, the Lobbying Disclosure Act, and the Foreign Agent Registration Act.

Respect Balance of Power
Our government’s system of checks and balances is critical to preventing concentration of power in any of the co-equal branches of government, particularly in the executive branch. Over time, presidential power grabs that have teetered on authoritarianism and Congressional acquiescence have threatened the balance of power in our political system. Biden must reverse this trend by allowing Congress and Inspectors General the opportunity to engage in meaningful oversight. 

The Biden administration can demonstrate respect for balance of power by initiating a review of congressional information requests to the White House and executive branch agencies over the past four years to determine which previously withheld documents should be shared with Congress and the public. The administration should also fill the 13 vacant inspector general positions requiring presidential appointment with qualified individuals who have not held political positions in the White House, and work to reverse executive branch overreach of the past several decades by supporting reforms to the National Emergencies Act and the Federal Vacancies Reform Act, and respect Congress’ authority to declare war.

Support Whistleblowers as Catalysts for Accountable Government
Whistleblowers play a critical role in exposing executive branch abuses, but more than one-third of federal workers recently said they were less likely to make whistleblowing disclosures because they fear retaliation that threatens their careers, livelihood and even their safety. Brave individuals who speak out when they witness wrongdoing deserve Biden’s support and protection. The administration can reaffirm the value of whistleblower disclosures by strengthening government programs to protect the employees that make such disclosures.

In addition to retaliation and alienation, whistleblowers face a host of structural and cultural issues in the federal government. Biden can safeguard the interests of whistleblowers within the administration by appointing a Special Assistant to serve in the Domestic Policy Council.

Embrace Scientific Integrity Safeguards as Essential to Effective Pandemic Response
The government’s initial response to the coronavirus pandemic was defined by silenced experts, political interference, and limited access to data when the country desperately needed effective policies to control and mitigate the virus’s devastating impact. While the Biden administration has taken several important steps to address several of these past failures, alongside Congress Biden has the power to ensure scientific integrity, equity, and access to information are defining features of the country’s pandemic response, recovery and preparedness efforts in the future. Despite the government’s efforts to conceal COVID-19 data early in the pandemic, available data now confirm that the government’s failed pandemic preparedness and response efforts have disproportionately impacted Black, Native American, and Latino populations resulting in higher mortality rates, and greater financial loss.

The Office of Management and Budget must establish standard procedures for the collection, disclosure and maintenance of data related to the pandemic, and use the data to ensure that response and recovery efforts are tailored to meet the disparate needs of each community across the country. Under the Biden administration, scientific integrity on COVID-19 matters is improving, with experts like Dr. Fauci empowered to speak freely again and agencies reevaluating their internal policies. But the best way to give scientific integrity policies teeth and staying power is to legislate them. President Biden must call on Congress to pass the Scientific Integrity Act. With millions of American lives at stake, our country cannot afford to have these principles discarded again.

Please urge the Biden administration to adopt these critical recommendations in the next 100 days to repair our democratic foundations and strengthen our nation.

To speak with the experts that contributed to Accountability 2021, visit the expert profiles page for more information. Monitor the progress of A2021 recommendations under the Biden administration here.

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Too Many Secrets Harm Our Democracy and National Security

By Kate Oh, Policy Counsel, ACLU

This week, an unusual array of characters and objects competed online for a dubious honor: Santa Claus, U.S. Department of State cables, a partial smiley face, Superman’s alter ego, a missing snack car on an Amtrak train, the retort “OK,” Beyoncé, and Conan the military dog. They were all the targets of the federal government’s excessive, arbitrary, or even absurd attempts at secrecy — with Conan’s example voted the winning favorite of Twitter users. 

And the winner for best worst example of government secrecy is…Conan!

The online tourney was held as part of the Accountability 2021 coalition effort to bring government transparency and accountability reforms to the forefront of the national public policy debate. Although the examples may be amusing and funny at first blush, they illustrate a pernicious problem for our democracy: our government keeps too many secrets. And the egregious secrecy can be found across the federal government and for too many reasons, from a misunderstanding of what must truly remain secret to a massive backlog of public requests for information. 

This state of affairs is incompatible with a system of government that is meant to be open, well-functioning, and accountable to its people. History has proven again and again that undue government secrecy thwarts oversight and weakens checks and balances against abuses of power — allowing corruption, incompetence, and human rights violations to fester. 

Too many secrets in the national security context are even more corrosive, with enormous stakes for civil liberties and democratic accountability as well as profound life and death implications. One crucial example is the U.S. government’s post-9/11 treatment of detainees in U.S. custody overseas, who had been abused, tortured, and even killed by government agents using illegal interrogation tactics that were secretly authorized by a handful of Bush administration officials and justified on the basis of highly classified, and later repudiated, Department of Justice legal opinions. Had those senior officials engaged in open debate about their plans and justifications with Congress and the American public before implementation, it’s hard to imagine that they would have so brazenly rushed ahead despite the widespread condemnation that the later revelations would provoke.

Among the most instructive examples of secrecy are the ones where a federal agency redacted or withheld information that came to light later or elsewhere, exposing the flawed or even indefensible judgment behind the government’s decision to hide it. In the WikiLeaks case, one of the online contest candidates, the Department of State responded to a Freedom of Information Act (FOIA) request from the American Civil Liberties Union by sending back redacted versions of embassy cables that were already in the public domain — a shady decision compounded by the fact that the records contained criticisms of U.S. government policies such as torture and detention at Guantanamo. Those sources of shame for the U.S. government were conveniently withheld from the public as national security secrets. 

In some instances, the federal government will refuse to even confirm or deny that a particular government record exists (i.e., issue a “Glomar” response) in response to a public request, even after having confirmed the existence of the same record in a different context. That is precisely what happened in another ACLU lawsuit in which the federal government stonewalled the release of rules governing the use of lethal force — whose existence the Department of Defense confirmed in an official report. Because those government rules reportedly loosened safeguards against civilian casualties, the unjustified secrecy grossly undermined the public’s ability to supervise what our government was doing, including taking actions on matters of war and peace that kill innocent people in our name. 

Secrecy undermines our democracy, our constitutional system of checks and balances, and our security. That is why leading civil society organizations, including the ACLU, have called on President Biden to embrace sweeping policy changes to truly “bring transparency and truth back to government.” 

As several of the Twitter contest contenders exemplified, the need to fix the nation’s system for classifying and declassifying national security information is especially acute and urgent — the central focus of a coalition letter to the President that the ACLU and other advocates signed this week. It’s past time to overhaul and rein in the government’s secrecy regime, and the broken classification and declassification system is a prime place to start.

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LiveBlog: Rooting Out Corruption in Government: What Will It Take?

On April 15, 2021, government ethics and accountability experts from American Oversight, Open The Government, the Campaign Legal Center, and Citizens for Ethics and Responsibility in Washington (CREW) participated in a liveblog event. The panelists discussed the reality of government corruption, how it works in practice, and steps that federal officials can take to prevent it. The following is a transcript of the event that has been lightly edited for clarity.  

Ufuoma Otu (Open The Government): Hi everyone, welcome to our liveblog on “Rooting Out Corruption in Government: What Will It Take?” I’m Ufuoma Otu, communications director at Open The Government, a nonpartisan coalition focused on advancing policies that create transparency and accountability in government.

I am joined by:

  • Jennifer Ahearn, Policy Director, and Justine Ellis, Fellow, Citizens for Responsibility and Ethics in Washington (CREW);
  • Delaney Marsco, Ethics Counsel, Campaign Legal Center; and
  • Austin Evers, Executive Director, American Oversight.

Austin Evers (American Oversight): Hello everyone — looking forward to digging into corruption and how to bring integrity to government.

Ufuoma Otu: This discussion is part of a series of ongoing events to promote Accountability 2021, a roadmap of federal reforms developed by accountability experts from across the political spectrum. You can learn more about the initiative at accountability2021.org. Feel free to ask questions of the panelists. And thank you to everyone who pre-submitted questions via Twitter!

Jennifer Ahearn (CREW): Hello all! Looking forward to a great discussion!

Delaney Marsco (Campaign Legal Center): Hi all! Excited to be here with Jennifer, Justine, Austin, and Ufuoma.

Justine Ellis (CREW): Hello, everyone—Looking forward to the discussion ahead!

Ufuoma Otu: Question: Surveys say public trust in government is at historic lows. What’s your sense of the reason for that? And what kinds of reforms can policymakers enact to counter corruption and, in turn, give the public more confidence in our government?

*

Jennifer Ahearn: I think lack of transparency is a big contributing factor here. Uncertainty about who has power over decision-making can leave us in the dark about the incentives or motives that factor into policy, and that can really erode public trust. Without transparent practices in our government, we can’t identify or address the forces exerting influence on our political processes.

Austin Evers: The loss of trust in government is a serious and complex issue. According to one measure, Americans’ trust that government will do the right thing has dropped from 73 percent in 1958 to 17 percent today.

I think one of the core reasons is that people doubt — and have reasons to doubt — that government officials are acting with integrity. People assume special interests and personal interests dictate policy outcomes.

Delaney Marsco: I think it’s impossible to pinpoint one reason for the decline in the public’s trust in government. But a combination of things certainly play a role. The revolving door between special interests and government; the influx of money in politics; the rise in lobbyist-run agencies; and the shattering of long-standing ethics norms all raise red flags for the public. It’s hard to see this sort of corruption happening and not think, “The government isn’t working for me, and the system is rigged for the wealthy and well-connected.”

Justine Ellis: To Jen’s point, we can’t always discern government officials’ motives or intentions (good, bad, or neutral) with a high degree of certainty, but we can trace possible influences on our government officials that could sway their decision-making towards financial self-interest and away from the public good.

Austin Evers: In terms of policy changes, we can make influence more transparent and less effective; we can ensure people who enter government are not improperly influenced; and we can make sure people leaving government can’t cash in their public service by lobbying their old colleagues. Rules like that would protect integrity in government decision-making. They might not dissuade criminals from committing crimes, but they would make committing crimes or succumbing to influence harder and more transparent.

Bottom line: We should take actions to give the public confidence that the people who claim to work for the public actually do.

Jennifer Ahearn: Building on Delaney’s point, I think lack of trust also goes deeper. Gaps in responsiveness and representational disparities can further marginalize historically disenfranchised and underrepresented communities, who accurately perceive that the system of government is reinforcing these harmful dynamics.

Austin Evers: Strong endorsement of Jen and Delaney’s points. The public is showing wisdom here: the government isn’t working for communities in need.

And to that point, restoring public trust may not be the right goal, exactly. The public should always be skeptical of the government. That’s why we have checks and balances and ethics rules, etc. And given the decades of poor performance on ethics, we should expect trust to come back quickly. But we should see the loss of trust as a blaring signal that the checks and balances we have in place are not sufficient.

Delaney Marsco: Agree 100 percent, Jennifer. And adding to Austin’s point, if we want to hold government officials accountable for corruption, we need to have the tools to do it — like more transparency surrounding possible conflicts of interest and improved lobbying disclosure. And actually enforcing existing ethics laws, like conflicts of interest statutes and FARA, would go a long way to showing the public that government is working as it should.

Ufuoma Otu: Seeing that corruption runs deep, what is a “win” your organization has had in exposing it? How does this “win” help explain how government corruption happens in the real world and tangible ways to fight it?

Austin Evers: It’s hard to call exposing corruption a “win,” exactly. American Oversight always starts our investigations hoping that our hypothesis of corruption is wrong! But corruption does exist and exposing it can make recurrence less likely.

Early on, American Oversight forced the EPA to release months of Administrator Scott Pruitt’s calendars. Pretty simple, right? And not something you’d expect to show corruption. But they revealed how he spent his time: almost exclusively with polluters and regulated industry, and effectively never with environmentalists or impacted communities. Who was Scott Pruitt working for? The bias was in black and white. Exposing his priorities put a spotlight on the role of influence and the need for better disclosures and limits.

Jennifer Ahearn: One example I think about a lot from our work at CREW was helping to prevent President Trump from hosting the G-7 meeting at his own resort property. Folks might remember when in October 2019 the Trump administration announced its intention to host the June 2020 G-7 at the Trump National Doral Miami golf resort. To Delaney’s point about needing tools to take action, CREW requested records via FOIA (and sued on it, as is so often necessary) and an inspector general report as soon as we learned of the possible conflict of interest. Facing public pressure, Trump ultimately abandoned the plan to host the event at the Doral. This shows how public pressure can force a change before a decision ever was made.

Delaney Marsco: In early 2019, CLC filed a complaint with the Interior Department Inspector General alleging repeated violations of revolving door ethics prohibitions by six Interior senior appointees. Documents provided to CLC obtained via a FOIA request showed them offering privileged access to former employers or lobbying clients. Since we filed the complaint, the inspector general has found that two of those six officials did in fact violate ethics rules, and three remain under review by the IG.

These violations show how corruption often works: Officials with ties to wealthy special interest groups use their government positions to secure meetings for those who used to pay their salaries or those they want to curry favor with for lucrative positions after they leave government. This all happens while they are supposed to be advancing the public’s interests. Often this type of corruption is not happening at high-profile events by cabinet-level officials (although it sometimes is!), so it can be hard for the public to observe it and hold officials accountable.

Delaney Marsco: Agree with Austin — feels weird calling it a win! When we file complaints, I always hope that the inspectors general prove me wrong, and that the corruption isn’t what it looks like.

Austin Evers: Another American Oversight focus was on how Transportation Secretary Elaine Chao was using her position to favor her family’s business and her husband — Mitch McConnell. Our work dovetailed with an inspector general investigation that resulted in a criminal referral to (but no action by) the Barr DOJ.

Again, corruption exists when the government isn’t working for the public but for narrow or private interests.

Delaney Marsco: As far as how to fight against this sort of corruption: More transparency surrounding officials’ conflicts of interest, calendars, and visitor logs would allow us to timely catch any violations and hold officials accountable before they leave office. Strong revolving door prohibitions would prevent officials from seeking certain employment after leaving government, and prevent officials from using their positions for the benefit of former employers and clients.

Jennifer Ahearn: Yes, so true about the hollow feeling of “wins” sometimes! That is also why I think it’s important to strengthen the executive branch ethics system — because it’s a system that has a lot of measures of prevention, like recusal from working on particular issues or divesting financial assets. These things prevent people from even being in the position to make a corrupt decision — which, to my mind, is a lot more effective on a large scale than hoping they won’t!

Ufuoma Otu: Thanks for sharing those really high-profile examples of corruption from the most recent administration. What sorts of corruption do you see as most pervasive or problematic beyond the big headlines? What are some changes that would address the day-to-day corruption and misconduct you see?

Austin Evers: Time for a shameless but important plug for the Accountability 2021 platform: https://www.accountability2021.org/ethics/

A big coalition of good government organizations worked together to highlight tangible ways to make corruption harder. From the collective wisdom of the coalition: It is time to re-center ethics at the heart of American democracy by making strong commitments to follow ethical principles in all aspects of government decision-making and implementing reforms to make ethics rules stronger, more complete, and more effective. To do so, the administration should abide by the following four principles:

The administration must elevate ethics as a core value by prioritizing meaningful structural ethics reforms and committing publicly to adhere to the rules and the values and norms behind them. The people in government should work for the public, not for personal or private interests.

To judge whether the government is acting ethically and to hold unethical actors accountable, the government must preserve meaningful ethics records and make timely ethics disclosures.

The public has a right to: meaningful disclosure concerning all individuals and organizations lobbying their elected officials; a government free from wealthy special interests placing their own loyal personnel into government posts; and a government free from former government officials exploiting their networks within government for personal gain.

Ufuoma Otu: So, Biden signed an ethics executive order on his first day in office, doesn’t that step address most of our most significant ethics challenges?

Jennifer Ahearn: I think issues with industry influence over government decisions that are made at federal agencies, not necessarily by the president directly, are the most “commonplace” corruption issues we face. Although we tend to think of lobbying in terms of lobbying Congress, the rubber meets the road when it comes to regulating industries at the federal agency level during the rulemaking process. 

Through the “revolving door” between industry and government service, special interests can exert influence because of diminished capacity in government, often resulting from a lack of funding or internal expertise on a topic. Accountability 2021’s recommendations on lobbying can help take on this issue. 

Delaney Marsco: Agree with that, Jen. I also think it’s really hard to know what we don’t know! We have a lot of great groups working incredibly hard to uncover corruption, but we need enhanced transparency and the reprioritization of ethics and accountability at the highest levels of government. That’s why the reforms Austin helpfully linked to are so important!

Austin Evers: The Biden executive order is a big step forward, certainly from the Trump ethics executive order, but also the Obama EO. But the very fact that Biden had to issue it at all is a big sign of what could be better: These rules should be laws!

We need to get beyond the idea that every president gets to define ethics for their own administration. Among other things, the current system lets a president revoke their rules when they leave office — which Clinton and Trump did. It’s time to codify the best parts of the various ethics executive orders.

Jennifer Ahearn: Yes, Austin! The Biden ethics executive order is great, and I’ll post a link to our writeup of how it compares to earlier presidents’ orders. But you can see from the differences among the different presidents’ orders that there is a weakness in relying on this to set ethics standards — we need to be able to rely on ethical government no matter who’s in charge!

Delaney Marsco: Agree with Jen and Austin! The EO is really good, but simply mandating ethics pledges in executive orders is not a panacea. We need better laws on the books, better enforcement, and more transparency. The executive order, while good, far from guarantees some of the most important and necessary reforms that will ensure an accountable government that works for everyone. What constitutes ethical public service doesn’t change from administration to administration — so the rules shouldn’t either.

Austin Evers: One area of reform that is still on the table is the scope of why counts as a “lobbyist.” DC is full of people who ostensibly operate “behind the scenes” to influence government, but don’t have to register.

From the Accountability 2021 policies: “Lobbying” for purposes of the ethics pledge should include behind-the-scenes work and support of lobbying efforts of others as a consultant.

And here’s a Project on Government Oversight article that includes why it’s important. 

Ufuoma Otu: Advocacy groups are urging the Biden administration to relaunch Ethics.gov this week. How would that help revitalize ethics in government and orchestrate some of the recommendations you’ve outlined here?

Justine Ellis: I think of Ethics.gov as a potential force multiplier for the kinds of wins that Jen, Austin, and Delaney talked about earlier. If you bring the relevant information together in one place, people can actually use it to hold the government accountable!

Austin Evers: Ethics.gov would demonstrate a commitment to operating in the sunlight and according to the rules. And it would make it easier for the public (and watchdogs like ours) to confirm everything is aboveboard.

It’s 2021. We should be bringing good data practices to ethics. Ethics without transparency isn’t effective. Right now, too much information is spread out across different websites and systems, making it hard to connect important dots. Groups like ours would spend less time gathering dots and more time connecting them.

Delaney Marsco: Exactly, Justine and Austin! Holding government officials accountable for corrupt behavior begins with transparency. Ethics.gov would give watchdogs and the public at large information it needs to root out corruption: financial disclosures, ethics waivers, and officials’ other connections that may raise revolving-door concerns or show special treatment. Access to information allows for oversight and ultimately accountability.

Austin Evers: A side benefit of Ethics.gov would be to reduce incorrect conclusions that corruption must be occurring. Secrecy and the lack of transparency trigger skepticism and cynicism. We’re talking about corruption today and the loss of public trust. Some of that loss of trust is because people assume things are corrupt, which may not be correct all the time.

Delaney Marsco: Such an important point, Austin!

Ufuoma Otu: Biden will clock his first 100 days in office later this month. If you had a meeting with the president, what is the number one recommendation you’d urge him to adopt in the next 100 days?

Jennifer Ahearn: People are policy! I’d probably highlight the very first recommendation from Accountability 2021: Appoint someone within the White House who’s charged with coordinating the administration’s transparency and ethics agenda.

Here’s more detail from the report: The administration should appoint a Chief Accountability Officer to lead and coordinate the administration’s transparency and ethics agenda. Among the Chief Accountability Officer’s duties will be the implementation of a new ethics executive order, issuing guidance for personnel hiring and appointments across the administration, and the dissemination of ethical principles and priorities to all agencies. The Chief Accountability Officer should have a high rank and access to decision-makers, including the president, and should be required by the president to meet early and often with leadership across the federal bureaucracy to elevate ethics.

Austin Evers: Well, getting people vaccinated is #1. But in terms of corruption, I would encourage the president to embrace ethics as a core value by elevating it across the administration. Especially with the large spending packages enacted and under consideration, the public should have full confidence that the government is acting for the public benefit, not for special interests. To do that, acting prophylactically around ethics to protect decisions from even the appearance of corruption is important.

The president has highlighted his role in overseeing the spending in response to the Great Recession. That kind of watchdog-ism is really important, especially from the top down.

As Jen points out, appointing an accountability officer would be a key signal of how important integrity is to the president.

Ufuoma Otu: Now, a question submitted via social media: How did the disinvestment requirements for government employees become optional for so many in the last Administration? What can be done to improve even enforcement?

Austin Evers: Well, it was pretty clear from the outset that the Trump administration did not consider ethics a core value.

We saw waivers so lobbyists could run agencies. And we saw people like Wilbur Ross undergo literally years of review on his financial holdings.

I’d like to see Attorney General Garland emphasize public corruption and ethics laws as a prosecution priority. Let’s see what it looks like for the DOJ to prioritize the Hatch Act and the criminal and civil ethics laws. Because we know what it looks like when it doesn’t.

Jennifer Ahearn: To answer the question about divestment as to Trump specifically: Government officials usually divest because they are trying to avoid the criminal conflict of interest statute, but that statute specifically doesn’t apply to the president. Past presidents have still arranged their personal financial affairs in order to avoid conflicts of interest, but that’s why President Trump was able to keep his businesses — because the rules are currently different for presidents (and vice presidents) than for other executive branch officials.

Delaney Marsco: And officials can retain some financial interests and abide by the law by recusing from any matter that would create an actual or apparent conflict of interest (in short). But we need commitment to transparency and enforcement when officials do run afoul of the law. As a member of the public, it can be hard to determine what is a conflict if, for example, a cabinet official has a vast web of financial interests, or if it isn’t clear that what the official is working on doesn’t involve their financial interests.

This is why it is so important that the Biden administration enforce the conflicts laws on the books and require more transparency surrounding ethics documents and the operation of the government. A centralized portal, like Ethics.gov, could provide the public with all financial disclosures and ethics waivers, and visitor logs and calendars. That way, we know what public officials are doing, and who they are doing it for.

Ufuoma Otu: On that note, I’d like to thank our panelists for their insightful responses today and everyone that participated in this liveblog! Feel free to reach out to Open The Government at info@openthegovernment.org if you have any other questions for our experts, check out our respective websites, and remember to visit Accountability2021.org for more information!

Delaney Marsco: Thanks everyone! This was so much fun!

Jennifer Ahearn: Great to be with you all, and thanks to those who submitted questions! 

Justine Ellis: Thank you, everyone!

Austin Evers: Big shoutout to Jen, Delaney, Ufuoma, and Justine — and to CREW, OTG, and CLC! Thank you to everyone who engaged here or on Twitter and who sent in questions.

The Accountability 2021 plan is rich and detailed. If you care about the rule of law — and hate corruption — and want to do something about it, the plan is a great place to start: https://www.accountability2021.org

This post was originally published here.

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Repairing FOIA: Shining a Brighter Light on Government Actions

By Zach Brown, Public Citizen

Above all else, information is meant to be shared.

While this statement could be applied to a variety of different circumstances it couldn’t be truer than when it comes to information about our government’s actions. Just as telescopes provide us grand images of the stars and microscopes provide insight on a cellular level, everyday Americans have a special tool for learning about the operations of government agencies: The Freedom of Information Act. For more than 50 years, the Freedom of Information Act has provided members of the public with the right to information about governmental activities and has led to bombshell discoveries across the nation and spurred critical accountability actions.

However, over time, FOIA’s revealing light on government actions has unfortunately been dimmed quite a bit.

One of the main problems information requesters face is government agencies’ overuse of FOIA exemptions to keep information away from the public. FOIA’s exemptions to disclosure are supposed to be narrowly construed, but too many times these exemptions have been overused and interpreted broadly by federal agencies to put a lamp shade on FOIA’s illuminating power.

For example, just last year in the aftermath of a newly passed COVID-19 relief package, the American public rightfully wanted to know who was receiving the small business loans. Pretty reasonable, right? But how did the Small Business Administration respond? By citing FOIA exemption 4 (exempting confidential commercial information from disclosure) and FOIA exemption 6 (meant to protect private personal information from disclosure). And if you’re reading this wondering how on Earth does the name of a business receiving a pandemic small business loan fall under this exception, you’re definitely not alone, as a Federal Judge found that neither of the exemptions offered fit the bill and ordered that this information be shared (and the revelations highlighted that more transparency was definitely needed).

Furthermore, this longstanding overuse of exemptions by agencies has been compounded by court decisions that constrain the public’s right-to-know. For example, in the 2019 U.S. Supreme Court case Food Marketing Institute v. Argus Leader Media, the longstanding legal test for when information can be withheld as “confidential” commercial information under FOIA’s fourth exemption was set aside. The prior test looked at whether the information would cause substantial competitive harm. The Supreme Court’s decision, however, looked at whether the information is actually and customarily treated as private and whether the government assured that it would be kept confidential. Under this test, information can be withheld even if releasing it would cause no harm to the company.

In addition to overuse of exemptions, outdated technologies and insufficient allocation of resources oftentimes slows down the FOIA process to a snail’s crawl. For instance, even though the law states a 20-day deadline for government agencies to respond to FOIA requests, this goal is seldom met. Requesters often don’t receive responses to their FOIA requests for years.

Reforms to increase government transparency are urgently needed.

Luckily, we’re not in the fight alone.

Last year, 40 advocacy organizations and experts began working together to craft a much-needed plan to address the gaps in our current system of government disclosure. And while the full report is far more expansive than FOIA and open government, the Accountability 2021 plan detailed various steps that need to be taken to improve government transparency.

For one, FOIA is in desperate need of some legislative reform—let’s call it installing a brighter bulb in the FOIA flashlight. Congress should pass legislation that implements a balancing test regarding when FOIA’s exemptions can be used that requires agencies and courts to weigh the interest in withholding information with the public’s interest in obtaining the information. Additionally, FOIA reform must address the Food Marketing Institute decision and clearly state that exemption 4 only applies to records whose release would cause substantial competitive harm. In a similar vein, it’s also imperative that we pass legislation to clarify the language of FOIA to ensure that the federal court system’s authority to hear FOIA cases includes the explicit power to require agencies to make records affirmatively available to the public, not just to the FOIA requester. And, if the government were required to proactively share more information without requiring people to request it via FOIA, it would definitely save us all some time!

Additionally, like switching to energy efficient light sources, the FOIA process urgently needs to be brought into the year 2021. The government should be investing in modernizing the recordkeeping of federal agencies and providing them with the technological tools needed to more easily access and retrieve requested documents. And not only does recordkeeping need to be modernized, but it also needs to be uniform and usable to everyone, regardless of whether they are sighted. In the wake of Trump’s secrecy-addled administration, it’s time for our federal government to take the future of transparency in government seriously. The American people deserve it.

Thus, our fight for transparency and accountability must be unwavering. Just last week, Adina Rosenbaum, an attorney from Public Citizen’s Litigation Group, spoke at a virtual briefing organized by Open The Government explaining both the expansive uses of FOIA and the urgent need for its reform. In her presentation, Rosenbaum reiterated that while under FOIA, agency records should be presumed to be public records unless they meet an exemption, in practice, it often seems that agencies are actively searching for ways to withhold information rather than doing their best to share information. Therefore, our advocacy must also work to change the culture of government secrecy itself, stressing that bolstering FOIA not only benefits the public, but the agencies themselves.

https://youtube.com/watch?v=4et7tz9XaqM%3Ffeature%3Doembed

Public Citizen will continue to advocate for progressive reform to increase transparency and accountability.

FOIA’s light on our government’s actions isn’t one we can afford to let flicker further.

This blog post by Public Citizen originally appeared here.

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Blog

Anti-Corruption Week: Holding Power to Account and Fostering Public Trust

By Delaney Marsco, Ethics Counsel, Campaign Legal Center

The public’s trust in government is at near-record lows. While the reasons for the public’s poor view of the government are many, lack of government accountability only adds to the distrust.  The purpose of Anti-Corruption Week this month is to shine a spotlight on the much-needed and attainable reforms that can increase government accountability, reduce corruption and begin to restore public confidence.

The factors that contribute to government corruption are not new, but they are peskily resilient: pay-to-play influence and the revolving door between special interests and government; the rise in lobbyist-run agencies; the shattering of norms against conflicts of interest; and blatant examples of self-dealing across the federal government.

The public’s intuition is common sense: the influx of money in politics must be having a corrupting effect on the political process. The rules of the game appear to be rigged to make influence more effective and more secret at the same time. Now, more than ever, it is critical to establish meaningful guardrails to protect the integrity of government to ensure it acts in the public interest. Only then can we hope for the public’s trust in government to improve.

Common sense reforms, like those proposed in Accountability 2021, can fight against these forces that harm our democracy.

To prevent corruption in the federal government and reverse the trend of unfair privileged access and influence by wealthy special interests, the Biden administration must elevate ethics as a core value. Prioritizing meaningful structural ethics reforms and committing publicly to adhere to the rules and values and norms behind them can help us achieve a more accountable government.

Key reforms include:

  • Relaunching ethics.gov, so that the public has full, convenient access to all ethics documents. Meaningful disclosure allows the public to scrutinize officials’ financial interests and ensure they are prioritizing the public interest instead of personal gain. Any disclosures must be searchable, sortable, downloadable, and machine-readable.
  • Establishing a Lobbying Reform Task Force to make recommendations that will improve lobbying disclosures and require reporting by currently unregistered lobbyists.
  • Enforcing and bolstering existing ethics and conflicts of interest laws, including the conflict-of-interest statutes, the Lobbying Disclosure Act, the Foreign Agent Registration Act, and the Hatch Act.
  • Appointing someone in the executive branch to oversee the implementation of a bold ethics agenda.

The reforms boil down to a few key principles. First, the public should know what interests are present in government decisions, either through access or based on the past affiliations of government officials. Second, violations of rules against conflicts of interest need to be enforced in meaningful ways. And third, government needs to embrace ethical, conflict-free governance as a core value.

The result would be less corruption and less policy done for secret or private reasons. The public deserves no less. And in time, it might start to trust the government’s integrity again.

The Biden administration has a once-in-a-generation opportunity to embrace and promote these meaningful ethics reforms, and there is no time to waste. In an advocacy letter to the administration this week, accountability advocates will urge Biden to relaunch Ethics.gov and will host a virtual briefing on corruption in government and the recommendations in Accountability 2021 to prevent it.

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Blog

Advocates push Biden for swift action on Accountability 2021 recommendations

During Sunshine Week, the annual celebration of the importance of open government and freedom of information, government accountability advocates announced plans to amplify the recommendations in Accountability 2021 in the weeks ahead. Convened by Open The Government, a broad coalition of more than 40 good government, democracy reform, anti-corruption, and civil rights organizations created Accountability 2021 as a roadmap for the Biden administration to repair gaps in oversight laws and practices in the federal government.  

Earlier this year, accountability experts scored a major victory when Biden signed an executive order on ethics commitments for the executive branch, including a pledge prohibiting officials from interfering with federal law enforcement matters at the Department of Justice, and a transparent, science-based response to the pandemic.

But the Biden administration can and must take swift action to adopt more of the practical yet transformational solutions mapped out in Accountability 2021 in the lead-up to Biden’s first 100 days in office. In the days ahead, a coalition of good government organizations will advocate for specific recommendations through engaging blog posts, messaging on social platforms, opinion articles and virtual events that will be featured on the Accountability 2021 site.

Look for insights and information on the following:

Pandemic Response and Preparedness (Week of March 22)

Following the one year anniversary since the World Health Organization declared COVID-19 a pandemic and lockdowns began, advocacy efforts include the release of a special Open The Government report that sheds light on how the government’s secretive response to the pandemic undermines the public’s access to information and contributed to its devastating impact on millions of Americans, especially communities of color. We are also pushing for agencies to create standard procedures for collecting, disclosing and maintaining pandemic related data to the public and for Congress to pass the Scientific Integrity Act.

Whistleblowers (Week of March 29)

Although Congress has advanced whistleblower protections in the public and private sectors over the past decade, whistleblowers still face retaliation for speaking out against wrongdoing because the laws that protect them from demotions, harassment, and other forms of retaliation are inadequate. Whistleblower advocates will urge Biden to take steps to support and protect federal employees, appoint a Special Assistant to review the federal whistleblowing system and recommend reforms, and require agencies’ non-disclosure agreements comply with whistleblower laws.

Right to Know (during the Week of April 5)

Open government is at the foundation of an accountable government, and Americans have a right to know what our government is doing. Advocacy efforts will focus on recommendations to the Biden administration to elevate transparency in the White House and update the Freedom of Information Act.

Anti-Corruption (during the Week of April 12)

As Americans will be filing their tax returns this week, advocates will focus on measures that will ensure future candidates and cabinet officials disclose their tax returns and ethics forms.  The Biden administration must prioritize the investigation and prosecution of ethics laws, and increase transparency around ethics with the relaunch of Ethics.gov.

National Security (Week of April 19)

Over-classification of government information is rampant, preventing access to information where secrecy serves no national security interest. Advocates will call on the Biden administration to review and revise its classification policies and restrict agencies’ ability to circumvent public records laws.

First 100 Days Snapshot (Week of April 26)

The recommendations in Accountability 2021 will forge a new path toward long-lasting oversight and accountability. At the first 100-day marker, we will take a snapshot of the progress the Biden administration has made towards advancing accountability and highlight necessary next steps.

Our assessment of the Biden administration’s adoption of more of the recommendations in Accountability 2021 will continue beyond the first 100 days with an emphasis on the media’s access to information, police use of force and misconduct, and more.

To participate in any of the advocacy efforts outlined above or to recommend others to feature in blog posts, social media engagement, virtual discussions or in sign-on letters, please email us at info@openthegovernment.org.

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Blog

Biden’s Ethics Plan Earns First Victory for Accountability Reform Advocates

This post from Open The Government originally appeared here.

January 22, 2021

Washington, D.C. —  By signing an executive order on ethics commitments for the executive branch on his first day in office, President Joe Biden demonstrated the importance of structural ethics reforms that protect the public interest rather than public officials’ gain.

The executive order is a major victory for accountability experts from across the political spectrum, who in 2020 developed the ethics recommendations in Accountability 2021.

Convened by Open The Government, the Accountability 2021 initiative was created by a broad coalition of good government, democracy reform, anti-corruption, and civil rights organizations as a roadmap designed to help the new administration address gaps in oversight laws and practices that, combined with the Trump’s administration’s disdain for ethical norms against conflicts of interest and self-dealing, created a historic crisis in our democracy.

The initiative called on the president to issue a strong executive order on Day One to elevate ethics as a core value in the executive branch. President Biden did just that, and advocates will look to his administration to continue making ethics reform a priority.

“Unethical behavior by government officials has contributed to the public’s deep distrust of government. President Biden’s ethics plan sends a strong message that his administration is committed to reversing course by instilling a culture of ethics from the top down,” said Lisa Rosenberg, executive director of Open The Government.

“We are thrilled Biden recognized the value of the practical yet transformational ethics solutions mapped out in Accountability 2021 and encourage the new administration to adopt more of the recommendations to repairour democratic foundations, and help rebuild them so that our institutions serve us all better than at any time (or administration) in the past,” said Rosenberg.

Below are several of the ethics recommendations in Accountability 2021 reflected in Biden’s Day One actions:

The Biden administration also committed to other Day One and short-term Accountability 2021 recommendations, including:

A summary of the broader recommendations mapped out in Accountability 2021 for the new administration is available here.

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Blog

CLC Calls for Biden Administration To Restore Government Accountability Through Ethics Reforms

This blog post from Campaign Legal Center on Accountability 2021 was originally published here.

By Delaney Marsco
December 2, 2020

Campaign Legal Center (CLC) has joined a nonpartisan coalition, Open the Government, in calling on the Biden administration to implement an agenda of robust ethics reforms. The agenda, called Accountability 2021, includes a broad range of accountability principles that are designed to guide executive and legislative priorities for the incoming administration.

The purpose of these recommendations is to ensure that many of the ethics norms and laws that have been eroded over time are restored.

They recognize that our democracy depends on eliminating regulatory capture, implementing robust disclosure that helps the public discern conflicts of interest, and restoring the public’s trust that government is working for them and not special interests.

The incoming administration can make meaningful ethics reforms through executive action on day one as well as longer-term action and legislative fixes using these recommendations as a guide.

Specifically, on the ethics front, the recommendations include ways the Biden administration can prioritize ethics and center ethical government service to ensure the government is acting in the best interest of the public.

The new administration should appoint a Chief Accountability Officer who can coordinate the administration’s ethics agenda. The Biden administration should implement an ethics executive order that includes an ethics pledge, required to be signed by all senior political appointees.

The recommendations also call on the Biden administration to prioritize ethics disclosure and lobbyist disclosure reform. The public has a right to know what wealthy special interests are influencing executive branch decision making and are lobbying elected officials.

The new administration should establish a Lobbying Reform Task Force to help guide lobbying disclosure reforms.

These recommendations and others are available on the Accountability 2021 website.

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RESOURCES

ACCOUNTABILITY 2021 EXPERT PROFILES

Government accountability and transparency experts are available to speak to the media regarding the recommendations in Accountability 2021. The expert profiles below contain brief biographical information to help you identify the most relevant expert for your needs. If you would like to connect with an expert, email media@openthegovernment.org or call (202) 332-0251.

OPEN GOVERNMENT
Emily Manna, Policy Director, Open The Government. Manna’s policy work focuses on transparency and accountability for U.S. military and national security programs, records management and data preservation, and expanding proactive disclosure and the public’s right to know.

Anne Weismann, Founder and Executive Director, Campaign for Accountability. Weismann is the former Chief Counsel and Chief FOIA Counsel of Citizens for Responsibility and Ethics in Washington.


ETHICS
Austin Evers, Executive Director, American Oversight. Evers founded American Oversight in 2017 to leverage his experience as a litigator and government attorney to promote accountability in government.


Beth Rotman, Money in Politics & Ethics Program Director, Common Cause. Rotman was the founding director of Connecticut’s Citizens’ Election Program and had previously served as deputy general counsel for New York City’s Campaign Finance Board. She clerked for the U. S. Court of Appeals for the Second Circuit, working closely with now-Supreme Court Justice Sonia Sotomayor.

BALANCE OF POWER
Steve Ellis, President, Taxpayers for Common Sense. Ellis joined TCS in 1999 and became president in 2020 after serving for well over a decade as vice president, overseeing programs and serving as a leading media and legislative spokesperson. 

Anne Tindall, Counsel, Protect Democracy. Tindall most recently served as Assistant General Counsel for Litigation and Oversight at the U.S. Consumer Financial Protection Bureau, representing the agency in federal court and before Congress and other oversight bodies.

WHISTLEBLOWERS
Irvin McCullough, Deputy Director of Legislation and National Security Analyst, Government Accountability Project. McCullough specializes in Intelligence Community and military whistleblowing. He supports investigations, legislation, and litigation within GAP’s national security program.


RESPONSIVE GOVERNMENT

Robert Weissman, President, Public Citizen. Weissman is the president of Public Citizen and a staunch public interest advocate and activist, as well as an expert on corporate and government accountability.

PANDEMIC RESPONSE
Liz Borkowski, MHP, Research Scientist, Department of Health Policy and Management,  Milken Institute School of Public Health, George Washington University. Borkowski is the managing editor of Women’s Health Issues, the peer-reviewed journal of the Jacobs Institute of Women’s Health.