So the solution, of course, is to make things a bit more opaque while still pretending to be “transparent”. And how does one do that? By kicking the guy dedicated to that job – the so-called “ethics czar” – upstairs, and shifting those responsiblities elsewhere. Like to someone who is known not to favor transparency at all.
Obama transferred "ethics czar" Norm Eisen to the Czech Republic to serve as U.S. ambassador. Some of Eisen’s duties will be handed to Domestic Policy Council member Steven Croley, but most of them, it appears, will shift over to the already-full docket of White House Counsel Bob Bauer.
Bauer is an insider’s insider. And in his own words and actions, doesn’t at all favor disclosure of public affairs, at least not like President Transparency promised:
Bauer’s own words — gathered by the diligent folks at the Sunlight Foundation — show disdain for openness and far greater belief in the good intentions of those in power than of those trying to check the powerful. In December 2006, when the Federal Election Commission proposed more precise disclosure requirements for parties, Bauer took aim at the practice of muckraking enabled by such disclosure.
On his blog, Bauer derided the notion "that politicians and parties are pictured as forever trying to get away with something," saying this was an idea for which "there is a market, its product cheaply manufactured and cheaply sold." In other words — we keep too close an eye on our leaders.
And there’s more:
In August 2006 Bauer blogged, "disclosure is a mostly unquestioned virtue deserving to be questioned." This is the man the White House has put in charge of making this the most open White House ever.
Most telling might have been Bauer’s statements about proposed regulations of 527 organizations: "If it’s not done with 527 activity as we have seen, it will be done in other ways," he told the Senate rules committee.
"There are other directions, to be sure, that people are actively considering as we speak. Without tipping my hand or those of others who are professionally creative, the money will find an outlet."
So there you go, another political promise from the man who gave us “hope” and “change” quietly changed so that it still conform with the letter of the promise – i.e. there’s still someone in charge of “transparency” – but not its spirit.
If this isn’t a Rahmbo (Chief of Staff Rahm Emanuel) move, I don’t know what is. It has his fingerprints all over it.
I know – big surprise.
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From the White House Blog in an entry written by Norm Eisen, special counsel to the president for ethics and government reform in “the spirit of transparancy”:
… [T]he President’s March 20, 2009 Memorandum on Ensuring Responsible Spending of Recovery Act Funds. Section 3 of the Memorandum required all oral communications between federally registered lobbyists and government officials concerning Recovery Act policy to be disclosed on the Internet; barred registered lobbyists from having oral communications with government officials about specific Recovery Act projects or applications and instead required those communications to be in writing; and also required those written communications to be posted on the Internet.
However, a couple of changes have been made, among them:
First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
So thinking this through, could “anyone” include a TV or print reporter asking an oral question to a government official concerning Recovery Ac Policy? Or a particular Recovery Act project that might impact their viewership or readership? Is it possible the information provided, if government officials are subjected to such oral scrutiny, might end up “exerting influence on the process”?
How about a concerned citizen who happens to be a blogger?
Doesn’t this give government officials the cover to duck such oral inquiries? How does that enhance transparency?
And ultimately, doesn’t this smack of a wee bit of a conflict with the 1st Amendment (free speech, free press, the right to petition government)?
And if “the unique circumstances of the stimulus program” are enough to limit 1st Amendment rights, per this paragon of “ethics and government reform, what other “unique circumstances” might be cited in the future to do the same sort of thing, given the precedent this sets?
This is the Camel’s nose under the tent, being poked because of special circumstances.
“Lobbyists and organizations that lobby complained that the White House’s restrictions on lobbying on stimulus fund projects were discriminatory and unfair because the same restrictions didn’t apply to people like corporate executives or officials. So these memorandumly noted changes address that fairness issue by expanding the ban on orally petitioning the government or expressing one’s views through speech. In the interests of transparency the First Amendment must be sacrificed.
“The restrictions are also ambiguous enough that a lobbyist or other petitioner won’t be sure how to fully comply. So if someone runs afoul of White House officials, a phone call to a news outlet or a friendly prosecutor can punish the offender. Ambiguous rules plus capricious application equals negative rule of law.”
The only transparency in this process is the fact that the White House is telling you the rule. But the rule then precludes oral questioning which might make the process even more transparent. If even the remote possibility exists that such communication might “exert influence on the process” then it is prohibited.
The White House’s apparent intent is to run a transparent process. The result is overreaching by the executive branch with poorly thought through restrictions on speech that are seemingly unconstitutional. The problem is they obviously don’t feel that to be the case. Or if they do, they think they should have the right to restrict certain forms of communication between government and anyone they decide if “unique circumstances” are existent (guess who get’s to determine whether they are or not?).
Frankly that should bother you.
However, fear not – I’m sure those that continually cited the Bush administration for alleged expansion of executive power will be among the first to address this obvious abuse of Constitutional power and call for an immediate revocation of the rule.