An Executive Order to Restore Transparency to Government

by Sidney Shapiro

November 17, 2008

The Bush Administration's penchant for secrecy was one of the most corrosive aspects of the way it ran the government these last eight years. This preference for conducting government business behind closed doors ran the gamut from military and foreign policy, where secrecy is more easily justified, to regulatory policy, where it is much less justified. President-elect Obama has the authority to issue a new Executive Order on government transparency that could address and reverse the secrecy policies of the last eight years concerning regulatory government. CPR proposed a three-part Executive Order for doing the job, in its November 11 white paper, Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days.


Freedom of Information Act. The Freedom of Information Act (FOIA) is often called the nation’s premier open-government statute, and for good reason: It mandates that all government documents are available to the public unless the government can justify that a document falls within one of nine exceptions enumerated in the FOIA statute. Moreover, Congress did not require a government agency to withhold information just because it falls within an exception. That’s merely a prerequisite. The agency must decide to take the step of withholding. But when the Bush Administration took office, then-Attorney General John Ashcroft issued a memorandum instructing agencies to err on the side of non-disclosure and telling them that the Justice Department would back them up if they took this step. The Ashcroft memorandum reversed a Clinton Administration policy that did the exact opposite – it required agencies to adopt a “presumption of disclosure.”


Once he takes office, President Obama should direct DOJ to restore the presumption of disclosure that prevailed in the Clinton Administration. This step would have both symbolic and practical value. This is an opportunity for the new administration to signal that it will do the public’s business in public. Moreover, the public will actually get more information. The Government Accountability Agency (GAO) has found these orders actually affect agency behavior, leading to more or less transparency.


Federal Advisory Committees. On a related open-government front, each year the government consults with thousands of advisory committees, which are usually made up of scientists and other technical experts. Advisory committees offer agencies the opportunity to get advice from some of the nation’s leading experts, but it is relatively easy for an agency to manipulate what advice it will receive. The Federal Advisory Committee Act (FACA) seeks to head off this problem by requiring that advisory committees meet in public, but the courts have created a number of loopholes that permit agencies to avoid this requirement. The new President should indicate that, unlike the Bush Administration, his administration will forego taking advantage of these loopholes.


Transparency in the Regulatory Process. The White House has traditionally engaged in oversight of the rulemaking process in the agencies. A number of scholars, including myself, have expressed serious reservations about how these reviews are conducted. Indeed, it would be good if the new President significantly overhauled the review process, but that is a subject for another blog. President Clinton added some important transparency requirements, and President Bush added a few more. But there is evidence that the Bush administration evaded its own disclosure requirements. For example, under President Bush, the White House Office of Information and Regulatory Affairs – home to the much discussed “regulatory czar” – has routinely given “informal” guidance to regulatory agencies, and instructed them not to disclose that guidance, despite a requirement that “formal” guidance be made public. Not surprisingly, that informal guidance had a drastic effect on some regulations – inevitably making them less protective of public health and the environment. That’s exactly what the transparency requirements were intended to flush out.  CPR’s report on Executive Orders spells out how the President-elect can roll back this evasion.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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