Congress is a den of corruption. We know this by intuition and from repeated experience, so when the president signed the congressional insider trading ban into law, most of us approved, perhaps with some reservations about whether it should have gone further. Yesterday, Congress released the annual mother of all document dumps containing financial disclosures from all 535 congresscreatures, which will for the first time include information about their personal mortgages.
Via the Washington Post:
As part of the new law, leaders of the Senate Ethics Committee — Barbara Boxer (D-Calif.) and Johnny Isakson (R-Ga.) — won their three-year fight to require lawmakers to reveal their personal mortgage information. This came after their 2008-2009 inquiry into a pair of senators who were part of a VIP mortgage program run by Countrywide Financial, former senator Christopher J. Dodd (D-Conn.) and Sen. Kent Conrad (D-N.D.), both of whom were cleared of any wrongdoing by the ethics panelbecause the discounted fees for their mortgages were offered to many customers.
This is a meaningful step. But lest we think their transparency issues have been solved, consider that the new disclosure rules wouldn’t have caused any red flags to go up had they been around when Congress decided to build Nancy Pelosi’s husband a railroad.
The STOCK Act marries the current approach to congressional transparency–‘fill out some more forms!’–with a new mandate that they disclose all stock, bond, commodity futures, and other security transactions within 45 days. There are some other stipulations too, notably restrictions on special access to IPOs, but the transaction disclosures are definitely the meat of the bill.
The only person I’ve ever heard defend congressional insider trading as a good thing was a doctrinaire Randian, but the whole approach to conflicts of interest among lawmakers is flawed at best. Politico’s Jake Sherman wrote today about how disclosure rules can obscure many of the facts about politicians’ wealth:
The financial disclosures allow huge ranges in reporting the value of assets, require no reporting of spousal income above $1,000 and often provide an incomplete picture of lawmakers’ real estate assets. There is no requirement to reveal tax returns — a stark contrast with presidential candidates, who voluntarily give the public a peek into their taxes.
In essence, Congress has allowed its members the leeway to obfuscate their true financial worth, even as some lawmakers and good government groups have pushed for more transparency.
There’s a limit to how effective these disclosure frameworks can be. Which leads one to wonder, isn’t the purpose of these rules to ensure an informed citizenry, one that can discern whether or not politicians are acting in the public interest or their own self-interest (both, if you ask Nancy Pelosi). The simplest way to do this would be to empower those citizens to simply ask for whatever information they request, a standard already applied across most of the executive branch (with several large exemptions) by the Freedom of Information Act. But the law doesn’t apply to Congress.
A British or Israeli citizen can request the correspondence and records of lawmakers in the Knesset and the UK Parliament, but Joe Six-pack doesn’t have the right to request the records of his own congressman. How could this be? The simplest answer is because Congress writes its own rules, the same reason nearly all new electoral laws benefit incumbents. That’s not the whole story, though; it would be unreasonable, not to mention unconstitutional, to include the sort of personal information that could expose insider trading under the purview of FOIA, which means the disclosure laws are probably necessary. Also, there’s a major separation of powers question. With every issue from Mitt Romney’s misspelled iphone app to Barack Obama’s childhood dog-eating becoming a political football, it’s easy to see how a congressman stonewalling on a particular FOIA request could become a target for politicized litigation.
Yet there are good reasons to believe extending FOIA to the legislative branch would have major benefits too. First and foremost it would be the most significant ethics reform ever passed by congress, which might help restore some faith in the branch of government whose approval rating currently hovers around 17 percent.
Here’s how the Democratic faction of the House Rules Committee weighs the choice:
The argument could be made, on the one hand, that Congress could be subject to the same information disclosure requirements imposed on the executive branch inasmuch as the purpose of the Act — “ensur[ing] an informed citizenry, vital to the functioning of a democratic society”59 — would be served by congressional coverage. On the other hand, application to Congress might impinge on Congress’ privilege with regard to its papers, pose administrative burdens on congressional offices, and involve Congress in law suits filed by persons appealing the denial of their FOIA requests. Finally, not all congressional records would necessarily be subject to disclosure under the FOIA because they may come within one or more of the Act’s nine exemptions.60
The fact that the case against the extension of FOIA is so unpersuasive is evidence of how dead-on-arrival the very idea is. The last bit about exemptions isn’t really an argument against extending FOIA at all. As for the ‘administrative burden,’ maybe Senate offices could just outsource their constituent services to a call center in India–at least then someone might listen to them–and have interns and low-level staff dig up the FOIA documents. They’d be dishing the dirt on their own employers, which would break the page-to-politico cycle of Washington careerism, while at the same time working toward a more transparent government.