HoodaThunk?

Of the various campaign promises made by Barak Obama before becoming President there is little doubt that his “sunshine before signing” pledge ranks at or very near the top of the list of those promises that he held the complete power to keep. The pledge he made was simple: when Congress passed a bill and sent it to the White House for his signature, Obama would post the entire bill on the White House web site and permit the public to view and comment on it for five (5) days. That’s 5 days from the moment of passage to the moment of signing. Two dozen bills later, the President has almost never kept his promise and now his administration is openly backing away from the clearly-stated pledge.

Johnathon Adler at the Volokh Conspiracy cites a report in the New York Times where the White House is playing fast and loose with the clock. From that story:

Now, in a tacit acknowledgment that the campaign pledge was easier to make than to fulfill, the White House is changing its terms. Instead of starting the five-day clock when Congress passes a bill, administration officials say they intend to start it earlier and post the bills sooner.

“In order to continue providing the American people more transparency in government, once it is clear that a bill will be coming to the president’s desk, the White House will post the bill online,” said Nick Shapiro, a White House spokesman. “This will give the American people a greater ability to review the bill, often many more than five days before the president signs it into law.”

For a man who claims not to have a crystal ball his office appears to be saying they can tell the future with precision. With all due respect to pundits from both sides of the aisle, it’s only “clear that a bill will be coming to the president’s desk” when the votes in Congress are tallied and the bill passes. Also, bills have a nasty tendency to be amended in the final hours of their passage so whatever bill the White House posts could be significantly different from what actually passes and gets sent to Obama’s desk. Adler highlights some of the arguments used to justify this latest reneging and calls them into question:

One argument for modifying (abandoning) the “Sunlight before Signing” policy is that the public no longer has any meaningful opportunity to influence prospective laws once legislation has passed Congress. Yet this is only true if the White House does not intend to be responsive to public concerns. Further, the original pledge was about ensuring that the executive branch did its part to ensure transparency and accountability in government, and was never pitched as a substitute for actions Congressional leaders could take to increase legislative transparency.

The explanation of the policy change also presupposes that there is meaningful opportunity for public involvement while legislation is still pending and subject to revision. Yet as the debate over the Waxman-Markey climate change bill illustrates, this is not a fair assumption. As Jim notes below, the House is preparing to vote on an 1,000-plus-page bill that was subject to a 300-page amendment last night — an amendment that was not even available to many members of Congress until today. Most members of Congress have had no meaningful opportunity to read, let alone digest, the bill. The same is true for most legislative staff. Forget the public.

The Waxman-Markey travesty isn’t the first bill that’s followed this “make-it-public-hours-before-the-vote” trajectory and I’ve got no faith that it’ll be the last. Like the so-called “stimulus bill” there’s no way even the members of Congress who are charged with the responsibility of reviewing and voting on proposed laws actually read this monstrosity in the time that was allowed. Their staffs certainly didn’t. The public would have been 3rd in line for this so there’s little chance any of us could have even made it halfway through, let alone formed reasonable responses, in the time that was allowed.

There is no authority in the United States that forces a President to sign a bill the second it lands on his desk. In fact, the Constitution is clear about the interval the President is permitted to sign and return a bill sent to him by Congress: 10 days. (Article 1, Section 7.) It is completely within President Obama’s authority to delay the signing and return of any bill for any period of time up to that 10-day limit and there is no one and no agency that can compel him to do so sooner. In short, this was a promise he could have kept at will. All he had to do was want to keep it. He’s decided he doesn’t need to keep his word on something that he’s completely in control of and would do no harm to keep. He just doesn’t think it’s worth it.

You, fellow citizens, aren’t worth it.

The President’s can’t be trusted to keep his word on matters of transparency and that goes double for the vast majority of his stated agenda.