WikiLeaks proposes the creation of an Internet safehaven.

Ballot Access News reports that Oregon’s State Supreme Court has unanimously upheld a state law criminalizing gifts from lobbyists to legislators that exceed $50 in value. However, it struck down a provision that makes illegal an offer by a lobbyist to give a gift to a public official.

According to the report, Oregon’s state constitution has very strong free speech protections.

(H/T ElectionLawBlog)

Charlie Savage reports in the New York Times on President Obama’s Executive Order and Presidential Memorandum that  “overhaul of the executive branch’s system for protecting classified national security information.”

Highlights of the President’s actions include:

• Requiring agency heads to comprehensively review that agency’s classification guidance periodically — looking at present circumstances and whether information no longer needs to be protected
• Establishing a new declassification center at the National Archives to centralize review of whether documents should be declassified
• Setting a four-year deadline to process military records relating to WWII, Korea, and Vietnam
• Requiring spy agencies to appeal to the president to prevent the release of information, instead of being able to block the decisions of an interagency review panel

It’s not clear to me what Section 4 from the Declassification memo means:

4. Promotion of New Technologies to Support Declassification.

Striking the critical balance between openness and secrecy is a difficult but necessary part of our democratic form of government.  Striking this balance becomes more difficult as the volume and complexity of the information increases.  Improving the capability of departments and agencies to identify still sensitive information and to make declassified information available to the public are integral parts of the classification system.

Therefore, I am directing that the Secretary of Defense and the Director of National Intelligence each support research to assist the NDC in addressing the cross-agency challenges associated with declassification.

Yesterday, the FEC released a fascinating press release on congressional candidate receipts and expenditures during the 2007-2008 election cycle. What makes this information particularly helpful is that the FEC put its data into context: it released PDFs and spreadsheets with the numbers it used to derive summaries of candidate fund-raising and expenditures, including historical trends.

Suppose, for example,  you’re curious about how much it costs to win an election in the House. In 2008, the 232 incumbent Democrats in the House raised on average $1,191,622, and spent $1,027,568; the 170 Republican incumbents raised $1,246,301 and spent $1,119,622. So, the average Republican incumbent outraised the average Democratic incumbent by $54,679, and outspent the average incumbent by $915,626.

And, if you look at the forty-odd open seats, Democrats raised on average $1,564,740 versus Republicans’  $1,246,321; and spent $1,389,054 versus $1,276,540. In other words, the average Democrat competing for an open seat raised $318,489 more and spent $112,514 more.

Additionally, Democratic challengers to incumbents also outspent Republican challengers to incumbents by a hefty margin, although there were less Democratic challengers than Republicans. The 166 Democratic challengers to Republican incumbents raised on average $134,030 and spent $126,278; the 195 Republicans raised on average $29,716 and spent $28,085. That’s a huge difference. (The 93 Democrats that challenged incumbent Republicans or fought over an open seat raised over $400,000; only 74 Republicans reached that number.)

Political Action Committees may have had the whip hand in all this fundraising. They raised $300 million dollars for House candidates during the 2008 election cycle, constituting 31% of their total income. Candidates that won raised a total of $636 million, of which $254.4 million came from PACs. In other words, 40% of winning candidates’ money came from PACs.

Of course, this isn’t the full picture. There are still “independent” expenditures in favor of a candidate. In some instances, it’s more than the winning candidate spent. For example, for Minnesota’s third district, the winning candidate spent approximately $5.6 million, but outside independent expenditures totaled slightly more than $6 million. It’s nice to have friends.

As useful as this information is, it is not complete. The data is being released a year after the end of the election.  (Perhaps it had been released previously — although then why would there be a press release now?)  The rules for filing with the FEC do not require many useful kinds of data to be reported. And, with respect to the Senate, campaign finance data isn’t filed in a timely fashion. That’s why Sunlight supports the passage of S. 482, which would require electronic filing for Senators.

There’s a discussion now on RedState and Volokh Conspiracy about whether the Senate healthcare bill contains an unconstitutional provision.

The section (3403) of the bill in question (HR 3590) sets up an independent medicare advisory board to make certain determinations about medicare.

That section of the bill also purports to create significant constraints on how the House and the Senate can amend the law in the future.  Those constraints, while they look like chambers’ rules changes, would also be inserted into law.  Specifically, the provision amends Title 42:

(1) IN GENERAL- Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), as amended by section 3022, is amended by adding at the end the following new section:

Section 3403 stipulates, among many other things, that, “it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”
There’s debate about a few things here:

*Should Congress should delegate these particular functions to an independent board, or reserve them for itself? (A Substantive Question)
*A Procedural Question: Is a two thirds requirement (in the Senate) necessary for the contested Senate vote?  (That is DeMint’s point from the RedState post.)
*A Separation of Powers Question: Can putting a rules change into statute really bind a future Congress?

I’m particularly interested in the third question.

This law review article explains the “Statutizing” of procedural rules, and gives some context for whether Congresses can bind future Congresses by Statute.  The short answer is no.

Generally, the House and Senate set their own rules, independent of the President’s approval (or veto), as the Constitution grants them the freedom to do.  Periodically, though, Congress will pass, as statute, changes to House and Senate rules, which the President then signs into law.  It’s mildly repugnant to me that the House and Senate would volutarily subject their self-determination to a realm which the President can control (by vetoing a future change).

Quoting the linked article:

This makes the provision look like a major abdication.  It turns out, though, that such language is not only commonplace, but it doesn’t bind either chamber:  (again the article)

Indeed, the Senate bill has just such an acknowledgement, which is also commonplace (for statutized rules):

‘(5) RULES OF THE SENATE AND HOUSE OF REPRESENTATIVES- This subsection and subsection (f)(2) are enacted by Congress–

‘(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of bill under this section, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

‘(B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

If putting procedural rules into statute doesn’t bind future Congresses, since both houses are free to change their rules, then what purpose does putting a rules change in statute have?  It probably just adds a layer of seeming permanence, creating the appearance of self-restraint that may be politically expedient for any number of reasons.

If you’re interested in reading into all the reasons that one Congress can’t make laws that govern another Congress, I’d highly recommend the law review article, which is accessibly written, even though it’s about fast track trade agreements.

A revolving door story in Roll Call ($) yesterday reported that lobbying firm interest in hiring Capitol Hill staffers has not been sated by the weakened economy. What caught my attention, however, were these paragraphs on salaries:

Democrats are still garnering higher salaries than their Republican counterparts. In particular, Senate Democratic leadership staff, high-ranking committee staff and chiefs of staff are in demand, according to headhunters.

While the peak of the market for Democratic aides may have already passed with lobby shops and corporations expecting Democrats to lose seats in the House and the Senate in the upcoming midterm elections, the going rate for key Senate Democratic aides runs about $400,000 to $500,000, headhunters said.

But even those salaries are out of reach for most Hill staffers; several lobbyists noted Congressional aides’ outsized expectations for going downtown. Law firms, in particular, are being cautious about hiring people without an existing book of client business.

Wow. Only the House releases its Statement of Disbursements data online — the Senate will do so in 2011 — so we do not have 2009 data on the earnings of Senate staff. According to a 2006 analysis by ICF Consulting, Senate chiefs of staff earn between $114,000 and $160,659 annually, with a median salary of $157,150. (House chiefs of staff earn on average $130,000 annually, nearly $30,000 less.)

We can use these numbers as a proxy for senior Senate aides, although I don’t have a useful breakdown on what senior committee staff earn. (Nor do I know how long Senate chiefs of staff stay at their job; their House counterparts served on average 5.2 years in 2006.) If this news report is accurate, the average Senate Democratic chief of staff or senior aide could expect to triple or quadruple his or her salary by going to work as a lobbyist.

I would love to see a study of staffers who have become lobbyists, and whether they can expect a salary bump by making that transition. It would also be helpful to have public access to reports generated during the last decade for the House and Senate by the Congressional Management Foundation and ICF Consulting regarding staff pay and retention rates.

Jon Stewart gets into the Open Government Directive game in this segment last night. It’s not so bad been called the Indian George Clooney on national TV. (Well, cable).

Norm Eisen and Beth Noveck explain why an open government matters in this blogpost. They explain how they think the Obama administration is advancing that goal.

The Supreme Court did not release its opinion in Citizens United today, despite speculation to the contrary. Citizens United is a campaign finance case that could have major transparency implications. See here for more.

There is much speculation that the Supreme Court will issue an opinion in a major election and transparency case tomorrow. In one sense, that case, Citizen’s United, concerns whether the FEC can regulate a 90-minute, video-on-demand film, “Hillary: The Movie,” which criticized then-presidential candidate Hillary Clinton. However, the ruling may affect two Court decisions that recognized the constitutionality of laws that require disclosure of persons who made election-related expenditures. In other words, the public’s ability to follow the money.

Here’s what’s at stake:

The Sunlight Foundation is concerned that overturning [the cases] Austin and McConnell will have a negative effect on government transparency. Even were the Court to strike down regulations that ban the expenditure of corporate treasury (i.e., non-PAC) funds on producing “Hillary: The Movie,” we believe that the public has the right to know who is funding the movie, and how much they have spent doing so. In addition, striking down Austin and McConnell would likely generate uncertainty about the constitutionality of many other laws that require disclosure and reporting of campaign contributions and expenditures. There should be no doubt that our transparency laws are on solid constitutional footing.

When the Court acts, in addition to watching the Sunlight Foundation blog, here are two fantastic resources:

• SCOTUSBlog: will likely have the opinion online before the Court does — here’s why — and analysis before anyone else.
• ElectionLawBlog: will have the best web coverage plus great analysis from experts.

For background information, please see:

• Sunlight’s amicus brief filed before the high court
• An overview of the case from SCOTUSWiki
• An audio recording of the oral arguments from Oyez.org
• A transcript of the oral arguments [PDF] from the Supreme Court