Getting Serious About Open Government
Fri January 14, 2011 9:32 am

Sen. Kirk Watson's proposal to add transparency to the budget process by laying out the conference committee report for five days has gotten some traction. Lots of ideas are floating around about how to achieve the same result without adopting different deadlines from the House, for instance, laying out the "outside-the-bounds" resolution for a longer period of time (this would alert members what the conferees are talking about that is not in the adopted version of the budget), or by publishing electronically the final result instead of waiting for the lengthy printing process. It sounds like the Senate is moving towards adopting something in response to Watson's suggestion.

While those ideas would certainly allow diligent members and their staff members more time to comb through the document,  I think real transparency will require a fundamental change in  the entire budget adoption process. All deliberations -- the committee, the working groups, conference committee working groups, those of the conference committee itself -- should be held in public.

By public, I mean two things: 1.) Announced on the Senate floor for a particular time and place,  and 2.)  not held in a phone booth with seating and oxygen available only for the lawmakers involved.

Cynics will quickly point out that there is no way to prevent a couple of lawmakers from "working out" issues among themselves at their desks, in the Member's Lounge or Eddie V's. This is true. Conversations happen. But it's been my experience that the last decade has witnessed even the so-called official process moving behind closed doors. Finding out the time and place of working group meetings is a mystery akin to cracking the DaVinci Code; once you do stumble upon one, you have to elbow a state agency head aside, or step on the toes of a university chancellor to wedge yourself in the room.

I once asked a member of Finance about a lengthy committee break. Clearly, deliberations were occurring out of the public's view. The lawmaker acknowledged this and told me the committee members call the room behind the committee -- out of sight and hearing of the public -- the "Kool-Aid" room. It's where they are asked to consume whatever poison the leadership is peddling.

I checked my fallible memory against of that of some veterans of the process. Former Lt. Gov. Bill Hobby points out that "working groups" simple did not exist in his era. Former Senate Finance chairman Kent Caperton acknowledges that he and his House counterpart, Jim Rudd, would each assign a conferee to find common ground on important issues (which was done in private) -- but would have those members present their recommendations in public to the full conference committee, which would subject them to thorough grilling. "We would put them on the spot," said Caperton. "There were some real knock-down, drag-outs" in public, he recalled.

Sen. Judith Zaffirini first began serving on Finance in 1991. No working groups existed, because, as she points out, the committee was smaller and the budget was less complex. Finance didn't meet every day. Around the mid-1990s, former Finance Chair John Montford instituted the "working group" methodology -- assigning complex issues or Articles to be debated in small group settings. Over time, those meetings began to be held more and more out of the public view.

As I pointed out in a comment on this blog yesterday, Zaffirini has a commendable record of holding meetings in public when she chaired working groups -- both during the Senate Finance process and during conference. She says she's always managed things that way not just because of a belief in open government, but because she feels she delivers a better product: if the agency folks are on hand, they can answer questions and help achieve a goal.

It wouldn't take a rules change for this to happen for the entire budget process -- just a commitment from the leadership and individual members to be more inclusive.

Lastly, the media must share the blame that this has occurred. We should be covering the conference committee a lot more closely and complaining loudly when we can't find it.

*********

I wrote the above  post last night and waited to publish it because I had one phone call out: to Sen. Rodney Ellis. I was sure he would have some insights that were worth waiting for. By that, I must confess, I thought he would agree with me.

He returned my phone call this morning and proceeded to tell me how I was full of it:

"I'm all for sunshine and putting things on line. The interest groups play an important role -- some of the best ideas and knowledge I get come from sources  you would never expect."

Okay, so far, so good.

"When I was chairman, I was very careful not to violate the open meetings law."  But as for my idea that all deliberations of working groups be announced and open, he said, "It would be nice but it would be cumbersome."

"From my perspective, it would be pretty hard to have a candid discussion if it always had to be in public. If I am trying to line up votes, there are times when I want to have a private discussion. If we couldn't, it would put real restraints on policy making."

Just when I was ready to rebut him, he threw this zinger at me: "There are times when I go off the record with you so you will understand what is really going on."

"I don't favor every discussion being public. If that had to happen, we'd be up here a lot longer than 140 days. I can assure you that most other members would agree with me, even if they don't tell you so."

My conclusion? There will always be a certain amount of deal-making that occurs privately between lawmakers. The off-the-record conversations I have with lawmakers are valuable, so I have to acknowledge that their off-the-record conversations between each other are valuable.

But right now, the "working groups" are a subtle work-around the Open Meetings Law. I still think we should borrow from Caperton's process (small groups work things out but go through their reasoning in public) and Zaffirini's (who held negotiations with the House in public). Surely a media-saavy -- and persuasive -- member like Ellis can see the value of debating in public.

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