What We've Really Lost to the Fiscal Cliff: A Sense of Form

Congress is like a college student who packs to go back to school at the last minute using a plastic garbage bag as luggage -- and that's bad for everyone.

Larry Downing/Reuters

At 8:39 p.m. yesterday, a Sunday, the House of Representatives Committee on Rules quietly approved a resolution that would waive a congressional rule requiring a few days' worth of public posting of bills before they're voted on -- an exemption applicable only to bills considered by the House on December 31, 2012.

If you're paying attention, you'll notice that December 31, i.e. today, happened to be the last day Congress had to act before the country passed over the so-called "fiscal cliff" of tax increases and spending cuts. It looks now like we will go over the cliff, and that Congress will vote on a deal in the next day or two making any fixes retroactive.

But the approval of the Sunday-night resolution suggests that, no matter what happens in the next few days, Congress can't succeed -- that, in fact, it has already failed. Congress now operates in a such a state of continual chaos that transparency has become an impossibility and success is defined only by the endpoint -- reaching a deal. Lost in the frantic, last-minute cramming of legislation onto the calendar is the notion that successful legislating might require that members of Congress show their work.

Two weeks ago, the big transparency advocacy groups like Public Citizen, the Sunlight Foundation, and the Institute for Policy Innovation called on President Obama and congressional leaders to do just that. "The undersigned organizations," the statement said, "are concerned that negotiations around averting the 'fiscal cliff' may take place entirely in secret, and policy decisions will be passed down to the public as a fait accompli, with no public input or resulting accountability." The organizations had specific requests: Post bills online for 72 hours before a vote; release in real-time details on any lobbyist meetings; and disclose any "side deals" for future legislative consideration, a la the health-care law negotiation's "Cornhusker kickback," in order to "establish if they represent the public's interest."

In other words, this coalition made the same requests we've heard throughout the last decade of conversation around government transparency. These are what you might call "hard-line requirements." Boehner has called for -- and House rules support -- a 72-hour period for the public posting of legislation, the details of which have been contested since the idea's birth. During the fight over defunding NPR, then-member Anthony Weiner led a spirited debate over whether the relevant bill broke that rule, with Congress descending into a debate over whether the spirit of the rule was simply for three calendar days of public posting before a vote. Obama, for his part, has been slammed over the daylight between his pledge to include C-SPAN's cameras in the health-care negotiations and how those negotiations actually played out. This time around, tax activist Grover Norquist has described himself as "a strong advocate of having C-SPAN cameras in the negotiating room so you wouldn't have this situation where the president's spokespeople say one thing happened in a meeting when the people in the meeting said the opposite happened."

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Nancy Scola is a writer based in New York. She has written for New York, Salon, and Seed, and is a frequent contributor to The American Prospect.

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