A little-known rule would make congressional hearings more transparent

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Congressional hearings are an important part of the lawmaking process. Experts from outside government sit in front of committees and help them consider issues of national concern.

But money does shape ideas in Washington. In 1997, House Republicans implemented a “truth in testimony” rule that required congressional witnesses to divulge US government funding they or their group had received connected to the topic of the hearing. The idea was, well, transparency.

The New York Times revealed in 2014 that foreign government funding had influenced the research and policy recommendations of Washington’s preeminent think tanks, whose experts are regularly called to testify before Congress. In response, a bipartisan group strengthened the truth-in-testimony rule to include an organization’s foreign funding, with dollar amounts for the past three years. More recently, the form also includes a section, depending on the committee, to indicate whether the expert is a fiduciary to “any organization or entity that has an interest in the subject matter of the hearing” or has registered as an agent of a foreign government.

But experts consistently evade the spirit of the truth-in-testimony rule. Democratic and Republican staffers both complained to me that think tank experts flout it, often by filing as an “individual” to avoid mentioning their organization’s funding.

Take, for example, last week’s hearing at the House Foreign Affairs Committee on “Expanding the Abraham Accords,” the normalization deals between Israel and Arab states shepherded by the Trump administration. If an expert’s organization had received donations from, say, the United Arab Emirates, a powerful, repressive petro-state party to the accords, that would have been related to the hearing’s topic.

But one of the experts appearing there did not disclose their organization’s UAE funding.

Daniel Shapiro, a former ambassador to Israel who runs an initiative at the Atlantic Council think tank focused on Israel’s normalization with Arab states, said on his form that he was speaking as an individual and did not report the UAE’s funding to the think tank. He provided a link to a general list of donors to the Atlantic Council, but House staffers and ethics experts say that’s an insufficient answer and clearly not what the question is asking. “As the Truth in Testimony form noted, Ambassador Shapiro was speaking for himself as the Atlantic Council does not adopt or advocate institutional positions on particular matters,” Richard Davidson of the Atlantic Council wrote in an email.

A representative for the House committee, in a statement, said that “witnesses are responsible for the content and accuracy of their truth in testimony responses.”

Of the other two experts testifying, one belatedly filed an amendment to his form to include funding from the UAE and several other sources, as first reported by Responsible Statecraft’s Eli Clifton, while the other works at a Middle East-focused think tank that says it does not take foreign funding.

The UAE’s undisclosed support for the Atlantic Council “creates a conflict of interest because the UAE absolutely has an interest in the subject of this hearing,” said Kathleen Clark, a professor of law at Washington University in St. Louis. “These forms perfectly illustrate the problems with the truth-in-testimony rule: It is way too narrow, failing to ferret out a witness’s conflicts of interest, and giving the false impression of transparency,” she told me.

And this hearing was far from the first. The inadequate rule is inviting undisclosed conflicts of interest.

On the truth-in-testimony form, which is uploaded to the House of Representatives’ document repository online, experts can check a box whether they are representing themselves or their organization.

It’s what Daniel Schuman, policy director at Demand Progress, calls the Choose Your Own Adventure problem that leads to incomplete and misleading answers. “Anyone who pays attention to this knows that people will often file under themselves as an individual as a way of avoiding having to disclose the conflicts of interest that they might face,” Schuman told me.

It leads experts to say, as he puts it, “‘I’m Daniel Schuman. I’m paid for by Demand Progress Education Fund, Demand Progress Action. But I’m testifying on my own behalf.’ Which is nonsense. You can’t separate out that stuff.”

The next issue is the lack of enforcement mechanisms.

“It’s not really clear who is responsible for policing this or what the consequences are,” one Democratic congressional staffer told me, speaking anonymously because they were not authorized to talk with the media. “If you’re a staffer on the Hill, who do you raise this with?”

I heard a variety of answers: the parliamentarian; the Rules Committee; maybe even the Ethics Committee, though that tends to relate to members, not non-government officials; and, of course, the chairs of the committees where people are testifying — but there are few incentives for staffers to speak up. “Keep in mind this is rarely going to come from the majority who invited these witnesses,” says Donald Sherman of Citizens for Responsibility and Ethics in Washington. “Ultimately, this ends up being within the prerogative of the committee to enforce.”

All of this is compounded by the tight timeline in which congressional hearings tend to happen, with the planning taking place over the course of a week or less. No one wants to embarrass witnesses, and the gentlemen’s agreement among members of Congress is that it’s uncouth to call out another party’s witnesses, for fear that there will be a callout in kind to one’s own witness. Matt Duss, a former adviser to Sen. Bernie Sanders now at the Carnegie Endowment for International Peace, called it “the corruption that everyone in DC agrees to pretend isn’t corruption.”

When it works, the truth-in-testimony rule helps give a better picture of not just an individual expert’s potential conflicts of interest, but how Washington works.

Watchdogs have welcomed it because it’s given insight into the funding of dark-money organizations — that is, research institutions that don’t post their donors or foreign funding online.

It’s also useful in that it shows important items from one’s bio that are sometimes omitted. In early March, former Trump Deputy National Security Adviser Matt Pottinger testified before the House Select Committee on China, and he noted in his forms that he is a fiduciary at the strategic consulting firm Garnaut Global. It was a useful breadcrumb because the firm’s website is essentially blank and contains no mention of Pottinger. The role had not been listed in his bio anywhere, but from other publicly available information it is clear that Garnaut Global is relevant to the hearing. The firm “advises select global asset managers, technology companies and allied government agencies…to navigate the opaque world of Chinese elite politics and anticipate China’s actions and impact on the investment landscape,” according to its founder’s bio elsewhere.

Meanwhile, Joe Votel, a retired general who is a fellow at the Middle East Institute in Washington, did not note in his initial filing for the House Foreign Affairs Committee that the think tank receives foreign funding. That he amended it on the morning of the hearing — to include the institute’s grants from the US government and funding from Bahrain, Oman, Qatar, and the United Arab Emirates — shows the importance of truth-in-testimony forms in giving a more complete picture of an expert’s recommendations. “MEI’s scholars retain complete intellectual independence, and their work, including testimony, represents their own views,” says Rachel Dooley of the think tank.

For its part, the Atlantic Council has received more than $1 million a year from the embassy of the United Arab Emirates. The program Shapiro runs, the N7 Initiative focused on Israel and Arab states, is underwritten by separate private donors. He noted in his forms that he was representing himself, though the Atlantic Council posted his testimony online.

“Our practice of posting transcripts from our experts’ testimony before Congress on issues relevant to the Council’s work in no way signals an endorsement of their positions,” emailed Davidson of the Atlantic Council. “The funding we receive from the UAE is for general support and is not allocated to fund our N7 initiative or our work on the Abraham Accords.”

But Clark says this individual-organization distinction skirts the spirit of the rule. “The scandal here is what the rule allows,” she told me. “The grant could have been about grasshoppers in the United Arab Emirates; it doesn’t matter. What matters is that the Atlantic Council has significant funding from a foreign government that is actually a party to the Abraham Accords, but you wouldn’t know that from this disclosure form. … What matters is that the source has an interest in this, in the subject of the hearing.”

By contrast, the president of the German Marshall Fund think tank testified last year and thoroughly documented all of the organization’s US government and foreign funding. It was refreshing to see.

The fact that there is the House online repository — so that when committee leaderships change parties, the documents don’t go poof — is an improvement that shows more transparency is possible. The site docs.house.gov was expanded in January 2013 to include these types of forms. The next step would to be make them even more searchable, readable, and accessible.

While committees require disclosing all of an expert’s fiduciary roles, a more ambitious idea would be legislation requiring clients to be listed in public financial disclosures.

One idea of how to beef up truth in testimony would be to institute policing mechanisms to review and evaluate the forms. The Government Accountability Office, for example, does a random audit of lobbyist registrations under the Lobbying Disclosure Act, which ensures compliance. “You could have a random auditing process that provides a form of quality assurance,” Schuman told me.

Something even more straightforward, as the Democratic congressional staffer I spoke with suggested, is clarifying frequently asked questions that lays out what should or shouldn’t be disclosed on the forms. Last year, Rep. Jim Banks (R-IN) introduced a bill to further strengthen the rule by clarifying some of the details that are often overlooked, but it didn’t go far under the new House.

“I don’t want my facts influenced by Saudi Arabia, or my facts influenced by Russia or my facts influenced by China,” a Republican congressional staffer, speaking on condition of anonymity, told me. “If we fix this in Congress, and we actually get testimony that’s uninfluenced by such agendas, we’re going to get better laws, we’re going to get better policy, we’re going to get better hearings.”

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