Tester's forest bill, transparency, and the legislative process

In Friday’s Tribune I reported that the Senate Committee on Energy and Natural Resources has written a “discussion draft” of Sen. Tester’s “Forest Jobs and Recreation Act.” This particular draft contains significant changes to Tester’s original bill, but so far only a select few have seen it.

I’ve obtained a copy of the discussion draft. It’s in two parts. You can download it here and here.

I think it’s worth talking a bit about the process of reporting this story in order to shed some light on one of the issues at the heart of the debate over Sen. Tester’s forest bill: transparency in the legislative process.

When I learned about this latest discussion draft I called Sen. Tester’s office and asked his staff for a copy of it. Upon my initial inquiry I was lead to believe that Sen. Tester’s office wasn’t aware of the draft. After subsequent phone calls and e-mails I was told that I would have to contact the energy committee staff to get a copy of it.

I’ve since confirmed that reporters for other Montana newspapers have also asked Sen. Tester’s office for the draft, and they too were referred to the energy committee staff.

In reporting the story yesterday, Tester’s staffer would not confirm whether or not the committee draft existed, or whether or not the senator had seen it. But I learned later Thursday afternoon that at least some members of the collaborative group who helped draft the original bill had received a copy of the discussion draft from Tester’s staff sometime within the last two weeks.

Tony Colter, of Sun Mountain Lumber in Deer Lodge, told me he had talked with Tester’s staff about the discussion draft. Colter said the committee draft was unsupportable by Montana’s timber industry because it dropped language that mandated 100,000 acres of logging on the Beaverhead-Deerlodge and Kootenai National Forests.

Asked where Tester stood on the committee's revisions, Colter said:

“They’re in agreement with us, but you probably ought to talk to them,” Colter said.

Ed Regan, of RY Timber in Townsend, has also seen the draft.

“Yeah, I have seen it,” Regan said when I asked him about discussion draft. “It’s been about a week ago.”

When I asked Regan where he got the committee draft, he said:

“I think it came through Tester’s staff.”

But when I asked Tester’s staff about the discussion draft, no one would even acknowledge that it existed. I was told Sen. Tester was traveling most of the day and was unavailable for comment. I did get this statement from Sen. Tester late in the afternoon when he was between flights:

“This bill started with Montanans working together to craft a made-in-Montana solution to improve our forest management that was built on a commitment to create jobs through logging, recreation, and wilderness. There are a number of changes folks would like to see made to S. 1470 – some will be implemented, all will be considered. Make no mistake, if the timber mandates are not part of the deal, I'll pull the plug on the whole thing."

Tester did not directly respond to my question of whether or not there was a committee discussion draft or what his position on the draft was. Instead I was told by his staff to call the Senate energy committee press office, which I did. I didn’t hear back until the following day.

I received a call Friday from Bill Wicker, a spokesman for the Senate energy committee. Wicker said discussion drafts aren’t typically shared with the public and he said he couldn’t provide me a copy of the draft of Tester’s bill. He said a discussion draft is a “committee work product” that is produced by staff as they attempt to craft a compromise bill that can pass the full committee. He said some discussion drafts go through a dozen or more iterations, and they’re shared along the way with other members of the committee and with experts, which in this case included Forest Service staff. He said Tester was given the draft and that he likely shared the draft with other partners working on the legislation.

Wicker told me that this current version of the discussion draft is likely to change, and he said it doesn’t serve the legislative process well to release it to the public every step of the way.

“My legislative staff will very quickly remind me that we don’t negotiate in the press,” Wicker said. “If we start negotiating in the press we’d never pass a single bill.”

One lesson Montanans might take from this story is that the legislative process at the federal level is much different from the legislative process here in Montana. In Montana, nearly any document produced by a state employee, including the legislative staffers who draft bills, are public documents and available to anyone who asks at any point in the process. If a state employee produces a document on a state computer on state time, that document is a matter of public record. Period. The only exception is in cases where individual privacy is concerned. When it comes to drafting legislation, individual privacy is not an issue. Therefore, Montanans are used to a level of transparency that doesn’t exist at the federal level.

Part of the controversy stems from the fact that Sen. Tester has, since his days on the campaign trail, been lauded as a champion of openness and transparency in government. The Sunlight Foundation has repeatedly applauded his efforts to increase transparency and openness government. Shortly after taking office he made statewide national headlines for being the first senator to post his daily schedule online. Just last month he introduced the “Public Online Information Act” a bill that supporters say would “revolutionize how the public accesses government information.” In a 2008 guest editorial in the Missoulian announcing that he would have former Montana Supreme Court Justice John Sheehy conduct an “ethics audit,” on his first year in office, Tester said:

“Montanans deserve honesty, openness and transparency.”

and that…

“Openness and transparency are critically important to me.”

When rumors began to circulate early last year that Tester was working on a forest bill, I officially requested a copy of the draft on May 27, 2009. I received no response. I asked again on July 14 of that year for a copy of the draft. I was told then that I would have to wait until July 17 when Tester planned to announce the bill at a press event at RY Timber in Townsend.

But throughout the bill’s drafting process selected members of a collaborative group that included Sun Mountain Lumber, Montana Wilderness Association, RY Timber Inc., Montana Trout Unlimited, Pyramid Mountain Lumber, Inc., Roseburg Forest Products, National Wildlife Federation and Smurfit Stone Container were circulating the draft and working with Tester’s staff. The rest of the public, including the press, were told we had to wait to see it.

This discussion draft, like the original proposal, is currently being circulated by those same handful of supporters, while everyone else, including members of the Montana press, are left to find out details of the drafting process on their own.

So it shouldn’t come as a surprise that groups who were not included in the collaborative effort to craft the forest jobs were crying foul over Tester’s lack of transparency from the beginning, and some are up in arms about the appearance of secrecy surrounding the discussion draft now.