Friday, June 4, 2010

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.


Last Best Place Wildlands Campaign said...

For Release: June 3, 2010

Coalition Calls on Senator Tester to Release New Draft of FJRA for Public Review and Input

Missoula, MT - Today, members of the Last Best Place Wildlands Campaign called on Senator Tester to make public a new "Discussion Draft" version of the Forest Jobs and Recreation Act (FJRA) that was put together by the US Senate's Energy and Natural Resources Committee and given to Senator Tester last month.

"Our coalition calls on Senator Tester to share with all Montanans the Committee's draft rewrite of his bill," stated Matthew Koehler of the Last Best Place Wildlands Campaign. "Since the Committee's draft includes significant new language, we believe it's in the best interest of all Montanans and Americans for Senator Tester to make a copy of the Committee's draft available for public review and input. This step will ensure transparency and give all members of the public an equal opportunity to review the new draft language."

The Committee's new draft drops the controversial mandated logging levels on the Beaverhead-Deerlodge and Kootenai National Forests and drops Senator Tester's 12-month timeline for environmental analysis under the National Environmental Policy Act, which the head of the Forest Service called "flawed and are legally vulnerable" during last December's Senate hearing.

The Committee's new draft also adds language requiring that any project carried out under the bill must fully maintain old growth forests and retain large trees, while focus any hazardous fuel reduction efforts on small diameter trees.

The Committee's draft drops several of the controversial Wilderness provisions, including those allowing helicopter landings for military training exercises and herding livestock with ATVs in Wilderness, but other provisions that compromise the integrity of the proposed Wildernesses remain in the new draft.

The Last Best Place Wildlands Campaign (LBPWC) is a coalition dedicated to wildlands protection, Wilderness preservation and the sound long-term management of our federal public lands legacy. The coalition includes 5th generation Montanans, small-business owners, veterans, retired Forest Service supervisors and district rangers, hikers and backpackers, hunters and anglers, outfitters and guides, scientists and community leaders.

Aaron Flint said...

He also refuses to take to the airwaves of talk radio and take questions from constituents. Governor Schweitzer isn't afraid to do that. All the Democratic candidates for Congress aren't afraid to join the airwaves. What about all these invite only meetings masqueraded as "listening sessions" where only a few friendly reporters are invited at the last minute- so the public at large can't take part?

Anonymous said...

Great post. Aw shucks doesn't cut it when you're playing with the big boys Senator.

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