The Case Against a US OGP National Action Plan in 2017

Earlier this week, holdover US administration officials convened a standing meeting of domestic Open Government Partnership (OGP) stakeholders to share thinking and plans for how to move forward on the country’s OGP agenda this year. Per OGP’s calendar, the US is due to “co-create” a new OGP National Action Plan this year (its fourth), delivering one by June 2017. While I personally couldn’t attend the meeting due to scheduling conflicts, a number of friends and colleagues did, and from the summaries that were shared with me, there was unsurprising angst and questioning as to how an open government plan could be pursued this year in light of ongoing political transitions in the United States.

Carryover staff from the previous administration (bless them) indicated to attendees that they were carrying on with business as usual until new bosses and/or different guidance were in place. While I sympathize with the desire to maintain a certain degree of momentum on the open government agenda in 2017, I don’t believe that attempting to produce an OGP National Action Plan this year is necessarily a great idea. Here’s why.

1) Misalignment of core values. Suffice it to say that thus far, the Trump administration has in many respects been openly hostile to core values that lie at the heart of open government and OGP.  These include, but are certainly not limited to:

- Dismissing basic transparency norms: Candidate Trump was the first candidate in modern US political history who refused to release his personal tax returns to the public. He promised to do so after his IRS audit was complete, but then immediately backtracked on that promise during the transition period, with a chief advisor publicly stated that the tax returns would in fact never be released. Lying about a commitment to core transparency norms violates the spirit of the Open Government Declaration, to which the US is a signatory.

- Flouting common sense conflicts of interest provisions: The President’s unwillingness to shed himself of his business interests before taking office, despite overwhelming advice to the contrary from outside ethics experts as well as the US government’s own internal ethics watchdog, is an affront to common sense conflicts of interest safeguards, tenets that are central to open government. It has also landed the president in court, with additional lawsuits undoubtedly to come, all arguing that the president has violated constitutional conflicts of interest and anti-bribery provisions. The Open Government Declaration states, “We commit to having robust anti-corruption policies, mechanisms and practices, ensuring transparency in the management of public finances and government purchasing, and strengthening the rule of law. We commit to maintaining or establishing a legal framework to make public information on the income and assets of national, high ranking public officials.” This does not describe the Trump administration thus far. At all.

- Intimidation of and open hostility towards the media: The president and his team have made no attempt to hide their disdain for mainstream media, openly describing the media as their primary political opponent and “some of the worst people” Trump has met. While the press, as a whole, has not shown signs of abdicating its watchdog role, we have seen how, in other countries, constant berating of the press and independent watchdogs (including civil society organizations) has a chilling effect over time. This antagonistic approach to the media flies in the face of the Open Government Declaration’s exhortation to, “[protect] the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion.”

- Rolling back existing open government commitments: The administration’s early gutting of Dodd-Frank’s Section 1504 extractives transparency measures, themselves enshrined in previous US NAPs, was a body blow to domestic open government reforms. The repeal was almost certainly a “gift” to US oil and energy companies and the new US Secretary of State, Rex Tillerson, former head of energy giant ExxonMobile. (Fun fact: the US Secretary of State has historically been quite involved in US leadership around OGP. That should make things interesting moving forward, to say the least.) I can hardly think of a move better designed to signal outright hostility towards open government than rolling back 1504 so early in a new administration.

Co-creating an OGP National Action Plan under these conditions runs major risks for civil society in the United States, who by participating in the creation of a fourth NAP might inadvertently “open wash” an administration that currently has little to no respect for the basic tenets of open government. Publishing a 2017 OGP National Action Plan would tacitly endorse and normalize many of the administration’s norms-busting policy positions, something to be strongly avoided. Should the administration release the president’s tax returns, satisfactorily resolve his conflicts of interest, and rebuild bridges with the media, US civil society might indeed consider linking up to co-create a new NAP. But until those litmus tests are passed, it’s hard to fathom the upside to moving ahead with a new US NAP.

2) It’s ok to skip an Action Plan cycle, especially during political transition periods. Were the US to skip a NAP cycle in 2017, it certainly wouldn’t be the first country to do so. More importantly, OGP would carry on uninterrupted despite the US’ important role as an original founding country of the partnership.

I sit on OGP’s Criteria and Standards subcommittee, which deals with (among other issues) countries that have missed their NAP deadlines. It happens dozens of times each year, whether countries filing late NAPs themselves or missing deadlines for submitting self-assessments tracking their progress against specific NAP commitments. OGP takes a non-punitive approach to dealing with those missed deadlines, and in recent years has even formalized an approach to giving countries 12-18 additional months to resolve their delays, when merited.  In many cases, the reason for missed deadlines is political, and often linked to recent political transitions. Sound familiar? Both the Trump administration and US civil society should think long and hard about taking advantage of that flexibility, buying more time for the new administration to settle in and for some of the “litmus test” issues flagged above to hopefully improve.

3) There’s no one to co-create with. The new administration has been playing catchup ever since the transition when it comes to filling key leadership positions in the Federal government, including those traditionally in charge of open government and transparency programs. While a few erstwhile holdovers have performed an amazing public service by continuing to serve in the first few months of the Trump administration, it seems nearly impossible to create a meaningful new NAP absent new leaders in (among other key offices and departments) the US Chief Technology Officer’s office, the Office of Management and Budget, an administrator and top officials at the US Agency for International Development, key Under and Assistant Secretaries of State and Treasury, and key officials serving at the National Security Council (where one assumes there will be renewed staff upheaval following Michael Flynn’s recent ignominious ouster as National Security Advisor). Creating a new NAP without sufficient senior leadership buy-in feels like wasted effort, and the commitments contained in that half-baked NAP would be particularly susceptible to poor implementation in the out-years.

What to do instead of a fourth NAP this year? For one, simply wait. Sure, things might get worse, but they also might stabilize throughout the course of 2017. With more senior officials in place later this year and in early-2018, the time might be more ripe to consider co-creating a NAP, particularly if progress has been made on the litmus test challenges.

Second, look to the cities and states for progress on open government in 2017. There’s a terrific team of open government reformers in Austin, Texas under Mayor Steve Adler’s leadership who have crafted some excellent open government reforms as part of the OGP “Pioneers” tier of subnational governments; New Orleans is also part of OGP’s subnational program.

Third, spend the time building out alliances with less-usual suspects that might support the open government agenda in the years to come, particularly in the interior states of the US (much of the open government community in the country has been historically clustered in Washington,  Chicago, New York City, and San Francisco). If we’re to continue building a resilient “movement” of open government boosters in the United States, it has to grow beyond high-income urban areas.

Fourth, focus on implementation of existing NAP commitments. As OGP’s own Independent Reporting Mechanism points out, there are a number of existing US OGP commitments that need stronger implementation. Using this transition year to help Federal departments strengthen their implementation of existing commitments might be the best use of time and (limited) political capital, as opposed to pouring resources into a difficult NAP process.

What’s your opinion; NAP or no NAP in 2017? Sound off in the comments section below.