On June 8, 2006, as Congress mulled a measure to repeal the estate tax, Sen. Dianne Feinstein of California rose to oppose the proposal. "Now is not the time," the Democrat declared, "to place the interests of a small number of millionaires ahead of millions of working families." She continued in this vein for over 1,100 words, then yielded the floor to Sen. Mitch McConnell. The Kentucky Republican took the opposite point of view, declaring the levy "one of the most destructive, unfair taxes ever conceived by government." Then more senators took their turns at the microphone, arguing one side or the other: Mike Enzi, Tom Harkin, Lamar Alexander, Carl Levin, John Kerry, Orrin Hatch, Conrad Burns, Gordon Smith, Barbara Mikulski, John McCain. Barack Obama called the proposal "the Paris Hilton tax break," which probably prompted some chuckles in the gallery.
Or would have, had he actually said it. Though all that activity appears in the Congressional Record, none of it really occurred. Only eight senators participated in the debate; the others—everyone listed above—pasted their remarks in later. What looks like a long exchange of ideas is in effect a series of press releases composed by the senators or their staffs, dropped into the Record to look like they were spoken aloud on the floor. In theory, such additions are supposed to be underlined or marked with a black dot—a rule added after Rep. Hale Boggs (D-La.) somehow managed to give a speech on the House floor while he was dying in an Alaska plane crash. But if you go to the Congressional Record's website and examine its account of June 8, you will find no dot, no understroke, no change in typeface, no sign at all that when Sen. Feinstein begins to speak you have exited history and entered a loquacious fantasy.
In the grand scheme of Washington's deceits, this may seem like small potatoes. But it's blocking an effort to make Congress' proceedings more accessible to ordinary citizens.
Click.TV is a small Internet company launched last year; its product is, in effect, a new form of digital editing. Users can mark any part of a video clip with text comments, then click to any section that they've tagged. So where 20 years ago a family might have shot an hour of home-movie footage then gathered 'round a projection screen to watch the whole thing, and five years ago might have edited the footage into a 10-minute highlight reel, now anyone in the family can mark his own highlights and flip freely from one indexed moment to another, like skipping pages in a book. Obviously, this has applications beyond home movies: The liberals at ThinkProgress used it, for example, to make an annotated version of this year's State of the Union Address. "The player is designed to be blogged and emailed," says Perla Ni, special projects advisor at the company.
To show the product's potential, Click.TV launched a nonprofit demonstration project on the side. Metavid, an open-source effort at UC-Santa Cruz, has been building an impressive online archive of all the House and Senate floor proceedings from January 2006 forward, with a function that allows you to look for the terms that interest you—"surge," "McCain," "bituminous coal," whatever—by searching the accompanying closed-caption feed and jumping to the appropriate clip. The Click.TV crew thought they could improve the interface by adding their Flash-based software to it; they also thought they could improve the search function by using the official transcript of the debate rather than the typo-ridden, poorly synchronized captions, which frequently miss words or display them at the wrong times.
Ni and her colleagues assumed this would be a simple task. Then they discovered the transcripts didn't match the tapes—and that the government wasn't willing to provide them with a pre-edited version of the daily Record. "If we have a clean transcript, it's not at all hard to synchronize it," she explains. "We did it with Steve Jobs' speech in about 10 minutes." (In another demonstration project, Click.TV created a searchable indexed edition of Jobs' keynote address at MacWorld 2007.) "The time and cost is creating a clean transcript. The only way to do it is to manually watch the video and cut out the portions of the Congressional Record that did not take place." Ni expects it to take about 4,000 man-hours to clean up their 2006 footage alone—and at the moment, they only have two people on the job.
They may manage to pull it off: They're creating a nonprofit group to handle the project and, with outside funding, get more transcriptionists at work. (The options being considered range from outsourcing the alternate Record to typists in the Philippines to establishing an open wiki that relies on dispersed volunteer labor.) Meanwhile, Metavid itself is constantly improving its archive. "We have advanced searches in which you can search 'what is being said,' 'who is saying it,' and 'when it was said,'" notes Abram "Aphid" Stern, co-creator of the project. They have also introduced an interface that overlays outside data on the video—letting you see, say, each congressman's campaign donors as he speaks.
But in the meantime, Click.TV's project has slowed to a crawl. A useful tool for anyone who wants to keep an eye on the government—reporters, bloggers, activists, everyday constituents—has been withheld, and completing it has become ridiculously labor-intensive. (A beta version, covering just the day of the estate-tax vote, can be found on the Click.TV site.)
That isn't the only problem with letting members of Congress rewrite history. The Congressional Record doesn't just exist for journalists and curious voters. If there's a dispute about how to interpret a law, courts often look at the debate that preceded the vote to discern the legislators' intent. But if the Record includes arguments that weren't actually made and, thus, did not affect any other congressman's vote, the additions can distort more than just a transcript.
For an example, look at Hamdan v. Rumsfeld, in which the Supreme Court ruled that the military commissions established to try the Guantanamo detainees violate the Geneva Conventions. During the runup to the decision, Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) filed a brief arguing that the court shouldn't be able to judge the plaintiff's complaints, since the "text, history, and purpose of the Detainee Treatment Act confirm that Congress intended to withdraw federal-court jurisdiction to review the detention-related claims of Guantanamo detainees." This intent, they argued, was "confirmed" by the legislative history of the act, which featured an "extensive colloquy" between Sens. Graham and Kyl on the subject.
Alas, the colloquy was as fictional as Feinstein's fulminations against repealing the estate tax. It was inserted into the Record after the fact but was written to give the impression that it wasn't, complete with lines like "I have just been handed a memorandum on this subject" and even an imaginary interruption by Sen. Sam Brownback (R-Kan.). Slate's Emily Bazelon contacted Brownback's office to ask about his cameo, and got an interesting response:
I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did.
Interestingly, the Graham/Kyl brief notes that the text of the Congressional Record "is presumed to reflect live debate except when the statements therein are followed by a bullet…or are underlined." Since the text in question was not bulleted or underlined, the senators seem to be implying, it must have happened as written.
The good news is that it has become less difficult to spot such abuses. "It's not as easy to slip things in as it used to be," says Bernadine Abbott Hoduski, who spent 21 years as a staffer at the Joint Committee on Printing, which oversees the office that produces the Congressional Record. One reason reformers brought TV cameras into Congress, she recalls, was a belief that they "would keep members from making things up and would force them to more accurately reflect what's going on on the floor. And I think that did happen. I am more optimistic than I was in the '70s, when I saw a lot of abuses."
Yes, things could be better. "If you look at the Canadian parliament, right there on their homepage there are live webcasts, there are verbatim transcripts, there are transcripts for all the committees," says Ni. But the U.S. Congress isn't interested in adopting that much transparancy. "If we were fundraising for Click.TV to do this service for parliamentary proceedings in Russia," she notes wryly, "it would be so easy to get USAID money. But there's very little government money to do this in the United States."
Fortunately, forces outside the government haven't been so reluctant. C-SPAN has gone online, and has declared just this week that it is loosening its copyright policy to "allow non-commercial copying, sharing and posting of C-SPAN video," making the visual record even more accessible. And programmers keep creating tools to search, index, edit, quote, remix, and retransmit that footage. As that happens, it won't just get easier to find deceptions in the Congressional Record. If the official account of our leaders' behavior remains unreliable, the video record of what actually happened may simply supplant the printed record of what our solons wish had happened.
Jesse Walker is reason's managing editor.