Farm bill sleight of hand hides subsidy recipients

What do a Texas oil billionaire, a former NBA basketball star and a Washington “uber-lobbyist” have in common?  They all received money (legally) under a program to subsidize farmers.  But according to the Environmental Working Group, you can’t find out if they or others like them still receive payments because the U.S. Department of Agriculture is no longer publishing the names of individuals receiving payments.

All because Congress inserted during the closed conference committee meeting two provisions into the massive 2008 farm bill that gave the USDA the authority to do it.

In early 2008, while subprime mortgages were just showing signs of bringing down the U.S. economy and plunging the financial system into crisis, Capitol Hill was swept with momentum to reform the multibillion dollar farm subsidy program after government data showed wealthy individuals benefited.

As the Environmental Working Group notes today:

Our 2007 database used previously unavailable records to uncover nearly 500,000 individuals who had never been identified as farm subsidy recipients. Many had been shielded by their involvement in byzantine mazes of co-ops and corporate entity shell games. For example, the database revealed that Florida real estate developer Maurice Wilder, reportedly worth $500 million, was pulling in almost $1 million a year in farm subsidies for corn farms he owns in several states.

The revelations impacted negotiations to reauthorize the program.  As the Associated Press reported (disclosure: AP is a member of the Sunshine in Government Initiative) in June 2007,

Senate Agriculture Committee Chairman Tom Harkin, D-Iowa, said the new data could affect farm bill negotiations this year as lawmakers consider reducing direct payments to farmers.’It’s going to be harder than ever before to defend the status quo,’ he said. ‘I think the defenders of big payments, their position is going to be severely weakened.’

Congress inserted two provisions that the Environmental Working Group argues has made it harder to track who received subsidies.  First, Congress inserted Section 1619 (7 USC 8791), which reads in part as follows:

(2) PROHIBITION:  Except as provided in paragraphs (3) and (4), the Secretary [of Agriculture], or any officer or employee of the Department of Agriculture, or any contractor or cooperator of the Department, shall not disclose —

(A) information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department; or

(B) geospatial information otherwise maintained by the Secretary about agricultural land or operations for which information described in subparagraph (A) is provided.  7 USC 8791(b)(2)

This language is broad.  As the USDA wrote in a letter dated July 30, 2008 to staff processing Freedom of Information Act (FOIA) requests,

It covers information provided in order to participate in USDA programs that provide loans, grants, subsidies, payments or other benefits.

But in the same letter, USDA acknowledges an exception — the exemption to disclosure does not apply to payments to individuals.  That’s because Congress added limits to the exemption.  (Pardon the double negative.)  That meant certain information must be disclosed if disclosure is otherwise required.  Back to the language of the statute that Congress passed:

(4) EXCEPTIONS. — Nothing in this subsection affects —

(A) the disclosure of payment information (including payment information and the names and addresses of recipients of payments) under any Department program that is otherwise authorized by law[.]  7 USC 8791(b)(4)

So the type of payment information that EWG is seeking should be available upon request.

If you’re wondering, this provision was in neither version of the farm bill that the Senate and House passed.  It was “air-dropped” in the private conference committee meetings between House and Senate negotiators.  Unless you know someone on staff who might share a proposal quickly, the public gets no chance change to review and discuss openly such provisions.  And especially troublesome are provisions slipped in that harm government transparency.  It’s secrecy in the shadows.

This law ultimately shields some very popular information:  USDA reported in 2009 that the department denied 432 FOIA requests in fiscal year 2009 wholly or partially based on that law, up sharply from 167 times during FY2008.  And it is one of at least 250 statutes that Congress has put on the books carving exemptions to FOIA.

But the USDA is no longer proactively releasing the names and identities of recipients of payments.  The USDA claims it can’t afford to keep up the database, nor does it have to.  In 2002, Congress required USDA to track persons receiving subsidies and other payments.

Again, during the conference committee, negotiators watered eliminated the requirement.  It changed a “shall” to a “may” in what is now 7 USC 8785:

As soon as practicable after the date of enactment of this Act, the Secretary may track the benefits provided, directly or indirectly, to individuals and entities under titles I and II and the amendments made by those titles. (emphasis added)

One simple change.  Given discretion, according to EWG, USDA decided it didn’t have the money needed to tie the individuals receiving payments to the business entities that are part of the publicly released database.

The Environmental Working Group reports it has filed a FOIA request for this data, and USDA has indicated it is working on a response.

We’ll keep you posted.