Clearing the air clouding Romney’s transparency record

The fact that Republican presidential candidate Mitt Romney has so far only released his 2010 and 2011 tax returns has raised some public questions about his commitment to transparency. As media reports frequently note, his actions stand in contrast to his father’s release of 12 years’ worth of returns in 1967 during his own presidential bid.

AP Photo by Jae C. Hong

Republican presidential candidate Mitt Romney addresses supporters at the Franklin Institute in Philadelphia in April.

A recent study shows that the public is interested in the returns as well. Of those surveyed in a July 18 USA Today/Gallup poll, 54 percent said they would like Romney to release additional tax returns.

In addition to the controversy around Romney’s willingness to share his personal tax information, some of the decisions he made and actions he took during his time as governor of Massachusetts reveal a mixed record on transparency. Some of these parallel his actions during his current campaign, which raises questions about how transparent he will be later on in his campaign or if he wins the presidency and what the public may demand he reveal in the future.

“Corporate culture”

Many attribute the on going public interest in seeing more of Romney’s tax returns to both his personal wealth and his persistent refusal to release the records.

Meenekshi Bose, a political science professor at Hofstra University, says the public is interested in seeing a candidate’s tax returns “particularly when a candidate is wealthy,” such as in Romney’s case. Before serving as Massachusetts’ governor from 2003 to 2007, Romney founded the investment firm Bain Capital and served as CEO of Bain & Company, a consulting firm.

For those who followed his financial disclosures as governor, his refusal to release additional tax returns mirrors his actions in earlier days, when he refused to release them while running for governor. His decision, some said, left a lasting impression in the state.

In reporting on the 2006 race for Massachusetts governor, for instance, The Republican noted that in 2002, Romney had begun “to buck tradition” by refusing to release his tax returns, even though all of the candidates for the position had released theirs in the 1998 campaign. In the 2006 campaign, according to the article, most of the candidates were refusing to release them.

Pam Wilmot, executive director for Common Cause Massachusetts, a nonprofit organization that advocates for open government, notes that the law did not require Romney to release the records, “so he’s well within his rights to refuse.”

However, she says, his refusal “did start a negative trend.”

Scott Helman, a staff writer for The Boston Globe Sunday Magazine and the former political editor for The Globe, says while not all voters may care about Romney’s refusal to release additional returns, it becomes “more significant when it plays to a narrative that already exists.”

One part of this “narrative” about Romney is that he is “sort of secretive,” explains Helman, who also co-authored a book released this year titled The Real Romney. The refusal to release additional tax returns is one example, he says. He also recalls that during Romney’s time as governor, his administration held “very controlled, choreographed press conferences.”

Calls to Romney’s campaign office seeking comment for this article were not returned.

Many of the actions Romney took to either increase or decrease public access to information during his time as governor were controversial at the time, and some of them continue to be so.

Helman attributes Romney’s “secretive” nature to the fact that he comes from a “corporate culture.” A culture in which there is an incentive to “share as little as possible” and to preserve the “competitive advantage” clashes with the “culture of government,” he says, in which there are “public expectations of being able to get a full picture of somebody and their background.”

However, while in some ways Romney may be perceived to be secretive, as some point out, he also pushed for transparency in various legislative measures.

Transparency in legislation

Romney’s time as governor was marked by some positive legislative actions toward increasing transparency, notes Wilmot. One she recalls in particular is his veto of a bill in 2003 that proposed to allow state lawmakers to raise the pay of House and Senate leadership through changes to internal rules, rather than by passing laws that would require the governor’s review.

Wilmot described the bill, “An Act Relative to the Compensation of Certain Members of the General Court,” as a “very sneaky move” that would have not only cut out the governor’s role in reviewing pay raises, but also the public’s, a concern raised by Romney, as well as other critics of the bill.

In submitting his veto, Romney wrote that the bill’s “practical effect” would allow the legislature to establish its own compensation, “and to insulate such future pay increases from review by the Governor, as well as the voter referendum process.”

Likewise, a July editorial in The Boston Globe criticized the proposal for “cutting out both the governor and the voters, who can seek repeal of statutes,” and praised Romney for vetoing it.

Wilmot says through his veto, Romney “was a partner” in her organization’s successful fight against the bill.

Because of Romney’s background in private investments, many were surprised when he vetoed a bill in June 2004 that would have protected investment firms from public access to certain financial information.

The provision, placed in the proposed 2005 Massachusetts budget, would have allowed the state pension system to withhold from the public information relating to its investment of pension funds. Further, it exempted the state pension board’s discussions of such information from the requirements of the state open meeting law.

According to a June 25, 2004 report by The Boston Globe, then-Massachusetts pension board chairman and treasurer Timothy Cahill apparently sponsored the legislation based on concerns that venture firms would avoid working with the state if they were required to reveal sensitive business information, which could in turn hurt the pension fund.

However, The Globe also reported that Romney intended to veto the provision.

“Members of the venture industry were stunned to hear of his planned veto,” according to the article, given that “[t]he wealthy Romney made his fortune at Bain Capital, a buyout firm with $17 billion in assets that invests in undervalued companies.”

A then-communications official for Romney explained that “[m]aintaining secrecy of investment records may be justified in the private-equity world, but it conflicts with the openness and transparency we need and desire in the public sector,” according to the article.

As anticipated, Romney vetoed the bill, and in August, the Globe reported that — in response to public records requests from news outlets — the state had for “the first time . . . released individual performance figures for [venture capital] funds.”

In a July 2004 interview with The Globe, Romney explained that he vetoed it because he received the proposal “along with 400 other (last-minute) items,” and he followed his staff’s advice to veto it in the absence of “time to thoroughly analyze” it.

When The Globe asked how his “former colleagues in the venture capital industry, who tend to oppose disclosure of fund performance data,” reacted to his veto, Romney replied by saying they could call him if they “care about something,” but he “would not favor a confidentiality provision relating to a (public) pension without extensive involvement, thorough legal review, hearings with give and take, as opposed to ‘Here’s a bill. Will you sign this this afternoon?’”

The next year, however, Romney threatened to veto another controversial bill — this time, one that would have increased access to information about the finances of religious institutions in the state.

Senate Bill 1074, titled “An Act Relative to Charities in Massachusetts,” proposed requiring most religious institutions in the state to file annual financial reports and real estate holdings with the state attorney general’s office. This would have subjected them to similar reporting requirements imposed by law on other charities and nonprofit institutions.

As reported by The Associated Press in August 2005, the bill stemmed from the controversy surrounding Catholic clergy sex abuse scandals, which in turn led to the closing of parishes. Then-democratic state senator Marian Walsh explained to the AP that she filed the bill to address complaints from constituents who were unhappy with the church’s “reconfiguration process.”

“If the public and donors and the membership had learned a long time ago about the lawsuits in the Catholic Church relative to the sex abuse of children, maybe less children would have been sexually abused, because people would have asked more questions,” Walsh said, according to the article.

While at the time, “Romney said he was not familiar with the details of the proposal and said he needed to study it further,” according to the AP, he said it was “a very valid inquiry.” The article quotes him as saying, “Clearly, nonprofit organizations should be subject to a level of disclosure which is consistent with the tax treatment that they receive.’”

However, a few months later, news reports revealed Romney’s opposition to the bill. In January 2006, Romney told journalists he would “not be able to support a bill which goes beyond a very routine regulatory interaction level,” according to a Worcester Telegram & Gazette report, “but instead imposes the kind of onerous reporting requirements, oversight and intrusion in religious practice which is reportedly being considered by some associated with this bill.”

That same day, The Globe reported that the bill “appeared to be sailing through the overwhelmingly Catholic Legislature until Monday, when Governor Mitt Romney . . . threatened to veto the measure.”

The House voted 147-3 against the legislation the next day.

Helman, reporting on the defeat for The Globe, wrote that the House rejected the bill following “intense lobbying” against it by religious organizations.

“Ultimately, fears about the bill eroding the constitutional wall between church and state proved to be more compelling to House members than a desire for greater financial transparency,” he wrote, and the loss “deal[t] a major blow to lawmakers who had said they wanted to make churches and other religious groups more accountable to the public.”

However, “Romney dealt a significant setback to efforts to pass the bill when he announced his opposition,” wrote Helman, “which means supporters would need a two-thirds majority to override his expected veto.” He also noted that Romney’s threat to veto was “made amid a peak of lobbying against the bill.”

While this outcome came as a disappointment to some, the following year, Romney successfully pushed through legislation that would increase access to healthcare information, despite strong opposition from some healthcare providers.

On April 12, 2006, he signed the healthcare reform bill, “An Act Providing Access to Affordable, Quality, Accountable Health Care.”

Best known for its creation of the “individual mandate” — the requirement that all state residents purchase health insurance by July 1, 2007 — the bill also contained provisions designed to make certain healthcare data more accessible to the public.

Specifically, it established a “health care quality and cost council,” which was tasked with establishing a consumer health information website intended to “assist consumers in making informed decisions regarding the medical care and informed choices between health care providers.” The content would include updated information comparing the quality of facilities, clinicians, or physician group practices “in a format that is understandable to the average consumer,” as well as information about “patient safety and satisfaction.”

This was a “move toward greater transparency for healthcare information” that “has long been considered private” as described by a Globe report in September that year.

The law received renewed public attention in June of this year when The Wall Street Journal published an article, “How Romney Pushed State Health Bill,” relying on information gleaned from internal e-mail messages from Romney’s administration.

According to the article, the e-mail collection contained — among other things — a message Romney sent to an aide the night after he signed the bill, saying the bill would allow “hundreds of thousands of people . . . have healthier and happier lives.” Such revelations have received widespread media attention, as Romney’s level of support for the Massachusetts law has been a subject of interest throughout his presidential campaign.

As the Journal notes in its article, while Romney “once trumpeted” the bill “as his signature achievement as governor, he has since played it down amid GOP attacks on the 2010 federal health-care bill signed by President Barack Obama, which bears similarities to the Massachusetts plan.”

However, the story of how the Journal obtained the e-mail messages brought further attention to Romney’s transparency with respect to the records of his own office during his time as governor.

“Personal” transparency

According to Brian McNiff, a spokesperson for the Massachusetts Secretary of State, an agency which includes the Public Records Division, state governors have “at times” relied on a 1997 Massachusetts Supreme Judicial Court ruling to assert that records of their office are not subject to public records requests.

Whether the judicial ruling categorically removes all records of the governor’s office from the public records law is “a matter of some contention,” says McNiff. In that case, Lambert v. Executive Director of the Judicial Nominating Council, the court held that questionnaires submitted to the governor through a nominating commission by applicants for judicial appointments were not public records. In part, the court noted that the Governor is “not explicitly included” in the public records law’s list of offices subject to its disclosure requirements.

Wilmot says that while “there is a narrower reading and a broader reading of the case,” many have interpreted it to mean that the public records law does not apply to the governor’s office.

Regardless, Wilmot says the current governor, Deval Patrick, “responds to the vast majority of open records requests” and Romney responded to some requests as well. However, other actions Romney took with respect to his records, she said, were “unique.” For example, before leaving office, in a widely reported move, he approved the deletion of executive e-mail messages from state computer servers, as well as the removal of his aides’ hard drives.

The Journal managed to obtain some e-mail messages from Romney’s administration, however — those sent to and from then-Administration and Finance Secretary Thomas Trimarco — which “had accidentally been retained.” Subsequently, the Journal, as well as other news outlets, have reported on the insights the e-mail messages provide into Romney’s role and thoughts with respect to the health care bill.

According to Bose, Romney’s removal of the hard drives and e-mail deletion raises “some question that this is a candidate who wants to keep close track or close control over his decision-making process.”

Wilmot says that those instances of records deletion and removal were some of the “big items” related to transparency that marked his term in office. However, another such move, she recalls, was when Romney fired many press secretaries from executive agencies soon after entering office.

According to a January 2003 report by The Globe, Romney fired 21 press secretaries working for executive agencies on the basis that it would save $1.2 million each year and increase efficiency. However, as the article noted, “[t]he savings does not take into account other changes in communications staffing” under Romney. These changes included the addition of another deputy secretary in his office and a $150,000 salary for his communications director — $20,000 more than the amount earned by any press secretary in Acting Governor Jane Swift’s administration.

“There was a budget crisis at the time, and there was a push for shrinking government and consolidating jobs and things,” so the move was in part driven by “cost saving,” Wilmot said. However, she says, another part of the decision was for “message discipline” and to establish a “way of controlling what went out to the public.”

Wilmot said the move was “certainly noted in the media,” and “the media wasn’t particularly happy.”

As the Globe’s report stated, the elimination of the positions — in addition to saving costs — was “in keeping with a strict communications policy that [Romney’s] administration has been enforcing. Employees in some agencies have been warned that they should never speak to the press — or, in some departments, legislators — about policy matters.”

However, Wilmot says, while some of his actions were “cons,” there were also “pros,” such as his effort to increase transparency in judicial nominations in the state.

Transparency moving forward 

Experts say the transparency of Romney’s campaign will continue to be shaped by future decisions. For one, says Helman, “there’s the obvious question of how transparent his running mate will be.”

With respect to any continuing demand for Romney’s tax returns, Bose says the pressure for him to release them will depend on how much the Obama campaign pressures him to do so. However, members of the Romney campaign “seem pretty determined to stay put” on this point, she says. “I don’t know that we’ve had examples of the Romney campaign changing its tune really easily.”

Also, explains Bose, not all stories about a candidate’s transparency will have the same impact on a candidate’s chances, and depends on what kind of transparency is at issue. The pressure to release information is “definitely greater,” though, she says, when “it’s something that has to do with decision making.”