Making Government Transparent and Accountable
The Sunlight Foundation uses cutting-edge technology and ideas to make government transparent and accountable. Underlying all of our efforts is a fundamental belief that increased transparency will improve the public's confidence in government
The Sunlight Foundation Blog
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Two Transparency Bills Already On-Tap for New Congress
Congress has barely begun and there are already two bills up for debate this week that have been topics of discussion on the Sunlight blog. According to Majority Leader Steny Hoyer’s Weekly Leader:
WEDNESDAY, JANUARY 7, 2009 AND THE BALANCE OF THE WEEK
On Wednesday, the House will meet at 10:00 a.m. On Thursday, the House will meet at 10:00 a.m. and recess until approximately 1:00 p.m. for the Joint Session of Congress to count the electoral ballots for the President and Vice President of the United States. On Friday, the House is expected to meet at 10:00 a.m.
Suspensions (2 bills):
H.R. ___ - Presidential Library Donation Reform Act (Rep. Towns – Oversight and Government Reform)
H.R. ___ - Presidential Records Act (Rep. Towns – Oversight and Government Reform)
H.R. ___ - Lilly Ledbetter Fair Pay Act (Rep. George Miller (CA) – Education and Labor) (Subject to a Rule)
H.R. ___ - Paycheck Fairness Act (Rep. DeLauro – Education and Labor) (Subject to a Rule)
The Presidential Library Reform Donation Reform Act and the Presidential Records Act Amendments both constitute important transparency reforms. The Presidential Library Donation Reform Act requires Presidential Libraries to disclose their contributors (this would be done electronically on the National Archives site). The Presidential Records Act Amendments would reverse a Bush Administration Executive Order that currently keeps presidential records hidden from the public indefinitely. Both of these bills passed the House in the previous session of Congress only to be stymied by the Minority in the Senate.
The Presidential Library disclosure bill was blocked in committee after Sen. Ted Stevens voiced his opposition based on what he called an unfair burden it would place on President George W. Bush’s current Presidential Library fundraising by mandating disclosure. The PRA Amendments were blocked by, not one, but two holds placed first by Sen. Jim Bunning and then Sen. Jeff Sessions. Hopefully, the Senate can work to pass these two important bills.
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Shredding Party?
With the Bush Administration winding down, ProPublica asks a good question, “What documents can the White House put in the shredder?” The administration’s fetish for secrecy is well known. It’s a logical assumption that the Bush/Cheney team would like to make some documents disappear.
ProPublica looked at the laws governing what documents they are required to save, starting with the Presidential Records Act. Congress passed it in 1978 as a result of Watergate and the struggle over Nixon’s papers and records. The law requires all records be preserved that documents the president and the vice’s “activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties.” The law does not require that personal and political records, or “superfluous” documents be saved. Outgoing administrations are to turn over presidential and vice presidential records to the National Archives, which catalogs them and is to make them available to the public after 12 years.
In 2001, however, the Bush issued an executive order, the infamous No. 13233, requiring current and former presidents and vice presidents to authorize the release of their papers. With the stroke of a pen, he gave himself and the other presidents, vice presidents, and even their heirs the ability to keep documents secret. Earlier this fall, Slate listed this executive order as number one of the 10 orders the new president should toss out. Obama has promised (pdf) to “nullify the Bush order and establish procedures to ensure the timely release of presidential records.”
Let’s hope that historians, journalists and other sleuths will be able to thwart the Bush/Cheney veil of secrecy when they get access their papers in a dozen years or so.
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Government Secrets
Back in September, I blogged about a hold being put on a bill that would undo the damage done when President Bush issued an Executive Order allowing presidential records to remain secret indefinitely. The bill, Presidential Records Act Amendments of 2007, passed the House by a vote of 333 to 93. A bipartisan group of Senators cosponsored the bill which Senator Lieberman swiftly ushered through The Senate Committee on Homeland Security and Governmental Affairs in June of 2007. Its momentum stalled when a Senator put a secret hold on the bill so it could not be voted on by Unanimous Consent in the Senate.
Fast forward to late September 2007. The Honest Leadership and Open Government Act was signed into law, and it included a provision banning secret holds. (We like to pat ourselves on the back for being part of the group pressuring the Senate to keep that provision in the bill.) Senator Lieberman tried once again to move the Presidential Records Act Amendments bill by unanimous consent. Secret holds no longer being an option, if a Senator wanted to block the bill he would have to attach his name to a hold. Senator Bunning embraced the task of blocking common sense transparency legislation and placed a hold on the bill.
Perhaps hoping that his colleagues’ new year’s resolutions included promises not to block transparency legislation, Senator Lieberman recently tried to bring up the bill again, this time to find it blocked by Senator Sessions.
We find it hard to believe that the Presidential Records Act, which has been the law of the land for 30 years, suddenly needs to be undone. We don’t understand why unclassified communications between a president and his advisors should remain secret indefinitely. Presidential records are the property of the federal government. They do not belong to the president and certainly not to his heirs. No one is arguing that classified information should become public, and nothing in the Presidential Records Act would suddenly make top secret information available for all to see. Instead, this bill would simply ensure that after a president leaves office, we have information available to form objective opinions about his administration.
With his hold, Senator Sessions (and Senator Bunning before him) is thwarting legislation that would enable academics, historians, researchers, and even future presidents to learn from the mistakes and successes of this administration. Rather, the Senators who block this bill are doing the bidding of a White House with a Nixonian penchant for secrecy and leaving the rest of us in the dark.
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Presidential Records In the Dark
It’s interesting to watch what happens in Congress when "because that’s the way we’ve always done it" no longer becomes an option. For years, Senators have put secret holds on bills they wanted to block. These anonymous objections have been used by both parties to bring to a screeching halt legislation that has the support of a majority of the Members. Sunlight has long-championed putting that tired tradition to rest. A provision we lobbied for in the recently-enacted Honest Leadership and Open Government Act does that, more or less, by requiring Senators to come clean about their holds after five days. Ironically, we’ve seen the results of this provision on two important transparency related measures.
Paul Blumenthal blogged about Senator Ensign’s hold on S. 223, the Senate Campaign Finance Disclosure Parity Act, earlier in the week. We have reason to wonder whether the hold was Ensign’s doing all along. Similarly, Senator Jim Bunning now has an objection to moving forward with HR 1255, the Presidential Records Act Amendments of 2007. The bill would overturn an outrageous Executive Order that would keep presidential records hidden from public view indefinitely.
The EO turns on its head the purpose and principles of the Presidential Records Act, which was enacted in 1978 to ensure that presidential records are the property of the federal government. In a nutshell, the PRA says that once the president leaves office, the National Archives has control of his papers. Many papers, including those that contain national security information and information about confidential communications between the president and his advisors, must be kept secret for 12 years after the president’s last day in office. After that, the records are supposed to become available under FOIA standards, with an exception for classified information.
President Bush has used his executive order to ensure that the records of his most secretive administration remain hidden indefinitely. Now, all a president has to do is claim a record is privileged and anyone seeking these presidential records has to prove it is not–even if the president’s claim is completely unfounded. A reporter, historian, professor or anyone else trying to learn about a prior administration would also have to prove there is a "demonstrated, specific need" for the documents. But, in case those massive obstacles to transparency weren’t enough, the president’s EO grants control of the documents to the president’s heirs. Years from now, Jenna Bush could claim executive privilege!
The Presidential Records Act Amendments of 2007 would lift this shroud of secrecy from presidential records. The bill, which was introduced by Congressman Henry Waxman passed the House by a vote of 333 to 93. Under Senator Lieberman’s sponsorship, it sailed through the Senate Committee on Homeland Security and Governmental Affairs but then came to a dead stop. Why? Because a Senator or Senators put a secret hold on a bill. Now, whether or not he has had the hold all along, Senator Bunning has been forced to take responsibility for the objection. That makes us happy. But until our elected officials in Congress and the White House feel shamed by the efforts they take to keep secrets, we have a lot more work to do.
