Congress Exempt From Open Records Law
by Richard Moore
Sitting in Congress is a bill sponsored by 8th District Rep. Steve Kagen (D-Appleton) that would allow the Lac du Flambeau Band of Lake Superior Chippewa Indians to sell its fee lands without further approval from the federal government, but if you think you're entitled to any documents Kagen might have about the bill - including any correspondence between his office and the tribe - think again.
The American people don't have the right to see any of it.
That's because, as a sovereign nation, the tribe is not subject to federal or state open records statutes. What most Americans may not know is that Congress, reveling in its own bit of sovereignty, is not subject to those laws, either.
Except for what lawmakers want the public to see, congressional records are legally off limits and as secret as the CIA.
The pending tribal legislation illustrates the legislative exemption.
In an April 7 letter to Kagen, Lakeland Times publisher Gregg Walker made a request using the federal open records law, called the Freedom of Information Act. Walker asked Kagen for any correspondence between Kagen's office and the tribe concerning H.R. 5521, the fee lands bill, and for any records pertaining to William Bayba or Yates Construction.
On April 17, Kagen's chief of staff, David Williams, replied and offered a lesson in the way the world works in Washington.
"As you may already be aware, the Freedom of Information Act does not apply to Congress," Williams wrote. "In the spirit of cooperation and open government, please know that no action has been taken on H.R. 5521, and our office has no records of any contact with, or communications from, William Bayba or Yates Construction."
Williams simply ignored the request for any correspondence concerning the legislation, and did not acknowledge whether any such correspondence between Kagen's office and the tribe even existed.
Nor did he have to.
Eleven years in the making, Congress passed and President Lyndon B. Johnson signed the Freedom of Information Act in 1966.
The legislation's history is wrapped in tantalizing tidbits of controversy. Johnson in fact had strenuously opposed the measure - which Congress was pursuing because of increasing difficulty getting records from the executive branch - as did his press secretary, Bill Moyers, who urged the administration in the summer of 1965 to continue to fight it.
On the other hand, Republicans started to propel the measure through Congress. Though a Democratic congressman, John Moss, had pushed hard for the FOIA for more than a decade, Republicans jumped on his bandwagon in the early 1960s, led by the measure's principal co-sponsor, then Congressman Donald Rumsfeld.
"With the continuing tendency toward managed news and suppression of public information that the people are entitled to have, the issues have at last been forcefully brought home to the public," the Chicago Daily News quoted Rumsfeld as saying.
From the bill's earliest drafts, however, Congress exempted itself from the provisions, and some observers believe lawmakers had no constitutional choice to do otherwise.
According to Harold C. Relyea, a specialist in American national government with the Library of Congress, these observers thought the secret journal clause of the constitution would make it difficult to apply open records' standards to the legislative branch.
That clause, which directs each house of Congress to keep a journal of its proceedings and to publish them, except such parts as lawmakers deem to require secrecy, has been interpreted to authorize the House and the Senate to keep other records secret, Relyea has observed.
Not only that, some say, the bitter partisan politics of the day would have doomed the legislation if an attempt had been made to include Congress.
"In [Congress'] defense, the law basically stems from the inability of Congress and others to get information from agencies when requested," says Harry Hammitt, editor of Access Reports, a leading Washington-area freedom of information publication and news service. "As such, when Congress began working on a FOI Act in the mid-50s, it was focused on getting executive branch records. It is quite possible if they had subjected themselves to the statute at that point it might have had considerable trouble getting through Congress. It was already opposed by the executive branch and having congressional opponents as well could have sunk the enterprise."
Whatever the origin, others believe the continued exemption has more to do these days with secrecy and politics.
"The answer to [why Congress is exempted] is pretty simple and a bummer: The golden rule," says Dave Cuillier, an assistant professor of journalism at the University of Arizona and the chairman of the National Freedom of Information Committee for the Society of Professional Journalists. "Those who have the gold make the rules. Congress enacts legislation and they conveniently exempted themselves and the courts, just slapping it on the executive branch.
"So, in short, it's not a constitutional issue," he says. "It's how FOIA and those laws were written. Those who wrote the laws exempted themselves from having to follow the law."
Charles Davis of the University of Missouri, the executive director of the National Freedom of Information Coalition, agrees.
"My understanding is that it doesn't apply to Congress because Congress chooses not to include itself," Davis said. "Several state legislatures have bravely included themselves within their state FOI laws, but not Congress. Why not? Well, one can imagine they would dread the scrutiny."
The question is, should efforts be made to apply the FOIA to Congress?
For his part, Cuillier believes so. For one thing, he says, most states have used the federal statute as a role model, and that has led to a preponderance of weaker state laws.
"State legislatures followed suit, making open record and meeting laws apply to executive agencies, counties, and cities but not themselves," he said. "There are only a few states where open records laws apply to the Legislature, and even when they do the legislatures try to wriggle out of it with loopholes, such as Arizona. It's hypocrisy at its worst."
And state legislatures aren't the only ones using the 'spare thyself' creed, Cuillier says.
"For example, many state courts, and the U.S. Supreme Court, have ruled that cameras must be allowed in city council meetings and legislative hearings, all in the name of transparency," he said. "But they exempt their own courtrooms often, saying that would be terrible and hurt the process. Hypocrisy again."
None of this makes for good public policy, he says.
"Bad? Yes," Cuillier said. "Why doesn't anyone do something about it? They should."
But others aren't as excited about making Congress hew to its own standards.
Some, like Davis, say most people just don't think it's realistic to expect Congress to apply it to themselves: "It seems such a dead end that no one has invested any time in it," he said.
Then, too, Hammitt says, the American people have no constitutional right to the information.
"Access to information has an implicit First Amendment basis, but there is no constitutional right of access to government information," he said. "The Supreme Court has said it is not a constitutional right, hence it needs a statutory basis."
But Hammitt did not call for that statutory basis, saying Congress already provides a wealth of sought-after materials.
"As far as whether it should apply, Congress is considerably more open than either other branch (of government)," he said. "It holds numerous public hearings and then publishes hearing records and reports. It clearly does not make public everything and some items that are frequently considered important for public disclosure are reports from the Congressional Research Service (part of the Library of Congress) and the various mark-up drafts of legislation as they are being considered."
In fact, he says, applying the FOIA to Congress could backfire and make that institution less open than it is.
"The downside of making Congress subject to FOIA is that it will begin to use the exemptions in much the same way that agencies tend to use them - to withhold information," Hammitt said. "In other words, the heavy-handed use of exemptions could actually result in less information."
Only Gard is unguarded.
In any event, he says, not much effort has been made to expand FOIA jurisdiction to the legislative branch.
"Until recently there had been no efforts to subject Congress to FOIA," Hammitt said. "In the late 90s and early years of this century, Sen. (Patrick) Leahy (D-Vermont), who has long been considered the Senate champion of FOIA, said he had no problem subjecting Congress to FOIA, but that is about the extent of any efforts. He may even have drafted a bill to that effect but nothing came of it."
If the responses of local legislators are any indication, nothing would come of any new effort to apply the federal open records law to Congress.
In preparing this article, The Lakeland Times asked Kagen, 7th District Congressman Dave Obey, and U.S. Sens. Russ Feingold and Herb Kohl, as well as Kagen's challenger, Republican John Gard, if they would support such legislation.
Of the five, only Gard pledged to support an effort to apply the FOIA to Congress.
"It's ridiculous that they are not," he said through his spokesman. "I had to abide by open records laws as Speaker of the state Assembly, and I should have to do so as a congressman."
Wisconsin is one of the few states to have applied its open records law to the Legislature.
Feingold wasn't as forceful, but he too said he would consider the idea.
"I have consistently supported proposals to make the legislative process more transparent - including supporting lobbying disclosure reforms, making Congressional Research Service reports available to the public, and campaign finance reforms," Feingold said. "Applying the Freedom of Information Act to Congress presents some challenges, such as protecting private communications from constituents, but I am always open to considering proposals to increase the amount of information available to the public about how the government works."
Kagen, Obey, and Kohl did not respond to the question.
Most of the national media is just as quiet.
For example, the Coalition of Journalists for Open Government - a national group whose members include the American Society of Newspaper Editors and the National Newspaper Association - have a wide range of open government goals, ranging from faster responses to FOIA requests and adequate funding to respond to those requests to sunsetting the current exemption for the operational files of the Defense Intelligence Agency.
The group has targeted Congress, too, calling for open conference committee meetings and increased reporting of lobbying activities.
Still, the group does not call for an FOIA extension to Congress.
Among national newspapers, only The Washington Examiner has strenuously and persistently pushed for congressional inclusion. Its editorial page editor, Mark Tapscott, also championed the cause when he was previously the director of the Heritage Foundation's Center for Media and Public Policy.
"Update the federal Freedom of Information Act and apply it to Congress," the newspaper stated in a 2007 editorial. "Nothing Congress can do would go further to re-establish the institution's credibility than to submit its own operations to the same disclosure laws that have applied to the executive branch since 1966."
The right vehicle for doing so, the newspaper continued, was The Open Government Act co-sponsored by Sen. John Cornyn (R-Texas) and Leahy.
"Among much else, their bill establishes for the first time penalties for agencies that fail to fulfill their FOIA responsibilities," the newspaper stated. "A provision to apply FOIA to Congress would make the bill the most significant ethics reform Congress can pass."
The Open Government Act did eventually become law - President Bush signed it last December - and it reformed the FOIA in several important ways.
Among other things, Leahy has observed, the law provides for FOIA fee waivers for legitimate journalists, including bloggers and other Internet-based reporters, established hotline services so requestors can track the status of their requests and created a new FOIA ombudsman to review agency FOIA compliance and to provide alternatives to litigation.
Finally, Leahy has pointed out, the legislation requires agency action on FOIA requests within 20 days of their receipt and imposes consequences for missing those deadlines.
But what the new law did not do was subject Congress to any FOIA provisions.
Which begs an important question: Until Congress must abide by the federal open records statutes it created - it if will ever have to - how do journalists and the public get the information and records they need from the legislative branch of government?
Cuillier says there's only one way.
"The answer is guilt them into it by writing stories and put them on the spot," he says.
"For example, a U.S. Senate rule allowed any senator to put a hold on any legislation to keep it from going to a floor vote, and put this hold on anything in secret. So one senator has the power to stop legislation. How's that for democracy?"
Ironically enough, Cuillier said, last year a senator put a secret hold on FOIA legislation, so the Society of Professional Journalists ran an "expose the secrecy senator" campaign, which involved getting journalists and others to call their U.S. senators and ask them if they were the secret senator. The running tally was posted online.
"We got it narrowed down to a few and finally the senator fessed up - Jon Kyl, from my state of Arizona," Cuillier said. "Similar guilt campaigns were conducted on other secret holds. As a result, the Senate passed new rules prohibiting the holds to be secret. So now it's out in the open. That's how open government happens. Guilt them into it and publicize the benefits of transparency."
So far, Kagen has apparently felt no guilt about the way he handled the request by The Lakeland Times, both for records about his tribal fee lands bill and about his own willingness to support the application of FOIA provisions to himself and his colleagues.
The Congressman's not talking. But then, he doesn't have to.
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