Watchdog Blog

The Next President on Open Government

We’re all fed up with lengths to which the Bush Administration has gone to hide its business from public scrutiny.  But how open will our next president be?  Our coalition, the Sunshine Week alliance, asked all the presidential candidates to complete a survey in last October about their positions on open government and freedom of information issues. 

Of the remaining three candidates, only Sen. Hillary Clinton responded (read her answers here [pdf]).  To get the other candidates’ positions, a team of researchers poured over articles, speeches and debate transcripts, and any other records they could find.

Below are brief overviews -- read the complete findings here.

How to End Government Secrecy

Yesterday was the much-anticipated webcast on government secrecy and the newest online resources available for uncovering information (watch the archived event here).

Remember the checks and balances and our freedoms of speech and press?  They were written into the Constitution and Bill of Rights to ensure we had the tools to hold government accountable.

So, what happened?  How do you explain how the Bush Administration has gotten away with so much unnecessary secrecy over the past seven years?

Joan Claybrook Speaks Out on Secrecy

What are the effects of so much unnecessary secrecy in our government?  Joan Claybrook, President of Public Citizen, explains why it is a threat to democracy and what Congress needs to do about it:

An open and accountable government is a cornerstone of our democracy. As Americans, it is our right and our duty to know how government operates; transparency is one of the great checks we have against corruption and tyranny. Yet, during the past seven years, President Bush has gone to extremes to keep the workings of his administration in the shadows, away from public scrutiny.

Get Your Sunglasses - It's Sunshine Week

Today marks the beginning of Sunshine Week 2008!

It's long been painfully clear that the Bush Administration does not believe in an open democratic government.  It has used one ruse after another to keep information from the public -- from “national security” to “executive privilege” to plain old stonewalling.  That's why this Sunshine Week we are joining print, broadcast and online news media, civic groups, libraries, non-profits, schools and individuals interested in the public's right to know, to call on the federal government to end its campaign of secrecy.

Some events you should check out include:

• Tomorrow, March 18, Associated Press President and CEO Tom Curley will address Freedom of Information and other open government issues during a Sunshine Week dinner event at The National Press Club.  Learn more.
• This Wednesday, March 19, OpenTheGovernment.org, Public Citizen and others sponsor a free webcast from 1:00 to 2:30 pm EDT on excessive government secrecy. You can register to watch it here, or if you have a Facebook account, click here.
• On Thursday, March 20, the Sunlight Foundation and Omidyar Network are hosting a webcast of Prof. Lawrence Lessig, who will introduce a plan called "Change Congress," designed to increase congressional transparency.

Check out other events happening in D.C. and states across the country.

Also, be sure to urge you members of Congress to support our agenda for a more open, transparent government.

Bush, Sunshine and Apple Pie

What does it mean to have an open government?  As a catch phrase, it is appealing, like apple pie.  It seems especially American and downright fundamental: “a government by and for the people.”  It suggests that we are in power, and that through transparency we can avoid tyranny and oppression.

In truth, it is an ideal – one for which we are still reaching.  The Constitution, and the First Amendment in particular, provides the principles, but it has taken the efforts of many over two centuries to create a legal and practical framework for some transparency in government.  We might prefer that our elected officials spend their time pondering how to make the government more accountable to the people (instead of fundraising), but unfortunately, this is rarely the case.  Often we have gained more access through legislation, such as the Freedom of Information Act, enacted in response to some crisis of trust in our public officials.

Now is such a time.

Freedom of Information, Sort Of

For more than 40 years, the Freedom of Information Act (FOIA) has been the pillar of the framework for transparent government – the primary advocacy instrument for deterring and exposing unchecked executive power.  However, since 9/11, FOIA has been hobbled by a doctrine of secrecy executed with administrative delays and ploys to keep government records “in the shadows.”

The OPEN Government Act, signed into law on December 31, is the first legislative update to FOIA since 1996 and a reassertion of checks and balances.  Now it will be easier for people to get information from their government.  The law provides for an online tracking system for requesters, a government-wide office to deal with disputes and concerns, penalties for offices that take too long to respond, a limit to agency “search” and “duplication” fees, and reimbursement of attorney fees in some situations where requesters must go to court.

But it wasn’t easy.

The FOIA improvement became law only after months of obstruction, foot-dragging and secret holds.  There is no doubt we had some solid champions in Rep. Waxman (D-CA), Sen. Leahy (D-VT), and Sen. Cornyn (R-TX) who kept the bill alive in shark-infested waters.  However, it might have never passed it at all without good, old-fashioned rabble rousing. 

After the bill passed the House in March 2007 by a huge margin, an anonymous senator placed a “secret hold” on it. Proponents decried the stubborn irony of preventing more access to our government records with secret holds and other back-door maneuvering by the White House.  Calls and emails poured into congressional offices, news articles and blog posts demanded the holder be revealed. 

We (the rabble) finally outed Senator Kyl as the secret holder.  Once exposed, Kyl surprisingly began to negotiate. Not surprisingly, Kyl was representing the terms of the White House.  Still, the bill began to move, and finally passed the Senate by unanimous consent. 

But it was not yet time for champagne.

It turned out that there were some issues with the bill that passed.  Some of us suspected foul play and poison pills . . . more noise and negotiations ensued.  Suddenly an imperfect, but passable fix bill emerged in December.  It was quickly pushed through at congressional warp speed with veto-proof support.  Perhaps everybody needed a win – to quiet the rabble.  In the end, even Bush could not refuse to sign the bill into law.

But this hard-fought battle is only a half-victory.

To be sure, the new law will tear down some of the bureaucratic blockade often used intentionally to prevent government operations from seeing the light of day.  Still, even with this victory, the rule-making authority of the executive branch makes it possible for the “War on Terror” to continue to be used to obviate the “informed consent of the governed."  The Ashcroft doctrine of withholding documents as long as some argument for a “sound legal basis” exists still stands.  This policy is a reversal of the Clinton-Reno instruction to officials to interpret FOIA in favor of disclosure – unless it was “reasonably foreseeable that disclosure could be harmful.”

We can expect the Bush-Cheney Administration will use every tactic available to keep their deeds under a cloak of secrecy.  Ready the rabble.

Enough is Enough – Kyl Should Stop Blocking OPEN Government Act

Today, Public Citizen sent a letter to Senator Jon Kyl (R.-Ariz.), asking him to allow an important bill to increase access to government information to come to a vote in the Senate.

We’re not the only ones asking for a break. Last week, Sen. Dick Durbin (D.-Ill.), the Democratic whip, sought unanimous consent to bring up the OPEN Government Act again, which would critically improve the Freedom of Information Act (FOIA). The GOP again blocked consideration of the bill for the now-unmasked “Senator Anonymous ” – Senator Kyl (R.-Ariz.). At yesterday’s opening of the Senate session, Senate Majority Leader Harry Reid (D.-Nev.), asked for an end to objections over bringing the uncontroversial, bipartisan bill to the floor. Kyl did not back down.   

It’s time for Senator Kyl to stop obstructing a vote for FOIA and allow the OPEN Government Act to go to the floor. The bill would strengthen the law that provides access to government documents for the press and citizens. Senator Kyl is quibbling over a few parts of the bill, and Senators Leahy (D.-Vt.) and Cornyn (R.-Tx.) have tried to accommodate his concerns.

But there is a limit to how much compromise is deserved here. 

The current bill encourages the timely settlement of cases where the government lacks a reasonable basis to withhold information. The incentive it provides would strengthen FOIA, decrease the cost of litigation and benefit taxpayers. People of modest means should not be penalized when it comes to using FOIA.  In fact, the majority of FOIA requesters are individuals and businesses – taxpayers that deserve real and timely information about the actions of their government.

Senator Kyl should step aside now, and allow the Senate to vote on the OPEN Government Act.      

Be Patriotic and Pass the OPEN Government Act

This July 4th will mark the 41st anniversary of the passage of the Freedom of Information Act (FOIA).  FOIA is a vital tool in our arsenal for democracy because it allows the press, businesses, and most importantly, the American people, to access government records to find out what our government is doing in our name.  The transparency that FOIA affords is essential to ensure the government is working in the public interest. Time and again, documents obtained through FOIA requests have exposed government waste, abuse and corruption that would otherwise never would have seen the light of day.   

But after forty years, FOIA is in dire need of serious reform.  Today, FOIA backlogs are at an all-time high and Americans who seek information under FOIA are less likely to obtain that information than in any other time in FOIA’s 41 year existence.   According to the National Security Archive, an independent research institute, some outstanding FOIA requests date back to before the collapse of the Soviet Union in 1989.  The Openness Promotes Effectiveness in our National Government Act of 2007 – or the OPEN Government Act (S.849) – would expedite FOIA requests and increase transparency by:

• Restoring meaningful deadlines for agency action under FOIA;
• Imposing real consequences on federal agencies for missing statutory deadlines;
• Clarifying that FOIA applies to agency records held by outside private contractors;
• Establishing a FOIA hotline service for all federal agencies; and
• Creating a FOIA Ombudsman as an alternative to litigation.

Despite passage of the OPEN Government Act in the House (H.R. 1309) and overwhelming support for these common-sense reforms from across the political spectrum, the Senate bill has been stopped dead in its tracks by Senator Kyl (R-AZ).  In an ugly irony, Kyl placed a secret hold on the bill.  Although Kyl was unmasked, he and the Republican leadership, continue to stand in the way.  Apparently, Kyl is carrying water for Alberto Gonzales’s Department of Justice (DOJ).  Gonzales particularly objects to the bill’s provision requiring that agencies pay the attorneys’ fees of individual requesters when requesters are forced to go to court to get agencies to comply with FOIA.  But without that provision, there would be no incentive for agencies to release documents before a court orders them to and every incentive to use delay as a tactic to make it costly for the public to use FOIA.  Of course, this is not surprising considering the Attorney General’s disdain for accountability.

Even as we celebrate our freedom, we must defend it.  As we approach July 4th and the 41st anniversary of FOIA, it is time for all of us to stand up and speak out against government secrecy.  Let’s insist that the Senate reaffirm our nation’s commitment to a government by and for the people by passing the OPEN Government Act NOW. It’s the patriotic thing to do.

This post was coauthored by Andrew Bowne, Congress Watch Civil Justice Intern.

Gotcha! Senator Secret is Senator Kyl

Senator Kyl finally confirmed that he is the senator with the secret hold on the OPEN Government Act.  We first blogged about the ironic secret hold on this transparency bill last week.  Since then, our activists and others like the Chamber of Commerce have been sending letters and flooding the Senate with calls to smoke out the senator in hiding.

Kyl (R AZ) finally buckled under the pressure yesterday, admitting he placed the secret hold because of Department of Justice concerns.  We have plenty of DOJ concerns ourselves.  It’s clear DOJ under Attorney General Gonzales is opposed to any transparency and accountability. 

Shame on DOJ, shame on Senator Kyl.

Isn’t It Ironic? OPEN Government Held Hostage by Secret Hold

It’s an almost unbelievable irony that a bill called the OPEN Government Act has been sequestered by another secret hold. 

The bill in question is a bipartisan effort to update the seminal Freedom of Information Act to make the government more open and accountable.  It recently overwhelmingly passed the Senate Judiciary Committee.  The House version of the bill, "Freedom of Information Act of 2007," passed on March 15 by 308 to 117.  More than one hundred organizations and thousands of citizens have expressed support for the bills.

Yet, when Senators Leahy and Cornyn tried to bring the bill to a vote on the floor last Thursday, the vote was blocked by “Senator Anonymous.”  Some Republican senator called the Minority Leader’s office and objected to a vote on the bill, but asked for anonymity and did not publicly state the reason for the hold.

This is not the first time the secret hold has been used to thwart transparency.  In fact, this tactic for lampooning openness in government seems to be the new darling of the old school back-room deal makers. 

The secret hold is used to block a bill from coming to the floor for a vote.  It is typical for a non-controversial bill – like the OPEN Government Act – to be brought to the floor by unanimous consent.  However, any senator can call their party leader and ask that the bill be held – anonymously and with absolutely no transparency.  That will change if the Senate lobbying and ethics bill passed in January ever becomes law.

Until then, we have only grassroots pressure to ferret out the secret holder.

It’s time to expose the cowardly senator who mocks us by hiding behind an anachronistic power play and blocking real reform.  Everyone with a Republican senator should call or email to ask: Did you place the secret hold on the OPEN Government Act?

Any senator with a spine would speak up now.

Hit comments below this post or email us and tell us what you learn in your calls.