Watchdog Blog

Time for Devil in the Details to Go Digital

These days almost everything can be done electronically: paying bills, buying music, watching movies . . . the IRS even allows tax returns to be submitted online.

But not in the Senate. There, they prefer to waste taxpayer dollars on paper and keep voters in the dark about campaign dollars.

The current system for senators to submit campaign finance reports to the Federal Election Commission is a maze of back-and-forth between agencies that requires printing and re-typing the same information repeatedly.  The result is an annual $250,000.00 bill to taxpayers and the delayed release of information to the public.

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.

Whose Records are They?

Today's Washington Post published a letter to the editor written by our own Angela Canterbury, advocacy director for Public Citizen's Congress Watch, in response to an editorial about the battle for the Clinton White House records: 

The Feb. 8 editorial "Clinton Records Watch" pointed out that there is a process to follow regarding the release of presidential records. However, one cannot ignore the fact that the process has been altered to give former presidents, former vice presidents and their representatives veto power over the release of records.

In 2001, President Bush issued Executive Order 13233, an expansive order that eviscerated the post-Watergate Presidential Records Act, which made presidential records the property of the government, and then the public.

Legislation to repeal the order passed the House by a veto-proof margin but is stuck in the Senate. First Sen. Jim Bunning held and then released the bill, the Presidential Records Act Amendments (H.R. 1255/S. 886), and now Sen. Jeff Sessions is blocking it. A single senator should not be allowed to stand between the public and its right to know.

Moreover, all of the senators running for president should demonstrate their interest in transparency by co-sponsoring this bill. So far, Sen. Barack Obama is the only one who has done so. Sens. John McCain and Hillary Rodham Clinton should join him and help to pass the bill to show the American public that they truly believe presidential records belong to the people -- not the president.

Why is Sessions Keeping Bush's Secrets?

Some presidents just have more to hide than others. 

We have been working to expose the secrets of the current administration, but now another senator is standing in the way.  Senator Jeff Sessions is the latest to block a bill that would return the presidential records to the American people.   

Bush's Executive Order 13233 was a direct attack on the Presidential Records Act of 1978, a law passed in the wake of Watergate that makes presidential records the property of the American people.  A president should not be allowed to legislate and lock away his records with a stroke of a pen.

But this is not just about Bush.  It's about the records of ALL presidents.

The bipartisan bill to undo the Bush order has passed the House by a veto-proof margin and is close to becoming a law, but Senator Sessions is still standing in between the people and their right to know. 

What you can do: Call Senator Sessions' office and ask why he is blocking S. 886 and tell him to stop obstructing a vote.

Our Right to Know? Over Whose Dead Body?

Bush recently told Israeli reporters: “I'll be dead before the true history of the Bush administration is written.” 

Over his dead body?  Perhaps he meant that his "good works" would be told later, but as long as we let him keep his iron grip on presidential records, it could be several generations of Bushes before we know much of anything.

In 2001, Bush signed Executive Order 13233 to allow current and previous presidents to withhold documents and records without explanation INDEFINITELY.  What’s more, the order extends the presidents’ authority to control the records under to presidential family members, and vice presidents.

This unprecedented expansion of executive power flouts FOIA, precedent, and the principles of the Constitution.  The order, drafted by former Attorney General and close Bush friend Alberto Gonzales, eviscerates the post-Watergate Presidential Records Act, which made presidential records the property of the government, and then the public.  Our right to know should not be subject to the whims of the executive.

Legislation to repeal the order passed the House, but has been repeatedly blocked in the Senate.  First Senator Bunning was named as the holder. After feeling some pressure, Sen. Bunning removed his hold, and then friends of ours in the Senate attempted again to bring the bill up for a vote just before the holiday break.  It didn’t happen because, we are told, there is another objection from another unknown senator – no doubt carrying more water for the President. 

Sound familiar?

Meanwhile, the nation is consumed by one of the more thrilling primary elections in memory.  But where do the presidential candidates stand on the Presidential Records Act and presidential secrecy?  Senator Clinton recently was accused, perhaps unfairly, of preventing public access to Clinton Administration records.  Still, Senator Clinton is conspicuously not a cosponsor of the bill that would revoke the Bush Executive Order, the Presidential Records Act Amendments.

Why not? 

It’s been nearly two months since Philipe Reines, a spokesman for Clinton's Senate office, told the Tribune that "Senator Clinton believes that President Bush's 2001 Executive Order was wholly unnecessary and is inconsistent with the spirit of the Presidential Records Act, and therefore supports legislative efforts to reverse that order."

We’re still waiting for Clinton, and most of the other presidential candidates, to demonstrate that they believe the records belong to the people, not the President.  So far, only Senator Obama has put his name on the bill.

So while the world is enthralled with the presidential horse race, presidential records are hidden away and transparency transgressed again and again.  We can’t forget that much of our government remains in the hands of a few, until we take it back – again and again.

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.

Clinton should back open-records bill

by Mike Dorning, Chicago Tribune

Democrats are fond of condemning President Bush for promoting a "culture of secrecy" in the federal government. And high on the list of criticism is an executive order he issued shortly after taking office that allows former and current presidents to indefinitely hold up the release of presidential papers from past administrations.

Hillary Clinton now finds herself in the middle of a controversy over the slow pace of her husband's presidential library in releasing White House papers that might shed light on the former first lady's role in his administration. Candidate Clinton has responded with explanations, examined in a Tribune article earlier this week, that the delays are caused by current archives laws and assurances that she and her husband are committed to transparency in their official papers.

But Public Citizen, a liberal-leaning open-government group founded by Ralph Nader, is now challenging Clinton on the point, arguing that if she were serious about opening up government she would throw her considerable political weight behind legislative efforts to overturn Bush's executive order on presidential libraries.

"If Sen. Clinton is really serious about transparency in the executive branch, she could demonstrate her interest in openness now by signing on to the bill to repeal the Bush Executive Order that is allowing the records to be kept out of the public domain. We hope Clinton and all of the presidential candidates will take a stand on presidential secrecy by supporting the bill," said Angela Canterbury, field and outreach director for Public Citizen's Congress Watch Division.

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.

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.

Lift the “Secret Hold” on Transparency Bill

A block, a hold, an objection . . . there has been debate over what to call it, but the fact is that an anonymous Republican senator has put the brakes on S. 223 -- a bill to mandate that the Senate file its campaign finance reports electronically; making them more readily available for public view. 

There is nothing controversial about this bill and it has strong bipartisan support.  The House and the White House already have the same reporting requirements.  In fact, most senators maintain campaign finance records electronically, but are required to hand over paper copies nonetheless.  Sen. Diane Feinstein (D-Calif.) explains the shenanigans:

The Senate campaign filing system in place today requires paper copies of disclosure reports to be filed with the Senate Office of Public Records, which scans them to make a digital copy and sends the copy to the Federal Elections Committee (FEC) on a dedicated communications line.  The FEC then prints the report and sends it to a vendor in Fredericksburg, Virginia, where the information is keyed in by hand and then transferred back to the FEC database – at cost of approximately $250,000 annually to taxpayers.

It is easy to understand why Senators Russ Feingold (D-Wis.) and Diane Feinstein (D-Calif.) sought unanimous consent to bring the bill to the floor.  One can only assume that any senator who puts an anonymous hold on this bill has something to hide. 

Curious?  Help find the senator by calling yours and reporting it here.

The Mystery of the Missing White House E-mails

To enable White House officials to conduct political business without getting into trouble for doing it with government equipment, the Republican National Committee (RNC) gave the officials RNC e-mail accounts several years ago. Those receiving the accounts included top White House advisor Karl Rove, according to news reports (Check out this Reuters report and this column in The Washington Post).

Trouble is, Rove apparently conducted some government business with his RNC account - a great way to keep that government business hidden.

Now, some of those official e-mails may erroneously have been deleted, the White House says. And some of Rove's e-mails may have been related to the controversial firing of U.S. prosecutors.

Cover up? Or just an honest mistake? Stay tuned. Well almost certainly hear more about this one.

A Historic Victory for Whistleblowers

Yesterday was a historic victory for whistleblowers and for the nation.  By an overwhelming margin, the House of Representatives voted 331 to 94 in favor of the "Whistleblower Protection Enhancement Act of 2007."  This major reform honors the many brave federal employees who have dared to stand up to government waste, fraud and abuse.  As a result of enhanced protections for dedicated public servants who speak out, the government will operate more openly and honestly, and will better serve the public.

Blowing the whistle has been a very risky thing to do, as whistleblowers often suffer from serious retaliation, including being demoted or fired, for exposing wrongful conduct.  Such retaliation sends a chilling message to all employees to keep quiet, no matter what.  The Enhancement Act would change this by creating strong protections against retribution when federal servants report waste or corruption in the federal government.

Under this act, federal employees have the right to have their claims heard in federal court by a jury once administrative remedies are exhausted, affording them the same rights that federal employees have if they claim to have been discriminated against.

Furthermore, if federal employees disclose waste or abuse as part of their official duties, they would now be protected under the Enhancement Act.  In a similar 2006 case involving a local government employee, Garcetti v. Ceballos, argued by Public Citizen's Litigation Group before the Supreme Court  the Court ruled that when a Los Angeles County prosecutor blew the whistle as part of his official duties, the First Amendment did not protect the employee from being punished.         

We applaud all of those members of the House who voted in favor of H.R. 985.   Along with our allies in the "Make It Safe" coalition, we urge the Senate to act quickly to pass a similar bill.