We’ve just published a piece discussing how the Presidential Records Act contours access to documents that Supreme Court Elena Kagan produced while serving in the Clinton White House.
And while it didn’t fit into that piece, I thought it was worth taking a minute to describe where things stand with an effort to amend the law to fortify it against future presidential weakening.
First, some context: the Presidential Records Act was passed into law in 1978, after President Nixon went all the way to the Supreme Court to try to maintain control over records from his disgraced administration.
The act, which firmly established that presidential records were public property and mandates their eventual near total release, is by it’s very nature a restriction on presidential power. According to Bruce Montgomery, an archivist at the University of Colorado and an expert on the law, every president elected after the law’s enactment has taken steps to trim its effects—except Obama.
Obama, on his first full day in office, signed an executive order rolling back a Bush era executive order that was much reviled among archivists and historians. Bush had set up a structure allowing Presidents, Vice Presidents, and their designees and heirs to review and object to the release of presidential documents on constitutional privilege grounds, no matter how long ago the administration that produced the records ended.
Under the Bush administration, members of Congress worked to pass legislation that would supercede Bush’s order, and largely restore the act to where it was before he took office. The bill never moved out of the Senate, and it’s likely it would have faced a veto if it had.
The current House of Representatives, even before Obama took office, passed a new version of the legislation. The Senate Homeland Security and Governmental Affairs committee, led by Joe Lieberman, took up the house’s bill and reported it out to the full senate, on May 19, 2009.
In the intervening year, not much has happened. According to Lee White, coordinator of the National Coalition for History, that’s because Senator Jeff Sessions, who was fingered with helping to bottle up the bill under Bush—and White reasons, presumably at the then president’s request—has apparently put a hold on the bill’s consideration, meaning the bill can go no further without a time consuming cloture vote. (Sessions’s office did not respond to a request for comment on whether he was behind the hold, and if so, what his objections to the bill were.)
White says that Obama’s order may have slackened the Senate’s enthusiasm for a legislative fix. And while the Coalition for History was heartened by Obama’s executive order, they would much prefer to see the rollback enshrined by legislative action.
“You saw it with Obama,” says Lee of the ease of a future president’s ability to weaken the act via executive orders. “It’ll just be at their whim.”
“Who knows what’s going to happen in two to three years. You get Sarah Palin in there and she could go back to Bush’s standard. Then you could have Bristol deciding,” Lee cracks. “I don’t even want to think of that.”
Secrecy the likes of which Presidential whim is apt to foster by unfairly keeping records private do no service to a nation hungry for information about a former President's terms, and inconsistent with the premise that citizens are Constitutionally free and entitled to the information.
If Presidents are ashamed of their service, hiding and disguising it helps to foster the sense of privilege under an umbrella under which other Presidents may hide.
Making the data available may help to prevent getting Presidents who need to hide the information, and in the interests of public performance and responsible leadership, the information cannot be judged if it cannot be seen.
There are few Presidents who had such a horrible time in the White House that they want their data deleted from history by making it secret, and why should that format be encouraged to hide behind the archive door and delete themselves from debate? Most Presidents are proud of their records and prefer to have it reviewed rather than deleted so that the time spent can be informative to the American public and the decisions they make.
For Presidents, non-release of information amounts to false courage much like that found in a bottle for alcoholics. Like false pride, and false self esteem from which so many are afflicted in American society, the practice helps to create false realities that foster fantasy worlds for Americans to live in.
Americans must gather unto themselves a commitment not to fall for such nefarious means as to give in to the temptation to write revisionist history to make up for the deficiencies that they are unable to face in character attributes.
Until Obama was elected, far too many Americans sought their self esteem in their wealth, in their religion, in their race, or in their gender, some even in their position, or in their education. Americans as a democracy have too much at stake to fall for such false endowment that confers privilege and patronage.
They are simply not the substance nor the objective of democracies that Americans need to embrace to exhibit national pride, by hiding under the rug the things that would be embarrassing if they were made public. Every public official who goes into office has always known that whatever occurred could and would be made public by a thriving community of journalists, hopefully limited by not propagandizing which is a poor substitute for substantive writing.
Journalists used to compete for high profile ideas, and stories; now they scramble for headlines and hype. If America has been that dumbed down, journalists are much of the reason for it. Citizens want more and deserve more. If journalists have to resort to sleaze to sell product, they are in the wrong business, or wrong end of the business. Journalism is for journalists with ideas relevant to the public, not those that are primarily self serving. Oddly, that's what the Presidency and Congress are all about too.
#1 Posted by Pat, CJR on Fri 21 May 2010 at 02:01 AM