Lawmakers say they value open government. But not for themselves.

September 21, 2017
Image via Wikimedia Commons

Frustrated by the secrecy surrounding Obamacare repeal efforts earlier this year, transparency advocacy group American Oversight in March fired off a series of requests under the Freedom of Information Act. The group asked, among other things, for healthcare-related correspondence between Congress and federal agencies. A federal district court later ruled that a trove of documents should be released. American Oversight received and published the latest batch earlier this month.

Last week, the general counsel of the House of Representatives went to court to argue that some of the correspondence should never have been made public, saying it was clearly marked as “Congressional,” and thus exempt from FOIA. He argued that releasing correspondence between Congress and federal agencies could “impair” Congressional scrutiny.

For Austin Evers, an Obama-era State Department lawyer who is now executive director of American Oversight, that doesn’t add up. He referred to one email exchange in particular, in which a Congressional staffer and an official at the White House Office of Management and Budget joke about the healthcare bill. “I don’t think the emails [show] them conducting oversight of the executive branch,” Evers says. “I think it’s former pals from the House going back and forth over very unpopular healthcare legislation.”

FOIA does not apply to Congress. But it does apply to federal agencies. That makes communication between Congress and those agencies a legal gray area. And transparency advocates like Evers are worried that some members of Congress, particularly in the House of Representatives, are using that ambiguity more frequently to hide often-cozy relationships with federal government staff.

In April, for example, the Republican chair of the House Financial Services Committee, Rep. Jeb Hensarling, fired off letters to a dozen government agencies, warning that all correspondence with his committee should be exempt from FOIA. And in May, BuzzFeed reported that the House Ways and Means Committee had taken similar steps to shield its correspondence with the Centers for Medicare and Medicaid Services.

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The offices of Rep. Hensarling and of House General Counsel Thomas Hungar did not respond to requests for comment.

“I think we’ve really seen it take off in 2017. All of a sudden we’re seeing much more aggressive tactics taken by the House,” says Evers. “It shows a very bad instinct on their part against transparency.”

Case law has tended to skew in Congress’s favor when it comes to the FOIA status of its communications with federal agencies. But the law isn’t entirely clear.

“This is a murky area. It’s definitely not the case that everything that Congress sends to an executive branch agency is exempt from FOIA just because it was sent from Congress. It’s also not the rule that everything that Congress sends to the executive branch is subject to FOIA,” says Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press. “The notion that any kind of oversight function is automatically kept secret strikes me as a little bit ridiculous.”

One important distinction, Marshall says, is that Congress can’t retroactively exempt correspondence with executive agencies from FOIA. Others say the existing law doesn’t provide for sweeping exemptions at all, even if they’re applied before correspondence is sent.

“The notion that any kind of oversight function is automatically kept secret strikes me as a little bit ridiculous.”

Nate Jones, director of the FOIA Project at the National Security Archive, says the courts won’t stand for claims that Congressional correspondence with agencies should be routinely off-limits. He also says that transparency groups shining a light on certain elected officials’ creeping inclination to secrecy will put pressure on them to cut it out.

“They’re trying to do this secretly, and they think the public’s not gonna care they’re attempting to eviscerate the Freedom of Information Act,” Jones says in an interview with CJR. “We have to expose it, and make sure it doesn’t happen in a cigar-filled room but in a public forum, and that constituents know what their representatives are doing and tell them to stop doing it.”

A more durable fix than litigation and public pressure would be for Congress to pass a law subjecting itself to FOIA. That would remove much of the present ambiguity about the privileged status of Congressional correspondence with the government and would, according to advocates like Evers and Marshall, shine an important light on how the legislature interacts with the agencies it scrutinizes.

“I’ve looked at public records laws around the world, and we are way behind,” says David Cuillier, a FOIA expert at the University of Arizona. “The fact that Congress and the courts aren’t subject to FOIA is embarrassing. It’s about time they step up after 50-something years of hypocrisy.”

Advocates say Congress could easily fold in exemptions around legislative negotiations, national security, and other sensitive information—exemptions that already apply to existing FOIA laws—were it to come under FOIA’s purview. At the very least, legislators could agree to make Congressional records publicly available once a certain amount of time has elapsed. As things stand, their deliberations can remain secret indefinitely.

“There’s tremendous benefit for the historical record and for agencies to say, ‘We need to make this compromise now, but understanding that in 25 years it’s gonna be public,’” says Michael Morisy, co-founder of transparency news site MuckRock. “That allows them the freedom to negotiate, the freedom to brainstorm, while also making sure they always remember they’re beholden to the public.”

“The fact that Congress and the courts aren’t subject to FOIA is embarrassing. It’s about time they step up after 50-something years of hypocrisy.”

Alexis Coe, an author and historian who was denied access to many of Joseph McCarthy’s papers because they were considered Congressional records and therefore exempt from FOIA, agrees. “In order to understand anything in political history one needs every document, no matter how dry it might seem,” she says. “FOIA should be the greatest aid we have.”

It’s almost inconceivable that Congress will make its records subject to FOIA any time soon. But whether or not it takes positive action, a push to limit transparency doesn’t reflect public opinion. According to the Roper Center at Cornell University, American voters continue to demand greater openness from the government.  

Evers, of American Oversight, says Congress understands this, and that the recent under-the-radar actions of some lawmakers are out of step with legislation Congress passed last year to strengthen FOIA. He points out that Hensarling, the committee chair who told agencies not to release his correspondence with them, was a co-sponsor of that bill.

“If they wanted [full secrecy] to be the law, they could have written it that way. They could have gone through the process of presenting their ideas to the American public,” says Evers. “Instead, what they’re trying to do is maintain and expand on a legal loophole in the case law, so no one has to take credit for trying to hide these documents.”

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.