Attacks on transparency take many forms

Like any government agency, the Office of Congressional Ethics (OCE) could be improved.  The independent body was established in 2008 after three members of Congress were indicted for bribery – including one found with cash in his freezer – but it is reasonable to worry that such public scandals led to insufficient due process protections for those accused of misconduct.

What was unacceptable, however, was the attempt by the House GOP to cripple that ethics body in a closed-door meeting just as Congress convened at the beginning of January 2017. This tactic allows no public debate beforehand and no accountability afterwards. Unfortunately, this kind of interference with transparency has become all too common in government, and those concerned by it should know that Congress may be the least of their worries. 

{mosads}Citizens deserve government that is open, honest, and fair, but the temptation to limit accountability will always be present wherever there is power. Independent oversight is necessary to counter this, but the House majority sought to weaken that oversight by granting itself the power to end any OCE investigation.

The proposal was withdrawn after a public outcry, but most attempts to limit government transparency are not this awkward or this obvious, and they often succeed as a result. One of the reasons that the OCE vote became a major story is because it happened in the legislative branch, a place that is usually accountable to its constituents.  Yet nobody knows the names of the 119 House members who voted to weaken the OCE – or even if that number is accurate – despite the best efforts of organizations like the Sunlight Foundation to crowdsource a record of votes.

This kind of anonymity is more typical of the executive branch, where unelected officials are often exempt from open record laws such as the Freedom of Information Act (FOIA) or work to frustrate the intent of those laws. The result is a level of secrecy far beyond what Congress can get away with.  Requests for government records can languish for years, and any response that does arrive may be heavily redacted.  

One glaring example of this behavior is “sensitive review,” a bureaucratic creation designed to politicize what should be a simple process. Instead of honoring FOIA requests and producing records the public is entitled to have, agencies have subjected requests to heightened scrutiny whenever records might contain “sensitive information,” a vague term that might better be defined as “anything that might make us look bad.”

This screening often involves political appointees instead of career agency professionals, introducing partisanship where none should exist. This improper practice has spread throughout government, with inspector general reports confirming its use at the departments of Homeland Security, Interior, Commerce, Agriculture, and several others. When Cause of Action asked for an explanation for this behavior, agencies such as the Treasury Department spent years refusing to answer.

Another unpublicized example of the executive branch’s attempt to frustrate transparency was a memo sent by President Obama’s top lawyer in April 2009 to every government agency demanding notice of and consultation on any record request “that may involve White House equities.”

Over 25 different transparency groups urged the president to clarify or withdraw this extraordinarily broad standard, as the president has some kind of stake in every part of government.  This White House practice caused significant delays in providing records to the public, and when asked to show that politics had not corrupted the FOIA process as a result, the government again refused to answer. By imposing itself so deeply in the transparency process, the Obama White House had the same goal in mind as House Republicans did when going after OCE or federal agencies do when using “sensitive review”: placing its own interest in avoiding embarrassment above the public’s interest in knowing what their government is doing.

In addition to its secrecy, many were surprised by the suddenness of the OCE proposal – the confetti had barely been cleaned up from New Year’s Day when the vote took place. A new Congress always passes a set of rules, but this is the first time it considered removing a core ethics reform before the ceremonial swearing-in photos had even been taken. This rush to act was criticized by everyone from President-elect Trump to House Minority Leader Nancy Pelosi.

But moving quickly is a key part of moving quietly, at least in politics.  President Obama was still in his first 100 days when the “White House equities” memo was issued, and presidents from both parties rush to enact regulations on their way out of office as well.  Bill Clinton and George W. Bush combined for almost 300 so-called “midnight regulations” covering billions of dollars in economic activity, and President Obama did his best to match them.

By starting the 115th Congress with an attack on the Office of Congressional Ethics, the House GOP gave the public an unusually direct look into how government tries to protect itself. It was a powerful warning about the perpetual need for transparency no matter the branch of government or the party in charge. This attempt may have failed, but a similar level of public vigilance is required to ensure other attempts also fail, especially in those parts of government less accessible and accountable than the representatives we elect directly.

John McGlothlin is counsel at Cause of Action Institute, a District of Columbia non-profit government oversight organization.