Presidential Records In the Dark


It’s interesting to watch what happens in Congress when "because that’s the way we’ve always done it" no longer becomes an option. For years, Senators have put secret holds on bills they wanted to block. These anonymous objections have been used by both parties to bring to a screeching halt legislation that has the support of a majority of the Members. Sunlight has long-championed putting that tired tradition to rest. A provision we lobbied for in the recently-enacted Honest Leadership and Open Government Act does that, more or less, by requiring Senators to come clean about their holds after five days. Ironically, we’ve seen the results of this provision on two important transparency related measures.

Paul Blumenthal blogged about Senator Ensign’s hold on S. 223, the Senate Campaign Finance Disclosure Parity Act, earlier in the week. We have reason to wonder whether the hold was Ensign’s doing all along. Similarly, Senator Jim Bunning now has an objection to moving forward with HR 1255, the Presidential Records Act Amendments of 2007. The bill would overturn an outrageous Executive Order that would keep presidential records hidden from public view indefinitely.

The EO turns on its head the purpose and principles of the Presidential Records Act, which was enacted in 1978 to ensure that presidential records are the property of the federal government. In a nutshell, the PRA says that once the president leaves office, the National Archives has control of his papers. Many papers, including those that contain national security information and information about confidential communications between the president and his advisors, must be kept secret for 12 years after the president’s last day in office. After that, the records are supposed to become available under FOIA standards, with an exception for classified information.

President Bush has used his executive order to ensure that the records of his most secretive administration remain hidden indefinitely. Now, all a president has to do is claim a record is privileged and anyone seeking these presidential records has to prove it is not–even if the president’s claim is completely unfounded. A reporter, historian, professor or anyone else trying to learn about a prior administration would also have to prove there is a "demonstrated, specific need" for the documents. But, in case those massive obstacles to transparency weren’t enough, the president’s EO grants control of the documents to the president’s heirs. Years from now, Jenna Bush could claim executive privilege!

The Presidential Records Act Amendments of 2007 would lift this shroud of secrecy from presidential records. The bill, which was introduced by Congressman Henry Waxman passed the House by a vote of 333 to 93. Under Senator Lieberman’s sponsorship, it sailed through the Senate Committee on Homeland Security and Governmental Affairs but then came to a dead stop. Why? Because a Senator or Senators put a secret hold on a bill. Now, whether or not he has had the hold all along, Senator Bunning has been forced to take responsibility for the objection. That makes us happy. But until our elected officials in Congress and the White House feel shamed by the efforts they take to keep secrets, we have a lot more work to do.