May 16, 2016 at 4:05 p.m.
On transparency and executive overreach
On transparency and executive overreach
He may be transparent in his own mind, and in the minds of the media charlatans who give him transparency awards - yes, they really do - but at every turn he has tried to thwart openness. He has slowed down responses to open-records requests dramatically, turned on whistleblowers, and, when confronted with requests, the administration often says it can't find any records, only to find thousands of them if they are sued.
Today, we report on yet another lawsuit, this one by the Cause of Action Institute, over records requests that haven't been properly answered - or answered at all - for months and even years.
What catches our eye in this tale, however, is not just another instance of violating the federal Freedom of Information Act but its intersection with the Obama administration's famed love for executive overreach.
It serves to underscore the vital connection between executive bureaucratic power and secrecy in government, and to point out the importance of open records laws and of open government as ways to thwart the unelected chieftains of the federal leviathan.
At the heart of bureaucratic collectivism - that massive and increasingly unified matrix of federal bureaucracies - is its intransigent opposition to open government. Indeed, in a modern and technological world, especially in a nation whose people are imbued with a naturally born love of liberty, bureaucratic power cannot long survive without camouflage.
That is to say, if the curtain is pulled back and the bureaucracy is exposed as the natural totalitarian entity it is, its legitimacy vanishes in a heartbeat. The house of cards collapses.
Thus the need for secrecy: Open government is kryptonite to bureaucratic collective power.
On the surface, agencies and their special-interest allies spin dreams of social justice and power to the people, and the mainstream media is happy to play along, providing cover for the real transactions taking place far away from the public eye.
But what is really going on inside the walls of government is different indeed, and the Cause of Action lawsuit gives us a glimpse into those machinations.
We learn in this lawsuit that there's something called "White House equities." Simply put, this means the White House wants to screen every open-records request that might be politically embarrassing (aka a White House inequity) or even newsworthy. In other words, most of them.
There's nothing illegal per se about that, though as CoA points out in its lawsuit, the FOIA does not permit agencies to withhold information on grounds of political expedience or potential embarrassment.
But legally the administration can review the records, so long as they complete their review and turn over the records within the legally established deadlines and so long as the review does not prompt illegal exemptions from disclosure.
But that's what is troubling. Why would the White House be screening records unless they know they are going to thwart the deadlines for disclosure or suppress otherwise releasable information? After all, the agencies' records custodians are, or should be, making the call about what is disclosable and what is not.
In other words, the White House review is clearly nothing more than political interference in the FOIA process, and, as the CoA points out, the effect is numbing.
"Parties whose FOIA requests implicate White House equities are not informed when their requests are forwarded to the White House, and so they will rarely know that political interference occurred," the complaint states. "It is difficult to determine how many FOIA requests on topics of pressing public importance - the requests where prompt processing is of the essence - are now held up by (the White House). The potential chilling effect on political speech and government accountability investigations is plain. The non-public nature of the ... process also makes judicial review and correction of the White House policy difficult."
Perhaps that is why the FOIA does not provide for such review, and probably should be amended to explicitly preclude it. It's not necessary and thus is beyond the administration's legal power and authority.
What's more, the White House review has established a pattern that repeatedly undercuts the FOIA, and so, while a review might not be illegal per se, the established pattern and outcome of those reviews clearly constitutes arbitrary and capricious conduct under the Administrative Procedure Act.
It is thus not merely extra-legal; it is illegal.
And so we have the intersection of secret government and executive overreach, this time the subversion of the law to thwart transparency, or, we might say, the defiance of the law to conceal the nation's real law-making machinery, the bureaucracy.
It reminds us why we need transparency in the first place. It's because the people need to see what the government is doing to ensure that it is carrying out the people's will and way. It is not merely about uncovering individual corruption but about preventing systemic corruption: the wholesale and unconstitutional usurpation of power away from elected officials.
As such, open government should be viewed not as a side dish to a menu full of meatier dishes, such as immigration, national security, and economic prosperity, but as an entree every bit as important to the health of the nation as any other menu item, and perhaps more so.
And a good place to start to promote transparency on the federal level would be to strengthen the FOIA, and in particular explicitly outlaw the executive branch's political reviews of open-records requests.
For when a partisan political apparatus reviews and controls official government functions, and decides whether to comply with the law of the land, that's not called a democracy or a republic; it's called a soviet.
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