Dismantling an Imperial Presidency

Lee White, April 2007

In a month that saw the passing of Arthur M. Schlesinger Jr., it seems somehow appropriate that the House of Representatives began to take major steps to dismantle what the noted historian had referred to as "The Imperial Presidency."

Anyone who wondered what a difference a Democratically controlled Congress would make for historians, archivists, and journalists need look no further than what transpired in the House of Representatives on March 14, 2007. On that day three major bills mandating increased public disclosure by the federal government were considered and passed overwhelmingly.

1. Presidential Records Act Amendments

Perhaps the most important House action for the historical community was the passage of H.R. 1255, the "Presidential Records Act Amendments of 2007." The National Coalition for History (NCH) issued a legislative alert to the historical and archival communities that generated over 1,700 letters to the House in support of the bill. I would like to thank everyone who responded to this alert!
H.R. 1255 passed by the House on March 14, 2007, by a vote of 333-93. This overwhelming level of support may prove to be critical down the road since it is well above the two-thirds total that would be required to override a presidential veto. On the previous day, the Office of Management and Budget (OMB) had issued a Statement of Administration Policy (SAP) threatening a presidential veto should the legislation pass the Congress. The SAP alleges that HR 1255 would cause a proliferation of lawsuits from those seeking access to presidential records. OMB also asserted that Congress was encroaching on the constitutionally based prerogative of executive privilege.

On the same day that the legislation passed the House, Senator Jeff Bingaman (D-N.M.) and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced a companion bill (S. 886) in the Senate. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs.

As passed by the House, the bill would do the following:

Overturn Bush Executive Order 13233. Under the Presidential Records Act, presidential records are supposed to be released to historians and the public 12 years after the end of a presidential administration. In November 2001, President George W. Bush issued Executive Order 13233, which overturned an executive order issued by President Reagan and gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The Presidential Records Act Amendments of 2007 would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.

Establish a Deadline for Review of Records. Under the Bush executive order, the Archivist of the United States must wait for both the current and the relevant former president to approve the release of presidential records, meaning that the review process could continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the archivist.

Limit the Authority of Former Presidents to Withhold Presidential Records. Under the Reagan executive order, a former president could request that the incumbent president assert a claim of executive privilege and thereby stop the release of the records. If the incumbent president decided not to assert executive privilege, however, the records would be released unless the former president could persuade a court to uphold the former president's assertion of the privilege. The Bush executive order reversed this process and required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would restore the Reagan approach, giving the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.

Require the President to Make Privilege Claims Personally. Under the Bush executive order, even designees of a former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president's estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to designees, relatives, or descendants.

Eliminate Executive Privilege Claims for Vice Presidents. In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is held only by presidents.

The bill would also require the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. The amendment was inspired by the well-publicized theft of documents from the National Archives by President Clinton's former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents.

2. Freedom Of Information Act Reform Bill

On March14, 2007, the House of Representatives, by a vote of 308-117, approved H.R. 1309, the "Freedom of Information Act Amendments of 2007." This legislation contains numerous provisions that will increase public access to government information by strengthening the Freedom of Information Act (FOIA).

The Office of Management and Budget (OMB) issued a SAP on H.R. 1309, expressing the Administration's opposition to the bill.

The bill reaffirms the presumption that records should be released to the public if disclosure is allowable under law and the agency cannot reasonably foresee harm from such a disclosure. This was the standard that was in effect during the Clinton administration. This provision would effectively rescind the "Ashcroft Memorandum" which was issued on October 12, 2001, in response to the 9/11 attacks and restore the "foreseeable harm" standard. The Ashcroft FOIA Memorandum established a "sound legal basis" standard. Under this standard, agencies are required to reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information. This provision was one of the major reasons expressed by the Administration in opposing the bill.

The bill also puts teeth into the requirement that agencies respond to FOIA requests within 20 days. H.R. 1309 makes this deadline meaningful by ensuring that the 20-day statutory clock runs immediately upon an agency's receipt of a request and by imposing consequences on federal agencies for missing the deadline. The bill also requires agencies to provide requesters with individualized tracking numbers for each request and access to a telephone or internet hotline with information about the status of requests.

The bill strengthens agency reporting requirements to identify excessive delays and requires each agency to make the raw data used to compile its annual reports publicly available. The bill also requires the Government Accountability Office to report annually on the Department of Homeland Security's use of the broad disclosure exemption for "critical infrastructure information."
H.R. 1309 creates a new FOIA ombudsman to help FOIA requesters resolve problems without having to resort to litigation. The FOIA ombudsman will be located at the National Archives and will help requesters by providing informal guidance and nonbinding opinions regarding rejected or delayed FOIA requests. The FOIA ombudsman will also review agency compliance with FOIA.

H.R. 1309 makes it more feasible for citizen groups to challenge the improper withholding of government information by expanding access to attorneys' fees for FOIA requesters who successfully challenge an agency's denial of information. The bill also holds agencies accountable for their decisions by enhancing the authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.

The legislation also requires agencies to provide reasons for each redaction in documents that are released in response to a FOIA request.

3. Presidential Library Funding Disclosure Bill

On March 14 2007, the House of Representatives approved H.R. 1254, the "Presidential Donation Reform Act of 2007," by a vote of 390-34. Presidential libraries are built using private funds raised by an organization or foundation working on behalf of the president. Under current law, donations for the presidential library can be unlimited in size and are not required to be disclosed. The bill would require that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more.

Organizations that raise funds for presidential libraries typically begin fundraising while the president remains in office. Before the library is turned over to the National Archives, these organizations must raise enough money to build the library and to provide the Archivist with an endowment for the maintenance of the facility. Under the legislation, organizations fundraising for presidential libraries would be required to disclose their donations while the president is in office and during the period before the federal government has taken possession of the library. The bill sets a minimum reporting period of four years after the end of a president's term.

Under the bill, presidential library fundraising organizations would be required to disclose to Congress and the Archivist the amount and date of each contribution, the name of the contributor, and if the contributor is an individual, the occupation of the contributor. The National Archives would be required to make the information available to the public through a free, searchable, and downloadable database on the internet.

One of the concerns the bill is designed to remedy is the fact that foreign nationals can make unlimited contributions to a sitting, or former, president's library foundation. This is in contrast to federal election laws which prohibit contributions by foreign nationals.

During consideration of the bill before the House Oversight and Government Reform Committee, an amendment offered by Ranking Minority Member Tom Davis (R-Va.), that would have made the law applicable to presidents after President George W. Bush, was defeated.

—Lee White is the executive director of the National Coalition for History. He can be reached at lwhite@historycoalition.org.