In early August 2007, as the House moved rapidly to pass legislation modifying the Foreign Intelligence Surveillance Act before its summer recess, lawmakers on both sides of the aisle seemed uncertain about the details of the bill they were debating. There had been intense negotiations with the White House, and only a handful of House members had been briefed on the details of the bill.
“I have some confusion over here,” Republican Heather A. Wilson of New Mexico complained to Jane Harman of California, the Democrat who chairs the Homeland Security subcommittee on intelligence. Harman said she had just come to the floor for a procedural vote and acknowledged that she didn’t have a copy of the latest draft. “It may be one I’ve seen,” she said, “but I’m not absolutely positive.” That moved California Republican David Dreier , the former chairman of the Rules Committee, to voice his frustration. “I think it is just absolute lunacy,” he said, “to believe that we are, at this moment, in a position to go ahead and vote upon something that we don’t know what it consists of.”
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SECRET WAYS: An elevator takes members of Congress to a secure room where they can discuss classified matters. Many of the Capitol’s secrets though, are more routine. (CQ / RYAN KELLY)
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In fact, the House was being asked to vote on something that was too secret to fully explain in public.
This may have been Congress at its most confidential, debating a matter of manifest national security. But the secret side of Capitol Hill is not at all limited to military or intelligence policy. For all its apparent openness, its televised debates and public hearings, Congress is more secretive than its reputation suggests. Closed or restricted access to legislative meetings and records may not be the rule, but such behavior is hardly viewed as an exception anymore.
In response to pressure from voters, the culture of the Internet era and the bad publicity brought about by scandals in recent years, the House and Senate have taken limited steps toward sharing more information — the most prominent being the comprehensive online legislative database known as Thomas — but they’ve hardly thrown open the doors.
In some instances, Congress has promised more openness but then regressed, such as when the Senate voted almost two years ago to disclose more information from the letters senators write requesting appropriations earmarks. The provision was quietly dropped before the final version of the lobbying overhaul to which it had been attached became law.
Other instances appear to defy logic: A bill is drafted behind locked doors in one committee, but then a second committee debates the identical measure in open session. How members of a Senate committee vote on a presidential nominee is kept secret because the panel issues written reports only about its views on legislation.
Now the pressure on Congress to open up is coming from President-elect Barack Obama , who during the campaign promised to run a more transparent administration — and to persuade Congress to do likewise. In a September speech outlining his plans for opening up the White House, Obama asked the leaders of his party in Congress to allow the public into the deliberations by all legislative conference committees and to disclose what industries would be expected to benefit from proposed tax breaks before Congress.
“As president,” Obama said, “I will make it impossible for congressmen or lobbyists to slip pork-barrel projects or corporate welfare into laws when no one is looking because when I am president, meetings where laws are written will be more open to the public. No more secrecy.”
Critics of congressional secrecy argue that the practice is not only undemocratic, it is particularly hypocritical, and it undercuts the public’s confidence in government.
“The long-term cost is that it undermines the integrity of the process,” said Steven Aftergood, director of the project on government secrecy for the Federation of American Scientists. “And it generates cynicism on the part of members and on the part of the public. People start to feel that the process is rigged by those in power.”
And even though Democrats spent eight years excoriating the Bush administration’s secrecy practices, the penchant for secrecy appears to be much the same under Democratic control of Congress during the past two years as it was under the Republicans before.
“I think both parties are quite happy in most cases to do things in the shadows, because it means the public only knows what they want them to know,” said Steve Ellis, vice president of the budget watchdog group Taxpayers for Common Sense. “It’s anathema to democracy.”
Whether Obama’s pleas for openness have any effect remains to be seen. It is not unprecedented for a chief executive, especially one who cuts his political teeth in Congress, to challenge his former colleagues to change their ways of doing business. In the 1960s, John F. Kennedy and then Lyndon B. Johnson pressed the House to curb the powers of its Rules Committee to limit the ability of the Southern Democrats to use that panel to block civil rights legislation and Great Society programs.
Today’s Democratic leaders, though, believe they have made things more transparent, and they have plans of their own to promote openness. They don’t seem to think it is necessary to pursue the incoming president’s suggestions. And, in fact, if Obama presses the point next year, it might be an early source of tension with Congress.
Last week Brendan Daly, a spokesman for Speaker Nancy Pelosi of California, said the House now requires at least one open conference committee meeting for each bill, and “I don’t know of any discussions yet about going further.” Jim Manley, a spokesman for Senate Majority Leader Harry Reid of Nevada, said neither he nor Reid would comment on Obama’s proposals.
“I don’t think Congress has ever been a terribly open institution,” said Ellen Miller, a long-time campaigner for open government and currently executive director of the Sunlight Foundation, a nonprofit she co-founded two years ago. “It’s as if it erected a firewall around its information a long time ago, and there has been a continual cultural resistance to providing information in a timely, contemporary fashion.”
Setting Its Own Rules
In its earliest days, Congress met virtually in private — the first spectator galleries did not open until the House and Senate had been meeting for five years — and was not on view for the country at large until 1979, when C-Span was permitted to begin televising the proceedings on the House floor. It was another seven years before the Senate followed suit.
The House and Senate set their own rules and exempt themselves from laws as they see fit. The Freedom of Information Act, for instance, which allows the public to request and receive documents from the departments and agencies of the executive branch, doesn’t apply to Congress. Only in the mid-1990s, after Republicans gained control of the House and Senate, did Congress put itself under 11 federal labor and anti-discrimination laws.
Despite the public nature of its floor debates and its daily Congressional Record recounting the proceedings, though, much of what Congress does remains unrecorded.
Few committees keep records that the public can easily access — on a Web site, for example — of how the members voted on the bills and amendments to those bills considered there. There is no public database of the amendments offered during such committee markups. Some committees provide copies of amendments to anyone who attends a markup; others restrict access so tightly that no paper is circulated except on the dais were the members sit.
And though votes in committee are generally cast in the open, those who aren’t there in person often have to rely on others to learn what happened, by, for example, subscribing to specialized news services or by watching footage on the Web sites of those committees that maintain archives. (Congressional Quarterly Inc., which publishes this magazine, is one of the companies that sells online coverage of markups and access to its databases of amendments and vote tallies.)
That’s not to say that it’s always easy to get into a committee meeting. Some of them, such as Appropriations subcommittee markups, often take place in spaces the size of middle-class suburban living rooms, and so admission is restricted to a handful of reporters and members of the public in addition to the lawmakers and their aides.
Individual committee practices vary on other types of information. Some readily share the replies to the “questions for the record” that witnesses are asked to answer in order to supplement or clarify their testimony at hearings; other panels never release the answers or delay the release until long after interest in the hearing has faded.
The House Appropriations Committee, for example, has a surveys and investigation team assigned to investigate the worthiness of federal programs, similar to the function of the Government Accountability Office. But, unlike the GAO, none of the team’s reports have been made public in at least two years.
Although congressional committees are supposed to notify the public about the time and place of their meetings and allow access, there are exceptions. Members of Senate panels sometimes assemble just outside the Senate chamber to approve legislation, sometimes on very short notice. When a quorum of the Health, Education, Labor and Pensions Committee convened off the floor in March to advance four non-controversial bills, one of them to reauthorize a prenatal care program, no public notice was given at all; there wasn’t time, the staff explained.
There are even times when the executive branch is a better source for what Congress is doing than Congress itself. For instance, lawmakers are not required to disclose contacts with federal agency officials, but a FOIA request to an agency will generally result in a detailing of those same contacts.
Even after legislation has been passed by both the House and Senate, it sometimes slips from public view. Conference committees, where the differences between the two versions are supposed to be resolved before a compromise is put up for final votes on both sides of the Capitol, have largely become a facade that obscures the real deal-making, which usually goes on beforehand or in private sessions. Conferences, in fact, have largely been dispensed with on controversial legislation; instead, more and more often the agreements are worked out by the leadership and written into new legislation that is then put to the House and Senate. The fiscal mortgage relief bill passed in August was one of several measures completed through informal negotiations without a conference.
Congressional leaders sometimes bypass the entire committee process as the civics textbooks describe it — public hearings followed by subcommittee and then full committee drafting sessions — and are especially inclined to do so when the bill is supposed to address an urgent and important national problem. Versions of a $700 billion financial market bailout bill were debated in the House twice in the same week this fall, the drafting done both times by the Bush administration and congressional leaders almost entirely outside the normal committee process. Groups campaigning for government openness say that legislation should be made public at least 72 hours before a vote on passage so that lawmakers, and other interested parties, have a decent opportunity to read and understand it — especially when the normal process is circumvented. (The Senate began considering the 451-page version of the bailout bill that ultimately became law only 11 hours after it was posted online.)
Once a bill reaches the floor, it is not always clear what is happening. Senators have been able to anonymously hold up a bill, though the practice is more difficult now than it was.
Even the Congressional Record does not always reflect what happened on the floor, since lawmakers are routinely granted permission to “revise and extend” — or expurgate — their remarks.
Other routine records are either kept in near secrecy or made difficult to obtain. Details of lawmakers’ taxpayer-funded mass mailings and the forms they fill out when they open legal expense funds are not available online; congressional office expenses are published only in thick paperback books issued every three months, as has been the case for decades.
Reports of the Congressional Research Service, a Library of Congress agency that performs background work on hundreds of subjects at the request of lawmakers, are not released to the public, though some are leaked and then posted on the Internet by public-interest groups. For several years, the House Administration Committee allowed a handful of lawmakers to provide CRS reports to the public through their congressional Web sites, but then abruptly canceled the project, saying it had only been an experiment.
And though campaign finance reports are filed, only limited information is available about donors who were particularly influential in the 2008 elections — bundlers and those contributing less than $200 — and Senate campaign finance records are not filed electronically, which makes them difficult to post online.
The area of congressional secrecy that stirs the least amount of debate is national security, especially intelligence. “We must abide by our rules,” said Courtney Littig, a spokeswoman for the House Permanent Select Committee on Intelligence. “We always work to balance the necessity for secrecy with the importance of openness.”
Classified Procedures
But some groups who study this area say Congress doesn’t release as much information in that field as it could or should. In fact, they say the Intelligence committees go too far in keeping routine material secret.
The House and Senate Intelligence panels have broad discretion to decide what information should be released by labeling it “committee sensitive.” Staff members can be fired for releasing such material, even if it does not touch on classified matters.
Caroline Fredrickson, director of the American Civil Liberties Union’s Washington legislative office, said the Senate committee’s tendency to keep even the title subjects of its closed hearings secret is unjustifiable. “They have closed hearings that don’t deal with classified material, and they won’t even allow staff to discuss the subject of those closed hearings that aren’t classified,” she said. “It’s one thing to say that certain information that’s going to be discussed should be kept classified, but the idea that the subject shouldn’t be disclosed?”
The House panel routinely discloses the subjects of its closed meetings, even if lawmakers have dealt with classified material. On Sept. 9, for instance, it held a session on “intelligence operations and Al Qaeda.”
The Senate committee marks up all of its legislation in closed sessions. Although committee members sometimes release information about those sessions later, it’s usually a week or more before the legislation — or at least the unclassified parts — and committee report are shown to the public. The bill is marked up in draft form and not formally introduced until the committee report is ready to be filed. A committee aide (who is essentially never authorized to speak for attribution) said tradition governs the practice, and it gives committee members several days to file additional views.
“Could we introduce something, then have it referred to committee before it’s marked up?” the aide asked rhetorically. “Perhaps. But it’s always been a one-step process.”
Senators on the panel can, and often do, keep how they voted on the legislation private for a time — until the results of the roll calls are published in the committee report. There is nothing classified about their votes.
On at least one occasion since Democrats took control of the Senate, the committee failed to make public its roll call vote a year ago on a nomination — of Donald M. Kerr to be deputy Director of National Intelligence. The reason sounds like a classic Catch-22. According to the Intelligence aide, the panel makes public how each senator votes when it publishes committee reports; since reports aren’t usually filed on nominations that come before the panel, it had no forum for publicizing the results of the roll call vote.
Unusual procedures are not new to national security committees. When Republicans controlled House Intelligence, their policy was to hold what they called open/closed markups. The sessions would be officially open, at least at the start, but they would close as soon as the members began discussing classified information. The complicating factor was that the committee convened its meetings in a room tucked away under the Capitol dome that is essentially accessible only by an elevator reserved for the exclusive use of “authorized personnel,” not members of the public.
Democrats criticized this practice at the time, saying the committee should have used two rooms, one for the open part of its markups and a secure room for the closed meetings. That way, they said, the public could be allowed in for at least the start of the markups. But when Democrats took over the House in 2007, they made no real changes. The same room is being used for markups, and no transcripts of the open portions have been released despite the Democrats’ promises to do so.
The two Armed Services committees, meanwhile, have divergent views on whether the public should be able to watch them mark up the annual multibillion-dollar defense authorization bill. The House panel works openly, the Senate panel behind closed doors.
One Senate Armed Services member, Missouri Democrat Claire McCaskill , has repeatedly called on the panel to hold the markup in the open. “It’s doesn’t make sense to close the hearing when we are working on a section of the defense bill that doesn’t contain any classified information,” she said after the most recent markup in April. “There’s no reason why the committee can’t just close the parts of the meetings that do contain sensitive information and open the rest.”
Committee leaders have argued in the past that a closed markup is necessary to protect classified information, although McCaskill also said several of her colleagues have told her that another reason a markup is closed is to limit any interference from lobbyists.
In a seemingly random reversal, the annual Defense appropriations bill — the measure that actually allocates the money for the policies and programs spelled out in the authorization measure — is marked up entirely in the open on the Senate side, but initially in a closed session by the House’s Defense Appropriations Subcommittee, followed by an open session in the full Appropriations Committee.
The subcommittee, said spokesman Matt Mazonkey, holds the closed sessions so members can discuss classified matters.
The entire House or Senate is allowed by the Constitution to hold secret sessions to discuss sensitive subjects, but the most recent two were the subject of partisan recriminations. In 2005, Senate Democrats ordered the chamber’s doors secured before a discussion of an Intelligence Committee investigation of Iraq pre-war intelligence — an inquiry that the Democrats alleged had been stalled by the GOP. The maneuver angered Republicans, and while senators did discuss ways to dislodge the investigation in the closed session, the probe was not completed until this year.
The first closed session of the House in 25 years was held in March, when Republicans sought to lock the doors before a discussion of classified material that could bolster the case for an expansion of presidents’ surveillance powers. Democrats only agreed to the session after a group of liberals tied up the request on the floor to make a point that meeting in secret, in the words of Ohio’s Dennis J. Kucinich , “violates the spirit of the House.” After the session, Democrats asserted that it had been fruitless.
In 1999, the Senate met in closed session for two days to deliberate their verdicts after the impeachment trial of President Bill Clinton. The leadership’s rationale at the time was that the closed doors would prompt more thoughtful discussions and reduce rhetorical excess; senators of both parties said afterward that none of their colleagues behaved differently once they were behind closed doors, and so the secrecy of the deliberations was pointless.
Truth and Consequences
Transparency advocates argue that secrecy doesn’t just impede voters seeking information, it is contrary to democratic principles, has contributed to cases of congressional corruption and makes lawmakers look bad when they seem to have a double standard, such as criticizing secrecy in the Bush administration while keeping secrets themselves.
Ellis says Taxpayers for Common Sense’s goal is to “democratize the budget” by finding things that lawmakers do not disclose. But he said it shouldn’t have to be his group’s job to democratize anything; Congress should behave in such a way that Taxpayers for Common Sense spends its time elsewhere.
Still, Ellis said, some Hill staff members have confided to him that if they were required to disclose more information about the earmarks they request, they would ask for fewer earmarks. During the closed markup last year of the Senate’s defense authorization bill, Armed Services Chairman Carl Levin , a Michigan Democrat, led an unsuccessful effort to prevent the committee from publishing a list of a great many earmarks — a move, Ellis said, that Levin might not have made had he known it would have become public.
Even classified earmarks are disclosed now, though with fewer details than other directed spending, following the bribery conviction three years ago of Republican Rep. Randy “Duke” Cunningham of California, who inserted classified earmarks in behalf of business friends into intelligence authorization and Defense appropriations bills.
To keep some material secret, Congress sometimes relies on the same rationale as the Bush administration. The administration, for instance, has argued that making summaries of National Intelligence Estimates public, as Congress has sometimes requested, would lead to analysts no longer providing “unvarnished” reports. When congressional leaders justify keeping CRS reports private, they say CRS analysts must be free to provide Congress with frank assessments.
“It’s great to point fingers at the administration, and I’m glad they do, but they have some cleaning house to do themselves,” said Christopher Anders, senior legislative counsel of the ACLU.
Lawmakers also say that meeting behind closed doors is sometimes the best way to get things done, and Aftergood, the anti-secrecy advocate for the federation of scientists, doesn’t argue the point. But he said it comes with a cost. “Congressional secrecy, like executive secrecy, is often based on a calculation of short-term gain, and that overlooks long-term negative impacts,” he said. “In the short term, secrecy can be advantageous by limiting debate and therefore opposition. It can be tactically useful in influencing the course of legislation as well as avoiding controversy.”
When the Bush administration refused to allow some officials to testify in open session about the firing of U.S. attorneys, Democrats balked, arguing that a closed-door meeting would prevent them from getting to the bottom of the matter.
“The relatively weak and deferential position of Congress on things like domestic surveillance and prisoner interrogation, I think, can be explained by the fact that so much of the dispute was conducted behind closed doors, at least for a period of years,” Aftergood said. “And basically Congress was deprived of one of its most powerful tools, which is the open airing of policy disputes, with the accompanying media coverage and so forth.”
A Glass Half Full
Is Congress more open than other branches of the government? Probably, according to experts, but comparisons are difficult.
Lawmakers usually don’t make available their daily schedules in the same level of detail that’s required of senior agency officials, but the agencies don’t broadcast their deliberative meetings on cable television. Some individual agencies are less secretive than others, and all have to abide by laws that Congress passes.
Congress, said Julian E. Zelizer, a professor of history and public affairs at Princeton University, “is more open than it was for most of American history, and it’s probably more open than the executive branch.”
The transparency began in earnest in the 1970s, after the Watergate scandal, and was helped along, Zelizer said, by “a generation of liberal Northern Democrats who believed you had to open up the system.”
In the second half of the 1990s, at the urging of House Speaker Newt Gingrich, R-Ga., Congress began to make much more information available on the Internet.
Those two advances are arguably the most significant, but there have been others, such as the 2002 law that required more disclosure of campaign donors and the 2007 ethics overhaul package that required at least some more disclosure about earmarks.
Democratic leaders have demonstrated some commitment to becoming more open, however gradually, and varied groups will add to that pressure. But until lawmakers embrace greater transparency as something that benefits them, Congress is unlikely to alter its historical pattern. Pelosi spokesman Daly said the Speaker continues to act on suggestions from the Open House Project, a collection of bloggers, watchdog groups and nonprofit organizations led by the Sunlight Foundation. Among the changes made already are new rules that allow lawmakers more freedom to post videos on the Web.
And Reid’s spokesman, Manley, said Democrats have “enacted the most sweeping reforms ever” on earmarks.
“Things are better than they were five years ago, to some extent,” said Danielle Brian, executive director of the Project on Government Oversight, a watchdog group that is not part of the Open House Project. “When there was a flip in the Congress, there was some improvement, but not much.”
Obama’s call for greater openness might result in more changes if he pushes the issue, but some adjustments may result from pressure within the institution. Lawmakers, particularly younger members, are more technologically savvy and want to use the Internet to reach constituents, and a national audience. Democratic Rep. Michael M. Honda of California is pushing, with some success, for Congress to make more of its records available in XML format, which allows easy linking of data.
But it has not always been easy to push lawmakers toward going online. “There’s been a bit of the nonprofit and advocacy community shaming them into getting on the digital bandwagon,” said Sheila Krumholz, executive director of the Center for Responsive Politics, a campaign finance watchdog group
The public also wants more access to Congress and its information. “There’s this whole new sector of members of the public online,” said John Wonderlich, who founded the Open House Project.
Lawmakers in the 1970s reasoned that more openness could benefit not just voters, but Congress itself. That isn’t necessarily true, said Princeton’s Zelizer, thanks to 19th Century German Chancellor Otto von Bismarck’s saying that the two things no one should want to see being made are sausage and legislation.
“It might not result in better ratings for Congress,” the professor said. “They thought, ‘If you make it more open, people will like it more.’ That actually didn’t happen.”
On the other hand, some lawmakers have found way to exploit a new visibility. “It took them a long time to realize the television camera was not a deadly thing for their careers,” Zelizer said. “Once it was there, they couldn’t get enough of it.”
FOR FURTHER READING: Financial rescue (PL 110-343), CQ Weekly, p. 2692; mortgage relief (PL 110-289), p. 2132; last closed House session, p. 725; FISA rewrite (PL 110-55), 2007 Almanac, p. 14-3; lobbying overhaul (PL 110-81), 2007 Almanac, p. 5-3; last closed Senate session, 2005 CQ Weekly, p. 2991; Cunningham, 2005 Almanac, p. 5-5; campaign finance overhaul (PL 107-155), 2002 Almanac, p. 14-7; congressional compliance with labor law (PL 104-1), 1995 Almanac, p. 1-31; Clinton impeachment, 1999 Almanac, p. 13-3, 1998 Almanac, p. 12-3; TV in Congress, 1986 Almanac, p. 43.
A federal appeals court ruling late Monday is the cause célèbre of the American Civil Liberties Union, as another provision of the Bush administration’s Patriot Act falls to the judicial system.
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