How the Cornyn-Leahy transparency bill suddenly died in Congress

By Josh Hicks
Washington Post
Originally published Dec. 16, 2014

Nothing comes easy for the current Congress, which has already left its mark as one of the least productive in U.S. history.

The Fighting 113th has agreed in principle on the need to strengthen the Freedom of Information Act, a key government-transparency law that guarantees public access to federal records.

But House leaders last week shrugged off an opportunity to schedule the Senate’s FOIA Improvement Act for a vote, despite bipartisan prodding from Reps. Darrell Issa (R-Calif.) and Elijah Cummings (D-Md.), who sponsored similar House legislation.

The House and Senate approved their respective FOIA bills unanimously this year. So why did the Senate legislation stall in the House last week?

The Senate bill, which moved to the House last Monday, would have established a “presumption of openness” with government documents, codifying a directive that President Obama issued to federal agencies in 2009.

The bill also would have restricted a FOIA exemption that allows the government to deny records requests to protect executive privilege and sensitive decision-making processes, requiring agencies to identify a “foreseeable harm” and open the records to the public after 25 years.

Additionally, the bill would have required the government to create a central Web site for records requests and eliminated FOIA fees when agencies fail to meet statutory deadlines for providing documents.

Sen. Jay Rockefeller (D-W.V.), who is set to retire from the Senate in January, stood alone in threatening to stop the bill, saying in a Dec. 5 statement that the it could put consumers at risk of financial fraud and “potentially give defendants new ways to obstruct and delay [federal] investigations into their conduct.”

Rockefeller relented last week, deciding not to block the legislation from passing by unanimous consent, a procedure that allows quick approval of a bill without a formal floor vote.

With the Senate clearing that hurdle, the chances of House approval appeared solid, but leaders in that chamber failed to put the measure on the calendar before their members adjourned for the year.

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.

Timing also presented a challenge, with Congress scrambling last week to pass a critical spending package to prevent another government shutdown.

Sen. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas), who sponsored the Senate legislation, tried to address concerns that House lawmakers had with the legislation before it went to their chamber.

“We were working across party lines and across the Capitol to work things out ahead of time,” said Leahy spokeswoman Jessica Brady.

Ultimately, those efforts to smooth things over fell short, as House lawmakers left town Friday without taking up the FOIA bill.

Transparency advocates quickly criticized House Speaker John Boehner (R-Ohio) for not putting the measure on the calendar.

“For all of his talk about the desire of House Republicans to hold the Obama administration accountable, we are shocked and angered that Speaker Boehner would decide not to allow a bill that strengthens and reforms the Freedom of Information Act die without a vote,” said Danielle Brian, executive director of the Project on Government Oversight.

Leahy expressed similar disappointment on Friday.

“I would think that members of the House Republican leadership, who have spent so much time on oversight of the Obama administration, would support the goal of making government more accountable and transparent,” the lawmaker said in a statement. “But instead of supporting this bill, they have chosen secrecy over sunlight.”

Boehner’s office said Monday that the Senate, which plans to remain in session through Wednesday, could quickly take up the House-passed bill if its members really want to address government transparency.

“Without that, we look forward to working to resolve this issue early in the new Congress,” said Boehner spokesman Michael Steel.

Issa expressed similar sentiments, saying the Senate would only have to “accept some minimal differences” to pass his legislation. But Brady said there was never enough support for that bill in the Senate, largely because of cost concerns.