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Friday, July 29, 2005

Here's Why the FOIA Should Also Apply to Congress, Just as it Does Now to Executive Branch

It comes up in public discussion only occasionally but it has always struck me that Congress routinely exempts itself from laws it passes for the rest of us. The Freedom of Information Act is an important example and Northwestern University Law Professor Steven G. Calabresi offers the perfect illustration of why.

Calabresi argues in the latest issue of The Weekly Standard that Sen. Charles Schumer, the New York Democrat leading the charge of the Senate minority in demanding the Bush administration hand over for public examination thousands of pages from Supreme Court nominee John Roberts' days as a senior political appointee in the Justice Department and the White House Counsel's office, should be willing to take a large dose of his own medicine.

Whatever one thinks of the propriety of Schumer's request (and I happen to be among those who believe all such documents should be available on some basis, even if only for historical research). the New York senator has opened what could be a genuine can of worms for Congress.

Calabresi explains why by observing that:

"Evaluation of whether Schumer is or is not on a fishing expedition is impossible given the public record as it stands now. Accordingly, Senate Republicans and the administration should call on Senator Schumer to immediately release and make public all conversations and emails between the senator and his staff, between Schumer staffers and outside left-wing advocacy groups, and between Schumer staffers themselves relating to the Roberts nomination.
"Schumer should also be required to release phone records of all telephone and cell phone calls that were placed between his office and outside advocacy groups since the Roberts nomination."

Don't expect Schumer to drop what he and his staff are doing and rush to the copying machines to comply with the professor's request. They don't have to because the FOIA doesn't cover Congress and Congress has long made it a point to keep its internal administrative and communications materials under lock and key.

Schumer could strike a blow for the sort of tranparency he demands of the Bush White House by voluntarily complying with Calabresi's suggestion as a gesture of good faith and logical consistency. I suspect John Roberts will awaken tomorrow with a third ear growing out of his forehead before Schumer takes such action.

Perhaps Schumer - who talks a great deal about the vital importance of transparency in the executive branch - would join his similarly inclined Democrat colleage from Vermont, Sen. Patrick Leahy, in offering legislation amending the FOIA and including Congress under its authority?

You can read all of Professor Calabresi's article here.