Archives for August 2017

Judge Orders Government to Reveal Evidence in FBI Clinton Email Investigation

Washington D.C. – The Honorable James Boasberg, a federal judge for the U.S. District Court for the District of Columbia, today ordered the government to produce an unredacted declaration filed in secret early this summer containing new, undisclosed details about the scope of the FBI’s investigation into Hillary Clinton’s email practices as Secretary of State.

The government had previously disclosed the evidence to the court ex parte and in camera, meaning only the judge was able to review it, but characterized the declaration as including, “additional details about the grand jury process . . . as well as about other sealed proceedings” and was submitted to provide “further details of the subpoenas to establish to the Court’s satisfaction the thoroughness of the inquiries made in this regard.”

Cause of Action Institute filed a motion in June to produce the declaration and the judge today granted that request.

Cause of Action Institute President and CEO John J. Vecchione: “I applaud the court’s opinion. The government attempted to end a case with evidence no one could review. This order makes public details submitted by the government about the FBI’s efforts to recover then-Secretary Clinton’s unlawfully removed emails. Americans deserve to know the full scope of that investigation, and we, as Plaintiffs, should have an opportunity to contest the relevance of the government’s facts.”

In his order, Judge Boasberg writes:

“The 2016 presidential election may have come and gone, but Plaintiffs Judicial Watch and Cause of Action Institute’s quest for Hillary Clinton’s emails lives on. As most readers will remember, Clinton used private email accounts during her tenure as Secretary of State, embroiling the government in myriad Freedom of Information Act suits. In this case, however, Plaintiffs have taken a different tack, alleging a violation of the Federal Records Act. That is, they claim Defendants State Department and the National Archives and Records Administration failed to maintain records of Clinton’s emails and must now seek the Department of Justice’s Case assistance in their recovery. Most broadly characterized, Plaintiffs’ suit pertains to tens of thousands of communications. At this stage, however, the parties have largely zeroed in on a sliver of that trove — to wit, emails sent by Clinton on two Blackberry accounts during her first weeks in office.

“The present controversy is narrower still. To establish its good-faith recovery efforts, the Government has submitted a declaration describing grand-jury subpoenas issued to Clinton’s service providers. The catch? It offers the full version for in camera and ex parte review only. Plaintiffs have responded with a Motion to Produce, arguing that to the extent this Court might rely on the declaration, they must have unfiltered access. After reviewing the document in camera, the Court concludes that it largely rehashes information already made public, thus obviating any need for secrecy. The Court will therefore grant Plaintiffs’ Motion in large part and, subject to a very limited exception, order that Defendants resubmit an unredacted version of the declaration.”

Judge Boasberg’s full order is available here.
The Plaintiffs’ motion to produce the declaration is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications:


Group Tied to Progressive PAC Solicits Donations in Misleading Call for Hurricane Harvey Relief

On Wednesday, Linda Sarsour, a controversial political activist, tweeted an appeal to her followers asking that they donate to an ostensibly noble cause—the Hurricane Harvey Community Relief Fund. Unfortunately, this seemingly benevolent appeal is anything but.  Ms. Sarsour actually linked to a page that accepts donations for a fund called the Texas Organizing Project Education Fund (“TOP ED”).  TOP ED is a 501(c)(3) non-profit group that is wholly affiliated with a self-described progressive Political Action Committee, the Texas Organizing Project (“TOP”). Cause of Action Institute previously looked into TOP and TOP ED for their affiliation with the now-defunct ACORN group.

Ms. Sarsour’s disingenuous call to action through the Hurricane Harvey Community Relief Fund is in fact a call for donations to TOP which received roughly 93% (or $1.5 million) of TOP ED’s gross receipts in 2015 through its cost-sharing agreement. In its Form 990 IRS filings, TOP ED notes that it shares “employees, facilities, and goods and services” with TOP, and does not pay its employees any salary.

At a time when Americans are pulling together to assist the victims of Hurricane Harvey, it is appalling to see opportunists taking advantage of their generosity.  At this time of national tragedy, it is unconscionable that groups like TOP and activists like Ms. Sarsour would mislead Americans into thinking they are donating money to save hurricane victims when in fact the funds would go to an organization that promotes a political agenda.

Travis Millsaps is Counsel at Cause of Action Institute.

Drain The Swamp, But Stock The Pond At FTC (John Vecchione Opinion-Forbes)

Drain The Swamp, But Stock The Pond At FTC

 By John J. Vecchione, President of Cause of Action Institute

 Efforts by the Trump administration to reduce regulatory burdens on American businesses would be enhanced if the president acts quickly to fill vacant positions at the Federal Trade Commission (FTC).

 My organization, Cause of Action Institute, recently wrote to the president to urge immediate action to appoint commissioners. New leadership could help rein in the agency’s pattern and practice of regulatory overreach, and allow the pursuit of innovation, without fear of abusive and unconstitutional enforcement actions.

Read the full article at


CoA Institute Sues FTC for Records Improperly Withheld Under Immunity Reserved for Congress

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Federal Trade Commission (“FTC”) for improperly withholding records related to the agency’s communication with the U.S. House of Representatives Committee on Oversight and Government Reform. CoA Institute requested these records under the Freedom of Information Act (“FOIA”) in October 2014.

The agency redacted records under various FOIA exemptions, but also refused to release information on the basis of the Speech or Debate Clause of the U.S. Constitution, a safeguard intended to avoid direct interference with legislative activities and protect members of Congress or their aides from judicial inquiry in certain court proceedings.

CoA Institute Counsel Ryan Mulvey: “The FTC failed to provide sufficient justification for its redaction of records. For example, the Speech or Debate Clause is neither a withholding statute nor a privilege that can exempt agency records from disclosure. The Clause is meant to protect lawmakers and staff from harassment in the courts. The FTC is the defendant in this case; the Oversight Committee is not. The FTC is abusing the Constitution to withhold records that the public has a legal right to review.”

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” The Clause is meant is to bar lawsuits that would hold individual legislators or their aides liable for legitimate congressional activities or that could interfere with ongoing congressional inquiry. It does not permit other branches of government, let alone an independent agency such as the FTC, to redact agency records simply because they implicate congressional communications.

From the FTC’s response in this case, it is unclear how the Committee on Oversight and Government Reform might have tried to invoke the Speech or Debate Clause through the FTC or how disclosure could interfere with ongoing congressional activity. The agency never indicated which investigations would be jeopardized by the disclosure of the requested records. Rather, the FTC simply claimed the Clause applied without giving an explanation as to why each record should be exempt. Similarly insufficient explanations were provided for the FTC’s use of the recognized FOIA exemptions.

CoA Institute’s lawsuit provides an opportunity for the court to review the Speech or Debate Clause and to limit agencies from using it to justify withholding records.

The full lawsuit is available here. Exhibits are available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications:

Lawsuit Seeks Records on White House’s Failure to Update FOIA Fee Guidance

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the White House Office of Management and Budget (“OMB”) for records that would show the agency’s action, or lack thereof, to review two pending petitions for rulemaking, one of which is seeking an update to its official guidance concerning Freedom of Information Act (“FOIA”) processing fees. OMB’s FOIA fee guidance on this issue is critical to government transparency because federal agencies are required by law to conform to OMB’s guidance and routinely deny fee waiver requests that should be granted, based on recent judicial precedent.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “Steep FOIA processing fees are a substantial roadblock for many organizations and individuals attempting to reveal how their government makes decisions. It is critical that OMB take action to update its outdated guidance document, which conflicts with binding statutory and judicial authorities.”

On June 2, 2016, CoA Institute submitted a petition for rulemaking to OMB asking it “to issue updated guidance to agencies on how to make [FOIA] fee determinations in compliance with binding statutory and judicial authorities.” This update is necessary because, “[d]espite Congress amending the FOIA several times during the last twenty-nine years and courts interpreting those changes, OMB has not updated its fee guidance since 1987. Federal agencies, however, continue to rely on OMB for guidance when issuing FOIA fee regulations.”

CoA Institute received no communication from OMB regarding this petition. On March 10, 2017, CoA Institute sent a FOIA request to OMB seeking all records that relate to the petition for rulemaking. OMB acknowledged receipt of the FOIA request, but two subsequent requests for updates on the processing of the request have gone unanswered.

The Archivist of the United States has also forwarded a recommendation from the FOIA Advisory Committee to OMB asking it to update this FOIA fee guidance document.

The full lawsuit is available here

Appeals Court Rebuffs EPA Attempt to Expand Its Regulatory Power

In a clear win for separation of powers and limited agency discretion, the D.C. Court of Appeals today ruled in favor of a company that challenged an EPA regulatory action issued in 2015 to require industry to replace its use of hydrofluorocarbons (“HFCs”). The Court found that “the fundamental problem for EPA is that HFCs are not ozone-depleting substances, and thus Section 612 would not seem to grant EPA authority to require replacement of HFCs.” This logic was supported by the EPA itself prior to 2015 when the agency openly deemed hydrofluorocarbons acceptable. But EPA reversed course in 2015 and concluded that some HFCs “could no longer be used by manufacturers in certain products, even if the manufacturers had long since replaced ozone-depleting substances with HFCs in accordance with the law.” EPA attempted to justify its position by classifying hydrofluorocarbons as a contributor to climate change.

The Majority opinion stated:

“Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. First, EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue. Second, Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”

The Court found that EPA’s legal interpretation to be “inconsistent with the statute as written,” and therefore vacated the 2015 Rule. The Court’s opinion speaks to the need for federal agencies to respect the separation of powers required by the U.S. Constitution and highlights the Judiciary’s important role to intervene when an agency oversteps its statutory authority.

Cause of Action Institute (“CoA Institute”) has repeatedly stressed this point in matters involving other rogue federal agencies.  For example, in a recent amicus curiae brief filed in support of a business facing a lawsuit filed by the Federal Trade Commission (“FTC”) that we do not believe the FTC has statutory authority to bring, we argued:

“CoA is concerned that this case is part of an emerging pattern of ultra vires, unconstitutional FTC enforcement actions grounded in a fundamental error of statutory interpretation—specifically, the FTC’s apparent belief that it need not wait for Congress to pass legislation giving it permission to regulate broad swaths of the economy, so long as the FTC’s actions reflect its subjective vision of enlightened public policy—that not only flips basic administrative law on its head, but threatens the separation of powers vital to liberty.”

No agency can arrogate to itself legislative powers Article I of the Constitution reserves for Congress, no matter how important an agency thinks its policy aims might be.

Patrick Massari is Assistant Vice President at Cause of Action Institute

Wednesday Waste: Federal Subsidies Prop Up Corporate Executives at Taxpayers’ Expense

The federal government doesn’t just provide welfare to struggling families. On the contrary, it also gives huge sums of money to some of the biggest and wealthiest businesses in the world, amounting to about $100 billion per year through federal subsidies.

Corporate subsidies, or “corporate welfare” to its opponents, are supposedly designed to lower prices and employ Americans. But such well-intentioned justifications fail to materialize and the subsidies end up lining the pockets of corporate executives at no benefit to the consumers, or propping up unsuccessful businesses that aren’t meeting market demand.

The biggest recipients of corporate welfare are not struggling businesses, but rather very successful companies. The country’s top corporate welfare recipient is Boeing, one of the largest defense contractors in the world. Boeing receives a whopping $13.4 billion from taxpayers each year. Other household names at the top include Intel, General Motors, Ford, Fiat, Nike and Shell. Each rakes in between two and six billion dollars annually. Unfortunately, when businesses solicit money from taxpayers, rather than customers, incentives change.

In a free and open economy, consumer spending, not government rewards, signals businesses to act, and businesses are incentivized to listen to consumers. When the government intervenes, it creates artificial signals that are not based on market demand. Rather, they’re incentivized to make political friends and ask for favors. This does nothing for consumers and fuels cronyism and inefficiency.

Instead of focusing resources on customer satisfaction, companies now spend incredible amounts on lobbying. In the last eight years, American businesses have spent more than $3 billion per year on lobbying, more than doubling what was spent annually in the late ‘90s. On top of traditional lobbying, companies also spend millions of dollars funding the campaigns of candidates like Donald Trump and Hillary Clinton to get a friend in the White House. Companies make generous campaign donations sometimes to maintain federal subsidies.

Despite ethics laws, favors are granted to the companies and lobbyists who have the most connections. Such corporate subsidies rarely add value to the economy, nor do they benefit consumers.

If the United States ended federal subsidies today, these problems would largely go away. Corporations would go back to making money by pleasing customers instead of pleasing politicians. If the money spent on subsidies was left in the hands of taxpayers, they would spend it wherever they think is most valuable for themselves instead of having it spent wherever the politicians think is most valuable to their personal careers. Removing federal subsidies would result in better market efficiency and more valuable goods in society. Eliminating these subsidies would also take away more than 20 percent of our current deficit spending.

Some of the inefficiencies are not visible, because we’ve never had a truly free economy. However, some of the inefficiencies are very apparent.

One of the clearest examples is the Obama-connected Solyndra scandal. The company received guaranteed loans, and an investigative report showed that the company was constantly playing politics, instead of producing services, until it went bankrupt in 2011. Even as they were going bankrupt, top CEO’s were still receiving tens of thousands in  bonuses, on top of their already high salaries.

Another lesser-known example is the government’s attempt to subsidize broadband in rural areas, which led to much poorer results than promised. Forty percent of the projects were not even started by the time they were supposed to be completed. Analyses found that the subsidies did not have an effect on rural penetration and “that about 60 percent of subsidies went to rural providers’ overhead rather than to investment.”

Regardless of the business model, the free market will always be a better solution for people overall.

Tyler Arnold is a communications associate at Cause of Action Institute