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11/2/2017

Cause of Action Institute Sues White House OMB Over Failure to Act on Transparency Rules

Washington, DC – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the White House Office of Management and Budget (“OMB”) for failing to act on two petitions for rulemaking submitted well over a year ago. Both petitions ask OMB to take its transparency obligations seriously and enact rules that would promote public disclosure of agency records.

The first petition requests that the Office of Management and Budget update its fee guidance for Freedom of Information Act (“FOIA”) requests. OMB’s fee guidance is outdated and now conflicts with both statutory and judicial authorities. The FOIA law requires OMB to establish these guidelines and requires every agencies’ fee rules to conform to OMB’s guidance. The FOIA Advisory Committee and the Archivist of the United States have also recommended that Office of Management and Budget update this guidance.

The second petition relates to protecting taxpayers against wasteful executive branch earmarks. Previous administrations have required agencies to disclose congressional efforts to meddle in agency spending decisions, an effort first started under President George W. Bush’s Executive Order 13457. The Trump administration has yet to address this issue.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “It does not appear the Trump administration has any plans to finalize these rules, which would go a long way to promoting government transparency. FOIA requesters are often deterred due to high costs agencies charge to produce records. In recent years, the courts have clarified that many groups beyond traditional journalists are now eligible for news media fee waivers. Updating OMB’s FOIA guidance to reflect this broad definition is critical. This lawsuit is a great opportunity for the Trump administration to show its leadership on transparency issues.”

The lawsuit can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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10/31/2017

Transparency Groups: Finalize Release to One, Release to All FOIA Policy

Cause of Action Institute and Sunlight Foundation file petition to advance rule that would promote broad disclosure of agency records

Washington, DC – Cause of Action Institute (“CoA Institute”) today joined the Sunlight Foundation in filing a petition for rulemaking demanding the Trump administration move forward with a rule to promote government transparency and broad public disclosure of agency records. The Release to One, Release to All rule, first proposed by the Obama administration, mandates that agencies make records produced in response to Freedom of Information Act (“FOIA”) requests also publicly available on the agencies’ websites, with certain limited exceptions. CoA Institute also led a broad coalition of government transparency organizations in sending a letter to the White House Office of Management and Budget (“OMB”) and Department of Justice Office of Information Policy urging action to finalize the rule.

CoA Institute Counsel and Senior Policy Advisor James Valvo: “‘Release to One, Release to All’ is a great way to increase the amount of government information in the public sphere. When agencies release information under FOIA, with limited exceptions, it is prepared for release to the public. The Obama administration has already run the pilot program and the Department of Justice has already accepted public comment on the policy. It’s time to finalize it.”

Sunlight Foundation Deputy Director Alex Howard: “Despite multiple requests for updates from the Justice Department over the past year, it does not appear the Trump administration has any plans to finalize and promulgate this policy, or even answer basic questions about why it has stalled. Our petition compels the Trump administration to either move forward with disclosure and implementation, or explain why they don’t believe the policy is workable. The ‘Release to One, Release to All’ policy for the Freedom of Information Act has broad support within the transparency community, and we deserve an explanation as to why progress has ground to a halt after months of analysis, planning and responsive feedback to a request for public comment.”

On June 30, 2016, President Obama directed a review of the feasibility of such a FOIA policy. More than ten months have passed since the January 1, 2017 completion deadline for that review. Despite this analysis and gathering public comments, progress on the rule has now halted completely without explanation.

For these reasons, CoA Institute led a group of 22 organizations in sending a letter to the White House and Justice Department urging them to take the next step in finalizing the policy.

The letter states:

“Release to One, Release to All” is sound public policy that would increase government transparency and leverage the existing investment in FOIA disclosures… Placing this information in the public domain would allow the public to know what type of information is being requested, to search these prior productions for information relevant to their own purposes, and, perhaps, decrease the number for future requests or facilitate future requesters making more informed and targeted requests. What’s more, placing these information resources into the public domain has the potential to create unknown benefits, such as analyses of patterns in FOIA requests and harnessing of the information for other uses… We urge you to take the next step and finalize the policy.

The petition for rulemaking can be found here.
The letter can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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10/27/2017

Newest TIGTA Review Shows Broader Extent of Political Targeting by IRS

The U.S. Department of Justice has filed a proposed consent order settling a federal case in which scores of organizations allege that the IRS violated their rights to free speech, free association, and equal protection of the law when it screened their applications for tax-exempt status on the basis of their names and policy positions alone. In the consent order the IRS admits its process was wrong and the Court will declare that “discrimination on the basis of political viewpoint in administering the United States tax code violates fundamental First Amendment rights.” That’s a spectacular settlement and a welcome outcome for the plaintiffs. But it will not end the IRS’s continuing practice of preparing sensitive case reports for supervisory review whenever an application or request for information might “attract media or Congressional attention.” The Internal Revenue Manual provisions that authorize sensitive case reports are where the scandal of political targeting by the IRS began. And until those provisions are withdrawn, cases and requests that an administration considers “sensitive” but outside the terms of the new consent order may still get special treatment within the IRS.

In a 2013 Audit Report, the Treasury Inspector General for Tax Administration (“TIGTA”) found that the IRS “inappropriately identified specific groups applying for tax-exempt status” whose applications would receive special scrutiny. Over a two-year period beginning in May 2010, the IRS inappropriately identified those groups “based on their names or policy positions instead of developing criteria based on tax-exempt laws and Treasury Regulations.” The result was a process by which the IRS demanded and examined additional information from these groups after labelling them “Tea Party cases,” and the ensuing controversy was dubbed the “IRS Tea Party targeting scandal.”

In its new 2017 Review, published earlier this month, TIGTA recounts how the IRS developed and used 17 “selection criteria” between 2004 and 2013 to identify which groups and applications for tax-exempt status deserved extra attention. Politicians and media outlets are claiming that the 2017 Review proves there never was an “IRS Tea Party targeting scandal” because the IRS also used names and policy positions to select progressive, liberal, and Democratic-affiliated groups for heightened scrutiny. A Washington Post headline sums up the revisionist interpretation:  “Four years later, the IRS tea party scandal looks very different.  It may not even be a scandal.”

This 2017 Review provides new information, disclosing that the IRS sometimes used names and political positions alone as selection criteria for heightened scrutiny of tax-exempt applications instead of the organization’s activities and the requirements of the Internal Revenue Code and related regulations. The initial 2013 Audit Report was limited to two years of IRS practice beginning in May 2010 because that was “the first date that [TIGTA was] informed that the Determinations Unit was using criteria which identified specific organizations by name.” 2013 Audit Report at 9 n. 20.  Yet the 2017 Review shows that the same kind of “inappropriate” practice began at least five years earlier, and neither the new 2017 Review nor the early press and political commenters recognize the significance of this revelation.

Yes, as the early reactions suggest, two of the overtly partisan criteria identified in the 2017 Review are tied expressly to the Democratic Party and “progressive” partisans.  But the IRS first used these criteria to choose applications for heightened scrutiny way back in 2005 and 2007, during the George W. Bush administration.

At the end of 2007, the IRS selected applications from groups named in the “Emerge network of organizations” whose purpose “was to train women to run as Democratic candidates for public office.” By September 2008 the IRS highlighted the “Emerge” criterion in an e-mail alert and training.  Up to 12 applications may have been affected by the Emerge criterion, either initially or upon subsequent review.

In October 2005 the IRS began using the “Progressive” criterion, identifying “the word ‘progressive’” and the “Common thread.”  In April 2007, the IRS noted further that the groups “appear as anti-Republican” with “references to ‘blue’ as being ‘progressive.’”  Up to 74 applications may have been affected by the Progressive criterion.

These two criteria are no small potatoes. Together, the Emerge and Progressive criteria may have played an inappropriate role in more than half (96 of 181) of the applications considered in the 2017 Review.

Two other criteria identified in the 2017 Review are overtly partisan for the other side. Just before the 2010 mid-term elections, the Obama IRS looked for “Pink Slip” and “We the People” in names or titles as proxies for Tea Party groups to select tax-exempt applications for special examination. And in the run up to the 2012 general election in which President Obama was re-elected, the IRS began using “Paying the National Debt” to identify applications for extra scrutiny, a criterion which overlapped with “We the People.”

So, reporters and politicians who claim that the IRS’s inappropriate use of names and policy positions was never a scandal are ignoring the important chronology revealed in the new 2017 Review. By claiming that this selection process was not scandalous because goose and gander got the same sauce without considering who applied that sauce and when, they are condoning politically influenced tax decisions at the IRS so long as the law allows presidents of both political parties to harass their political opponents. But wrongs on both sides don’t make a right. As John McGlothlin of Cause of Action Institute opined last week in “The Hill,” the 2017 Review shows that “neither side focused on the larger point – that citizens from both sides of the political spectrum, were being denied their rights.”

Politics periodically infects tax enforcement and administrations of both parties have used political targeting by the IRS. But as Cause of Action Institute has discussed many times, the larger point is that the IRS and Congress have turned blind eyes to the identifiable, current provisions in the Internal Revenue Manual that allow such meddling. So inappropriate political targeting by the IRS remains a threat under the agency’s own regulations, even now under President Trump. Leviathan’s nature is to flee reform, so let’s hope Congress exercises its power to tame that beast, and soon. Without those reforms, the IRS can and inevitably will continue to use  inappropriate, politically-charged criteria in enforcement, investigatory, and compliance decisions, to evade congressional reforms, and to avoid accountability.

Mike Geske is counsel at Cause of Action Institute.

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10/25/2017

CoA Institute Applauds Senate Vote to Kill Harmful CFPB Arbitration Rule

Washington, DC – Cause of Action Institute (“CoA Institute”) today commended a Senate vote to kill a rule by the Consumer Financial Protection Bureau (“CFPB”) that would have banned arbitration clauses in consumer contracts for financial products. Vice President Mike Pence cast the tie-breaking vote to reject the rule under the Congressional Review Act. CoA Institute has led the charge in showing that CFPB failed to adequately justify its arbitration rule, which would increase costs on consumers.

CoA Institute Counsel Eric R. Bolinder: “The Senate last evening took a strong stand in rejecting a CFPB rule that would enrich class action attorneys at the expense of the American economy and consumers. This rule was based on a flawed scientific study that used junk data and methodology, contrary to the requirements of Dodd-Frank and the Information Quality Act. Government rules, especially those that have broad effects on consumers and business, must be based on sound science.”

In 2000, Congress passed the Information Quality Act to ensure that agencies use quality data in rulemaking, ensuring the objectivity, integrity, and utility of agency methodology. The Office of Management and Budget subsequently issued its own guidance that calls for agencies to have other experts and scientists verify their work through a rigorous peer-review process.

In March 2015, CFPB released a 728-page report, which was not peer reviewed, purporting to show how class action lawsuits benefit consumers. The report, when looked at through an objective eye, arguably demonstrated the opposite. Class action lawsuits can often result in a worse outcome for consumers than individual arbitration, which is a quicker and more efficient process for settling disputes.

In April 2016, CoA Institute filed a Freedom of Information Act request for records that would show how the agency conducted its study. Although CFPB produced some documents, it withheld 1,877 pages of responsive records. In December, 2016, CoA Institute filed a lawsuit to compel the CFPB to provide all responsive records not covered under a valid exemption.

In August 2016, CoA Institute filed a regulatory comment highlighting key problems with the arbitration rule. The comment outlines how the rule would subject numerous financial institutions to a flood of class action lawsuits, further burdening the courts and ultimately injuring consumers.  CFPB responded to CoA Institute’s comment, providing a woefully inadequate defense of its rule.  CoA Institute also submitted written testimony for the record to Congress.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

 

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10/24/2017

The IRS scandal has not disappeared – it’s gotten worse (The Hill)

The IRS scandal has not disappeared – it’s gotten worse

BY JOHN MCGLOTHLIN, OPINION CONTRIBUTOR — 10/20/17

Judging by the reaction of many elected officials and media outlets, the latest report on the IRS targeting scandal is cause for relief. But a closer look shows the opposite is true – by finding that the agency mistreated a variety of left-leaning groups, the report widens the scope of IRS misconduct and increases the urgency of further changes at the agency. Read the full op-ed at The Hill

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10/20/2017

DHS Watchdog Claims Political Appointees No Longer Politicizing FOIA

One of the earliest transparency scandals of the Obama Administration erupted in 2010 when the Associated Press discovered that officials at the Department of Homeland Security (“DHS”) had, “in a highly irregular move,” started to “filter hundreds of public records requests through political appointees, allowing them to examine what was being requested and delay releasing sensitive material.”  These appointees, along with senior officials and public affairs staff, effectively blocked or delayed the disclosure of potentially embarrassing or politically-damaging agency records under the Freedom of Information Act (“FOIA”).  Their interjection into the FOIA process—and retaliation against career staff members who objected to this “sensitive review”— resulted in a congressional inquiry and damning Oversight Committee report.  The Obama Administration politicized FOIA the same way at the Department of Housing and Urban Development, the Environmental Protection Agency, the State Department, and the Department of the Treasury.  The situation at DHS, however, has improved, according to a recently-released Inspector General report.

The July 7, 2009 memorandum establishing sensitive review procedures at DHS included extensive reporting requirements, including updates to the White House about agency disclosures.  The DHS Inspector General politely described this, in a March 2011 report, as “unprecedented.”  It “created inefficiencies that hampered full implementation” of the FOIA.  More troubling, the policy had the practical effect of targeting media organizations and critics of the Administration.  Agency officials regularly delayed requests from media outlets, for example, so that they could develop a public response to damaging records.  And other disclosure decisions were sometimes based on the political affiliation of a requester.

Now, in response to a June 2015 request from the U.S. Senate Homeland Security and Governmental Affairs Committee, the Inspector General has published a new report that revisits its earlier findings and suggests that the culture of FOIA politicization at DHS has improved.  Since 2011, DHS has “reduced the number of days that political appointees . . . have to review releases from 3 days to 1 day.”  The sensitive review process has been renamed the “1-Day Awareness Notification Process.”  And, in most cases, FOIA officers “no longer wait for approval before releasing responses to significant FOIA requests” because it is “not required.”  An audit of 57 “significant requests” showed that none were delayed because of political appointee intervention.

These findings are positive.  The more limited involvement of fewer political appointees—“an advisor to the DHS Secretary, an official in the Office of Public Affairs, and the Chief FOIA Officer”—as well as a shorter “notification” period, limits the potential for politicization while respecting agency leadership’s concern for being kept aware of disclosures that might ignite media attention.  The apparent removal of any sort of necessary “clearance” authorization from political staff, or the removal of a requirement to obtain such clearance before release, is also a helpful development.  Oddly, DHS’s revised procedures are only “informally documented” in a “2012 email” and “2015 draft guidance.”  According to the Inspector General’s report, the DHS Privacy Office aims to finalize them by the end of the year.  The sooner, the better.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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10/19/2017

Congress should reject flawed Back the Blue Act

On May 16, 2017, Representative Ted Poe (R-Texas) introduced the Back the Blue Act in Congress.[1]  The bill has since been referred to the House Judiciary Committee.  The Back the Blue Act of 2017 (“BBA”) creates new federal crimes for killing and assaulting police officers—conduct that is already illegal under the law in all fifty states and has been punished in state courts for years.  The proposed bill goes further, and establishes mandatory minimum sentences for such crimes even though mandatory minimums have been proven to be ineffective at curtailing criminal conduct.  The BBA, as currently written, does not require that the defendant even knew he or she was assaulting a police officer, which means it lacks any mens rea, or “guilty mind,” requirement.

Because of its duplicative nature, adoption of mandatory minimums, and lack of any mens rea requirement, Congress should reject the current version of the BBA.  The lives and working conditions of police officers are at stake.  As a 34-year veteran of the Baltimore and Maryland State Police Departments put it, “the bill would make us less safe and less effective by worsening what is already the greatest threat to policing today: the downward spiral of police-community relations.”[2]

The Back the Blue Act attaches a mandatory minimum of ten years for the attempted killing of a law enforcement officer or for “conspiring” to kill a law enforcement officer.  The BBA also turns any assault on an officer that works for a state or local police department that receives federal funding into a federal crime.  Most definitions of assault make spitting on someone an act of assault, so the potential application of the new law is vast.  Under the BBA, if any injury occurs during the assault, the mandatory minimum sentence is two years.  And if “serious bodily injury” occurs, the defendant faces a mandatory minimum of ten years in prison.  Further, a twenty-year mandatory minimum sentence applies if a deadly weapon is used during the assault.

Mandatory minimums take away sentencing discretion from judges and give it to prosecutors.[3]  This results in arbitrary and severe punishments that undermine the public’s faith in America’s criminal justice system.[4]  Further, evidence shows that mandatory minimums do not deter criminal conduct.[5]

As mentioned, the lack of any mens rea requirement means that a person could be charged by federal prosecutors without even knowing that the person allegedly assaulted was a law enforcement officer.  This risk is particularly high for the charge of conspiracy to kill a law enforcement officer, which imputes liability for actions taken to any person involved in the alleged conspiracy, even if the actual act was not performed by that defendant.  Mens rea has been a key element of American criminal law for centuries.  As the Supreme Court has stated, “we must construe [an imprisonment] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”[6]  Requiring a “guilty mind” in addition to a “guilty act” protects someone who engaged in accidental or innocent behavior from criminal prosecution and it is at the center of our criminal jurisprudence.[7]

Since the bill is duplicative of laws already on the books in all fifty states and the District of Columbia, the Back the Blue Act would waste federal resources and threaten state autonomy.  State and local jurisdictions have the expertise to deal with issues involving their own law enforcement officers.  The “federalization” of their local policing efforts will only deter from their ability to meet the ever-changing needs of local police forces.  Moreover, as laid out by the Tenth Amendment to the U.S. Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”[8]  Policing power is not one specifically delegated to federal government, therefore, it is reserved to the states.

The assault provision requires the federal prosecutor to “certify” that either the state lacks jurisdiction, has requested the federal government assume jurisdiction, the verdict obtained by the state left an “unvindicated” federal interest, or that prosecution by the federal government “is in the public interest and necessary to secure substantial justice.”  However, these certification requirements are vague and do not meaningfully limit federal intervention into state interests.

States like Virginia and Wisconsin, for example, have laws nearly identical to the Back the Blue Act except that they also include a mens rea element.  Virginia’s statute states: “if any person commits an assault…against another knowing or having reason to know that such other person is… a law-enforcement officer… such person is guilty of a Class 6 felony, and… the sentence of such person shall include a mandatory minimum term of confinement of six months.”[9]  Wisconsin’s statute uses similar language to also acknowledge the importance of mens rea.[10]

If signed into law, the Back the Blue Act would create waste in the judiciary and in society, deteriorate working conditions for law enforcement officers, and impose costly mandatory minimums unrelated to the severity of the crime.  It would also impede state and local efforts to protect police officers and fail to honor the punishment that a state has assigned for identical crimes on its own law enforcement officers.  For these reasons, Congress should reject the Back the Blue Act in its current form.

Katie Parr is a law clerk and Erica L. Marshall is counsel at Cause of Action Institute.

 

[1] Back the Blue Act of 2017, H.R. 2437, 115th Cong. (1st Sess. 2017).

[2] Neill Franklin, For the sake of police, don’t back the Back the Blue Act, The Hill (Aug. 30, 2017), available at http://thehill.com/blogs/congress-blog/politics/335815-dont-back-the-back-the-blue-act

[3] Paul Larkin, Evan Bernick, Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, The Heritage Foundation (Feb. 10, 2014), available at http://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against.

[4] Id.

[5] See Barbara S. Vincent & Paul J. Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings, Federal Judicial Center (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/$file/conmanmin.pdf.

[6] Staples v. United States, 511 U.S. 600, 605 (U.S. 1994).

[7] John Malcolm, Michael B. Mukasey, The Importance of Meaningful Mens Rea Reform, The Heritage Foundation (Feb. 17, 2016), available at http://www.heritage.org/crime-and-justice/commentary/the-importance-meaningful-mens-rea-reform.

[8] U.S. Const. amend. X

[9] Va. Code Ann. § 18.2-57(C) (2017).

[10] Wis. Stat. § 940.203(2)(a) (2017).

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