09/11/2017
09/7/2017
CoA Institute Urges Removal of Anti-Transparency Provisions in Senate Bill
On August 16, 2017, Cause of Action Institute (“CoA Institute”) joined other government transparency advocates in sending a letter to Senator John Cornyn objecting to the inclusion of provisions that exempt the implementation of the Building America’s Trust Act [1] (“the Act”) from the requirements of the Administrative Procedure Act (“APA”) and the Paperwork Reduction Act.
In particular, Section 702 of the Building America’s Trust Act specifically exempts any agency actions implementing the Act from “publication in the Federal Register[.]” This exclusion will deprive the American people from learning when provisions of the Act are implemented by federal agencies. This unfortunate provision runs directly counter to the APA’s publication requirement which serves as an essential hallmark of administrative law and promotes transparent and accountable government. Americans’ input into the rulemaking process should not be so easily cast aside. Section 702 relies on the need to ease “the expeditious implementation of this Act” as the justification for the APA exemption. But the APA already allows agencies to exempt rules from publication if good cause is shown.[2] To ensure a transparent and accountable government, agencies implementing the Act should have to demonstrate their good cause for avoiding the APA’s requirements instead of receiving a rubberstamp on binding regulations.
CoA Institute believes that Section 702 should be removed from the Building America’s Trust Act because the APA already contains a good cause exemption that should satisfy the Act’s policy goals without adding new exemptions from the APA’s procedures.
Travis Millsaps is counsel at Cause of Action Institute.
[1] Building America’s Trust Act, S. 1757, 115th Cong. (2017).
[2] 5 U.S.C. § 553.
09/6/2017
Trump’s monument review is as secretive as Obama’s designations
Trump’s monument review is as secretive as Obama’s designations
By Kara McKenna, counsel at Cause of Action Institute
Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.
It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature. Read the full article at The Hill
08/31/2017
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: zachary.kurz@causeofaction.org
08/30/2017
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.
08/21/2017
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 Forbes.com
08/15/2017
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: zachary.kurz@causeofaction.org