The White House Should Follow Arizona Governor Ducey’s Lead and Implement an Online Portal Where Americans Can Suggest Regulations to Eliminate

On January 9, 2017, Arizona Governor Doug Ducey announced a new program designed to reduce outdated and burdensome regulations and to promote economic growth and job creation. His goal is to eliminate 500 regulations by the end of 2017.  To achieve this goal, Governor Ducey created a website—RedTape.AZ.Gov—where Arizonans can “crowdsource” recommendations on which regulations should be eliminated and submit those recommendations directly to the governor’s office.[1]  The website provides an easy, streamlined way for citizens to assist in the regulatory reform of their state.  This approach recognizes and honors what F.A. Hayek called the knowledge problem, that is, that the information necessary to make informed and efficient decisions is decentralized and that the top-down model is doomed by its arrogance.

President Trump’s White House should follow suit if it is serious about reducing the strain old regulations put on the country. President Trump issued Executive Order 13,777 on February 24, 2017, which requires that agencies designate a Regulatory Reform Officer (RRO) to implement a regulatory-reform agenda that implements, inter alia, Executive Order 13,771, which requires agencies to remove two regulations for each new one they issue.[2]  Neither of those orders contain a way for ordinary Americans to provide transparent input into this important process.  Several agencies have decided to open public-comment periods so that stakeholders and the public can provide input, but this approach leaves the comments scattered by agency and makes it difficult to aggregate.[3]  In addition, not every agency has decided to offer a public-comment period, leaving ordinary Americans without a voice.

The White House subsequently issued Executive Order 13,781 on March 13, 2017.[4]  This order created a website that allowed the public to submit comments on ways to optimize and reorganize the federal government.  While Executive Order 13,781 is a step in the right direction, it contains two fatal flaws.  First, the comment period closed on June 12, 2017 when it should be kept open permanently.  Second, the White House said it received over 100,000 comments during the comment period, but those comments are not available to the public.[5]  Cause of Action Institute submitted a FOIA request to the Office of Management and Budget, which administered the website, seeking access to those comments.[6]  Even though that request is still pending, the White House can take immediate steps to launch an improved website.

To foster and promote transparent regulatory reform, Cause of Action Institute recommends the White House launch a new website devoted to receiving recommendations from the public.  The recommendations could then automatically be forwarded to each agency’s RRO.  To ensure a transparent comment process, the recommendations should be accessible to the public and easily searchable by agency, topic, regulation identifier number, and other filters.  The website could foster public discourse by allowing the public to upvote or downvote comments, respond to specific comments, and suggest related regulations to comment on.  Finally, the website should not have a deadline for submissions but instead permanently allow Americans to make recommendations to reform the administrative state.  By providing a central, permanent website for submitting and reviewing recommendations, the White House can achieve its regulatory reform agenda more efficiently and promote accountability while ensuring that all Americans have a voice in the process.

Travis Millsaps is counsel at Cause of Action Institute.

[1] Press Release, Gov. Doug Ducey, Governor Ducey Announces RedTape.AZ.Gov (January 9, 2017), https://azgovernor.gov/governor/news/2017/01/governor-ducey-announces-redtapeazgov.

[2] See Exec. Order No. 13,777, 82 Fed. Reg. 12285 (Mar. 1, 2017), https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda; Exec. Order No. 13,771, 82 Fed. Reg. 9339 (Feb. 3, 2017), https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling.

[3] See Evaluation of Existing Regulations, 82 Fed. Reg. 17793 (proposed April 13, 2017), available at https://www.regulations.gov/document?D=EPA-HQ-OA-2017-0190-0042.

[4] See Exec. Order No. 13,781, 82 Fed. Reg. 13959 (Mar. 16, 2017), https://www.whitehouse.gov/the-press-office/2017/03/13/presidential-executive-order-comprehensive-plan-reorganizing-executive.

[5] See Reorganizing the Executive Branch, The White House, https://www.whitehouse.gov/reorganizing-the-executive-branch (last visited June 29, 2017).

[6] Press Release, Cause of Action Institute, White House Should Release 100K Public Comments on Reforming Government (June 19, 2017), https://causeofaction.org/white-house-release-100k-public-comments-reforming-government/.

FBI “Can Neither Confirm Nor Deny” Existence of Records About Payment to Trump Dossier Researcher

Washington D.C. – The Federal Bureau of Investigation (“FBI”) has declined to confirm the existence of records responsive to a lawsuit filed by Cause of Action Institute (“CoA Institute”) in April 2017 for records about the relationship between the agency and  Trump dossier researcher Christopher Steele, a former British spy who made headlines after he was identified as the lead author of the infamous dossier.

According to a news report, the Trump dossier researcher entered an agreement with the FBI a few weeks before the November 2016 election to investigate then-candidate Donald Trump while, at the same time, he was employed by an opposition research firm to collect information for Democratic presidential nominee Hillary Clinton.

In part, the FBI’s response states:

“The nature of your request implicates records the FBI may or may not compile pursuant to its national security and foreign intelligence functions. Accordingly, the FBI cannot confirm or deny the existence of any records responsive to your request, as the mere acknowledgment of the existence or nonexistence of such records would, in and of itself, harm national security interests and reveal intelligence sources and methods.”

This so-called Glomar response gained notoriety in the CIA’s use of the Glomar Explorer to recover a downed Soviet submarine.

CoA Institute President and CEO John Vecchione: “The FBI is circling the wagons by claiming potential harm to national security if it discloses its relationship with Christopher Steele. Regardless of whether a payment was ever made, the FBI’s affiliation with a political opposition researcher in the midst of a presidential election deserves scrutiny. The FBI should be forthcoming about whether and how the agency was relying upon a former foreign spy who, in the pay of private parties, compiled a report of salacious accusations intended to harm the reputation of then-candidate Donald Trump.”

On March 7, 2017, CoA Institute sent a FOIA request to the FBI seeking access to records into whether the FBI paid money, or had plans to pay, Mr. Steele for any purpose.

The FBI’s full response can be found here.

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

White House Should Release 100K Public Comments on Reforming Government

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today submitted a Freedom of Information Act (“FOIA”) request to the White House Office of Management and Budget (“OMB”) seeking access to the more than 100,000 public comments OMB collected regarding “improvements to the organization and functioning of the Executive Branch.”

Between May and June, 2017, Americans were invited to submit suggestions to OMB in response to President Trump’s March 13 executive order calling for a comprehensive plan to reorganize the Executive Branch. The comments, however, have not been made publicly available.

CoA Institute President and CEO John Vecchione: “Public input can be a fundamental component of government reform, but there is little reason to sacrifice transparency. Given that President Trump’s executive order calls for the possible overhaul of the entire Executive Branch, the need for transparency and open public scrutiny of this matter is paramount.”

In addition to the regulations.gov website, which is routinely used by the federal government for gathering public comments, OMB also collected comments via an online form housed on a White House website. There appears to be a discrepancy between the reported number of comments and suggestions submitted via the reorganizing website, which states that “100,000+ suggestions and ideas” were submitted, and regulations.gov, which states that only 2,019 comments were received.

CoA Institute today requested access to all comments, suggestions, and ideas submitted to the OMB as part of this effort. The FOIA request is available here.

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

Is President Trump Directing Agencies To Ignore Democrats’ Oversight Requests?

The transparency community was abuzz last week when Politico reported that the White House was directing federal agencies to ignore oversight requests from Democratic legislators. According to unnamed “Republican sources,” a White House lawyer “told agencies not to cooperate” with record requests from the minority. Politico described this as “amount[ing] to a new level of partisanship in Washington[.]”  But is that the case?

There is a dearth of publicly available evidence as to the Trump Administration’s actual policy. The White House has been cagey in providing clarification. Politico reported that a White House spokesman insisted that agencies should “accommodate the requests of chairmen, regardless of their political party.”  But Republicans control both the House and the Senate and all congressional committee chairmanships, so the official policy, if any, remains unclear.

Some Democrats have claimed that officials at the Office of Personnel Management and the General Services Administration refused to disclose information without a committee chairman co-signing an official request. Cause of Action Institute filed Freedom of Information Act (“FOIA”) requests with those agencies today (here and here) in an effort to verify what Democrats might have been told because—again—the relevant records are not publicly available and agency officials deny the Democrats’ allegations. Similar stories of agencies remaining silent when approached by Democrats have circulated over the past few months.

The Project on Government Oversight offered a measured response to Politico’s report, suggesting that the Administration’s course appears consistent with Reagan-era Department of Justice (“DOJ”) guidance that effectively directs agencies to process requests from individual Members under the FOIA. That difference in treatment, as compared to requests from committees or those with official oversight responsibility, is particularly relevant to an agency’s inability to withhold information under 5 U.S.C. § 552(d).

A recent opinion letter from DOJ’s Office of Legal Counsel (“OLC”), however, does appear to complicate matters. The letter suggests that the Trump Administration may be charting a course into newer and less transparent waters:

The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members . . . do not have the authority to conduct oversight in the absence of a specific delegation . . . . Accordingly, the Executive Branch’s longstanding policy has been to . . . accomodat[e] congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight.

Unfortunately, the OLC opinion misframes the issue and, in doing so, provides a distorted view of the law. True: an individual Member’s request for information—regardless of political affiliation—“is not legally enforceable through a subpoena or contempt proceedings,” and, in that sense, the Member lacks “constitutional authority” to conduct formal oversight.  But nothing prohibits a legislator from requesting information for his own purposes, on behalf of a constituent, or to try to hold the Executive Branch accountable in a more colloquial sense of “oversight.”  As former White House attorneys Andy Wright and Justine Florence argue, Republicans often sought disclosure of records from the Obama Administration when they were not in control of Congress. In such instances, federal agencies should not, in theory, have ignored the requests, but instead followed DOJ guidance and processed them under the FOIA, just like a record request from any member of the general public.

The track record of the Obama Administration, in this respect, is hardly flattering. Indeed, Wright and Florence’s claim that the Trump “[A]dministration believes members of Congress asking for information about federal agencies are entitled to even less than members of the public,” is loaded with irony.  As attorneys in the Office of the White House Counsel, Wright and Florence personally helped President Obama lead one of the least transparent governments in American history. Cause of Action Institute was the first to expose the Obama Administration’s practice of “White House equities” review, which lead to the severe delay and occasional ignoring of both FOIA requests and congressional record requests, including those that had been issued under subpoena. Individual Members and committee chairmen alike were subject to this politicized review process.  If the Executive Branch has formally adopted a policy to obstruct Democrats, it would be a continuation of President Obama’s legacy of opacity and secrecy.

To summarize, the relevant legislative history and DOJ guidance states that a Member of Congress enjoys a statutory right of public access under the FOIA (and, similarly, the Privacy Act) to records of the administrative state. Minority oversight requests should be considered FOIA requests as a matter of course.  An individual Member would thus have the same right as anyone to “enforce” his request under the FOIA’s judicial review provision, 5 U.S.C. 552(a)(4)(B).  It is improper for OLC to suggest that agencies should only provide “discretionary responses,” say, “to correct misperceptions or inaccurate factual statements.”  An agency may exercise discretion to prioritize a Member’s request or to release exempt material from responsive records.  But an agency lacks the discretion to ignore a Member of Congress simply because of his or her political affiliation or position in leadership.

Ryan Mulvey is Counsel at Cause of Action Institute.

Dear President Trump: It’s Time to Release the Watchdogs

You’re unlikely to hear much about it, but today marks an important yet troubling milestone. The Department of the Interior has gone 3,000 days—over eight years—without a permanent IG, or “Inspector General.”  And according to the Project on Government Oversight’s “Where Are All the Watchdogs?” tracker, there are eleven other IG vacancies, including empty spots at the Central Intelligence Agency (832 days), the Department of Defense (489 days), and the National Security Agency (346 days). It was inexcusable for President Obama to neglect to fill these vacancies with qualified candidates.  It is similarly irresponsible for President Trump to continue to ignore these vital appointments.

IGs serve as the internal watchdogs of the Executive Branch agencies. They are tasked with identifying and combatting waste, fraud, and abuse at their respective entities.  To accomplish this, they conduct important investigations, inspections, and audits.  They are intended to operate independently of agency leadership—a sort of internal check on the operation of the administrative state.

The absence of permanent IG appointees to these vital roles is concerning for numerous reasons. First, it reflects the Administration’s lack of commitment to transparency and accountability in government.  Moreover, acting IGs lack true independence.  As Senator Ron Johnson has commented, “[t]hey are not truly independent, as they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”

There has been a renewed push to highlight the crises in IG appointments in recent weeks. The House Oversight and Government Reform Committee, for example, called on President Trump last month to fill the numerous vacancies, describing IGs as “essential to the functions of federal government.” A bi-partisan group of members of the Senate Homeland Security and Governmental Affairs Committee did the same: “[T]he lack of a permanent IG can create the potential for conflicts of interest and diminish the essential independence of IGs.”

President Trump still has a long way to go in appointing qualified candidates to fill the Executive Branch, and it is admittedly early in his Administration. But selecting qualified, independent, and committed individuals for these vacant watchdog spots should be a top priority.

Ryan Mulvey is Counsel at Cause of Action Institute.

 

CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full 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

The Press and the President’s Tax Returns

All this month The Atlantic, along with many other publications, reported that the House Ways and Means Committee took up a request by one of its Democratic members to obtain President Trump’s tax returns by invoking a venerable provision of the federal Tax Code. In the time since Congressman Bill Pascrell, Jr. (D-NJ) made his request on February 1, 2017, a broad variety of publications have followed, reported, explained, and opined upon the Committee’s consideration of the matter.

On February 14, 2017, along strict party lines, the Ways and Means Committee voted not to invoke its statutory authority to examine President Trump’s tax returns. The Committee’s action received considerable news coverage.  The most common theme among the reports, regardless of the correspondent’s view about what should happen with President Trump’s tax returns, was that the statute at issue is “obscure” or “little known.”  However that view of the statute got started, one need only read a handful of the reports to see how easily the media can fall victim to its own echo chamber.

The statute considered by the Committee, 26 U.S.C. § 6103, is anything but obscure. It is, in fact, one of the foremost reforms arising out of the Watergate scandal.  The investigation and hearings into the burglary led to the discovery that President Nixon had routinely abused the IRS’s audit and investigatory powers, particularly against his political opponents.  The Articles of Impeachment against President Nixon charged that he had “endeavored to obtain from the Internal Revenue Service … income tax returns for purposes not authorized by law.”  In the wake of those events, Congress added privacy protections to taxpayer information held by the IRS and rearranged existing protections (the subsection the Committee considered was one of the latter).  In particular, the Tax Reform Act of 1976 reformed tax privacy to emphasize that tax returns and related information “shall be confidential.” To guard against abuse by future presidents and other government officials, Congress prohibited disclosure of tax returns and related information “except as authorized” by statute. Under this reform, confidentiality became the rule and disclosure, the exception.

The newly strengthened privacy protections, backed up by criminal and civil penalties for unlawful mischief, are designed to ensure that IRS information is used only to administer taxes and related programs, such as social security, and that any disclosure is strictly limited by tailored safeguards and procedures designed to prevent improper violation of taxpayer confidentiality. Over time, politicians have found ways around the statute’s safeguards.  A number of well-documented, egregious, and large scale violations during the Obama administration, which were directed against President Obama’s political opponents, are described in our Investigative Report: Presidential Access to Taxpayer Information (which also provides more detail about the statute). By and large, however, government actors — especially those not administering taxes — are legally and procedurally barred from publishing or using confidential information about any taxpayer absent prior consent.

Congress, like the Executive Branch, is not immune from the temptation to use confidential taxpayer information held by the government. To limit the risk of abuse by legislators, the applicable statute strictly limits congressional access to particular circumstances and subject to specifically tailored safeguards.  Under 26 U.S.C. § 6103(f), the section of the statute that Rep. Pascrell invoked, three congressional committees, including the Ways and Means Committee, can request access to examine any taxpayer’s information (which would include the President’s) but only subject to procedural safeguards designed to make the fact of their request publicly transparent.

First, the Chair of the Ways and Means Committee must send a written request to the Secretary of the Treasury (that is, a third party from a separate, co-equal branch of government) that describes the information sought (like returns from named taxpayers for specific periods). The Secretary of the Treasury, in turn, must record and then regularly and publicly report the number and types of these requests.  Even then, the Secretary may furnish confidential tax information that can be associated with or identify a specific taxpayer only when the Committee members are meeting alone in executive session, unless the specific taxpayer provides written consent prior to any broader disclosure.  Those safeguards ensure that congressional access to any taxpayer’s confidential information becomes a matter of public record.

But how many taxpayers have the time, ability, or inclination to read any part of the Congressional Record, let alone all of it every day, or even a portion of their own representative’s report and reaction about a committee’s work? Indeed, by requiring that every congressional request for an American taxpayer’s confidential information is transparent, the Tax Reform Act of 1976 implicitly relies on the press and third-party watchdog groups to make that information known to the broader public, hopefully, in an accurate and user-friendly form.  In the present case, however, the press missed their own boat by failing to understand the purpose and context of the statute at issue.  If the press intends to improve its reputation for reporting the facts accurately, it needs to take the time, at the very least, to understand the laws and government procedures it’s trying to report.

Mike Geske is counsel at Cause of Action Institute