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From the National Coalition for History column of the February 2009 issue of Perspectives on History

Obama Is Serious about Government Transparency

Lee White, February 2009

In December 2008, President-elect Obama’s transition team chief John Podesta issued a memorandum to its staff instituting what is called a “Seat at the Table” transparency policy. The memo requires that “any documents from official meetings with outside organizations will be posted on our website for people to review and comment on.”

While there has been no definitive word as to whether the Obama administration will impose similar requirements after the president-elect is inaugurated, Podesta’s edict made it clear that a new age of transparency has begun in Washington.

At the other end of Pennsylvania Avenue, transparency is also a front-burner issue. The end may finally in sight to the seven-year battle historians and archivists have waged to overturn President Bush’s Executive Order 13233 of November 2001 that restricted access to presidential records. On January 7, 2009, the House of Representatives approved H.R. 35, the “Presidential Records Act Amendments of 2009,” by an overwhelmingly bipartisan vote of 359-58. H.R. 35 was chosen by the House leadership as the first piece of substantive legislation passed in 2009 as a symbol of government transparency.

President-elect Obama has already committed himself to revoking EO 13233. However, the hope is that the Senate will move swiftly to pass the bill in time for the new president to sign it soon after his inauguration.

An identical bill (H.R. 1255) to overturn Executive Order 13233 overwhelmingly passed the House in March 2007. At the time the legislation was considered in the House, the Bush administration issued a veto threat.

Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote in the summer of 2007. Senator Joseph I. Lieberman (Ind.-Conn.), chair of the Senate Homeland Security and Governmental Affairs Committee, worked tirelessly to get the bill through the Senate the last two years. However, a series of Republican senators put consecutive holds on the bill and it never came to the Senate floor for a vote.

Senator Lieberman’s task may be easier this year. First, with President Bush no longer in office, Republican senators like Jim Bunning (R-Ky.) and Jeff Sessions (R-Ala.) will likely not want to be seen as holding up passage of a pro-transparency bill. It was widely assumed that the Republican senators who put the holds on the bill did so at the behest of the White House. In addition, with their new larger majority the Democratic leadership will likely have the 60 votes they need to overcome any possible Republican efforts to keep the bill off the floor.

As passed by the House, H.R. 35 would require the following:

  • Revoke Bush Executive Order 13233. The “Presidential Records Act Amendments of 2009” would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.
  • Establish a Deadline for Review of Records. Under the Bush executive order, the Archivist of the United States must wait for both the current and the relevant former president to approve the release of presidential records, meaning that the review process could continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the archivist.
  • Limit the Authority of Former Presidents to Withhold Presidential Records. The Bush executive order required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would give the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.
  • Require the President to Make Privilege Claims Personally. Under the Bush executive order, even designees of a former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president’s estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to designees, relatives, or descendants.
  • Eliminate Executive Privilege Claims for Vice Presidents. In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is held only by presidents.

—Lee White is the executive director of the National Coalition for History. He can be reached at lwhite@historycoalition.org. His regular, informative, “Washington Update,” can be read at http://historycoalition.org where readers can also sign up to receive the update or to get an RSS feed about the latest post.