Publication Date

April 1, 1995

Court Strikes down Agreement between George Bush and Former U.S. Archivist

On February 27, just five days after hearing the case, Judge Charles R. Richey of the United States District Court for the District of Columbia issued a decision in the American Historical Association v. Trudy Peterson case (No. 942671 [D.D.C.]). The issue in the case as stated in Judge Richey’s opinion was “whether the so-called ‘Bush-Wilson Agreement,’ which provides that certain electronic Presidential records be treated as former President George Bush’s personal records subject to his control, is consistent with the Presidential Records Act and the Constitution.” The plaintiffs were asking the court to declare the agreement null and void.

Judge Richey found that the Bush-Wilson Agreement violates the unequivocal language of the Presidential Records Act by providing that Bush could retain "exclusive legal control of all Presidential information on the materials." Richey stressed that the law requires that the U.S. Archivist, not the former President, assume control of presidential records. During oral arguments on February 22 Richard Lepley, the government attorney, insisted that a recent exchange of correspondence between Trudy Huskamp Peterson, the acting U.S. Archivist, and George Bush's representative, James Cicconi, provided procedures consistent with the Presidential Records Act for handling the electronic records of the White House and the Office of Policy Development, which were the subject of the Bush-Wilson Agreement. Michael Tankersley of Public Citizen, who represented the plaintiffs—the AHA, the Organization of American Historians, and the American Library Association—argued that Cicconi's brief two-paragraph letter did not say that the records under consideration were presidential records and did not disavow the Bush-Wilson Agreement. The agreement is unconstitutional, Richey ruled, because it purports to give former President Bush, now a private citizen, authority to direct the actions of current executive officials.

Congress Considers Future of Endowments

On February 16 the House Appropriations Subcommittee on Interior and Related Agencies held a hearing to consider the budgets of the National Endowments for the Arts and Humanities (NEA and NEH). Ralph Regula (R-Ohio), chair of the subcommittee, made brief opening remarks noting that the committee would not be making any appropriations until the NEA and the NEH are reauthorized. He then deferred to Sidney Yates (D-Ill.), the ranking Democrat, who thanked Regula for his fairness in permitting the supporters of the NEA and the NEH "to tell our story." Describing the five-witness lineup as a "dream team" of eloquent supporters of the endowments, Yates introduced Amo Houghton (R-N.Y.), one of the strongest Republican supporters of the NEA and the NEH in the House; Richard J. Franke, chair of the John Nuveen Company and a past chair of the Illinois State Humanities Council; David McCullough, host of the public television series The American Experience and author of award-wining presidential biographies; Ken Burns, producer of historical documentary films, most notably The Civil War; and Clay S. Jenkinson, a professor noted for his scholarly impersonations of Thomas Jefferson at NEH-sponsored Chautauquas.

Following the very informative and moving testimony, Regula thanked the witnesses for their "powerful statements" and commented on the many memorable quotations. A small sampling follows:

  • McCullough said that to argue that the endowments should be abolished because a few programs had been ill-conceived or were flagrantly offensive is the same as "saying that because of the Tailhook Scandal we must get rid of the Navy."
  • Burns stressed that the marketplace will not produce the good works of the endowments, "just as the marketplace does not and will not produce a B-2 bomber, something essential to the defense of our country."
  • Franke spoke of the many ways that the arts and humanities stimulate the economy but stressed that the future of the endowments is more than a financial decision, for "the withdrawal of government participation would be a signal that the people of this country have a diminished sense of culture and an impoverished view of their national identity."

On March 1 the Senate Appropriations Subcommittee on Interior and Related Agencies held a hearing to consider the budgets for the NEA and the NEH. The overall tone of the hearing was supportive, with the questions aimed at improving and trimming the endowments but not abolishing them. Specific concerns were raised over the need to insure local support and accountability to guard against inappropriate grants; the National History Standards, which were funded by NEH; and the perception of the NEH's leanings toward political correctness.

On March 2 the Senate Labor and Human Resources Committee's Subcommittee on Education, Arts, and the Humanities held a hearing to consider the reauthorization of the NEH. The committee hearing, chaired by James Jeffords (R-Vt.), consisted of testimony from Sheldon Hackney, chair of the NEH, and two panels. Hackney described current efforts to make the NEH more effective and discussed specific programs that foster scholarship and the dissemination of the humanities to the public. He noted that 11 million people attended state NEH programs last year; 30 to 40 million attended national programs; and 244 million saw media programs. Hackney asserted that "Americans are thirsty for NEH programs," and he explained that the NEH wants to expand "so more Americans will come into the orbit of the transforming power of the humanities." Jeffords thanked Hackney for an eloquent presentation and said that he hoped to make sure the NEH could continue. Clearly the program of most interest to Jeffords is the Vermont state humanities programs that promote literacy.

The second panel consisted of Victor Swenson, head of the Vermont State Humanities Council; Dave Berry, director of the Community College Humanities Association; and Alberta Arthurs of the Rockefeller Foundation. Each spoke of the value of NEH programs, emphasizing literacy programs, support for community colleges, and the NEH's ability to support major national collaborative projects that no single state or institution could support.

The final panel consisted of Walter Berns, a former member of the NEH council who is now with the American Enterprise Institute, and Barry Gross of the National Association of Scholars. Both were highly critical of the NEH. However, the major targets of their criticism were higher education in general, current humanities faculties, law schools that fail to give proper consideration to the Constitution, political science departments, and the American Council of Learned Societies. Berns talked about how "dead white European males" no longer hold a key place in college curriculums. Both Berns and Gross decried the way scholarship has been politicized through a focus on the politically correct subjects of class, race, and sex, and both lamented the way scholarship has become less vigorous and serious. Deconstruction and postmodernism also came in for attack. Gross recommended that the NEH council have only about six to eight members, each having a staff person so that grants could receive more careful reviews. He also recommended that there be fewer grants and that they be large grants that support such efforts as the publication of the classics, the expansion of archival holdings, and the development of catalogs.

Senator Paul Wellstone (D-Minn.) responded with passion to Berns's and Gross's presentations. He said for the record that the presentations were a caricature "disconnected from reality." He defended higher education and noted that there are other variables, such as poverty, that help to explain today's lower test scores.

Senator Nancy Kassebaum (R-Kans.), who chaired the hearing after Jeffords left, and Senator Bill Frist (R-Tenn.), who chaired it after Kassebaum left, both indicated some sympathy for Berns's and Gross's positions but also indicated support for many NEH programs. Kassebaum specifically identified research as one of the most important activities that the NEH should fund.

House Votes to Rescind $5 Million from NEH Budget

On February 22 the House Appropriations Subcommittee on Interior and Related Agencies voted to rescind $5 million from the unobligated funds in the fiscal 1995 $177 million budget for NEH that went into effect on October 1, 1994. Representative Yates proposed an amendment to rescind only $1 million. That amendment was defeated along a party-line vote. The message from the Republicans on the committee seemed to be that supporters of the NEH should accept the $5 million cut, for that amount could well be increased when the subcommittee recommendation goes to the House Appropriations Committee and then on to the floor of the House for a vote.

Selection of U.S. Archivist

Both the American Historical Association and the Organization of American Historians have officially notified the White House that they would oppose the nomination of John W. Carlin, former governor of Kansas, for U.S. Archivist. Although many historians feel that Carlin lacks the required professional qualifications, the more serious concern for the historical associations is his partisan activities. His major role in Kansas in the Clinton campaign runs counter to the requirements of the law. The 1984 Conference Report on the Archives Independence Legislation calls for the U.S. Archivist to be "insulated from the political orientation of a particular administration." If the president should select an individual who is closely associated with his administration, in all likelihood the next president would seek to replace that person. The conference report anticipates this problem and concludes with the statement, "changes in the office of Archivist coincident with changes in administrations would undermine the independent and nonpartisan role envisioned for the Archivist."

House Holds Hearing on National Archives' Fiscal 1996 Budget

On March 3 the House Appropriations Subcommittee on the Treasury, Postal Service, and General Government, chaired by Representative Jim Lightfoot (R-Iowa), heard testimony from Trudy Huskamp Peterson, the acting Archivist of the United States, concerning the fiscal 1996 budget request for the National Archives. Five of the eight members of the subcommittee attended the hearing. In addition to Lightfoot, Representatives Frank Wolf (R-Va.), Jack Kingston (R-Ga.), Steny Hoyer (D-Md.), and Ronald Coleman (D-Tex.) were present. The committee expressed interest in many aspects of the National Archives' work and, with the exception of Wolf's questions about personnel policies, it was a very cordial hearing. Lightfoot commended Peterson for providing service of the highest caliber, and he expressed his delight at seeing a native of Iowa doing such a great job.

In her presentation, Peterson described the National Archives as the heart of the federal government's information system. She discussed briefly each of the three major goals of the National Archives' strategic plan: enhancing access, servicing customers efficiently, and reducing costs. The National Archives has had a gopher on the Internet since last May. It is constantly adding new material and more finding aids to this on-line service, which receives over 200 inquires an hour. Peterson noted that with the downsizing of government, many agencies will be sending more records to the National Archives, which is working to prepare itself to accession these records. In regard to improving the turnaround time for requests for duplication of photographs and maps, Peterson said the National Archives is privatizing this service and that nine firms will be able to reduce the time of delivery of requests from eight weeks to two weeks.

The National Archives' budget request for fiscal 1996 is $195.291 million, approximately the same amount as for fiscal 1995. Peterson explained that about 50 percent of the budget goes for facilities, 40 percent for personnel, and 10 percent for everything else from postage to computers. The amount earmarked in the fiscal 1996 budget for National Historical Publications and Records Commission (NHPRC) grants is $4 million. This is $750,000 less than is currently available for competitive NHPRC grants.

In the question-and-answer period there were questions regarding the recent court decision in the American Historical Association v. Peterson case, the preservation of the Constitution and Declaration of Independence, personnel levels (the National Archives is currently 8 percent below its fiscal 1994 level of full-time employees), the impact of the buyouts of employees taking early retirement, the Inspector General’s recommendations for interim performance ratings of senior executive service employees, possible overlap in the work of the National Archives and the Library of Congress, and the problem of being locked into high, fixed building costs. There were also several questions about electronic access. Peterson explained that the National Archives in now undertaking a pilot telecommunications project in Nebraska and will be evaluating what citizens would most like to have available on the Internet. “The nationwide net is,” Peterson said, “our future.” She explained that it will save money in the long run because staff will not have to answer letters and print and distribute material. People can find information for themselves at a time that is convenient for them. Lightfoot responded by noting that this is an exciting development, particularly because it will give access to smaller libraries. The Internet address for the National Archives is, or if you use World Wide Web, it is

Members of the House Appropriations Subcommittee on the Treasury, Postal Service, and General Government who were unable to attend the hearing include Ernest Istook (D-Ind.), Mike Forbes (R-N.Y.), and Peter Visclosky (D-Ind.).

Federal Court Rules on National Security Council Computer Records

On February 14 Judge Richey of the United States District Court of Appeals rejected the claim of the National Security Council (NSC) that it is not an "agency" of the federal government and is not required to preserve its electronic mail records under the Federal Records Act. The ruling came in a suit, frequently called the PROFS case, initiated in 1989. The judge ordered the NSC and the U.S. Archivist to adopt new recordkeeping guidelines to ensure that NSC records "are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act." The American Historical Association and the American Library Association are coplaintiffs in the case. On February 27 the government appealed the decision.

— is the director of the National Coordinating Committee for the Promotion of History.

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