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December 28, 2004

The Constitution in 2020: Post by John Podesta

Link: The Constitution in 2020: Post by John Podesta.

Open government is essential to democracy. The current administration’s penchant for secrecy, illustrated perhaps most famously by Vice President Cheney’s refusal to disclose the most basic information about whom he consulted with in developing the nation’s energy policies, has brought renewed vigor to progressives’ fundamental commitment to transparency and accountability in government.

But in what is that impulse grounded? The Constitution does not explicitly speak of a “right to information” or “open government.” The legal authority we have to demand information from government is rooted in statute (e.g., FOIA, FACA). While these laws play a valuable role in peeling back the curtain on government secrecy, the public’s right to know would be considerably strengthened if such a right could be constitutionalized.

One place to look for support of such an argument is Article I, Section 1, which grants to Congress “[a]ll legislative [p]owers” enumerated in Article I. Underlying that statement, and indeed all of Article I, is an assumption that Congress is in a position to exercise its legislative mandate. Few people may realize how that very assumption may be faulty. Congress has, arguably, never been less functional and less able to legislate. And an important element of this institutional paralysis comes from the lack of basic information that is shared by the executive branch and between the majority and minority parties, casting doubt on the ability of Congress to address matters of public policy, and perhaps more importantly, represent the public it purportedly serves.

The minority party in Congress often does not even see the text of major bills until a few hours before voting on them—leaving no time for them to be understood, much less read. The appropriations process in particular has become so disfigured that bipartisan outcry is growing. Congress now routinely fails to pass the bills, required by the Constitution, to fund the government, instead waiting until, almost literally, the last minute to issue an enormous omnibus bill that few members—and certainly no members of the minority—have time to digest. Hearings are scheduled on short notice in order to deprive minority members of the time necessary to prepare and gather witnesses. Critical reports, memoranda, and testimony are not shared. A Democratic leadership aide said last year, "From their perspective, they don't need to tell us anything. We're fundamentally not part of the process."

This might be acceptable in some parliamentary systems. But in our system, particularly with such a closely divided Congress, the withholding of information compromises the ability of the institution to do its job. Moreover, it deprives nearly half the people of the informed representation to which they are entitled.

The Supreme Court has recognized that Congress has the right to obtain information from the executive branch—a responsibility that is normally exercised by the majority party. But in a situation like the one we have today, where the majority has abandoned much of its oversight role, the question is: can a constitutional argument be framed that the minority party has a right to information in order to fulfill Congress’ obligation to oversee the executive branch?

Posted at 9:24 PM


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