Presidential Records Act Amendments of 2009

Madam President, recently the Obama administration asked the National Archives to speed up its already planned release of Supreme Court nominee Elena Kagan's records from her time in the Clinton administration.

I applaud the administration's openness. But this speedy release of documents is not required by the current Presidential Records Act and might have been impossible under an Executive order issued by former President George W. Bush. That order allowed former Presidents, Vice Presidents, and their heirs to withhold the release of documents indefinitely by claiming Executive privilege.

On his first day in office, President Obama repealed the Bush Executive order, but a future President could just as easily change it back or add new impediments to the timely release of an administration's records.

I have long championed legislation to make it clear that these documents are the property of the American people and therefore should be subject to timely release.

But we cannot move forward with this legislation because my friend, colleague, and ranking member on the Judiciary Committee, Senator Jeff Sessions, has placed a hold on it.

Regarding the release of the Kagan documents, Senator Sessions recently told the Washington Post:

I think all the documents that are producible should be

produced. The American people are entitled to know what kind

of positions she took, and what kind of issues she was

involved with during her past public service.

I agree with Senator Sessions and hope he will now release his hold on my legislation so this kind of speedy release of documents and the right of the American people to view them will be the legal standard for all future Presidents.

A little history will help explain how we got to where we are today.

Securing Presidential documents is a problem as old as the Republic. George Washington had planned to build a library on his estate at Mount Vernon to house his Presidential papers. But Washington died before he could get his plan underway and his heirs were not always careful stewards of our Founding President's legacy.

Some of the documents were so badly stored they were eaten by mice. Others were sold off or given away haphazardly. One of Washington's heirs even took to cutting the signature from Washington's correspondence and sending it to collectors.

In a letter, this heir wrote:

I am now cutting up fragments from old letters and

accounts, some of 1760 . . . to supply the call for anything

that bears the impress of his venerated hand. One of my

correspondents says, ``Send me only the dot of an i or the

cross of a t, made by his hand, and I will be content.''

Despite this inauspicious beginning in preserving our Nation's history, for nearly two centuries it was presumed that the papers of former Presidents were their personal property to be disposed of however they or their heirs saw fit.

Think of all our national history that has been lost, destroyed or kept locked away far too long.

The bulk of Andrew Jackson's papers were scattered among at least 100 collections. Jackson's successor, Martin Van Buren, destroyed correspondence he decided was--I quote--``of little value.''

The papers of Presidents Harrison, Tyler, Taylor, Arthur, and Harding were destroyed in fires--sometimes by accident, sometimes intentional.

President Lincoln's son Todd burned his father's Civil War correspondence and threatened to burn all of his father's Presidential papers until a compromise was reached with the Library of Congress that kept most of the papers sealed until 1947. This delay helped fuel conspiracy theories that the papers were kept hidden because they would show that members of Lincoln's Cabinet were part of the assassination plot--in effect, that Lincoln died in a coup.

Of course, when the papers were finally released, they showed that wasn't true, but it took 82 unnecessary years to put the rumor to rest.

These historical records are too valuable to be left to the judgment of former Presidents, the whims of their heirs, the caprice of nature or--as in George Washington's case--the appetite of rodents.

This situation finally began to change under President Franklin Roosevelt who, on December 10, 1938, announced he would build a library on his estate in Hyde Park, NY, to house the papers and collections of his public life that stretched back to 1910, when he was elected to the State Senate of New York.

Roosevelt set a standard for openness, asking his aides and Cabinet Secretaries to contribute to the collection, and almost every President who followed carried on in the spirit of Roosevelt--also building libraries to house their papers.

But this system was voluntary and began to crumble with the resignation of our 37th President, Richard Nixon.

Nixon had an agreement with the General Services Administration, GSA, which would have allowed him to keep all his records locked away, including the infamous Watergate tapes, and mandated many of them be destroyed.

This put us right back where we started, with a former President choosing what historical records the public was entitled to. Congress passed legislation in 1974 specifically ordering that the Federal Government take control of Nixon's records and then in 1978 passed legislation declaring that Presidential papers were public property that must be turned over to the National Archives at the end of an administration and be open to the public after 5 years.

Systems, however, were put in place to allow a former President to review documents--and challenge their release on the grounds of Executive privilege. But the presumption was in favor of openness unless the former President could show the court a compelling reason to withhold the documents.

But then, as mentioned, President Bush weakened the law with Executive Order No. 13233, issued on November 1, 2001. Just to repeat, under this order, not only former Presidents and their heirs, but Vice Presidents and their heirs as well, could withhold the release of documents by claiming Executive privilege.

The order also required those challenging claims of Executive privilege to prove in court that they have a ``demonstrated, specific need'' for the documents--an impossibly high standard since only the document's author can know precisely what a document contains.

And since the Executive order also allowed for an indefinite review period, these records--housed in Presidential libraries maintained by the taxpayers--could be locked away for indefinite periods of time, making them about as useful as the ashes of Lincoln's letters.

In reversing Bush's Executive order, President Obama made clear that only the sitting President can claim Executive privilege--not their heirs, and not their Vice Presidents or the Vice Presidents' heirs.

In signing the new Executive order, President Obama said:

Going forward, anytime the American people want to know

something that I or a former President wants to withhold, we

will have to consult with the Attorney General and the White

House Counsel, whose business

it is to ensure compliance with the rule of law. Information

will not be withheld just because I say so. It will be

withheld because a separate authority believes my request is

well grounded in the Constitution.

This is wise public policy and should be the law of the land--subject to repeal only by Congress, not by Executive order.

When President Roosevelt dedicated his library and began opening up his records and other artifacts to public view, he made it clear that this kind of openness is good for a democracy. ``The dedication of a library,'' Roosevelt said, ``is in itself an act of faith. To bring together the records of the past and to house them in buildings where they will be preserved for the use of men and women in the future, a Nation must believe in three things. It must believe in the past. It must believe in the future. It must, above all, believe in the capacity of its own people so to learn from the past that they can gain in judgment in creating their own future.''

This Congress can now reassert Roosevelt's faith in our democracy. That is why I urge my colleague, Senator Sessions, to release his hold on H.R. 35 so we can pass it, get it to the President, and make history now by preserving Presidential history as an open resource for Americans to learn from in the future.

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 35) to amend chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days in order to revise and extend their remarks.

Madam Speaker, I yield myself such time as I may consume.

H.R. 35, the Presidential Records Act Amendments of 2009, will restore public access to Presidential records. Identical legislation was introduced in the last Congress and passed the House with strong bipartisan support.

The Presidential Records Act of 1978 established that the records of the President belong to the American people, not to the President. It also ensured that these records would be released to historians and to the public in a timely manner.

In an executive order issued in November 2001, President Bush reversed the presumption of disclosure in the Presidential Records Act. The order gave Presidents and former Presidents the ability to delay the public release of records even long after their own deaths. For the first time, it gave former Presidents the ability to assert privilege over their own records.

Today's legislation restores the intent of the Presidential Records Act. It makes clear that only Presidents and former Presidents, not former Vice Presidents or the descendents of Presidents, can make assertions of privilege over records. It gives former Presidents the authority to assert privilege over their own records, but it requires a sitting President or a court to agree with the assertions in order for those records to be withheld from the public, and it sets strict deadlines for the President and former Presidents to review records before they release them to the public. This legislation will prevent former Presidents from withholding embarrassing records, and will allow historians to tell a complete story about Presidential administrations.

I would like to thank the ranking member, of course, from California, Mr. Issa, for his cooperation in moving this measure to the floor very quickly. I would like to thank him for that. I know that we share the same goals of making government more open and less wasteful, and we plan to work together on those goals in a bipartisan manner.

I also thank the previous chairman, Congressman Waxman, for his work in the last Congress, who did a marvelous job. Of course, that's the reason why we are able to move very quickly, because of some of the work that he was able to do in the last Congress.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 1 minute to the gentleman from Ohio (Mr. Kucinich).

Madam Speaker, I yield 1 minute to the gentleman from Missouri (Mr. Clay).

I yield the gentleman 2 additional minutes.

Madam Speaker, as we begin a new Congress and a new Presidency, it is time to move away from the policy of secrecy. The President-elect has spoken of a desire for more openness in government. We in Congress share that goal, and this bill is an important step towards a more transparent White House.

I want to thank my colleague from California and his staff and my staff for the work that they've done on this bill. I urge all of my colleagues to support this bill because this is definitely good government, and I think that we need to be about good government because we cannot afford the luxury of waste, fraud, and abuse.

Madam Speaker, I ask all of my colleagues to support this legislation.

I yield back the balance of my time.

Madam Speaker, on that I demand the yeas and nays.

Madam Speaker, let me congratulate you for your re-election as Speaker of the House. It is an honor that you have served with great distinction and verve. I look forward to more of your continued leadership in the 111th Congress.

Madam Speaker, I rise today in support of H.R. 35, the Presidential Records Act Amendments, which amends chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.

H.R. 35 provides that when the Archivist determines to make available to the public any Presidential record that has not previously been made available to the public, and that is not subject to any claim of constitutionally based privilege against disclosure, the Archivist should provide notice of the determination to the former President during whose term of office the record was created, the incumbent President, and make the notice available to the public. The notice must also be in writing. These amendments strengthen the underlying bill.

The Presidential Records Act itself governs the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandates the preservation of all Presidential records. The act changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which the President must manage their records.

Specifically, the Presidential Records Act:

Defines and states public ownership of the records.

Places the responsibility for the custody and management of incumbent Presidential records with the President.

Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once he has obtained the views of the Archivist of the United States on the proposed disposal.

Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.

Establishes a process for restriction and public access to these records. Specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (United States), FOIA, beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to 12 years. The PRA also establishes procedures for Congress, courts, and subsequent administrations to obtain special access to records that remain closed to the public, following a 30-day notice period to the former and current Presidents.

Requires that Vice-Presidential records are to be treated in the same way as Presidential records.

This bill is important. It was under the Bush administration that the e-mail controversy surfaced in 2007. During that controversy which involved the dismissal of eight U.S. attorneys, congressional requests for administration documents while investigating the dismissals of the U.S. attorneys required the Bush administration to reveal that not all internal White House e-mails were available, because they were sent via a non-government domain hosted on an e-mail server not controlled by the Federal Government. Conducting general government business in this manner possibly implicates the Presidential Records Act. The Bush administration e-mail controversy highlights the need for these amendments and for the bill.

I urge my colleagues to support this bill.

Madam Speaker, I yield myself such time as I may consume.

The new chairman and I both are assuming these positions after a long period of time of serving in lesser positions on Government Reform, and we come to it, I think, equally with the same vigor, with a vigor to make this committee a bipartisan committee, a committee that works openly between the majority and minority for the purpose of making sure that government works openly for the people who we serve.

I want to thank the chairman today because as we bring three votes from our committee, each of these was shared with the other in consultation, each of them was agreed were necessary and could be moved in a timely fashion today. Each of them will be presented to our conferences as noncontroversial, and in fact, ones that should pass unanimously or near unanimously. This is a great start.

I'm particularly pleased with the chairman and myself to be able to offer the first pieces of legislation of the 111th Congress because I expect that this committee will be the most productive committee of the Congress. It is the committee that has the greatest responsibility, as President-elect Obama has said, to make government accountable. We are that committee.

I look forward to it. As the chairman said, this piece of legislation does restore a balance. It is not a balance that's without controversy, but it is a balance that I believe is appropriate.

Additionally, to what is in the language of the bill, which the chairman did a good job of explaining, there is, in fact, a final holdback which is any President asserting some Presidential secret or particular current damage to the government would be able to overcome this legislation, but it will be the burden of the current President, and as the chairman said, the burden of the previous President to make a case for why records should not be made public rather than the other way around.

I look forward to a floor vote on this on a bipartisan basis and urge passage of this bill.

I yield back the balance of my time.

I thank the chairman for yielding.

I look forward to working with Chairman Towns, the new Chair of the Oversight and Government Reform Committee, as well as the ranking member, Mr. Issa.

Let me also say, as an original cosponsor of H.R. 35 and chairman of the Oversight Subcommittee, I am pleased to see the measure presented for consideration by the House today.

Introduced by Chairman Towns, this bipartisan bill is intended to promote the timely release of Presidential records under the Presidential Records Act of 1978 by rescinding Executive Order 13233. Issued by President Bush in November 2001, the executive order granted new authority to Presidents, former Presidents, their heirs and designees, and Vice Presidents, allowing them to withhold information from public view unilaterally and indefinitely.

Executive Order 13233 undermines the Presidential Records Act by removing discretion from the archivists of the United States and delaying the release of records that are necessary to give historians and the public a full picture of a President's tenure.

I thank the chairman for yielding.

Madam Speaker, the American people value the importance of transparency and having an open government. Citizens have a right to know how and why important decisions are made at the highest level of government. This straightforward and bipartisan legislation would ensure that this will be the case by requiring Presidential records to be treated as the property of the American people.

I urge all of my colleagues to support the bill.