Freedom of Information Act reforms that failed at the end of the last Congress are likely to return in the new one in coming weeks and do so with the same bipartisan support that nearly carried the day for them in 2014.
The FOIA Improvement Act could face many of the same challenges that contributed to its failure in the 113th Congress, when both chambers passed similar legislation but were unable to vote on a compromise measure.
Rep. Elijah Cummings, D-Md., told the Washington Examiner he hopes to advance the effort “quickly.”
“We came very close to getting a FOIA reform bill passed last Congress,” said Cummings, who is the ranking minority member on the House Oversight and Government Reform Committee. “I look forward to working quickly with this Congress to send bipartisan legislation to the president’s desk for his signature so that we can strengthen the law that gives the American people access to information about their government.”
Anne Weismann, interim executive director of Citizens for Responsibility and Ethics in Washington, said the bill’s biggest obstacle in the last Congress was time.
“I am hopeful we will not run up against the same ticking clock here,” Weismann said.
Weismann pointed to the Department of Justice — which she said “adamantly opposed” the bill in its previous incarnation — as a likely source of trouble for the measure, as well as possible White House resistance to its passage.
One of the bill’s most significant provisions would have imposed a 25-year limit on how long the government can block the release of records generated in a decision-making process under the FOIA’s fifth of nine exemptions.
Tom Fitton, president of Judicial Watch, said the reforms weren’t as “substantive” as they could have been and noted the fact that the Obama administration opposed even such “weak tea” transparency provisions suggests the White House may pose a challenge the second time around.
Fitton, whose organization files more FOIA lawsuits against the federal government than any other group, said Congress could increase the bill’s chances for success by enacting their own transparency laws.
“They administratively can act and take steps to make material available voluntarily that had previously not been public,” he said.
Moving to make their own branch more open would strengthen lawmakers’ case for increasing transparency in the executive branch, Fitton said.
Patrice McDermott, executive director of the transparency advocacy group Open the Government, said government agencies may have resisted the measure because the bill would alter some of their practices.
McDermott said her group was “led to understand” that lobbyists representing the banking and financial services industry fought the bill in the House during the last session.
Others have echoed that understanding, though none could point to the specific groups behind the challenge.
McDermott said transparency groups and lawmakers on both sides of the Hill hope to have the legislation back in Congress by March 15, which will mark the start of a national government transparency movement called Sunshine Week.
Media outlets, watchdog groups, citizens and lawmakers participate in a dialogue on open government every year during Sunshine Week, which marks the anniversary of the 1966 passage of the original FOIA by President Lyndon B. Johnson.
Gabe Rottman, legal counsel with the American Civil Liberties Union’s Washington office, said he is unsure if the “political dynamic” has changed significantly since lawmakers’ previous attempts to shepherd the bill through Congress.
Rottman said the reforms had a “significant amount of traction” behind them on Capitol Hill last year.
“All it does is it takes the presumption of disclosure that Obama put in place through executive action and puts it into law,” he said of the bill, although he agreed that “some of the agencies may have concerns.”
Such concerns — many of which surfaced at the eleventh hour as Congress scrambled to pass a variety of other legislation — were the biggest hurdles to the bill’s success last year, said Sean Vitka, federal policy manager at the Sunlight Foundation.
He said the delayed agency resistance created a situation in which a single senator’s opposition was able to effectively undo months of negotiations.
Vitka was referring to Sen. Jay Rockefeller, D-W.Va., who briefly held the measure before it passed the Senate by unanimous consent.
“This time around, everyone is on notice. Last-second concerns — real or fabricated, national security or banking — shouldn’t be used as a stalling tactic designed to kill broadly supported, bipartisan legislation,” Vitka said. “And I don’t think there will be as much patience for that kind of tactic in 2015 as there was in 2014.”
