HOLDING GOVERNMENT ACCOUNTABLE

 

[Published as part of Constituting America's Ninety Day Study on America's Founding Principles - Principle of Duty of the American People to Continually Maintain Checks on Government Power – Constituting America]

On November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth”.

 

Citizens holding government accountable begins with knowing what their government, at all levels, is doing.

 

Two long standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.

 

During the Virginia Ratifying Convention for the U.S. Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

 

“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”

 

Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:

"As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”

Madison raised concerns about those who aspire to unbridled power.

“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”

Public access to view the proceedings of House and Senate began in December 1795. 

The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches.  The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:

1.    to require agencies to keep the public informed of their organization, procedures and rules

2.    to provide for public participation in the rulemaking process, for instance through public comment

3.    to establish uniform standards for the conduct of formal rulemaking and adjudication

4.    to define the scope of judicial review

The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, the Government in the Sunshine Act was enacted September 13, 1976.  Similar “Sunshine Laws” were enacted among state and local governments.  However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.

The practice of public accessing public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act”. Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.

The world's first law requiring "publicity for official documents" was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).

FOIA@250: World’s First Freedom of Information Act Dates to 1766 | National Security Archive (gwu.edu)

“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”

Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.

While the Administrative Procedures Act mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.

 

Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.

 

In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).

 

On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.

 

Johnson opposed the legislation but allowed it to become law on July 4, 1966.

 

On this 4^th of July we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power. 

 

It reminds us that citizens must remain constantly vigilant to protect our god given rights.