Secrecy and the next administration

From the Spring 2008 issue of The News Media & The Law, page 11.

[Editor’s note: At press time, Sens. Hillary Rodham Clinton (D-N.Y.) and Barack Obama (D-Ill.) continue to contest the campaign for the Democratic presidential nomination.]

It is easy to see why a presidential candidate’s stance on the war in Iraq and the economy may be more pressing for voters than how he or she feels about the issue of transparency in government. But for many, unhappy with the Bush administration’s record of secrecy, a presidential hopeful’s position on openness still carries great weight.

An American Society of Newspaper Editors poll conducted for this year’s Sunshine Week found that nearly 90 percent of the 1,012 respondents surveyed think it’s important for candidates to say where they stand on open government issues.

The survey, conducted by Scripps Howard News Service and Ohio University, also found a significant increase over the past three years in the percentage of Americans who believe the federal government is very or somewhat secretive, from 62 percent of those surveyed in 2006 to 74 percent in 2008.

“If you look at George W. Bush at 28 percent in terms of his job approval rating, it’s not just the war gone bad and the sour economy, but it is the conduct of this administration in regard to secrecy,” said Cal Jillson, a political science professor at Southern Methodist University. “I think Bush and [Vice President Dick] Cheney both bear a heavy responsibility for having made secrecy a much larger part of government during their administration and there is a negative public reaction that the next president will have to respond to.”

So far, all three major candidates have expressed a desire to bring the business of the government back into the open. And they have each gone on record as supporting the federal shield law currently working its way through Congress.

John McCain

During Arizona Sen. John McCain’s (R) previous run for the White House in 2000, he seemed to embrace disclosure, releasing his full medical history — nearly 1,500 pages of documents — along with his financial records.

This time around, the presumptive Republican nominee appears to be a bit more hesitant. With questions arising about his age (he will be 72 in August) and his health (he is a cancer survivor), the Arizona senator has continued to delay releasing his recent medical records.

“He ought to do that sooner rather than later,” Jillson said. “He has had a number of cancer scares. And it is not infrequent for him to have treatments on this face and neck — and you can always clearly see the results of that.”

Originally, the campaign announced it would release McCain’s health records by April 15. That date was later pushed back to May 15 and could be delayed even longer, according to a campaign spokesman.

“One of the problems has been getting the doctors together and getting everybody ready to meet at the same time,” the senator explained during an appearance on ABC’s “The View” in April. “But there’s plenty of time.”

The law does not mandate that presidential hopefuls disclose their medical history, but it has been a standard practice for the past 30 years.

“Just like in 2000, we will be releasing his medical records to prove what the doctors have been saying for awhile: that John McCain is in very good health,” said spokesman Jeff Sadosky.

Last month, McCain did release his 2006 and 2007 tax records, but he came under fire from Democrats who argued that the figures do not present a complete picture of his finances.

The senator’s wife, Cindy, chairs Hensley & Co, an Anheuser-Busch distributor, and her worth has been estimated to exceed $100 million. The campaign said she would not release her tax returns out of concern for her privacy.

“Senator and Mrs. McCain have kept their personal finances separate throughout their 27-year marriage,” the campaign said in a statement. “Accordingly, they have for many years filed separate tax returns.”

As precedent, the McCain camp cites 2004 Democratic nominee John Kerry’s decision not the release the tax returns filed by his wife — a move that was roundly criticized by Republicans at the time.

The Democratic National Committee also hit McCain for only releasing two years of tax returns. Democratic Sens. Hillary Rodham Clinton and Barack Obama each released returns for the last eight years.

Nonetheless, McCain has won praise from open government advocates for statements he has made in support of bringing more transparency to government.

Speaking at The Associated Press annual meeting in Washington, D.C., in April, McCain pledged to support the federal shield bill that would protect reporters from revealing the identities of confidential sources.

“I’m willing to invest in the press a very solemn trust that in the use of confidential sources, you will not do more harm than good, whether it comes to the security of the nation or the reputation of good people,” McCain said.

“And I would hope that when you do something controversial or something that many people find wrong and harmful you would explain fully and honestly how and why you did it, and confess your mistakes, if you made them, in a more noticeable way than afforded by the small print on a corrections page.”

McCain told those assembled that he disapproved of the media disclosing classified information.

“I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” he said.

But he made a point of praising the good that can come out of investigative reporting.

“I know that the press that disclosed security secrets that should have remained so also revealed the disgrace of Abu Ghraib, a disgrace that made it much harder to protect the American people from harm,” he said. “Thus, despite concerns I have about the legislation, I have narrowly decided to support it.”

Hillary Rodham Clinton

The biggest transparency issue Sen. Hillary Rodham Clinton (D-N.Y.) has dodged is the release of her official records from her time as first lady.

In March, after months of pressure, the National Archives made public 11,046 pages of the former first lady’s daily schedules.

The Archives said 4,746 pages of documents contain parts that were blacked out, mostly to protect the privacy of third parties.

The conservative Washington, D.C.-based group Judicial Watch had initially sued the Archives over the release of Clinton’s records. The group has continued to press for the release of Clinton’s telephone logs during her years as first lady.

In March, U.S. District Judge James Robertson agreed to allow Judicial Watch to question the Archives about the New York senator’s telephone logs.

“The Clinton Library now will have to answer questions under oath about how it is handling (or not handling) requests for the Clinton records,” said Judicial Watch President Tom Fitton in a statement.

The Archives has asked to put off Judicial Watch’s lawsuit for a year so it can consider how soon to begin reviewing the telephone logs, which would take an estimated six to eight months.

In terms of her governing style, Clinton — like McCain — has said she intends to restore openness to the executive branch.

In her Sunshine Week questionnaire, the senator pledged support for a federal shield law; an attorney general who will roll back John Ashcroft’s infamous and still-standing order for bureaucrats to favor non-disclosure over disclosure in Freedom of Information Act requests; and an end to the excessive classification of government documents.

“To me, openness and accountability are not platitudes — they are essential elements of our democracy,” she wrote in the survey.

“I will direct Congress to operate from a presumption of openness,” Clinton reiterated during remarks at an April luncheon, hosted by the Newspaper Association of America and American Society of Newspaper Editors. “The era of Bush-Cheney secrecy will be over.”

John Geer, a political science professor at Vanderbilt University, said Clinton’s past experiences as first lady may give her more insight into the need for openness.

“Let’s say that health care becomes a really important issue and let’s further assume that Hillary Clinton is the next president,” he said. “She’s likely to be more transparent than Obama because she has that history of learning from her mistakes in 1994.”

Barack Obama

Perhaps no other candidate has made more overtures toward providing transparency in government than Illinois Sen. Barack Obama.

“Obama generally is more comfortable releasing information because he’s been in the public eye less long and there are less big financial numbers to release,” Jillson said. “He and his wife have had modest incomes up until the last couple of years when his book income and her promotion kicked in. So I think that he’s been more willing to move financial information into the public sphere.”

The Obama campaign has used the transparency issue in an effort to refute claims by the New York senator that she is better prepared to govern.

“Sen. Clinton and her campaign say she is fully vetted, but the truth is that she is a veteran of non-disclosure,” Obama’s chief strategist David Axelrod said in February.

In a November speech at the Google headquarters in Mountain View, Calif., Obama laid out his plans to use technology to increase government transparency, promising online access to federal data and the opportunity for citizens to comment online on pending legislation.

“We will put government data online in universally accessible formats, [allowing citizens to] track federal grants, contracts, earmarks and lobbying contracts, participate in government forums, ask questions in real time, offer suggestions that will be reviewed before decisions are made, and comment on legislation before it is signed,” Obama pledged during his Nov. 14 remarks.

Obama’s proposal is a follow-up to the Federal Funding Accountability and Transparency Act of 2006, which he co-sponsored. The FFAT Act authorized the creation of a Web site that would allow the public to track federal spending data.

Under the senator’s new plan, federal agencies would post discussion of issues online so the public would have the opportunity to observe and comment. Any bill that passes both chambers of Congress would appear on the White House Web site for a five-day public comment period before the president signs the legislation.

“Technology empowers people to come together to [drive] change,” Obama said. “We have to do more than get our house in order; the opportunity in front of us is bigger than that. Seizing this opportunity is going to depend on more than what the government does and even more than what the technology sector does.”

Like McCain and Clinton, Obama spoke at the NAA/ASNE conference in April where he reiterated his pledge to “open things up.” Like Clinton, he said he supported the reporter’s shield law before Congress and had signed on as a co-sponsor of the legislation.

The senator’s own record has received the most scrutiny from those who criticize his decision not to disclose the full extent of his political and financial relationship with Illinois fund-raiser Tony Rezko, who is now on trial in Chicago on federal corruption charges.

“Regardless of who wins, there is no doubt in my mind that there will be a dramatic shift from the Bush administration approach — you can’t even really use the phrase open government in regard to the current administration,” Jillson said.