By Daniel Schuman, Demand Progress

Yesterday was the 230th birthday of the U.S. Constitution, signed at the Constitutional Convention in Philadelphia on September 17, 1787.

More than a hundred years ago, Congress ordered its Library to publish an annotated Constitution that explains that important document. Each edition, starting in 1913, records how our founding document has been interpreted by the U.S. Supreme Court, with new print volumes published each decade and updates published every two years.

One hundred years later, after a lot of prodding (2009, 2010, 2011, 2012, 2013) from us, a 2009 letter from Sen. Feingold, and a 2010 letter from the Joint Committee on Printing, the Library of Congress and Government Publishing Office began moving on publishing the Constitution Annotated online. There had long been a version available on the Congressional intranet, with hyperlinks and regular updates and everything, and a very limited version on GPO’s site, but now — finally — there’d be an online version that everyone could read, reuse, and that would have timely updates.

Well, that didn’t quite happen as we hoped. Instead, the Library/GPO released a new app that published the document as a giant PDF. It’s pretty darn impossible to read that on your phone. And it isn’t updated all that often. Compare that to the internal website available to Congressional staff, with hyperlinks, frequent updates , and the information available in a user-friendly way.

So we’ve continued (2013, 2014, 2016) calling on the Library, GPO, and their oversight committees to release the Constitution Annotated as it’s updated and in a machine-readable format. At this point, all that’s necessary is for the Library of Congress to mirror the webpages that are available internally and publish that. We’ll figure out how to piece it together. (Federal law already requires that the Constitution Annotated be publicly available, so there’s no concerns about confidentiality.)

Wouldn’t it be great if every American could have at their fingertips an expert, non-partisan explanation of the U.S. Constitution? It’s be a great resource for everyone, from schoolchildren to scholars. If the Constitution Annotated were available in a slightly better format, it’d be easy to use that information to automatically update Wikipedia, or answer questions in a chatbot, or be put to a number of uses that raise our level of conversation.

It’s time. Let’s publish the Constitution Annotated online in a format that everyone can use.

According to a newly published review by The Associated Press and numerous state press associations,* during this year’s legislative sessions lawmakers across the country introduced and debated dozens of bills  that would close or limit public access to a wide range of government records and meetings. The sheer number of proposals, many of which did not become law, is worrisome, but one alarming trend is the practice of agencies suing those who seek access to public records.

The lawsuits by the governments name the requesters as defendants.  The suits do not seek damage awards, but even if agencies are ultimately required to make the records public, they typically will not have to pay the requesters’ legal bills.

This tactic is similar to — but goes well beyond — one that federal agencies used to deploy — before it was blocked by the 2007 amendments to the federal Freedom of Information Act.  The federal FOIA provides for the payment, by the government, of attorneys fees and court costs if the requester “substantially prevailed” in the lawsuit. Prior to the 2007 amendments, “substantially prevailing” required a court order declaring release of the information.  Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — the requester/plaintiff is considered to have “substantially prevailed” and may recover fees.

Previously, agencies — when it became clear (or they internally acknowledged) the court was going to rule against them — would release at least some portion of the requested records.  This had the effect of mooting the case and leaving requesters stuck for attorney’s fees.  This was an effective deterrent to requesters who relied on pro bono representation: the requesters did not prevail in court, hence, no compensation for attorneys’ fees, hence, few attorneys able/willing to take on such cases.

As the AP review notes, freedom-of-information advocates say the tactic has become a new way for governments to hide information, delay disclosure and intimidate critics.

*The state press associations are not identified in the article.

Private prison companies that receive federal funding currently claim they are exempt from Freedom of Information Act (FOIA) requests due to a loophole in the current law. The Private Prison Information Act of 2017 (S. 1728) recently introduced by Sen. Ben Cardin would ensure that non-federally run prisons are held to the same standard of information sharing and record keeping as federal detention facilities. The essence of the bill says:

(a) IN GENERAL.—A record relating to a non-Federal prison, correctional, or detention facility shall be—
(1) considered an agency record for purposes of section 552(f)(2) of title 5, United States Code, whether in the possession of an applicable entity or a covered agency; and
(2) subject to section 552 of title 5, United States Code (commonly known as the ‘‘Freedom of 13 Information Act’’), to the same extent as if the record was maintained by  an agency operating a Federal prison, correctional, or detention facility.

(b) WITHHOLDING OF INFORMATION.—A covered agency may not withhold information that would otherwise be required to be disclosed under subsection (a) unless—
(1) the covered agency, based on the independent assessment of the covered agency, reasonably foresees that disclosure of the information would cause specific identifiable harm to an interest protected by an exemption from disclosure under section 552(b) of title 5, United States Code; or
(2) disclosure of the information is prohibited by law.

(c) FORMAT OF RECORDS.—An applicable entity shall maintain records relating to a non-Federal prison, correctional, or detention facility in formats that are readily reproducible and reasonably searchable by the covered agency that contracts with or provides funds to the applicable entity to incarcerate or detain Federal prisoners or  detainees in the non-Federal prison, correctional, or detention facility.

The bill has been endorsed by major organizations committed to government openness and accountability, civil liberties, human rights, and civil rights, including Government Information Watch. In a letter to senators, the groups write that “[t]he Department of Justice Inspector General has found that federal prisons run by private companies are substantially less safe and secure than ones run by the Bureau of Prisons … the public is largely in the dark with regard to the functioning of the many of this country’s private prisons, and the industry operates with a lack of oversight and accountability mechanisms. This dynamic hinders the ability of the government and public to ensure private prison companies are living up to their contractual obligations and not wasting taxpayer dollars.”

In an op-ed published on Who.What.Why., Celia Wexler points out a disturbing similarity between the effort to defeat the work of the Congressional Budget Office and a successful effort in 1995 to kill the Office of Technology Assessment (OTA):

…in 1995, another nonpartisan agency created to help Congress, bit the dust when then-Speaker Newt Gingrich found its fact-based work not worth even its tiny budget. Republicans and Democrats banded together to try to save the Office of Technology Assessment (OTA), formed to deliver advice to Congress on emerging scientific and technical issues. But their efforts failed.

The efforts to defend CBO succeeded – this time. As Wexler points out, Rep. Mark Meadows may have been surprised by the outrage his attack on CBO provoked.

Every living former CBO director, both Republican and Democratic, wrote a letter to congressional leaders defending the agency in no uncertain terms, pointing out its 42-year history of providing nonpartisan budget estimates to Congress.

Nonprofit advocates also weighed in. The Project on Government Oversight, which trains congressional staff to do more effective oversight, predicted that gutting CBO “would send a chilling message to all other independent offices, such as the Congressional Research Service or the Government Accountability Office.” R Street, a Republican-leaning free-market advocate, teamed up with Demand Progress, a progressive policy advocate, to urge Congress to fully fund the agency.

In the end, the pressure worked. The House defeated these attempts to gut the CBO. For now.

Rachel Kleinfeld writes in Just Security that the United States is already being ruled under a state of emergency. “It began under President George W. Bush and continued under President Obama. President Trump just has to ice the cake.”

She notes that ‘when people think of emergency rule, they usually picture Hitler’s declaration in Germany after the Reichstag fire or Colombia, which spent 37 out of 40 years in a state of emergency from 1952 to 1992. But Colombia got a new constitution in 1991, as did Germany after World War II.”

But these are exceptions, because “Their experience with severe emergency actually created a strong public reaction against the experience that helps to safeguard these countries.”

Kleinfeld points to a series of emergency cases compiled by the International Commission of Jurists from around the world, out of which Kim Lane Scheppele, has compiled “an ’emergency script’ that gets trotted out nearly every time, with remarkable stability in the actions and their order in various countries. Emergencies aren’t usually declared at the outset with a capital E – instead, they walk across the line slowly.

“In the early stages of emergency, legislatures and publics pay attention – no one wants to let democracy erode too much. But then, they get used to things. What was exceptional becomes normal. It gets normalized in ordinary law, which sets a new benchmark.”

Kleinfeld points to a recent example: “the U.S. Congress was careful to insert a five-year sunset clause into the Patriot Act. Five years later, Congress removed the clause and made fourteen of the sixteen clauses permanent.”

Following the  “slow creep starts when the Executive branch slowly centralizes power:

Gradually, the courts are marginalized; this is often not abrupt, and the main actor isn’t always clear:

Over time, legislatures and courts both take themselves out of the loop and choose to opt out of the most political decisions, rather than being pushed by the Executive.

Militarization comes next, in that the military starts to perform jobs formerly done by civilians. Under President Obama, our nation’s cyber security was placed under military control, so that civilian sites had no governmental watchdog or protection, while all effort focused on protecting the .mil and other security domains. Trump’s placement of military brass in what are normally high-level, civilian positions is more public, but possibly less dangerous.

Other actions follow, such as reducing the openness of government to free information flow.

Banning assembly is another common tactic. Consider the bevy of  anti-protest bills being considered by 18 states that make it harder to protest, create harsher penalties for arrested protestors, and in two cases, remove liability from drivers who accidentally hit protestors.

Procedural shortcuts such as governing through executive orders are another step.

Counter-intuitively, executive orders and Presidential memoranda were most used when partisanship in Congress was at its lowest point in the middle of the century, according to The American Presidency Project (cited by Kleinfeld). In recent administrations, Obama issued fewer than George W. Bush who issued fewer than Clinton who issued fewer than Reagan.