Ford and veto bargaining over amending FOIA

Congress passed the first amendments to FOIA in 1974 over Nixon's objections during the height of the Watergate Scandal. Nixon's expansion in the use and scope of executive privilege not only brought about a Supreme Court decision but pushed Congress into amending FOIA. On the day Nixon resigned from office and Ford was sworn in as president, the FOIA amendment bill was sitting in a conference committee. The conference committee reached out to Ford his first week in office to inform him that a final version of the bill was done and would be passed immediately. Ford asked for time, opening what would become several months of negotiations between the White House and Congress over amending FOIA. Unable to sway Congress enough, Ford threatened to and then ultimately vetoed the amendment bill, which Congress overrode. The interactions between the executive and legislative branches during this bargaining period highlights key factors of understanding the issues of executive privilege and FOIA in the post-Nixon period.

Eisenhower’s executive privilege and the public interest

This chapter delves into the depths of one of the most important developments within modern American politics, the creation and institutionalization of executive privilege. In facing a fervent Congress in the grips of McCarthyism, Eisenhower issued a letter denying testimony to the Senate for the Army-McCarthy hearings. His letter included a memo from Attorney General Brownell that claimed the president had an inherent constitutional privilege to deny information to Congress or the public if it was in the public interest and for national security. This action institutionalized the Cold War Paradigm in the executive branch and created an extra-constitutional power for the president. Eisenhower issued several executive orders concerning classification and public dissemination of government information, along with the creation of the Office of Strategic Information (OSI) within the Commerce Department to oversee these policies. Eisenhower claimed historic precedent to justify his inherent constitutional power, regardless, it showed a learned response that changed executive power. Congress would respond in 1955 by creating the Special Subcommittee on Government Information chaired by Rep. John Moss, given jurisdiction for oversight on all executive branch information policies and practices. With the issue of freedom of information institutionalized in Congress, a 12-year legislative power struggle would unfold between Congress and the White House ending with the passage of the Freedom of Information Act in 1966.

LBJ and the politics of passing FOIA

Lyndon Johnson's ascension to the presidency following Kennedy's death created the political space for one of the most productive policymaking periods in US history. The politics of this moment provided an astute politician like Moss the opportunity to press forward on getting FOIA passed out of Congress. Years of coalition building on the issue, including support from key congressional Republicans like Donald Rumsfeld and House Minority Leader Gerald Ford, along with Bill Moyers eventual support from within the White House, provided Moss with the opportunity for policy change. LBJ would follow Kennedy's example by signing a letter to Moss reaffirming Kennedy's position on executive privilege, but Johnson was far from supportive of the efforts to get FOIA passed. A tumultuous period marked by massive policy change, FOIA was a small piece of the Great Society, but one that Congress - and Moss - would not back away from. This chapter delves deep into the politics and skills of the individuals in Congress that were able to get FOIA passed and get Johnson's signature on the bill, marking the end of the legislative development period within the CLDC and moving to the next phase of implementation, oversight, and amendment.

Truman and the shift to a Cold War Paradigm mindset

This chapter details how the Cold War Paradigm mindset became institutionalized within the executive branch following the end of World War II. The threat from communism, both external and internal, provided the foundation from which Truman would alter American foreign policy through the Truman Doctrine, but also would focus internally in seeking to stop communist and subversive activities domestically. Once institutionalized, the Cold War Paradigm demonstrates how Truman's actions became a learned response to threats, which altered information policies within the executive branch. Congress heavily supported Truman's actions during this period, as members of Congress also learned and responded to threats. However, the Internal Security Act of 1950 created a rift between the president and Congress over control of government information, setting up an ongoing power struggle that would lead to Eisenhower's creation of executive privilege and Congress's response with the creation of the Moss Subcommittee on government information.

Nixon and the resurgence of executive privilege

With the passage and implementation of FOIA under Johnson, the CLDC moves into the next iteration by examining the implementation, oversight, and amendment phase. This was driven in large part by Nixon's actions after coming into office. While Nixon talked about transparency, he took steps to expand White House control over information, not just following the precedent of Eisenhower, but in expanding the scope of executive privilege. Nixon asserted that executive privilege covered all White House conversations with any staff, appointees, and employees, expanding beyond the national security concerns in the public interest of his predecessors. Nixon's actions to expand executive power left Congress in the position of again grappling with ways to respond, including eventually amending FOIA to strengthen the law as an oversight measure. The first FOIA amendments began under Nixon but would not be finalized until President Ford was in office.

Kennedy and the Democratic political considerations of compromise

The politics surrounding freedom of information changed with the 1960 election of President Kennedy. Partisan power shifted to unified Democratic government, and the power tensions between the White House and Congress over executive privilege faced new challenges. Congressional Democrats were loath to attack their new president in the same manner that Moss went after Eisenhower, so leadership directed the Moss Subcommittee to back off. While partisan politics dictated that congressional Democrats go easy on Kennedy, congressional Republicans increased attacks on the administration over issues of executive privilege and freedom of information, following the same playbook Moss had used on Eisenhower. Within the CLDC, Moss learned to take another approach to handling the politics of unified Democratic government and in dealing with Kennedy, who was acting on the precedent set by Eisenhower to continue similar policies in denying information. The result would be a deal worked out between Kennedy and Moss to ensure that, going forward, executive privilege would only be invoked with the full authority of the president and by no one else.

Conclusion: The future of FOIA and executive privilege

This chapter summarizes the book, offering a discussion on the Cold War Paradigm, CLDC and interconnected double feedback loops in providing an analytical model to understand inter-branch power struggles and how policy is developed as a congressional check on executive power. The chapter also summarizes the intertwined nature of executive privilege and FOIA, and how the policy of FOIA continues to be relevant to current political debates within the contemporary period. FOIA has been amendment multiple times since the 1974 amendments, and every successive administration has sought to contain and control the flow of information. As we move into the Trump administration, the issue of executive privilege has resurged again, forcing Congress into a positon to once again learn new ways of seeking to contain executive power.

Introduction

This chapter presents the theoretical and analytical framework to understand the politics of issue evolution in policymaking by creating a Continuing Legislative Development Cycle (CLDC) model. Nested within the CLDC, a social learning lens provides the ability to understand a Cold War Paradigm shift in thinking that influenced the actions taken by the White House in response to the rise of the communist threat. These presidential actions led to direct learned responses from Congress establishing an action-reaction model, demonstrating power struggles between the legislative and executive branches. An Interconnected Doubled Feedback Loop framework provides an understanding that new information is utilized to seek influence between political elites and society in a continuous manner across time. The multidimensional model developed in this chapter provides an analytical framework to understand how and why issues evolve through the legislative process when steeped in the politics of the moment between Congress and the president.