The days of free speech are clearly numbered in the United States unless things change radically – unless people rise up to challenge the establishment – as government at all levels continues in 2014 to wage an unprecedented war on open government.
Eerie similarities in the methods and motives and in the reasons we must surrender our constitutional rights are apparent from the federal to the local level, revealing just how systemic the mindset and propaganda campaign is.
Then, too, the assault we are witnessing lays bare another enemy of the First Amendment in particular and of constitutionalism in general: the growing tyranny of the courts.
A look at our open-records grades for this year reveals just how dismal the situation is. Since the news media has sponsored Sunshine Week over the last decade – its inception was 2005; this is the 10th edition – the prospects for free and open government have grown steadily worse, not better.
This year we doled out 25 failing grades compared to only 31 passing ones, by far a record. To say it another way, by that count about 45 percent of government officials can be considered not merely ignorant or nonchalant or careless about open records but outright enemies of freedom and openness, and the hostility is getting worse by the year.
The Orwellian motif is observable at all levels of government. We are only supposed to say things the government thinks is appropriate for us to say, and, when it comes to government operations, we are only supposed to know things the government thinks is appropriate for us to know.
According to the government, the government needs its privacy to serve the public. The government can only serve the public if it shields the public from the monstrous realities of everyday life in the real world.
The government has thus become our helicopter parents; we, its diapered, handheld children.
It’s all for our own good, of course. The government is here to help us. As George Carlin once said: “When fascism comes to America, it will not be in brown and black shirts, it will not be in jackboots, it will be Nike sneakers and smiley shirts. Smiley smiley.”
So smile, America, Smiley is here.
We saw the mindset at work this past year in the Northwoods. We saw it when we challenged the authenticity of Lakeland Union High School records that were being denied release.
In that matter the school district’s attorney told judge Leon Stenz simply to trust the district, and in the end that’s what the judge did. In other words, if the authorities say something is so, then it is so. That’s how the judge in Forest County thinks: The government is always right.
As was said last year in these pages, it’s the thud, thud, thud of the rubberstamping courts.
The same thinking is taking place on the federal level. As we report in today’s edition, the government is trying to cut off whistleblower protection for former air marshal Robert MacLean for releasing a text about marshal deployment he thought was important for the public to know.
The case is flying under the radar in the state-run media, but it is actually one of the most important to come down the pike in a long time.
The whistleblower statute is, of course, designed, as the law itself states, to encourage government personnel to blow the whistle on wasteful, corrupt or illegal government practices without fearing retaliatory action by their supervisors.
Under the law, any employee who comes across information that he or she “reasonably believes” shows a “violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” can raise concerns without fear of employment-related reprisal.
The balance to that disclosure ability is that employees are forbidden to publicly reveal information that has legitimately been shielded from public view by law. As such, Congress can establish specific classes of nondisclosable information, the disclosure of which would not be protected by the whistleblower statute.
Any other information is fair game. Even then, the law makes sure whistleblowers have an authentic motive: if a court finds they did not “reasonably believe” disclosure was necessary to protect public safety, they would not be granted protection, either.
It should all be pretty straightforward, but the Obama administration is using the MacLean case to try and shut down whistleblower protections altogether.
Here’s how. The central question is, who should decide what executive branch information can and can’t be used against the executive branch: Congress or the executive branch?
It’s a no-brainer, isn’t it? The whistleblower statute says information excluded ‘by law’ can’t be protected – in other words, by Congress. What in the world would be the use of letting the executive branch have approval and final say over which executive-branch information can be used against it?
Indeed, the very purpose of the statute is to provide cover for those employees who release information not only that they believe is critical for the public to know but that executive agencies don’t want released. That’s why they are called whistleblowers.
Obviously, if the executive branch has its way, no critical information would ever qualify for whistleblower coverage. Yet that’s exactly the power the Obama administration is trying to give itself.
To be sure, there’s a lot of fog surrounding the case. For instance, Mr. MacLean says the government classified the information retroactively by regulation. That’s true enough but irrelevant because the same information was in fact embargoed by an earlier regulation.
It’s the regulation part that’s critical. The government says the information barred from disclosure by regulation is thus barred from disclosure by law, since the regulation was directed by a congressional statute. Indeed, Congress commanded the TSA to develop regulations by which information would be sealed from disclosure if disclosure would threaten transportation safety.
But that’s a sleight of hand. A regulation has the force and effect of law, but it is not a law. Regulations issue from and are often directed to be promulgated by law, but they are not part of those laws. That’s why they are called regulations and published in separate volumes.
It’s not a distinction without a difference. Laws take an affirmative action by Congress; executive agencies craft the regulations by which those actions are enforced and implemented. The danger with regulations is that they are sometimes too broad, and sometimes they apply an interpretation to the law the agency likes but that does not necessarily match congressional intent. Often they get away with it.
Acts of Congress are thus more narrow and constrained; because they take time and action, there are fewer laws than regulations.
That’s why Congress wrote the language it did in the whistleblower law. It meant exceptions to whistleblower protections to be rare and truly in the national interest; they made congressional action necessary to exclude certain classes of information, and only those classes of information, from the protective umbrella.
The bottom line is, Congress does grant the government the power to regulate the disclosure of its information, but it never intended to shut all that information off from whistleblowers, just in case the government abused its authority. It reserved for itself the power to shield only the most important information.
Now the administration want to redefine what a law is, and transfer authority to the executive branch. It wants to make all regulatory bans on disclosure exempt from whistleblower protections, which is virtually all information.
The Obama administration is asking the Supreme Court to let the executive branch decide whether or not someone blowing the whistle against it is entitled to legal protection.
The answer is likely to be, Frank Drebin-style, “Move on along. Nothing to see here.”
Of course, this transfer of authority is all the more important because it is not limited to information. Increasingly, agencies are writing laws they call regulations, with only the most tenuous connection to any statutory authority or intent. As constitutional scholars are warning, Congress is on the verge of becoming irrelevant, and is doing nothing about it, while the courts merely rubberstamp executive agency decisions.
So the transfer of power to executive authority continues unabated, both on the federal and state levels, and as it does the cloak of secrecy continues to overcome transparency. The more power the government has, the less it wants us to see.
As we recently reported, the aborted attempt to put government monitors in the nation’s newsrooms was another move toward secrecy. Just as giving executive authorities the power to look over the work of whistleblowers to decide their fate would have a chilling effect on honest disclosure in the public interest, so placing government monitors in newsrooms would have a chilling effect on journalists’ honest reporting in the public interest.
The list goes on and on. Here in Wisconsin, the latest bid to shut down the state’s online circuit court system is merely another cover to cloak the true proceedings of the courts. If the Legislature gets it way, as the Freedom of Information Council’s Bill Lueders has observed, CCAP will be little more than a registry of known offenders.
No longer would it be possible to investigate the patterns of certain courts and judges. For example, how many times has a judge seriously punished women for disorderly conduct and other minor domestic disturbances but let men charged with more serious domestic abuse crimes go with a slap on the hand? Who are the most and least rigorous judges when it comes to DUIs? How many times does a particular judge side with the state in regulatory matters as opposed to finding for citizens and businesses?
None of this could be tracked if Republicans and Democrats get their way, and they likely will. And when the bench is full of judges like Leon Stenz, who believes whatever the government tells him to believe, that’s a chilling thought.
In this year 2014 the state of open government is not good, and that’s an understatement. Only an active and outraged citizenry can provide the turnaround needed in what has quickly become post-constitutional America.
So vote, and act, and stay vigilant. Because it’s your ability to be vigilant that’s at stake.