Congress exempt from email rules

Associated Press

WASHINGTON

Members of Congress who are demanding Hillary Rodham Clinton’s emails are largely exempt from such scrutiny themselves.

Congress makes its own rules, and has never subjected itself to open-records laws that force agencies such as the State Department to maintain records and turn them over to the public when asked.

There’s also no requirement for members of Congress to use official email accounts, or to retain, archive or store their emails, while in office or after. That’s in contrast to the White House and the rest of the executive branch. Official emails there are supposed to be retained, though the controversy over Clinton’s use of a personal email account while secretary of state has exposed vague and inconsistent requirements from one agency to another.

But if the rules at federal agencies are unclear, at least there are rules. On Capitol Hill, there are almost none. That means that the same House Republicans who are subpoenaing Clinton’s emails as part of their inquiry into the Benghazi, Libya, attacks are not required to retain emails of their own for future inspection by anyone.

“Members of Congress can burn everything when they’re finished if they want,” said John Wonderlich, policy director at the Sunlight Foundation, which advocates for government transparency. “They have discretion.”

That might appear to be a double standard, but members of Congress mostly don’t see it that way. And, perhaps surprisingly, open- government advocates are largely unconcerned. They agree it makes sense for Congress to be treated differently from the executive branch, although there are certain private proceedings they would like to see made public, such as some reports generated by the Congressional Research Service.

For the most part, lawmakers say, Congress already operates in a much more open fashion than the other branches of the federal government. Most congressional proceedings are conducted in open session, sometimes widely broadcast, and lawmakers are accountable to the voters at election time. Some argue that requiring members of Congress to make their correspondence public could chill their ability to communicate freely with constituents who might not want their views or requests widely exposed.

“I don’t want to sound like we’re separating ourselves from other groups, but there is a reason that you protect constituent correspondence, so it’s a little different kettle of fish,” said Sen. Jeff Flake, R-Ariz.

A provision in the Constitution known as the “speech or debate” clause provides members of Congress with immunity for their legislative acts and generally has been interpreted to give them broad control over their records, although it’s been challenged in court during recent corruption investigations. Additionally, because executive-branch agencies are bound by the Freedom of Information Act, correspondence between a lawmaker and, say, the Interior Department can be accessed by the public.