[Congressional Record Volume 155, Number 2 (Wednesday, January 7, 2009)]
[House]
[Pages H42-H45]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009

  Mr. TOWNS. Madam Speaker, I move to suspend the rules and pass the 
bill (H.R. 35) to amend chapter 22 of title 44, United States Code, 
popularly known as the Presidential Records Act, to establish 
procedures for the consideration of claims of constitutionally based 
privilege against disclosure of Presidential records.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                H.R. 35

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Presidential Records Act 
     Amendments of 2009''.

     SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 
                   CONSTITUTIONALLY BASED PRIVILEGE AGAINST 
                   DISCLOSURE.

       (a) In General.--Chapter 22 of title 44, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2208. Claims of constitutionally based privilege 
       against disclosure

       ``(a)(1) When the Archivist determines under this chapter 
     to make available to the public any Presidential record that 
     has not previously been made available to the public, the 
     Archivist shall--
       ``(A) promptly provide notice of such determination to--
       ``(i) the former President during whose term of office the 
     record was created; and
       ``(ii) the incumbent President; and
       ``(B) make the notice available to the public.
       ``(2) The notice under paragraph (1)--
       ``(A) shall be in writing; and
       ``(B) shall include such information as may be prescribed 
     in regulations issued by the Archivist.
       ``(3)(A) Upon the expiration of the 20-day period 
     (excepting Saturdays, Sundays, and legal public holidays) 
     beginning on the date the Archivist provides notice under 
     paragraph (1)(A), the Archivist shall make available to the 
     public the record covered by the notice, except any record 
     (or reasonably segregable part of a record) with respect to 
     which the Archivist receives from a former President or the 
     incumbent President notification of a claim of 
     constitutionally based

[[Page H43]]

     privilege against disclosure under subsection (b).
       ``(B) A former President or the incumbent President may 
     extend the period under subparagraph (A) once for not more 
     than 20 additional days (excepting Saturdays, Sundays, and 
     legal public holidays) by filing with the Archivist a 
     statement that such an extension is necessary to allow an 
     adequate review of the record.
       ``(C) Notwithstanding subparagraphs (A) and (B), if the 
     period under subparagraph (A), or any extension of that 
     period under subparagraph (B), would otherwise expire after 
     January 19 and before July 20 of the year in which the 
     incumbent President first takes office, then such period or 
     extension, respectively, shall expire on July 20 of that 
     year.
       ``(b)(1) For purposes of this section, any claim of 
     constitutionally based privilege against disclosure must be 
     asserted personally by a former President or the incumbent 
     President, as applicable.
       ``(2) A former President or the incumbent President shall 
     notify the Archivist, the Committee on Oversight and 
     Government Reform of the House of Representatives, and the 
     Committee on Homeland Security and Governmental Affairs of 
     the Senate of a privilege claim under paragraph (1) on the 
     same day that the claim is asserted under paragraph (1).
       ``(c)(1) The Archivist shall not make publicly available a 
     Presidential record that is subject to a privilege claim 
     asserted by a former President until the expiration of the 
     20-day period (excluding Saturdays, Sundays, and legal public 
     holidays) beginning on the date the Archivist is notified of 
     the claim.
       ``(2) Upon the expiration of such period the Archivist 
     shall make the record publicly available unless otherwise 
     directed by a court order in an action initiated by the 
     former President under section 2204(e).
       ``(d)(1) The Archivist shall not make publicly available a 
     Presidential record that is subject to a privilege claim 
     asserted by the incumbent President unless--
       ``(A) the incumbent President withdraws the privilege 
     claim; or
       ``(B) the Archivist is otherwise directed by a final court 
     order that is not subject to appeal.
       ``(2) This subsection shall not apply with respect to any 
     Presidential record required to be made available under 
     section 2205(2)(A) or (C).
       ``(e) The Archivist shall adjust any otherwise applicable 
     time period under this section as necessary to comply with 
     the return date of any congressional subpoena, judicial 
     subpoena, or judicial process.''.
       (b) Restrictions.--Section 2204 of title 44, United States 
     Code (relating to restrictions on access to presidential 
     records) is amended by adding at the end the following new 
     subsection:
       ``(f) The Archivist shall not make available any original 
     presidential records to any individual claiming access to any 
     presidential record as a designated representative under 
     section 2205(3) if that individual has been convicted of a 
     crime relating to the review, retention, removal, or 
     destruction of records of the Archives.''.
       (c) Conforming Amendments.--(1) Section 2204(d) of title 
     44, United States Code, is amended by inserting ``, except 
     section 2208,'' after ``chapter''.
       (2) Section 2207 of title 44, United States Code, is 
     amended in the second sentence by inserting ``, except 
     section 2208,'' after ``chapter''.
       (d) Clerical Amendment.--The table of sections at the 
     beginning of chapter 22 of title 44, United States Code, is 
     amended by adding at the end the following:

``2208. Claims of constitutionally based privilege against 
              disclosure.''.

     SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001.

       Executive Order No. 13233, dated November 1, 2001 (66 Fed. 
     Reg. 56025), shall have no force or effect.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
York (Mr. Towns) and the gentleman from California (Mr. Issa) each will 
control 20 minutes.
  The Chair recognizes the gentleman from New York.


                             General Leave

  Mr. TOWNS. Madam Speaker, I ask unanimous consent that all Members 
have 5 legislative days in order to revise and extend their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. TOWNS. Madam Speaker, I yield myself such time as I may consume.
  H.R. 35, the Presidential Records Act Amendments of 2009, will 
restore public access to Presidential records. Identical legislation 
was introduced in the last Congress and passed the House with strong 
bipartisan support.
  The Presidential Records Act of 1978 established that the records of 
the President belong to the American people, not to the President. It 
also ensured that these records would be released to historians and to 
the public in a timely manner.
  In an executive order issued in November 2001, President Bush 
reversed the presumption of disclosure in the Presidential Records Act. 
The order gave Presidents and former Presidents the ability to delay 
the public release of records even long after their own deaths. For the 
first time, it gave former Presidents the ability to assert privilege 
over their own records.
  Today's legislation restores the intent of the Presidential Records 
Act. It makes clear that only Presidents and former Presidents, not 
former Vice Presidents or the descendents of Presidents, can make 
assertions of privilege over records. It gives former Presidents the 
authority to assert privilege over their own records, but it requires a 
sitting President or a court to agree with the assertions in order for 
those records to be withheld from the public, and it sets strict 
deadlines for the President and former Presidents to review records 
before they release them to the public. This legislation will prevent 
former Presidents from withholding embarrassing records, and will allow 
historians to tell a complete story about Presidential administrations.
  I would like to thank the ranking member, of course, from California, 
Mr. Issa, for his cooperation in moving this measure to the floor very 
quickly. I would like to thank him for that. I know that we share the 
same goals of making government more open and less wasteful, and we 
plan to work together on those goals in a bipartisan manner.
  I also thank the previous chairman, Congressman Waxman, for his work 
in the last Congress, who did a marvelous job. Of course, that's the 
reason why we are able to move very quickly, because of some of the 
work that he was able to do in the last Congress.
  Madam Speaker, I reserve the balance of my time.
  Mr. ISSA. Madam Speaker, I yield myself such time as I may consume.
  The new chairman and I both are assuming these positions after a long 
period of time of serving in lesser positions on Government Reform, and 
we come to it, I think, equally with the same vigor, with a vigor to 
make this committee a bipartisan committee, a committee that works 
openly between the majority and minority for the purpose of making sure 
that government works openly for the people who we serve.

                              {time}  1030

  I want to thank the chairman today because as we bring three votes 
from our committee, each of these was shared with the other in 
consultation, each of them was agreed were necessary and could be moved 
in a timely fashion today. Each of them will be presented to our 
conferences as noncontroversial, and in fact, ones that should pass 
unanimously or near unanimously. This is a great start.
  I'm particularly pleased with the chairman and myself to be able to 
offer the first pieces of legislation of the 111th Congress because I 
expect that this committee will be the most productive committee of the 
Congress. It is the committee that has the greatest responsibility, as 
President-elect Obama has said, to make government accountable. We are 
that committee.
  I look forward to it. As the chairman said, this piece of legislation 
does restore a balance. It is not a balance that's without controversy, 
but it is a balance that I believe is appropriate.
  Additionally, to what is in the language of the bill, which the 
chairman did a good job of explaining, there is, in fact, a final 
holdback which is any President asserting some Presidential secret or 
particular current damage to the government would be able to overcome 
this legislation, but it will be the burden of the current President, 
and as the chairman said, the burden of the previous President to make 
a case for why records should not be made public rather than the other 
way around.
  I look forward to a floor vote on this on a bipartisan basis and urge 
passage of this bill.
  I yield back the balance of my time.
  Mr. TOWNS. Madam Speaker, I yield 1 minute to the gentleman from Ohio 
(Mr. Kucinich).
  Mr. KUCINICH. Thank you very much, Mr. Chairman.
  I look forward to working with you in this upcoming session of 
Congress and working with Mr. Issa.
  I want to thank you for bringing this bill forward. If we truly have 
government of the people, then there has to be transparency. And not 
only must

[[Page H44]]

Presidents be accountable, but former Presidents must be accountable. 
And a system of transparency will ensure accountability, particularly 
with respect to Presidential records.
  Now this legislation will make it impossible for Presidential records 
to be buried. It's going to set strict time frames in which information 
has to be released to the public. It is not going to permit former 
Presidents to have unlimited, broad authority to be able to claim 
through the existing President executive privilege, and it is not going 
to enable designees of Presidents to assert claims of executive 
privilege after the death of a former President.
  So this is a very important moment where transparency in government 
trumps the assertion of executive privilege. That can only be good for 
democracy.
  I want to thank once again Mr. Towns for his leadership in bringing 
this forward as one of the first bills of the 111th Congress.
  Mr. TOWNS. Madam Speaker, I yield 1 minute to the gentleman from 
Missouri (Mr. Clay).
  Mr. CLAY. I thank the chairman for yielding.
  I look forward to working with Chairman Towns, the new Chair of the 
Oversight and Government Reform Committee, as well as the ranking 
member, Mr. Issa.
  Let me also say, as an original cosponsor of H.R. 35 and chairman of 
the Oversight Subcommittee, I am pleased to see the measure presented 
for consideration by the House today.
  Introduced by Chairman Towns, this bipartisan bill is intended to 
promote the timely release of Presidential records under the 
Presidential Records Act of 1978 by rescinding Executive Order 13233. 
Issued by President Bush in November 2001, the executive order granted 
new authority to Presidents, former Presidents, their heirs and 
designees, and Vice Presidents, allowing them to withhold information 
from public view unilaterally and indefinitely.
  Executive Order 13233 undermines the Presidential Records Act by 
removing discretion from the archivists of the United States and 
delaying the release of records that are necessary to give historians 
and the public a full picture of a President's tenure.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. TOWNS. I yield the gentleman 2 additional minutes.
  Mr. CLAY. I thank the chairman for yielding.
  Madam Speaker, the American people value the importance of 
transparency and having an open government. Citizens have a right to 
know how and why important decisions are made at the highest level of 
government. This straightforward and bipartisan legislation would 
ensure that this will be the case by requiring Presidential records to 
be treated as the property of the American people.
  I urge all of my colleagues to support the bill.
  Mr. TOWNS. Madam Speaker, as we begin a new Congress and a new 
Presidency, it is time to move away from the policy of secrecy. The 
President-elect has spoken of a desire for more openness in government. 
We in Congress share that goal, and this bill is an important step 
towards a more transparent White House.
  I want to thank my colleague from California and his staff and my 
staff for the work that they've done on this bill. I urge all of my 
colleagues to support this bill because this is definitely good 
government, and I think that we need to be about good government 
because we cannot afford the luxury of waste, fraud, and abuse.
  Madam Speaker, I ask all of my colleagues to support this 
legislation.
  Ms. JACKSON-LEE of Texas. Madam Speaker, let me congratulate you for 
your re-election as Speaker of the House. It is an honor that you have 
served with great distinction and verve. I look forward to more of your 
continued leadership in the 111th Congress.
  Madam Speaker, I rise today in support of H.R. 35, the Presidential 
Records Act Amendments, which amends chapter 22 of title 44, United 
States Code, popularly known as the Presidential Records Act, to 
establish procedures for the consideration of claims of 
constitutionally based privilege against disclosure of Presidential 
records.
  H.R. 35 provides that when the Archivist determines to make available 
to the public any Presidential record that has not previously been made 
available to the public, and that is not subject to any claim of 
constitutionally based privilege against disclosure, the Archivist 
should provide notice of the determination to the former President 
during whose term of office the record was created, the incumbent 
President, and make the notice available to the public. The notice must 
also be in writing. These amendments strengthen the underlying bill.
  The Presidential Records Act itself governs the official records of 
Presidents and Vice Presidents created or received after January 20, 
1981, and mandates the preservation of all Presidential records. The 
act changed the legal ownership of the official records of the 
President from private to public, and established a new statutory 
structure under which the President must manage their records.
  Specifically, the Presidential Records Act:
  Defines and states public ownership of the records.
  Places the responsibility for the custody and management of incumbent 
Presidential records with the President.
  Allows the incumbent President to dispose of records that no longer 
have administrative, historical, informational, or evidentiary value, 
once he has obtained the views of the Archivist of the United States on 
the proposed disposal.
  Requires that the President and his staff take all practical steps to 
file personal records separately from Presidential records.
  Establishes a process for restriction and public access to these 
records. Specifically, the PRA allows for public access to Presidential 
records through the Freedom of Information Act (United States), FOIA, 
beginning five years after the end of the Administration, but allows 
the President to invoke as many as six specific restrictions to public 
access for up to 12 years. The PRA also establishes procedures for 
Congress, courts, and subsequent administrations to obtain special 
access to records that remain closed to the public, following a 30-day 
notice period to the former and current Presidents.
  Requires that Vice-Presidential records are to be treated in the same 
way as Presidential records.
  This bill is important. It was under the Bush administration that the 
e-mail controversy surfaced in 2007. During that controversy which 
involved the dismissal of eight U.S. attorneys, congressional requests 
for administration documents while investigating the dismissals of the 
U.S. attorneys required the Bush administration to reveal that not all 
internal White House e-mails were available, because they were sent via 
a non-government domain hosted on an e-mail server not controlled by 
the Federal Government. Conducting general government business in this 
manner possibly implicates the Presidential Records Act. The Bush 
administration e-mail controversy highlights the need for these 
amendments and for the bill.
  I urge my colleagues to support this bill.
  Mr. WAXMAN. Madam Speaker, I thank Representative Towns for bringing 
this bill to the floor. The outgoing Bush administration has an 
obsession with secrecy that has led it to weaken many of this country's 
open government laws. Our consideration of H.R. 35, the Presidential 
Records Act Amendments of 2009, is one important step toward undoing 
that damage. The bill revokes a Bush executive order, issued in 
November 2001, which gave broad new authority to Presidents and former 
Presidents to prevent the release of Presidential records. The order 
gave former Presidents the ability to pick and choose the records 
viewed by historians and to shape their legacy through the selective 
withholding of information.
  Under the Presidential Records Act of 1978, these records belong to 
the American people, not to the president who created them. Today's 
legislation restores the original intent of the Act and will lead to 
greater openness and improved understanding of presidential decision-
making.
  This is not a partisan issue. Similar legislation was first 
introduced in 2001 by Rep. Burton. And two years ago, I introduced H.R. 
1255 with Reps. Burton, Towns, and Platts. I thank them for working 
with me. The House passed that bill with a strong bipartisan majority. 
I urge all of my colleagues to support this bill today.
  Mr. VAN HOLLEN. Madam Speaker, today, the House considers a bill that 
amends the Presidential Records Act. This important piece of bi-
partisan legislation will help preserve open government, by reversing 
an executive order issued in the early days of the Bush administration 
that cut off access to Presidential records for historians and the 
American public.
  Under that executive order, former Presidents and their heirs were 
given unprecedented authority to withhold or, indefinitely delay, 
access to documents from the public. And, for the first time, the order 
extended the authority to assert ``executive privilege'' to former Vice 
Presidents.

[[Page H45]]

  This legislation reverses that order by stating clearly that only 
current and former Presidents may assert ``executive privilege.'' The 
bill also grants current Presidents discretion over whether to support 
a former President's assertion of privilege and places strict time 
limits for the current and former President to review records before 
they are released.
  Mr. TOWNS. I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New York (Mr. Towns) that the House suspend the rules 
and pass the bill, H.R. 35.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. TOWNS. Madam Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.

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