In a tense hearing on Thursday, House Oversight Committee Chairman Rep. Jason Chaffetz (R-UT) grilled FBI Director James Comey about his decision to recommend against indicting Hillary Clinton over her use of a private email server while she was secretary of state. The hours-long hearing re-hashed a familiar debate over whether Clinton lied about sending classified information over her personal e-mail account, and whether she should be granted future security clearances in light of what Comey called “extremely careless” behavior.
The hearing also re-hashed another interesting fact: That Chaffetz himself uses a personal email address to conduct professional business.
We all know Jason Chaffetz would never use his personal email for work. pic.twitter.com/e4jaOXkvgT
— Abraham White (@abwhite7) July 7, 2016
The tidbit was brought up by Eleanor Holmes Norton, the Democratic delegate from the District of Columbia, who during the hearing noted that Chaffetz lists his personal email as his primary contact on his business cards. Chaffetz’ business cards were first reported on by ABC News last year.
“No one says that’s wrong,” Holmes Norton said. “I don’t know if it’s wrong or right. Because there’s no guidance.”
In light of intensified scrutiny on Clinton’s email practices, it seems a worthwhile question to answer: Why are members of agencies such as the State Department required to use government email accounts, while members of Congress are not?
The answer lies in federal open records laws — most of which don’t apply to Congress.
The Associated Press (AP) reported on this extensively last year, finding that members of Congress aren’t required to “use official email accounts, or to retain, archive or store their emails, while in office or after.” The Freedom of Information Act (FOIA) — the law that allows the public to request internal documents from government agencies — for example, does not cover members of Congress. Congress is also not subject to the Federal Records Act, which requires all federal agency employees to keep accurate records of their activities.
Federal agency employees, of course, include Clinton, who was found to have violated the Federal Records Act by using a private email server while serving as secretary of state.
The reason Congress is not subject to these rules, however, is because Congress makes its own rules. And Congress has never decided that it needs a law requiring its members to maintain records and make those records available to the public.
Open government advocates, however, told the AP that they were not especially concerned about the fact that Congress isn’t subject to these laws. They noted that Congress operates largely in the public eye — Thursday’s hearing, for example, was broadcast on nearly every major cable news station — while executive agencies craft regulations and conduct most of their other business behind closed doors.
In addition, some members of Congress want to keep open lines of communication with the people they represent. They fear members of the public might feel uncomfortable emailing their representative if the knew that email could be subject to a Freedom of Information Act request. From the AP:
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.
There are some who have advocated for more transparency when it comes to Congressional email. Journalist Alexis Coe, for example, wrote in the New York Times last year that her inability to access now-deceased Sen. Joseph McCarthy’s records is preventing the public from learning more about the people McCarthy accused of communist activities during the Cold War. Those records are in the public interest, Coe argued, and Congress “is perfectly capable of differentiating between personal and professional papers and formulating ethical, clear and enforceable policies.”
“The legislative branch influences the evolution of our democracy, and the papers of its members explain how it happened,” she wrote. “They’re a part of America’s collective memory, belonging to us all.”
For now, however, the information contained in members of Congress’ personal and professional email accounts — Chaffetz’s included — belongs only to themselves.