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Mark Tapscott (back to story)
December 7, 2001
How Conservatives Can Use the FOIA for Freedom
Last week, I promised some ideas on how conservatives can put the federal Freedom of Information Act to work to advance the cause of individual liberty, much as liberals have used the law for years to grow Big Government.
Let’s start with three examples from among the few conservative advocacy groups that use the FOIA now. First, there is the Landmark Legal Foundation, which earlier this year used the FOIA to obtain documents from the Federal Election Commission that expose years of illegal partisan political activity by the National Education Association.
The information contained in the FEC documents was so damaging that the NEA, the Democratic National Committee and the AFL-CIO went to a federal court and got a sympathetic judge to order the documents back behind closed doors at the FEC.
And no wonder, considering the information Landmark obtained demonstrates that “the NEA is using tax-exempt general revenues to influence local, state and federal elections without reporting any of these activities to the IRS and without paying the required corporate income taxes on those expenditures.”
Landmark knew from media reports that the FEC was investigating the AFL-CIO’s role in the 1996 Democratic campaign, so the foundation’s FOIA asked for everything the agency found in the probe that mentioned the NEA.
More than 6,000 page of documents were covered by the agency’s response to Landmark’s FOIA. Now, the IRS is considering an investigation of the NEA and prosecutions of anybody connected with the union who broke the law could be on the horizon.
For a complete description of the milestones in the Landmark case against the NEA, see the current issue of The Heritage Foundation’s Insider, which can be accessed on the web at: http://www.policyexperts.org/insider/.
A second example is found in the three FOIAs filed at the U.S. Department of Commerce in 1994 by Judicial Watch seeking all documents related to trade promotion junkets led by Secretary Ron Brown to the former Soviet Union, China, India, South America and South Africa.
As is so often the case, government bureaucrats tried to sandbag Judicial Watch, using every possible delaying tactic to avoid disclosing the documents. Judicial Watch persevered, demanding that the government abide by the law. Much of the information that led subsequently to the Clinton campaign scandals came from the documents Commerce was finally forced to produce. Third, the National Right to Work Legal Defense Foundation used the FOIA two years ago to obtain documents showing unconscionable delays by the National Labor Relations Board in enforcing the U.S. Supreme Court’s ruling in Communications Workers v. Beck. The ruling requires unions to refund dues money used for partisan political activities or anything else not directly related to contract bargaining, grievances or collective bargaining.
The NRTWLF found that “in cases pending on the NLRB docket and awaiting decision for up to seven years, the FOIA-acquired documents reveal that six out of the 10 longest pending cases involve employees attempting to reclaim compulsory union dues used for political activities.”
The foundation also found that Beck cases made up only two percent of the NLRB’s caseload, yet processing delays were so bad that at least one of the employees died while waiting for the federal labor board to act on his appeal.
These cases share four important characteristics. First, each of the conservative groups was prepared before filing their FOIAs for a long battle with the bureaucrats, including going to court. Deep pockets are not required to appeal an FOIA denial successfully, but they don’t hurt, either. There is a great need for at least one conservative public interest law firm to make FOIA appeals part of its practice.
Second, the groups were ready to do exhaustive analyses of the mountains of documents they received. Having 6,000 pages of juicy documents sitting on a shelf does no good. Poring over federal memoranda, reports and contracts is not fun and requires immense patience, but the effort is well worth it when useful evidence is uncovered.
Third, don’t just look for evidence that concerns a particular project or program and don’t be hesitant to share your findings with journalists covering the agency. The government employees tasked with compiling documents in response to an FOIA often have no idea what is significant and they have no idea what you know. Be on the lookout for evidence that can help advance your group’s agenda on more than one front.
Finally, file FOIAs as often as possible. Officials with Landmark, Judicial Watch and TRWLF agree that the FOIA is a key weapon in their arsenals, just as it has been for many years for hundreds of liberal advocacy outfits.
Mark Tapscott is Director of the Center for Media and Public Policy at The Heritage Foundation, a TownHall.com member group. Contact Mark Tapscott
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