Whatever happens in the days ahead to now-former Rep. Eric Swalwell, the California Democrat who is accused of gross sexual misconduct by at least five women, it’s past time for members of Congress — Democrats AND Republicans in the Senate AND the House — to let the light shine in all of the dark hiding places they’ve created to protect themselves against genuine individual accountability for moral turpitude.
Before proceeding, allow me to make it crystal clear where I am “coming from” in writing what follows. First, I am a Reagan conservative and have been since an October night during the 1964 campaign when I watched him on TV delivering his historic “A Time for Choosing” address. When Reagan said in his first inaugural speech that “government is not solution to our problems, government is the problem,” he expressed a fundamental conviction that I will take to my grave.
Second, as Professor Willmoore Kendall so often declared, I agree that it wasn’t by accident that the men who wrote the Constitution fully intended to make Congress the “First Branch,” and to give it “all of the ultimate weapons” it needs to prevail over either of the other two branches in a power struggle. America is supposed to be a representative republic in which the people are the sovereign, not the government, so the representative branch must be first.
Finally, one of the earliest things I learned after coming to the nation’s capital is the truth spoken by Jesus Christ whe He said in (John 3:19-20): “And this is the judgment: the light has come into the world, and people loved the darkness rather than the light because their works were evil.” Transparency is Big Government’s worst enemy.
Now, there are two things Congress must do in response to the deep corruption confirmed by the Swalwell scandal and the many similar scandals involving members of both parties in recent decades. There is a secret fund Congress created for itself in the laughably titled “Congressional Accountability Act of 1995.” Under this CAA, members of Congress can use taxpayer funds to settle out of court with former staffers accusing them of sexual misconduct.
When Florida Gov. Ron DeSantis was a House member, he introduced legislation that would have effectively repealed the CAA. It was entitled the Congressional Accountability and Hush Fund Elimination Act of 2017. Here’s how DeSantis described the need for repeal, according to gov.track.us:
Members of Congress and staff cannot live under special rules. The current system incentivizes misconduct and makes it difficult for victims. By exposing these secret settlements and by discontinuing using tax dollars to pay for member misconduct, this bill will reduce the incentive for bad behavior and bring more accountability to Congress.
The DeSantis measure went nowhere. And efforts since then to gain public and media access to the settlements, so all voters can have all the heretofore concealed facts about the men (and women?) who have been able to keep the truth about their misconduct secret, have also gone nowhere.
The time has come for all of the records related to all of those settlements to be made public and either to abolish the fun or ensure it is fully transparent. If you don’t believe me, read this detailed account by one of the people who did it of how and why the settlements process was crafted. This post on X was prompted in part by the Swalwell scandal and by the fact that the House voted last month 357-65 against unsealing the settlements:
“We will expel 2 members. We will hold press conferences. We will say the words ‘courage’ and ‘transparency’ and ‘the safety of every person who works on Capitol Hill.’ The press will cover the expulsions for a week. And they will not cover the 357-65 vote at all.
“We gave them 2 names so they’d stop asking for the rest.That’s the trade. It works every time.And every member who voted to seal those records knows what’s in them. They know because we told them. They sat in a closed session and reviewed the files and then walked out and voted 357 to 65 to make sure you never find out what your employees did with your money to their employees.The system doesn’t have a harassment problem. The system has a disclosure problem.”
And speaking of transparency, it’s also time for Congress to reverse the decision it made when it approved the Freedom of Information Act (FOIA) of 1966 to exempt itself from coverage of the law. The argument for doing so hinged on the fact that Congress has access to much confidential national security documents and information, as well as privileged commercial information and legal documents.
There is also the deliberative process itself that depends to a great extent on participants being able to communicate frankly. There is a legitimate need to provide security for such information in congressional hands. But there is a wealth of other information controlled by congressional agencies such as the Congressional Budget Office (CBO) and the Government Accountability Office (GAO).
As Daniel Schuman said in a 2023 essay for Americans for Prosperity:
In 2021, the FOIA Advisory Committee of the National Archives recommended that “Congress should adopt rules or enact legislation to establish procedures for effecting public access to legislative branch records in the possession of congressional support offices and agencies modeled after those procedures contained in the Freedom of Information Act.”
If implemented, this would extend its reach to agencies including the Library of Congress, the Government Publishing Office, the Government Accountability Office (GAO), and the U.S. Capitol Police. There are compelling arguments in support of applying FOIA to these agencies.
Legislative branch support agencies are comparable to executive branch agencies, which are already subject to FOIA. Some legislative branch agencies have instituted a FOIA-like process to manage public requests, such as GAO and the Library of Congress, while other agencies, such as the Capitol Police, have not.
Applying FOIA or a FOIA-like process uniformly to these agencies would provide the public with access to information about how taxpayer dollars are being spent and ensure that the agencies are administered equitably and efficiently.
Accountability and transparency are the sine qua non of credibility and trust for the Senate and the House of Representatives, just as they are for the president of the United States, regardless of which political party controls any of them.
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