Open records, saving e-mails? Not for Congress

WASHINGTON - Members of Congress who are demanding Hillary Rodham Clinton's e-mails 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 e-mail accounts, or to retain, archive, or store their e-mails, while in office or after. That's in contrast to the White House and the rest of the executive branch. Official e-mails there are supposed to be retained, though the controversy over Clinton's use of a personal e-mail 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 e-mails as part of their inquiry into the Benghazi, Libya, attacks are not required to retain e-mails 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.

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.

The exemptions Congress grants itself aren't just about records. Lawmakers have spared themselves from many other laws that cover the rest of society, including those governing workplace health and safety, civil rights, and discrimination. When Republicans took control of Congress in 1994 they announced, as Item 1 in their "Contract with America," plans to require that all laws that apply to the rest of the country apply to Congress, too.

The concept was enshrined in the Congressional Accountability Act of 1995. But issues like open records weren't covered.

Yet there's little sign the flap will prompt much change on Capitol Hill.

Democratic Sen. Richard Blumenthal of Connecticut said in response to a question: "I'm ready to be bound by the same disclosure requirements that apply to other branches of the government." But he added, "I haven't heard anything about it until your question."