Public Has No Right to Know for 50 Years With Senate Redo: Taxes

Leaders of the tax-code rewrite in Congress pledged to keep ideas submitted by lawmakers secret for 50 years, seeking to assuage concerns that leaks of comments may jeopardize relationships with fundraisers or constituents.

Senate Finance Committee staff promised that submissions on which tax breaks to keep or jettison -- which are due today -- will be marked as confidential and won’t be released until Dec. 31, 2064, according to a July 19 memo to Senate tax aides obtained by Bloomberg BNA.

Congress is working on the biggest rewrite of the tax code since 1986, and big breaks may be on the chopping block. Leaders say they want to start by throwing out all the deductions and making people argue to get them back in. Assuring lawmakers of anonymity will help attract more participation, said Dean Zerbe, a former tax counsel to the committee.

“The intent is to let members be candid,” said Zerbe, now national managing director at Alliantgroup. Keeping many discussions behind closed doors while crafting the 2001 and 2003 tax cuts helped then, he said.

The secrecy contrasts with most records. Senate Historian Don Ritchie said most files automatically open after 20 years, and some can be sealed for 50 years to protect personal privacy, national security, or the confidentiality of a congressional investigation. The records of Senator Joe McCarthy’s secret hearings were opened in 2003, 50 years after they were held, he said. A committee chairman can interpret “investigation” to cover the examination of legislation, he said.

Accountability Questioned

Since the decision to start from zero last month, there has been a lobbying frenzy from corporations and interest groups. Companies are weighing in on deductions for specific industries like drilling and broad items including international taxation. Backers of breaks for retirement savings and charitable contributions are pressing to keep them.

The memo details measures the committee will use to protect the confidentiality of the submissions. Some senators reportedly have been reluctant to answer the call for ideas because of concern they could become public -- even though committee Chairman Max Baucus has vowed not to release them.

The Montana Democrat told reporters July 24 that the lockup would help draw additional letters. Sean Neary, a spokesman for the committee, told BNA that 50 years of confidentiality is “standard operating procedure.”

“It’s utterly out of keeping with the desire of the Senate and House to serve the public,” said Charles Tiefer, a former associate Senate counsel who now teaches at the University of Baltimore Law School. “It makes you wonder what they’re trying to hide” and is “particularly out of keeping with the effort reflected in the database to provide information on a real-time basis to the public” about legislation, he said.

Insulated Members

The Thomas website of the Library of Congress provides access to text of pending legislation and summaries as well as records of past congressional legislative deliberations.

“While the 50 year seal is a great symbol for the excessive congressional secrecy, it’s more controversial to me that the related committees are sending a message to the rest of Congress: Our work on taxes will be irrelevant to your individual campaigns,” said Sunlight Foundation Policy Director John Wonderlich. “The committees are seeking to insulate members from pressure of any kind: from donors, constituents, and ultimately, voters.”

With the actual submissions off-limits to the public, Baucus hasn’t said how much information about them the committee may share publicly, such as the number of proposals or a summary of topics covered. “We’ll have to see what we get” before deciding how much information to share, Neary said.

Blank Slate

The call for submissions is part of a “blank slate” approach to tax deductions, credits and other breaks by Baucus and ranking member Senator Orrin Hatch, a Utah Republican. The senators have said they will begin tax reform deliberations by wiping the tax code clean of such provisions, asking senators to recommend which should ultimately be retained.

Hatch told reporters July 23 that the response to the call for submissions has been “mixed,” though he added the next day that the 50-year lockup would help convince some concerned about confidentiality to participate. Baucus told reporters that some senators prefer to simply speak with him, although he said he would prefer submissions in writing.

Among rank-and-file members of the committee, comments were fixed. Richard Burr, a Republican from North Carolina, told BNA that he continues to plan to communicate personally rather than submit anything in writing, regardless of the confidentiality promise. Johnny Isakson, a Georgia Republican who said he has shared his opinions with committee leaders, said the letter solicitation didn’t bother him as much as others.

10 People

According to the memo, submissions will be copied digitally and marked with a code unique to the majority and minority staffs. One paper copy each will be made for minority and majority staff, to be kept in a locked safe.

Six committee staff members -- three from the majority, and three from the minority -- will be authorized to view them, and four more will be allowed to handle them for administrative purposes, the memo said.

The confidential documents will be archived separately from legislative records. Information in them may be made public during the legislative process only if modified to prevent identifying their source.

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