The topic of this episode is, “Can Congress access classified information?”

My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.

We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Daniel, welcome to the podcast.

Daniel Schuman:

Thanks so much for having me.

Kevin Kosar:

I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?

Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?

Daniel Schuman:

Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.

Kevin Kosar:

Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?

Daniel Schuman:

We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.

Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.

But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.

But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”

One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.

There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.

Kevin Kosar:

From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.

Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?

Daniel Schuman:

That's a good question.

Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.

There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.

But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.

So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is provisi