Leahy Statement On Impact Of Shutdown On Courts, Public's Right To Know

[Senator Patrick Leahy (D-Vt.) spoke on the Senate Floor Saturday about the ongoing government shutdown and the impact on the federal judiciary and government transparency.  Below is the text of Leahy's statement as prepared for delivery.]

Statement of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Impact of the Shutdown on the Judiciary & Government Transparency
October 5, 2013

Today marks the fifth day of the government shutdown, and by refusing to pass a Continuing Resolution to simply fund the continuing operations of the federal government, Republicans are threatening the critical functions of all three branches of government.  As Chairman of the Senate Judiciary Committee, I am acutely aware of the devastating impact that Republicans’ treatment of Federal judiciary is having on our system of justice.  

The last time Republicans refused to pay the bills that we in Congress had already incurred, it undermined our nation’s credit rating.  It also resulted in what is known as “sequestration” and the corresponding cuts to the federal judicial branch have been devastating.  But with the ongoing shutdown of the entire federal government, a handful of ideologues in the House of Representatives are holding the entire judicial system hostage and this threatens our entire democracy.  

Earlier this year, in the face of sequestration, a group of 87 federal district judges warned that sustained budget cuts “have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts.”  Now, thanks to the Republican shutdown, according to a letter to all Federal courts from Judge John Bates, director of the Administrative Office of the U.S. Courts, the Judiciary will only be able to remain open for approximately 10 business days into October.  What will happen after those 10 days?  What happens when the operating funds run out completely?  Will we be able to swiftly bring criminals and terrorists to justice?  Will small businesses and individuals be able to have their claims resolved?  Each and every Federal court in this country will soon have to start making decisions about what part of justice is essential and what can be delayed until funding is restored.  If this shutdown continues, millions of Americans will not have access to the justice they deserve under our Constitution.

This coming Monday – the first Monday in October – marks the opening of the new term of our Supreme Court.  On its first day, it will hear an important case about a worker’s right to bring an age discrimination claim under the Constitution.  On its second day, it will hear another significant case about whether there should be any limits on the amount of money wealthy individuals can pump into our elections.  If the shutdown continues, it is unclear how our courts, including our highest court, will cope with the funding being withheld.  Will the Court remain open to the public to hear arguments the following week if this shut down continues?  Will local courthouses have to shut down entirely for parts of the year?  Will the guarantee of defense for the indigent continue to be eroded by further cuts to our federal public defenders?  Or will we in Congress finally turn the page on our fiscal mistreatment of a co-equal branch of government?

We must not take for granted that we have the greatest justice system in the world.  Its cost is less than one percent of the entire Federal budget, yet we fail to support it.  The New York Times, referencing Judge Bates’s letter and the ongoing stress to our justice system, rightly noted this week that unless Congress ends this needless shutdown, “the damage to American justice would be compounded and hard to recover from once the impasse is over.”  I ask that this article be made part of the record, and I thank the men and women of the judicial branch of our federal government for their dedication under increasingly difficult circumstances.  

Our courts have been forced to run on fumes for far too long, and soon, they will be running on empty.  I call on the House of Representatives to stop playing games with our co-equal branch of government, the judiciary.  

We also take for granted that our open and transparent government is a cornerstone of our democracy and a shining example of civic involvement. Even the public’s right to know is compromised because of this shutdown.  Every Member of Congress, regardless of political party or ideology, should be alarmed.

Right now, Americans seeking help with Freedom of Information Act (FOIA) requests encounter “closed for business” signs at many of the Federal offices that facilitate them.  The National Archives and Records Administration Office of Government Information Services – a critical office established by the Leahy-Cornyn OPEN Government Act to mediate FOIA disputes – is not operating due to the shutdown of the Federal government.  And according to several press reports, the Department of Justice has also sought stays in several important FOIA cases – including FOIA litigation seeking information about the government's use of the PATRIOT ACT to collect data on Americans’ telephone calls – due to the lapse in Federal funding.   

This shutdown has impacted other agencies, too. The Center for Effective Government reports that the processing of FOIA requests has been suspended at the Social Security Administration, the Federal Trade Commission and the National Labor Relations Board.  The National Security Agency, an agency facing a public trust deficit in light of revelations detailing its sweeping surveillance of Americans’ emails and phone calls, has also ceased the processing of FOIA and Privacy Act requests. Many other Federal agencies have either taken their websites off-line or stopped updating their websites. We literally have a closed government.

All of us – whether Democrat, Republican or Independent – have an interest in making certain that our government is fulfilling its responsibilities to its citizens.  Yet, right now, House Republicans are choosing to debate – again – the nearly four-year-old Affordable Care Act on a critical spending bill.  They are forcing us to choose whether even the most fundamental parts of our government are “essential.” Rather than picking and choosing, we in Congress must commit ourselves to upholding all of our democratic principles and ensuring the government’s ability to work for every American.  The House of Representatives can end this stalemate today by taking up the Senate passed CR, sending it to the President, and reopening the government, so we can get back to the business of finding a reasonable way to balance our budget and get our fiscal house in order.

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