The Statement and Account Clause as a National Security Freedom of Information Act

91 Pages Posted: 19 Apr 2015 Last revised: 12 Nov 2015

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: November 11, 2015

Abstract

The amount of the aggregate annual appropriations for the civilian and military intelligence programs is the only aspect of intelligence spending that is publicly disclosed. As a consequence, a great deal of information about how public funds are spent remains secret, potentially insulating from ordinary processes of political accountability not only waste, inefficiency, and abuse, but also what the public may regard as unwarranted intrusions on its privacy. This article offers a constitutional vehicle for greater transparency – the Constitution’s Statement and Account Clause, which provides that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” The scholarly literature contains no comprehensive treatment of the clause; Part I fills that gap, and contends that at least presumptively, information that is material to the public’s assessment of the manner in which the intelligence community spends public funds must be annually disclosed. Part II turns to the question of judicial enforcement, widely thought unavailable since the Supreme Court’s 1974 holding in United States v. Richardson that a lawsuit asserting taxpayer standing to obtain information about the CIA’s budget was nonjusticiable. Part II demonstrates that jurisprudential developments since Richardson limit its scope and suggest that it does not bar lawsuits brought by voters to enforce the Statement and Account Clause, and poses no obstacle to suits seeking disclosure of information about intelligence spending under the Freedom of Information Act (“FOIA”), even if they also contend that the FOIA’s exemption of information about intelligence matters from the statutory duty of disclosure is unconstitutional as applied to information that must be disclosed under the Statement and Account Clause.

Keywords: National Security, Intelligence Community, Statement and Account Clause, standing, political question, United States v. Richardson

Suggested Citation

Rosenthal, Lawrence, The Statement and Account Clause as a National Security Freedom of Information Act (November 11, 2015). 47 Loyola U. Chi. L.J. 1 (2015) ; Chapman University, Fowler Law Research Paper No. 15-05. Available at SSRN: https://ssrn.com/abstract=2595831

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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