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Attorney General Greg AbbottRemarks to the Freedom of Information Foundation of TexasAustin, TexasAugust 13, 2010
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Note: Attorney General Abbott occasionally departs from his prepared remarks.
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Introduction by Katherine “Missy” Cary, chief of the General Counsel Division, Office of the Attorney General
)Thanks, Missy, for those kind words. I appreciate your many years of service to the State of Texas and the Office of the Attorney General—especially your leadership on opengovernment issues. As you all may know, Missy is the chief of our General Counsel Division.Before that, she served as the chief of our Open Records Division. And prior to that role, shewas our Public Information Coordinator. Back in 2003, the Freedom of InformationFoundation recognized Missy for all of her tireless work and vast expertise in opengovernment issues, when you gave her the James Madison Award for that year.When it comes to open government issues, we have a wealth of talent at the AttorneyGeneral’s office. You have already heard from two of the top open government experts at ouroffice—and in the whole state of Texas—in Mandy Crawford and Hadassah Schloss. Thesetwo work tirelessly to ensure that the door to government in Texas stays open.Congratulations to Joe Larsen, the 2010 James Madison Award recipient, and to the TexasGavel Awards recipients. As a past recipient of the James Madison Award myself, I can tellyou that it is an unparalleled honor.A lot has changed since we last met for this annual conference. Since then, my daughterbecame a teenager. Having a teenage daughter has given me two things: grayer hair and athinner wallet.Another thing that has changed since we last met is the escalation of the public discussion anddebate about the states’ authority versus federal power. About individual determination versusgovernmental control. About Texas versus Washington. And about the federalist visionarticulated by Madison versus a federal government with limitless power.Just this past Sunday, the
Austin American-Statesman
featured a front page story titled,“Challenges Keep State and U.S. at Odds: Anti-Washington Theme Pervades AttorneyGeneral’s Maneuvers.” What’s going on? What’s behind this?The truth is, there is a common thread between our challenges of Washington overreach, onthe one hand, and our shared commitment to free press and open government on the otherhand. That common thread weaves timeless principles that undergird all our legal challengesagainst an overreaching government—whether it be an overreaching federal government,dictating unprecedented mandates on its people; or oppressive actions by local governmentsthat try to deny public access to information about what their government is doing.
2There is a tailor who weaved that common thread, whose genius formulated principles thatapply with equal vigor today and at the time our democracy was created. And that is JamesMadison. The James Madison who was the ultimate guardian of the press from suppressiveactions by government, is the same James Madison who was the ultimate guardian of states’authority and individual liberties from an overreaching federal government.James Madison was the champion of access to information. He emphasized that, “Knowledgewill forever govern ignorance: And a people who mean to be their own governors must armthemselves with the power which knowledge gives.”That same Madison was one of the chief architects of a limited federal government andexpansive state authority. It was Madison who declared that, “The powers delegated by theConstitution to the federal government are few and defined. Those which are to remain in thestate governments are numerous and indefinite.”Those principles outlined by Madison are the principles that drive actions like our challengesto the federal health care takeover and the EPA’s federalization of the state air permits. As wedetail in the lawsuit challenging the constitutionality of the federal healthcare legislation, thenew law represents an unprecedented intrusion on the sovereignty of the states and thefreedom of their citizens.As such, the new law threatens the very core of Madison’s vision of dual sovereignty, underwhich the federal government is to exercise only those limited powers given it by theConstitution, with all other powers reserved to the states or to the people. Justice AnthonyKennedy recently explained that this dual sovereignty was the unique contribution of theFramers to political science and political theory. And the Supreme Court wrote in 1997 thatthe system was designed to achieve a healthy balance of power between the states and thefederal government—to reduce the risk of tyranny and abuse from either front. We contendthat the healthcare legislation threatens the risk warned of by the Supreme Court—bytransforming our federal government from one of limited, enumerated powers into one of limitless authority over states and their citizens.This is exactly what Madison warned about. He said that, “(A)mbitious encroachments of thefederal government, on the authority of the state governments, would not excite the oppositionof a single state or of only a few states. They would be signals of general alarm.”What you are hearing, I suggest, are those signals of general alarm that Madison forewarnedof. We have taken up the gauntlet thrown down by Madison.Madison was the ultimate guardian of liberty. Liberty is the reason we exist as a country. It iswhy our forefathers fought for independence. It is what they enshrined in the Constitution,what they guarded in the Bill of Rights.Liberty is also the underpinning of a free press. Without it, there is no real free press. Withouta true free press, there is no true liberty. As James Madison said, “(T)he advancement anddiffusion of knowledge…is the only guardian of true liberty.” An informed electorate isessential to an effective democracy. A free press is a cornerstone of an informed electorate.An oppressive, overreaching government is antithetical to both.
3That’s why, just as we have brought legal challenges against government actions that trampleour liberties and infringe upon state authority, we have been just as aggressive—and just asvigilant—in our legal actions against governmental bodies that try to hide their conduct fromthe people they govern.You already know about our efforts, such as:
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Obtaining the first known criminal conviction of a public official for violating thePublic Information Act;
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Ruling that the Comptroller had to disclose state employees’ dates of birth;
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Ruling that Governor Perry had to disclose some of his budget papers that he wanted tokeep under wraps; and
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Our recent ruling that a Bexar County commissioner had to release emails about publicbusiness, even though they were sent from a private email account.And we have dealt with the repeat offender known as the City of Dallas. Dallas consistentlyignores statutory deadlines. In fact, over a nine-year period, our office cited the City of Dallasmore than 700 times for missing their deadlines for requesting rulings. We went all the way tothe Texas Supreme Court to force the City to stop the delays and follow the law. The Freedomof Information Foundation filed an amicus brief in that case. Unfortunately, the SupremeCourt ruling was inconclusive. And, true to form, the City is back to its old tricks. In just thefirst half of 2010, we found that Dallas has violated the Public Information Act’s statutorydeadlines about 30 times. And incredibly, they are suing us again.During the past few years, we have fought many battles to preserve open government. But nofight is bigger—or more important to the future of open government—than the one we arecurrently waging to defend the constitutionality of the Open Meetings Act.As you know, several cities and city officials across Texas filed a lawsuit in federal court tooverturn the Open Meetings Act. With tremendous irony, the plaintiffs claim that the OpenMeetings Act violates their First Amendment right to free speech.We argue that the true meaning of the First Amendment is to protect citizens againstgovernment oppression, not to protect government against citizen oversight. The OpenMeetings Act doesn’t restrict free speech. It restricts only secret speech. As we put it in ourcourt briefing, openness in government is a First Amendment value, not a First Amendmentviolation. Put differently, the Open Meetings Act doesn’t prevent anyone from speaking. Itmerely requires public officials to do so openly, not in hiding.The future of this case will determine the lasting vitality of the ideals championed by JamesMadison. Thanks to the Freedom of Information Foundation for being by our side in thisfight, and for filing an amicus brief in support of our position. Your strong voice in this caseis very important in the defense of the Open Meetings Act.As you can see, our fight for the First Amendment is—at the same time—never ending andever threatening. But I’m sure you agree with Madison that it is a fight that must be waged,
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