Today the DC Circuit Court of Appeals issued its ruling and opinion in Schilling v. Speaker, a lawsuit filed citing the under the Common Law Right of Access to record as detailed, e.g., here, about the use by House Oversight Committee and its subcommittee Chair Ro Khanna of ‘staff’ provided by outside activist donors to investigate energy companies. A prima facie violation of the House Ethics Rules, this proved to be Khanna and his friends’ contribution (as he promised) to the ‘climate’ plaintiffs’ bar.
The Court’s opinion affirmed the dismissal of journalist Robert Schilling’s request for records documenting the provision of private staff—as boasted of by, e.g., George Soros’s and Pierre Omidyar’s foundations (and briefly Khanna before the then denied what he and his allies had admitted)—to guide Congress in efforts to investigate or punish opponents of a private agenda. Notably, the DC Circuit did not affirm the District Court in its holding that Schilling’s suit was barred by the Speech or Debate Clause. Instead, the Circuit Court opined only that the suit was barred by sovereign immunity.
This is very good news for advocates of transparency. The panel reaffirmed that the Common Law Right of Access applies to all three branches of government, and not merely to the executive branch. And the panel affirmed only on the narrow ground that the records Schilling sought were “preparatory materials for a committee hearing and … informal preliminary steps … not the recording of an “official decision.”
Those who support Schilling’s investigative efforts will take heart in knowing that record reflecting the “official decision” of Congress — including its official decision to accept private staff, say, for purposes of targeting opponents of a particular agenda — appear to be subject to the Common Law Right of Access. We hope Schilling and others will continue to seek records related to this effort, and others that have subsequently arisen.