Newsletter: The Latest on Congress’ Efforts to Hide Communications from 2017

Congress is fighting to withhold records related to Republicans’ 2017 attempts to repeal the Affordable Care Act.

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In a seven-years-long lawsuit with major implications for the people’s right to government records, American Oversight has been fighting for the release of documents related to past efforts to repeal or weaken the Affordable Care Act.

We filed the lawsuit in 2017 against the Department of Health and Human Services and the Office of Management and Budget seeking officials’ communications with congressional staff. But it’s Congress — not the agencies — that’s prolonging that fight.

Many of the records we’ve previously obtained through the lawsuit were heavily redacted under FOIA’s Exemption 5, which shields the release of inter-agency or intra-agency memorandums, and the “consultant corollary” doctrine, a judge-created extension of Exemption 5 which applies when outside consultants are acting “akin to an agency employee.”

The use of the “consultant corollary” doctrine basically amounted to a loophole to evade public disclosure of records, and in May, the D.C. Circuit Court of Appeals ruled in our favor.
The court made clear that government agencies cannot use the “consultant corollary” to evade public disclosure of records when the supposed “consultants” have their own interests in the outcome of agency decisions — for example, political or electoral.

At issue in the suit today are five email chains sent among members of the House Ways and Means Committee and agency staff in 2017. Despite HHS and OMB having agreed that the remaining records are public agency records subject to FOIA, the committee — which intervened in the case in 2017 — last month filed a motion requesting that the court block their release.

Justice delayed is often justice denied, and the records at issue in this case — about decisions that could have affected health coverage for millions of Americans — would have best served the public by being released at the time that members of Congress were attempting to weaken the ACA.
Seven years later, and with a new Trump administration set to take office, the public still deserves to see emails that could shed light on the political influences and negotiations behind efforts to upend the health-care law. Read more about our lawsuit here.

Idaho Reinstates Abortion Travel Ban

A federal appeals court partially reinstated Idaho’s interstate abortion travel ban this week, making it the first state in the nation to criminalize the transport of a minor over state lines to obtain an abortion.

Idaho’s ban originally took effect in May 2023 and was temporarily blocked last November after advocacy organizations sued, alleging the law was unconstitutional. In September, a federal judge blocked enforcement of a similar law in Tennessee.
American Oversight has been investigating how anti-abortion rights activists are pushing for laws that restrict travel for the purpose abortion in multiple states.
Records we previously obtained reveal that abortion travel ban ordinances passed in 2023 in three Texas counties were drafted by anti-abortion rights activists who offered at least one county free legal representation if it faced lawsuits over the laws.
Read more about our investigation into abortion travel ban laws here.

On the Records

Communications About 2017 Efforts to Weaken ACA

Through the litigation mentioned above, we have obtained more than 3,200 pages of records, with the agencies having reprocessed and lifted certain redactions. Records released to American Oversight last month show that HHS and OMB staff members frequently communicated with certain congressional officials in early 2017 while ACA repeal efforts were underway — including then-Speaker of the House Paul Ryan and members of his office.

On March 6, 2017, the day that House Republicans announced their plan to replace the ACA with the American Health Care Act, Ryan’s then-policy director Austin Smythe asked then-OMB director Mick Mulvaney to produce an analysis contradicting information expected to be released by the Congressional Budget Office, the emails show.
“It will help us make the case for the bill if we got information from OMB/HHS to show the full effects of our bill combined with administrative action,” Smythe wrote to Mulvaney.
Read more about the records here.

Texas’ Operation Lone Star and Border Buoys

Texas Gov. Greg Abbott recently indicated he plans to add to the floating buoy barrier that was first installed last year along the Rio Grande. The buoys can make border crossings even more dangerous and deadly.

American Oversight obtained a signed contract, recently reported on by Newsweek, related to the border buoys. The Texas Department of Public Safety agreed to pay a supplier $850,000 for a “barrier buoy” between April and August 2023. The contract was awarded as part of Operation Lone Star.
Another document indicates that DPS believed the buoys would “reduce drownings and apprehension workload for DPS agents.”
Learn more about our investigation into Operation Lone Star here.

Newsletter: The Latest on Congress’ Efforts to Hide Communications from 2017

On the Records

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