Letter to Reps. Young and Miller on the Subpoena of the Phone Records of the Project on Government Oversight

The Honorable Don Young
Chairman
Committee on Resources
1324 Longworth House Office Building
United States House of Representatives
Washington, DC 20515-6201

The Honorable George Miller
Ranking Minority Member
Committee on Resources
1324 Longworth House Office Building
United States House of Representatives
Washington, DC 20515-6201

Dear Chairman Young and Ranking Member Miller:

We are writing to express our concerns about the Committee on Resources' February 17 subpoenas of the home phone records of the Project On Government Oversight's (POGO) Executive Director, Danielle Brian, as well as the organization's office phone records. The subpoenas for these records appear overly broad and could threaten POGO's freedom of association and freedom of speech.

Nonprofit organizations help the federal government function more effectively. They can help members of the public speak to issues about which they would otherwise be silent. Nonprofit organizations sometimes play a role in exposing governmental abuses and corruption. Those who lend their voices or assistance to such organizations often do so expecting anonymity. Compelling disclosure of their identity chills the effectiveness of those groups. It also endangers the freedoms of speech and association guaranteed under the First Amendment. NAACP v. Alabama, 357 U.S. 449 (1958).

Moreover, the February 17 subpoena raises additional concerns because it targets an organization (and its executive director) whose mission is to work with whistleblowers who fight fraud and abuses of power within the federal government. Disclosure of the identities and phone numbers of these whistleblowers could result in retaliation against them and could compromise other efforts to expose waste, fraud and abuse in the government.

Congressional committees have a proper role in conducting oversight of federal agencies to ferret out abuses. Subpoena authority is often an essential tool of such oversight efforts. However, this authority must be exercised with care both to ensure that only pertinent records are sought and to protect the First Amendment rights of the people and organizations to whom the records relate. Even where pertinent records are sought, before a legislative committee proceeds "in such a manner will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights" it must lay an "adequate foundation for inquiry" and demonstrate a "compelling and subordinating governmental interest." Gibson v. Florida Investigation Committee, 372 U.S. 539, 537 (1963).

We urge you to re-evaluate the subpoenas in view of these principles.

Sincerely,

Laura W. Murphy
Director
ACLU Washington National Office

Louis M. Bograd
Senior Staff Attorney
ACLU Foundation

cc: Members of House Committee on Resources