In the age of the Internet, does simply livestreaming a government meeting make it “open to the public”?
That question is at the heart of a slew of lawsuits filed by rights groups who claim that President Trump’s voter fraud commission — known officially as the Presidential Commission on Election Integrity but colloquially as the Pence-Kobach Commission — has failed to open its proceedings to the public.
Last week, the American Civil Liberties Union, one of several organizations suing, argued in its filing that the commission was trying to skirt the intent of a federal law by denying the public’s right to attend its meetings.
The commission, headed by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, was created by executive order in May and tasked with looking into the president’s unsubstantiated claims that voter fraud caused him to lose the popular vote to Hillary Clinton by roughly 3 million votes nationwide.
The Kobach Commission falls under the auspices of the Federal Advisory Committee Act (FACA), a 1972 law that places a “special emphasis on open meetings, chartering, public involvement, and reporting.”
The Commission’s first meeting was held by telephone and wasn’t open to the public. Wednesday’s meeting will be streamed over the Internet. But that doesn’t count as “public,” either, according to Ezra Rosenberg, co-director of the Lawyers’ Committee for Civil Rights Under Law, another group suing for more openness.
Rosenberg says that “under limited circumstances where committee members themselves are not meeting in person, allowing the public to be there in person can be waived,” under the FACA. “But that’s not the case here. The commission is meeting in person. When they meet in person, members of the public must be allowed to attend in person,” he says.
That sentiment is echoed by ACLU staff attorney Theresa Lee, who told NPR last week that the plan to livestream Wednesday’s meeting “does not provide the opportunity for sufficient public oversight as required by law, and is notably inaccessible to any citizens without a computer and a broadband Internet connection.”
The Commission is justifying its closed-door policy due to security protocols concerning the vice president’s attendance.
“That is just a pretext,” Rosenberg says. “The vice president regularly attends large public gatherings.”
But it’s not the first time the issue of federal open meetings has come up. As Politico reported in 2013, the Obama administration also took some heat over the definition of “open” when it came to limiting media access to a meeting of President Obama’s Export Council.
Responding to questions from reporters, then-White House press secretary Jay Carney fired back that because video of the meeting in question was streaming to the Internet, “everyone in America with electricity and a computer could see it.” The White House said not granting access to that meeting was a one-off and chalked it up to space constraints.
And, according to the Federal Register, Obama’s Presidential Commission on Election Administration announced at least one meeting, in November 2013, that was to be “open to the public via teleconference.”
There have been several unsuccessful efforts in Congress over the years to tighten up the FACA to close loopholes seen as thwarting the goal of transparency.
On the state level also, so-called “open meetings laws” have been a frequent source of tension among governments, the public and the media.
To be sure, although the Presidential Commission on Election Integrity doesn’t intend to allow the public to attend Wednesday’s meeting in person, it does promise to “provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings.”