United States v. Richardson

Mr. Justice Douglas,

dissenting.

I would affirm the judgment of the Court of Appeals on the “standing” issue. My views are expressed in my dissent to the Schlesinger case, post, p. 229, decided this day. There a citizen and taxpayer raised a question concerning the Incompatibility Clause of the Constitution which bars a person from “holding any Office under the United States” if he is a Member of Congress, Art. I, § 6, cl. 2. That action was designed to bring the Pentagon into line with that constitutional requirement by requiring it to drop “reservists” who were Members of Congress.

The present action involves Art. I, § 9, cl. 7, of the Constitution which provides:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

We held in Flast v. Cohen, 392 U. S. 83 , that a taxpayer had “standing” to challenge the constitutionality of taxes raised to finance the establishment of a religion contrary to the command of the First and Fourteenth Amendments. A taxpayer making such outlays, we held, had sufficient “personal stake” in the controversy, Baker v. Carr, 369 U. S. 186, 204 , to give the case the “concrete adverseness” necessary for the resolution of constitutional issues. Ibid.

Respondent in the present case claims that he has *198 a right to “a regular statement and account” of receipts and expenditures of public moneys for the Central Intelligence Agency. As the Court of Appeals noted, Flast recognizes “standing” of a taxpayer to challenge appropriations made in the face of a constitutional prohibition, and it logically asks, “how can a taxpayer make that challenge unless he knows how the money is being spent?” 465 F. 2d 844, 853 .

History shows that the curse of government is not always venality; secrecy is one of the most tempting coverups to save regimes from criticism. As the Court of Appeals said:

“The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic; and they mandated publication, although stated in general terms, of the Government’s receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer.” Ibid. (Footnote omitted.)

Whatever may be the merits of the underlying claim, it seems clear that the taxpayer in the present case is not making a generalized complaint about the operation of Government. He does not even challenge the constitutionality of the Central Intelligence Agency Act. He only wants to know the amount of tax money exacted from him that goes into CIA activities. Secrecy of the Government acquires new sanctity when his claim is denied. Secrecy has, of course, some constitutional sanction. Article I, § 5, cl. 3, provides that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . . .”

*199 But the difference was great when it came to an accounting of public money. Secrecy was the evil at which Art. I, § 9, cl. 7, was aimed. At the Convention, Mason took the initiative in moving for an annual account of public expenditures. 2 M. Farrand, The Records of the Federal Convention of 1787, p. 618 (1911). Madison suggested it be “from time to time,” id., at 618-619, because it was thought that requiring publication at fixed intervals might lead to no publication at all. Indeed under the Articles of Confederation “[a] punctual compliance being often impossible, the practice ha[d] ceased altogether.” Id., at 619.

During the Maryland debates on the Constitution, McHenry said: “[T]he People who give their Money ought to know in what manner it is expended,” 3 Far-rand, supra, at 150. In the Virginia debates Mason expressed his belief that while some matters might require secrecy (e. g., ongoing diplomatic negotiations and military operations) “he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money.” 3 J. Elliot, Debates on the Federal Constitution 459 (1836). Lee said that the clause “must be supposed to mean, in the common acceptation of language, short, convenient periods” and that those “who would neglect this provision would disobey the most pointed directions.” Ibid. Madison added that an accounting from “time to time” insured that the accounts would be “more full and satisfactory to the public, and would be sufficiently frequent.” Id., at 460. Madison thought “this provision went farther than the constitution of any state in the Union, or perhaps in the world.” Ibid. In New York, Livingston said: “Will not the representatives . . . consider it as essential to their popularity, to gratify their con *200 stituents with full and frequent statements of the public accounts? There can be no doubt of it,” 2 Elliot, swpra, at 347. *

From the history of the clause it is apparent that the Framers inserted it in the Constitution to give the public knowledge of the way public funds are expended. No one has a greater “personal stake” in policing this protective measure than a taxpayer. Indeed, if a taxpayer may not raise the question, who may do so? The Court states that discretion to release information is in the first instance “committed to the surveillance of Congress,” and that the right of the citizenry to information under Art. I, § 9, cl. 7, cannot be enforced directly, but only through the “ [s]low, cumbersome, and unresponsive” electoral process. One has only to read constitutional history to realize that statement would shock Mason and Madison. Congress of course has discretion; but to say that it has the power to read the clause out of the Consti *201 tution when it comes to one or two or three agencies is astounding. That is the bare-bones issue in the present case. Does Art. I, § 9, cl. 7, of the Constitution permit Congress to withhold “a regular Statement and Account” respecting any agency it chooses? Respecting all federal agencies? What purpose, what function is the clause to perform under the Court’s construction? The electoral process already permits the removal of legislators for any reason. Allowing their removal at the polls for failure to comply with Art. I, § 9, cl. 7, effectively reduces that clause to a nullity, giving it no purpose at all.

The sovereign in this Nation is the people, not the bureaucracy. The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs.

The resolution of that issue has not been entrusted to one of the other coordinate branches of government— the test of the “political question” under Baker v. Carr, 369 U. S., at 217 . The question is “political” if there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department,” ibid. The mandate runs to the Congress and to the agencies it creates to make “a regular Statement and Account of the Receipts and Expenditures of all public Money.” The beneficiary — as is abundantly clear from the constitutional history — is the public. The public cannot intelligently know how to exercise the franchise unless it has a basic knowledge concerning at least the generality of the accounts under every head of government. No greater crisis in confidence can be generated than today’s decision. Its consequences are grave because it relegates to secrecy vast operations of government and keeps the *202 public from knowing what secret plans concerning this Nation or other nations are afoot. The fact that the result is serious does not, of course, make the issue “justiciable.” But resolutions of any doubts or ambiguities should be toward protecting an individual’s stake in the integrity of constitutional guarantees rather than turning him away without even a chance to be heard.

I would affirm the judgment below.

Livingston used the proposed Art. I, § 9, cl. 7, to combat the idea that the new Congress would be corrupt. He said in part: “You will give up to your state legislatures everything dear and valuable; but you will give no power to Congress, because it may be abused; you will give them no revenue, because the public treasures may be squandered. But do you not see here a capital check? Congress are to publish, from time to time, an account of their receipts and expenditures. These may be compared together; and if the former, year after year, exceed the latter, the corruption will be detected, and the people may use the constitutional mode of redress. The gentleman admits that corruption will not take place immediately: its operations can only be conducted by a long series and a steady system of measures. These measures will be easily defeated, even if the people are unapprized of them. They will be defeated by that continual change of members, which naturally takes place in free governments, arising from the disaffection and inconstancy of the people. A changeable assembly will be entirely incapable of conducting a system of mischief; they will meet with obstacles and embarrassments on every side.” 2 Elliot, supra, at 345-346.