THERE IS ALWAYS something unseemly about the sight of legislators stuffing extraneous measures and pet projects into a bill just before passage, but the process has been particularly unattractive in the case of the homeland security bill. This is, after all, a historic piece of legislation, one that enables a broad restructuring of the federal government. The idea was to save lives, not to protect particular industries or lobbying groups. Nevertheless, the House-passed version contains several such provisions, some of which will never be publicly debated. The Senate will try to pass an amendment removing some of these this week -- possibly pushing final passage of the bill into the next Congress if the House refuses to return for a conference -- but much of the damage may be irreversible.
Among several objectionable additions to the bill, one stands out. The provision has a worthy enough goal: to encourage companies to share information with the government about critical public infrastructure they control that might be vulnerable to terrorist attack. Many companies have been reluctant to reveal the potential weaknesses of, say, their power plants or chemical factories for fear of public disclosure or regulatory action. To calm their fears, the bill proposes to exempt all such information that companies voluntarily provide to the government from public disclosure under the Freedom of Information Act.
But "information" is so broadly defined that virtually anything a company decided to tell the government could be considered secret. A company that feared environmental regulators could "voluntarily" deliver incriminating documents to the government, thereby making them unavailable to anyone else. To make matters worse, the bill also prescribes criminal penalties for whistle-blowers who publicize such information. The combination of the loose definition of "information" with the threat of a jail sentence might be enough, for example, to prevent someone who discovers that a chemical plant in an earthquake zone is not earthquake-proof from revealing that to anyone else. As we have argued in the past, the Freedom of Information Act already shields confidential business information as well as national security information. Those exemptions to the principle of disclosure need no strengthening.
During earlier debate, the Senate came up with a better version of these provisions, more narrowly defining "critical infrastructure information" and eliminating the penalties for whistle-blowing. This is the sensible compromise to which Congress should return.