[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]

This article discusses issues and recommendations originally outlined in Good Governance Paper No. 5: Prepublication Review – How to Fix a Broken System.

In President Joe Biden’s first year in office there has been no apparent progress on reforming the broken system of prepublication review for millions of former federal government employees that we discussed in Good Governance Paper No. 5.

In that respect, the last year brings nothing new. Back in 2016, the House Permanent Select Committee on Intelligence directed the Director of National Intelligence to issue an Intelligence Community wide policy regarding pre-publication review and to “transmit this policy to the congressional intelligence committees concurrently with its issuance.” In November 2018, having not issued any new policy, the ODNI Freedom of Information Act (FOIA) Chief Sally Nicholson promised “An IC-wide policy on prepublication review is being formulated and is forthcoming.”

Now, more than three years later, still no new policy has been announced. President Biden and his team have clearly not broken the logjam that has held up any effort to reassess a clearly broken system.

In the face of silence and intransigence from the government on the issue, the Knight First Amendment Institute at Columbia University filed suit on behalf of five former public servants challenging the constitutionality of the “prepublication review” system. The suit, first filed during the Trump Administration against Director of National Intelligence (DNI) John Ratcliffe, now continuing against Biden DNI Avril Haines, was dismissed by the district court on April 16, 2020. Plaintiffs appealed the ruling to the Fourth Circuit (we filed an amicus brief in support of appellants). On June 23, 2020, the Fourth Circuit affirmed the district court.

The Knight Institution and ACLU have since filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the Fourth Circuit’s judgment. (We again filed a brief as amici curiae supporting petitioners.) After successfully seeking an extension, the Biden Administration will be filing its brief in opposition to certiorari in February. This will be a key moment for the Administration to make clear where it stands on prepublication review. If there are reform efforts under way, we would expect the brief to mention them. But given the years of unfulfilled vague promises of reforms to the system, we do not put much stake in such promises.

At this point, the best hope for reform, then, is that the Court will see fit to grant certiorari so that it can review the unconstitutional prepublication review system. (Stay tuned for more posts from us about Edgar v. Haines.) Alternatively, whether successful for not, the case might bring Congress’s attention back to the issue and the failure of two administrations to heed its clear instructions to take concrete steps to fix this broken system.