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Major victory for presidential confidentiality

This report is a follow-up to the Supreme Court’s 7-2 decision on June 24, 2004, vacating a prior ruling by the D.C. Circuit.

The D.C. Circuit on Tuesday interpreted a federal law on government advisory committees in a way that gives the President sweeping authority to set up policy-generating groups, give outsiders unusual access to try to influence the policy choices that get made, and keep the entire process confidential.

In a unanimous en banc ruling, available here, the Circuit Court sought to bring an end to the four-year struggle by two advocacy groups seeking to force into the open the role that industry advisers played in shaping President Bush’s energy policy through an advisory task force he set up soon after he entered the White House. Ruling in the case of In re Cheney (docket 02-5354), the D.C. Circuit ordered a District Court to dismiss consolidated lawsuits by Judicial Watch and the Sierra Club against Vice President Cheney, who chaired the National Energy Policy Development Group.

In the process, the Circuit Court sharply curtailed, without specifically overruling, its own 12-year-old precedent that had expanded the duty of government advisory committees to disclose their inner workings. (The precedent was Association of American Physicians and Surgeons v. Clinton, issued in 1993.)

The Supreme Court had ordered the Circuit Court to reconsider its earlier refusal to stop the lawsuits in order to avoid serious separation-of-powers issues.

The case, aside from the constitutional questions that the Bush Administration raised as the litigation proceeded, involves the Federal Advisory Committee Act. Designed to bring such committees into fuller public view, the Act applies to any committee, board, commission, task force or other group and any of its subgroups set up by the president or a federal agency to obtain advice. The Act, however, exempts from its coverage groups that are composed entirely of government officials or employees. A committee covered by the Act is required to disclose publicly its otherwise confidential papers. Such groups must announce meetings in advance, meet in public, and keep detailed minutes of every meeting. The groups also are required to be balanced in viewpoint.

In the D.C. Circuit’s 1993 opinion in the AAPS case, it ruled that the Act could apply to a presidential advisory committee if there was regular participation by non-government individuals, on the theory that their role made them de facto members of the committee.

The challengers to the Cheney energy task force contended that it was an advisory committee subject to the Act because energy industry executives sat in on task force and subgroup meetings, and participated actively in developing the policy that emerged.

The D.C. Circuit in a July 2003 decision refused to block a federal District judge’s order requiring the task force to release documents about its internal workings and contacts with energy executives, to determine if it was, in fact, covered by the Advisory Committee Act. The D.C. Circuit ruled that, if the president and vice president wanted to keep the records secret, they should invoke executive privilege.

But the Bush Administration persuaded the Supreme Court that there need be no claim of executive privilege. The Court, relying upon the Administration’s claims that the continuing litigation would invade presidential prerogatives, ordered the D.C. Circuit to weigh the separation-of-powers question in interpreting the scope of the Act. It left open the question whether the Circuit Court’s 1993 decision on de facto membership could remain intact.

In its ruling Tuesday, the D.C. Circuit did not rule on the question of whether applying the Act to presidential committees would be unconstitutional. But it said that constitutional concern had a significant impact on its interpretation of what the Act meant.

It concluded that a government advisory committee whose formal members are all government officials or employees would come under the Act only if the president gives someone other than a federal official “a vote in or, if the committee acts by consensus, a veto over the committee’s decisions.” The opinion, written by Circuit Judge A. Raymond Randolph (who had dissented from the earlier D.C. Circuit ruling in the Cheney case), commented: “Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee.” It likened the operation of the task force to congressional committees in which senators or representatives bring along aides, or Cabinet meetings where aides are included. Merely because such a non-member “might exert great influence,” the opinion said, did not make that individual a member. If a president names an advisory group made up solely of federal employees, “the president can easily create an advisory body whose internal communications will remain confidential, so long as the right to vote or veto is not later extended to a non-federal employee.”

“The president,” the opinion added, “must be free to seek confidential information from many sources, both inside the government and outside.”

“We shall therefore issue a writ of mandamus…directing the district court to dismiss the complaints,” the Circuit Court concluded.