The White House is urging the U.S. Supreme Court to protect what it sees as a right of the presidency to solicit advice from private citizens and do so in secret — as vice president Dick Cheney did early in the Bush administration with an energy task force.
The high court, which seemed to respond favorably to those arguments on Tuesday, is being asked to overturn two lower court rulings ordering Cheney to turn over documents related to his task force.
We hope the high court decides in favor of more openness of government, not more power and protections for the executive branch.
Citizens shouldn’t miss one rich irony of the case. It wasn’t too many years ago that most of those who now defend Cheney’s right to secrecy criticized Hillary Clinton’s secret health-care panel early in the Clinton administration, and vice versa. (The cases aren’t precise parallels, but the irony is apt anyway.)
The court, however, might be justified in deciding not to decide just yet.
The task force chaired by Cheney was charged with helping to develop an energy policy for the country. Beyond the dubiousness of such a panel — why should the national government, aside from trying to keep markets open, competitive and unfettered, decide how, when and from what sources Americans get their energy? — critics claimed the panel was weighted toward oil-industry cronies of Cheney, the former chief executive officer of an oil services company.
A lawsuit was brought by the unlikely pairing of the Sierra Club and Judicial Watch (which had been perceived as right-wing when it pestered the Clinton administration about openness), to get the names of members and further information about the task force’s deliberations. They argued that the Federal Advisory Committee Act of 1972, which requires task forces on which private citizens serve to make public most records and documents, applies to Cheney’s task force.
The White House, arguing it is taking a stand for a presidency not weakened by interference from the other two branches of government, has argued this task force is exempted from that act. U.S. Solicitor General Theodore B. Olsen argued further that if this task force were required to make its deliberations public the ability of executive-branch officials to get candid and confidential advice from knowledgeable people would be severely compromised.
There’s something to that argument, but we’re not sure it applies here. The 1972 law does not apply to confidential conversations between a president and his advisers or even to task forces solely comprised of government employees. It says that when private citizens take part in such deliberations and have an advisory role, the process should be open to the public.
As a general rule, openness in government is preferable to secrecy, even if the result is sometimes a marginal loss of candor. The government, after all, works for the people, not the other way around. Except in rare and unusual circumstances the people should be able to know what their government is up to without having to go to unusual lengths to get the information.
The federal Advisory Committee Act, Erwin Chemerinsky of the USC law school said, is “broadly written and was almost certainly intended to apply to the kind of task force Vice President Cheney convened.” This was not a matter of war or peace, or national security but for the most part domestic policy. Private citizens were involved. There is little or no reason to keep the deliberations secret.
Chemerinsky, however, thinks the court might sidestep these issues. “There was no final discovery order in the lower court, and Mr. Cheney never invoked executive privilege,” he said. The court could return the case to a lower court to develop the issues further.
We hope it simply rules in favor of openness.