Forcing the vice president to reveal executive information would threaten the Constitution’s separation of powers

by Randolph J. May
Legal Times, September 3, 2001

Two congressmen, Henry Waxman and John Dingell, are mightily perturbed with Dick Cheney’s energy task force. They claim that the task force’s decision “to meet behind closed doors and exclude certain parties from participation in its discussions may violate the letter and spirit of the Federal Advisory Committee Act (FACA).”

Even if the open meeting requirements of FACA were construed to prevent the type of “closed door” meetings with private individuals to which Waxman and Dingell object, the statute almost certainly would violate the Constitution’s separation of powers.

CONSTITUTIONALLY CLOSED DOORS

Here are the essentials. The membership of the task force, established by the president known formally as the National Energy Policy Development Group, consisted entirely of Cabinet secretaries and other high-ranking government officials. It was charged with making recommendations for a comprehensive energy policy and submitted its proposals for legislative and executive action to the president on May 16. (Before recessing in early August, the House of Representatives passed a bill containing many elements of the task force’s legislative recommendations.)

In an April 19 letter to the task force, Waxman and Dingell asked about the identity of participants in task force meetings and the purpose of the meetings. In particular, they inquired whether the task force was influenced by persons they described as nonfederal “stakeholders.” The representatives also asked about “the process by which the task force decided not to meet with any private citizens or groups.”

Then, on June 5, Waxman charged that the task force’s refusal to provide information “about its interactions with nongovernmental entities and individuals raises serious questions about the access large donors have to the policy-making process in the Bush administration.”

At the same time Waxman and Dingell sought information from the task force itself, they requested the General Accounting Office to investigate. The congressional watchdog agency complied.

In a July 18 demand letter to Cheney, the GAO maintained that the information it seeks—dates, location, purpose of meetings, persons present, and how it was determined which private sector individuals were allowed to meet task force members—relates solely to the “process” by which the task force’s recommendations were reached. In an Aug. 6 press statement, the GAO repeated its mantra that “[t]he information we are requesting is purely factual in nature and relates solely to the process used by the group.”

Well, not quite—and that’s the problem. The GAO’s July 18 letter specifically requested the “minutes and notes” and “any information presented” at meetings that task force members held with private individuals. It’s difficult to understand how information that reveals the substance of what was discussed at these meetings can fairly be characterized as relating “solely” to process. That’s why the administration’s assertion that GAO’s demand lacks due regard for constitutional separation of powers has considerable merit.

As the vice president explained on Aug. 2, developing policy recommendations for legislative proposals and executive action is “a core constitutional function of the executive branch.” Preserving the executive’s ability to function effectively “requires respecting the confidentiality of communications among a president, a vice president, the president’s other senior advisers, and others . . . if the president is to get the good, candid advice and other information upon which wise decision making depends.”

In an Aug. 17 missive, the GAO continued to insist that the information is necessary to “rule out the possibility that the Federal Advisory Committee Act (FACA) is applicable to meetings of the [task force].” And it threatened to go to court to obtain the information it seeks.

FACA requires each meeting of a federal “advisory committee” to be open to the public, and for advance notice of such meetings to be published in the Federal Register. An advisory committee is defined as any group “established or utilized” by the president to provide advice, excluding any group composed wholly of full-time government employees. FACA was enacted in 1972, in part as a measure to reduce government waste by restricting the proliferation of advisory committees then being created by the various agencies (there were an estimated 3,000 at the time), and in part as an open government measure, like the roughly contemporaneous Freedom of Information and Government in the Sunshine acts.

Notwithstanding suggestions to the contrary by Waxman, Dingell, and the GAO, it is unlikely that a court would find any energy task force meetings held with private individuals to violate FACA. The only Supreme Court decision concerning FACA, Public Citizen v. Department of Justice (1989), construed the act’s scope very narrowly.

The Court rejected the argument that presidential reliance on the advice of the American Bar Association’s Standing Committee on the Federal Judiciary, which prepared its reports concerning judicial nominees in total secrecy, violated FACA. Even though the president had not “established” the ABA committee, he concededly “utilized” its recommendations. But the majority opinion written by Justice William Brennan observed that “utilize” is a “wooly verb” left undefined by the statute. The Court essentially read the term as a qualification of “establish.” Otherwise, FACA’s requirements would apply “to any group of two or more persons, or at least any formal organization, from which the President or an executive agency seeks advice.”

Such a reading of FACA would present what the majority called “formidable constitutional difficulties” in light of the impairment of the president’s ability to obtain advice from whomever he pleases. Justice Anthony Kennedy, in a concurring opinion joined by Chief Justice William Rehnquist and Justice Sandra Day O’Connor, would have found the ABA committee to be covered by FACA, but would have held that FACA constituted an unconstitutional interference with the president’s responsibilities.

Constitutional concerns also loomed large in the controversy regarding the applicability of FACA to the ill-fated Clinton health care task force. A D.C. Circuit panel ultimately concluded in Association of American Physicians and Surgeons Inc. v. Clinton (1993) that the task force was not an advisory committee because Hillary Clinton was an “employee” for purposes of FACA—meaning the group was composed wholly of federal employees. Judge James Buckley, concurring in the judgment, would have held FACA applicable. But, like the three concurring justices in Public Citizen, he viewed FACA’s open meeting requirements as unconstitutional in light of their interference with the president’s ability to obtain “candid, objective, and even blunt or harsh opinions.” Not surprisingly, other lower court decisions have determined that FACA raises constitutional concerns.

JUST ONE INTERPRETATION

There is no doubt that the energy task force met with and received input from many individuals outside of the government—thereby arguably triggering FACA under a literal interpretation. But the only interpretation of FACA’s applicability likely to survive constitutional challenge is one suggested by the D.C. Circuit in the Physicians and Surgeons case—a group is an advisory committee only “when it is asked [by the president] to render advice or recommendations, as a group, and not as a collection of individuals.”

It is not surprising that two leading Democrats want to generate some political electricity in the hopes of damaging the prospects for passage of President Bush’s energy proposals. That’s the way Washington works, and it is fair game for the president’s opponents to try to score political points by arguing that the administration should have consulted more broadly with nonindustry representatives in formulating its energy policy.

But it’s quite another thing for the GAO to let itself be used as a prop for such political theatre by pursuing a constitutionally dubious course. That’s probably why the GAO backed off on Aug. 17 from its request for substantive information presented to the task force by private individuals, such as the notes from meetings with task force members.

With GAO’s concession, it’s more likely that the high-profile dispute now will be resolved where it should be—in the court of public opinion—rather than in a court of law.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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