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Jewish World Review Feb. 8, 2002 / 26 Shevat, 5762

Debra J. Saunders

Debra J. Saunders
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Sunshine all around -- SEN. Mitch McConnell, R-Ky., calls it "the height of hypocrisy" that Congress has exempted itself from the very laws it is using to force the Bush administration to fork over information about Vice President Dick Cheney's energy task force.

Bear with me for a few legal distinctions. The 1974 Freedom of Information Act -- which grants ordinary citizens access to some government documents -- exempts Congress from the law. Congress also exempted "the legislative branch" -- itself -- from General Accounting Office investigations. (At the request of some members of Congress, the GAO has petitioned the Bush administration for particulars on the task force.)

There's also a Federal Advisory Committee Act (FACA), which groups like the government-watchdog group Judicial Watch used to wean information about Hillary Clinton's health-care task force. By nature, FACA exempts Congress -- since Congress does not create federal advisory panels. The administration, however, argues that the Cheney task force does not fall under FACA because, unlike Group Hillary, all its members are government employees.

That's nice, but the purpose of sunshine laws is to ensure public scrutiny of how the federal government operates. It is not untoward for voters or Congress to know who met with a White House panel composed of 10 Cabinet-rank members.

(On the other hand, Cheney and company were right to oppose an earlier GAO request -- since rescinded -- for minutes or notes of task force meetings. As John C. Eastman, professor of the Chapman University School of Law, noted, federal sunshine laws exempt information concerning the "deliberative process" for good reason: "to allow subordinates in the executive branch to give candid advice to their superiors.")

If Team Cheney deserves a ding for not handing over names, dates and locations of task force meetings, Congress deserves a bigger ding for exempting itself from ever having to do so.

"I regret that the White House is insisting on secrecy," said Rep. Henry Waxman, D-Calif., complained about Cheney. Yet Congress had written secrecy into the law as its legal right.

Or as one GOP Hill staffer noted, in siccing the GAO on the White House, "It's Congress using its investigative arm to compel another branch of government to turn over information that Congress itself would never turn over. "

A spokeswoman for Rep. John Dingell, D-Mich., member of the "Cheney tell all" House Energy and Commerce Committee, said that Congress exempted itself from sunshine laws "to prevent overzealous prosecutors who come after the legislative branch." She added that the House holds hearings in public.

But would Dingell release a list of energy titans with whom he has met? "Why wouldn't he?" she answered. You can call Dingell's office and ask.

Back in 1995 and amid much fanfare, Congress passed and President Clinton signed the Congressional Accountability Act. The idea was to make Congress follow federal labor and civil-rights laws from which it had exempted itself for decades.

Congress, however, did not eliminate its self-protection clause in the Freedom of Information Act. Labor laws are one thing; public scrutiny is another.

Law prof Eastman (who, unlike moi, believes both Congress and Cheney's pals should be allowed to keep all meeting information to themselves) quoted Federal Paper No. 57 as he derided the double-standard.

In that essay, James Madison wrote that the House of Representatives should not pass laws from which it is exempt: Members "can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny."

Comment JWR contributor Debra J. Saunders's column by clicking here.


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