Women's Rights

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• Time Off Instead of Time Paid
• Tax-credit taxing if you are too poor to pay taxes
• Surprise! The Supreme Court Protects Family and Medical Leave for State Workers

It's All About Discovery: What's Up with Cheney and the Supreme Court

Dick Cheney has appealed to the Supreme Court, and they have agreed to hear his case sometime in Spring 2004.

The Vice President is battling lawsuits filed by Judicial Watch and the Sierra Club, groups that claim the public has a right to know more about Cheney's and the Bush administration's methods for crafting its energy policies.

A Federal District Court in Washington D.C. has ordered the White House to disclose information that would help Judicial Watch, the Sierra Club, and the courts to determine if the White House has violated the Federal Advisory Committee Act.

Does the Act apply?

The Federal Advisory Committee Act requires the proceedings of most federal committees to be public. However, committees made up of only federal officials and/or federal employees are exempt from this law. Cheney's energy task force (the National Energy Policy Development Group) was officially composed of only federal officials, but if private consultants participated in the committee to a significant degree, the law may apply.

In order for the court to determine if Cheney's energy task force is, in fact, exempt, it must conduct a preliminary investigation known as "discovery." Discovery in this case would likely include an inspection of the task force members and of the role of any non-government participation.

Cheney says

Cheney argues that any discovery would compromise the executive branch's power, a power that he believes has been diminishing over the past three decades, a power that he would like to win back.

Cheney claims that the legislative and judicial branches have no authority to require the executive branch to disclose the particulars of the president's advisory committees. The administration argues that the dealings of these committees should be kept confidential; otherwise, advisers may not freely share their ideas for fear that their comments would be made public.

While it may be true that some brainstorming sessions should remain private, what does it mean for an adviser to suggest something in the Oval Office that she or he would not suggest at a town meeting?

Judicial Watch says

The lawsuit brought about by Judicial Watch and the Sierra Club asserts that Kenneth Lay (former Enron chief) was, for all intents and purposes, a member of the task force. While the White House admits communication with Lay, they deny that he had an active role in the committee.

The Supreme Court will not be determining the extent of Lay's participation in the committee. We are many steps away from that. Rather, the Court will decide if discovery should take place, as the lower court mandated, so that the courts can determine if the Federal Advisory Committee Act was violated.

Above the law?

In truth, the Court will rule on something more fundamental than discovery and the Federal Advisory Committee Act. They will be determining the nature of the presidency. Should presidential policy be crafted in private or in public? Do we the people have the right to know how decisions are made? Should advisers have the right to remain anonymous?

From Cheney's point of view, the president and vice president have the right to come to their decisions in private, and the American people can judge the merits of those decisions instead of the decision-making process.

Judicial Watch and the Sierra club believe that Americans have the right to know if industry executives are influencing public policy. Their emphasis is on public. Since policy affects all of us, all of us should be privy to the ways policy is considered and created.

For David Bookbinder, lawyer for the Sierra Club, this case is about equal application of the law. He believes that Cheney and Bush are not above the law, and that their methods should be held up for scrutiny.

But to Cheney, this scrutinizing undermines the president. He suggests that the administration's energy policy was created through an ethical process, and that we should trust in that. After all, if we don't trust our leaders, why did we elect them?

What do you think? Discuss this issue with other WomenMatter readers in one of our online forums. Learn more about women's rights. When you're ready, contact your representatives and let them know what you think.

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