A nasty spat has developed between Common Cause and the Nuclear Regulatory Commission over the Government in the Sunshine Act, which requires some (but not all) of those who govern to do so in public.
As far as Common Cause is concerned, it is simply a case of the NRC commissioners illegally excluding the public--in this case, a Common Cause intern--from a meeting. Under the 1976 law, all meetings of collegial bodies that head federal agencies must be open, with a few exceptions.
From the NRC's viewpoint, the meeting had to be closed because the commission was devising its strategy for budget meetings with the Office of Management and Budget.
"The commission is necessarily at arm's length with OMB in the budget review process and we have to close a meeting when we develop our strategy for dealing with this other entity," said Leonard Bickwit, the NRC's general counsel. If a resourceful budget examiner attended one of the NRC's strategy meetings on how to deal with the OMB, he might have a bit of an advantage.
But Donald Simon, associate general counsel for Common Cause, asks: "What is more fundamental to the operation of an agency than the budget process?"
Common Cause sued, and the commissioners ultimately were held in contempt and faced with the prospect of going to jail. But the U.S. Court of Appeals intervened and will soon hold a hearing on the issue.
The case renews old questions about when agencies should be allowed to close meetings and just how open government should be. Under the sunshine act, some departments and agencies don't have to open up their deliberations and others are allowed to close meetings when certain topics are discussed.
Cabinet-level departments are exempt from the sunshine act because they are headed by an individual, not a collegial body.
When budgets are prepared, for instance, a high-level departmental official typically will talk to various minions and devise both the budget and the OMB strategy with the secretary.
At some collegial bodies, the Securities and Exchange Commission for instance, commissioners have delegated budget authority to the chairman, so he alone decides how to battle OMB. Since there are no budget meetings, there is no place for the sun to shine on budget proceedings.
Sen. Lawton Chiles (D-Fla.), the "father" of the sunshine act, said, "I don't like" the way some agencies can get around the law. "On the other hand," he said, "how do you pin down where the Cabinet officer makes up his mind? When he shaves? When his chauffeur picks him up in the morning? It's impossible. We had to say it had to apply to those collegiate bodies. Even though you leave out the Cabinet, in these regulatory agencies, the public should know how they make these decision."
Under the sunshine act, agencies can close their meetings for 10 reasons. Included are protections for national security information, personnel actions, individual privacy and trade secrets. Closed meetings are also permitted for discussion on "currencies, securities, commodities or financial institutions," because of the potential impact on the stock market, interest rates or individual banks. The Federal Reserve Board and the SEC both fought hard for that exclusion and are happy they have it.
The Federal Reserve Board, for example, rarely opens its meetings. "If we held meetings on monetary policy, the press would not be able to get in, neither would Common Cause, because the market people would take all the seats," joked Joseph R. Coyne, assistant to the board. "It would be great for the Eastern shuttle."
Nonetheless, many meetings are open and many agencies have learned to live with the law. Philip A. Loomis Jr., SEC commissioner before and after the sunshine act, said it "does complicate things. You have to give advance notice when you hold a meeting. That means you can't do what we used to do, where the chairman would just call the commissioners and say, 'Let's get together and dispose of this matter.' . . . But I can understand why Congress enacted the law."
The other major criticism of the act is that it inhibits free discussion of thorny issues. "It does sometimes," Loomis acknowledged. "People sometimes feel that instead of discussing something as we normally would, you practically have to have a prepared statement . . . ."
James B. King, chairman of the National Transportation Safety Board, believes the act makes it difficult for his investigators to retain some kinds of data, but said, on balance, he supports the act.
Because board members know the public is going to watch their deliberations, he said, they "do more homework, more reading and ask better questions. It's a lot easier to cut people off in a closed meeting, perhaps people who should have been heard and who you could never cut off in a public meeting. I think the bottom line is that our credibility is enhanced by having the public see how one of these things is handled."
Ann McBride, a Common Cause vice president who lobbied for the act and continues to fight for it today, conceded there is no way to analyze the effects of the act on government actions. It comes down, she said, to the "question of whether the public is better served by the public business being done in public."