The D.C. Circuit's In re Cheney decision, announced this May, was popularly viewed as the capstone on a bitter, five-year political catfight over government secrecy and the Bush Administration's energy policy. But the decision also revealed something else: a federal open-government law that is broken and badly needs fixing.

Congress passed the Federal Advisory Committee Act (FACA) in 1972 to regulate the ad hoc commissions and panels that periodically issue advice and recommendations to our federal government. The Act's goals were admirable enough. Prior to FACA, the advisory committee system was horribly inefficient, and the committees themselves were largely unaccountable to the public. The Act included a handful of commonsense regulations, intended to instill a modicum of economy, ideological balance, and openness into the advisory committee process. But unlike most open-government laws, which exempt the President, Congress drafted FACA to apply to the President in full force. This legislative choice was made prior to the dénouement of the Watergate scandal--and, thus, prior to the Supreme Court's watershed separation-of-powers decisions in United States v. Nixon and Nixon v. Administrator of General Services, which instructed that Congress may violate the Constitution by disrupting the President's constitutionally assigned functions...