April 25, 2004

Energy, presidential secrecy, and a revolving door.

Sometimes when we're looking for blog fodder, we run into stories that are interesting, but not quite interesting enough that we actually write about them. But then when another story shows up a bit later, we know why that first story is more important than we'd thought. As you can guess from this intro, that just happened to us again.

First, here's the story that we didn't write about yesterday: a NY Times report on the arguments that Dubya's administration is using to try to convince the Supreme Court to keep the proceedings of VP Dick Cheney's 2001 energy task force a secret. This story's going to take us awhile to explain, so settle down and get comfortable. (If you're the impatient sort, you can use this link to skip ahead and see the second story. But please come back and read the whole post, okay?)

Cheney's task force, you'll recall, took input only from the energy industry (big surprise, eh?) and then made 150 recommendations to the prez for administrative rules and legislation on energy policy. The group operated in such secrecy that nobody outside Dubya's administration really knows how much influence the energy industry had over the formulation of those recommendations. The case at now at the Supreme Court is the result of a legal effort to make the task force proceedings public.

The administration is arguing that there's a constitutionally protected 'zone of autonomy' that applies when presidents are seeking advice when trying to create legislation. Interestingly, they are basing this argument on the same law that opponents are using to force the adminstration to divulge information about Cheney's task force: the Federal Advisory Committee Act. The legal stuff starts getting complicated now, so bear with us.

Under the Federal Advisory Committee Act, the proceedings of advisory committees must be public unless a committee is totally made up of federal officers or employees (part time or full time). Dubya's lawyers argue that since everyone on the task force was a fed the proceedings must stay private. (They make some other arguments, too, but we'll leave those for the Supreme Court.) Seems pretty open and shut, doesn't it?

Well, no. A 1993 federal court decision in a case concerning Hillary Rodham Clinton's health care task force changed the rules a bit. Under that ruling, an advisory committee that allows extensive participation of private citizens has made those citizens 'de facto members' of the committee — a change that makes that committee subject to the open proceedings requirement of the Federal Advisory Committee Act.

So using that 1993 decision, a district court ruled in 2002 that, during the discovery stage of the proceedings, Judicial Watch and the Sierra Club were entitled to information that would let them determine whether Cheney's energy task force had any of these 'de facto' members.

But Dubya's administration is arguing that the lower court ruling about 'de facto' members exceeds what Congress intended when it passed the Advisory Committee Act and, because of this, the Supreme Court should rule against the groups that are trying to make the proceedings of Cheney's task force public. The administration's brief to the Supremes says that the 'de facto member' doctrine doctrine turns the Act 'into a general warrant to search executive branch groups and committees for contacts with outsiders who might be deemed de facto members,' and that this could prevent a president from getting needed advice.

The Times article points out that if the administration succeeds at that Supreme Court, it will have asserted wide presidential powers of the type it has succeessfully (so far) asserted in its conduct of the 'war on terror' — especially as those powers apply to 'enemy combatants.' Essentially, Dubya's administration will have exempted from Congressional or judicial scrutiny the process by which it devises legislative proposals or administrative decisions. We agree with Judicial Watch, whose brief to the Supreme Court said that Dubya is making a 'startling bid for effective immunity from judicial process.'

Now that we're done explaining what Dubya's administration is arguing at the Supreme Court, we'll remind you that this was the story that we didn't write about yesterday. What tipped us to writing about it now is a second story that popped up later: a Boston Globe report about a revolving door that's appeared between Cheney's energy task force and the energy industry that stood to benefit from that task force's recommendations. We'll just quote the Globe:

Andrew Lundquist, a native Alaskan who worked on Capitol Hill for both his state's senators, shepherded the development of the administration's energy policy as executive director of the National Energy Policy Development Group, a Cabinet-level task force chosen by President Bush and headed by Cheney.

When the task force completed its work, Lundquist stayed on at the White House as Cheney's energy policy director, leading the vice president's effort to turn the task force's work into law.

Then, a day after leaving government service, he opened a consulting business. Nine months later, Lundquist was a registered lobbyist for companies that stood to benefit from the energy policy he helped craft, according to 2003 lobby disclosure records reviewed by the Globe.

So does this make you just a wee bit suspicious about why Dubya's administration is digging in its heels so hard to prevent public scrutiny of the proceedings of the task force? If the executive director of the task force has such close connections to the energy industry, what sort of influence and participation do you think he allowed that industry when the task force was coming up with policy recommendations?

Posted by Magpie at April 25, 2004 10:32 AM | US Politics | Technorati links |

SOP for a committee overseen by a man who got $170,000 from Halliburton last year, but who figures that this could not possibly affect his judgement?

Remember, scum rises to the top of the pond.


Posted by: Scorpio at April 26, 2004 12:07 AM

You've given us an excellent explanation of the law and the situation. Many thanks, magpie.

As more of this sorry business is revealed, it appears that this task force is a perfect example of why we need sunshine laws: sweet deals for industry, regs effectively written by industry, revolving doors, etc. If government is to serve the public rather than Cheney's cronies (or anyone else's, for that matter), its process must be as public as possible.

I am no lawyer, but I cannot see how executive independence is even remotely threatened by the release of these documents. And unless a recent contsitutional amendment got past me, there is no constitutionally supported executive privilege to cover executive posteriors! That said, with this Court, I do not expect a favorable ruling: just look at who goes hunting with whom.

Posted by: Steve Bates at April 26, 2004 04:54 PM

Oops. Make that "constitutional." If I could type, I'd be dangerous!

Posted by: Steve Bates at April 26, 2004 04:56 PM