[Congressional Record Volume 149, Number 27 (Thursday, February 13, 2003)]
[Extensions of Remarks]
[Pages E259-E260]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       SPECIAL ORDER: CHENEY TASK FORCE RECORDS AND GAO AUTHORITY

                                 ______
                                 

                          HON. HENRY A. WAXMAN

                             of california

                    in the house of representatives

                      Thursday, February 13, 2003

  Mr. WAXMAN. Mr. Speaker, last Friday, February 7, the General 
Accounting Office abandoned its efforts to obtain basic records about 
the operations of the White House task force on energy policy. This 
action received only limited attention, and few people fully understand 
its profound consequences.
  When we have divided government, the public can expect Congress to 
conduct needed oversight over the Executive Branch. But today we are 
living in an era of one-party control. This means the House and the 
Senate aren't going to conduct meaningful oversight of the Bush 
Administration.
  When there is one-party control of both the White House and Congress, 
there is only one entity that can hold the Administration accountable . 
. . and that is the independent General Accounting Office.
  But now GAO has been forced to surrender this fundamental 
independence.
  When GAO decided not to appeal the district court decision in Walker 
v. Cheney, it crossed a divide. In the Comptroller General's words, GAO 
will now require ``an affirmative statement of support from at least 
one full committee with jurisdiction over any records access matter 
prior to any future court action by GAO.''
  Translated, what this means is that GAO will bring future actions to 
enforce its rights to documents only with the blessing of the majority 
party in Congress.
  This is a fundamental shift in our systems of check and balances. For 
all practical purposes, the Bush Administration is now immune from 
effective oversight by any body in Congress.
  Some people say GAO should never have brought legal action to obtain 
information about the energy task force headed by Vice President 
Cheney. But in reality, GAO had no choice.
  The Bush Administration's penchant for secrecy has been demonstrated 
time and again. The Department of Justice has issued a directive 
curtailing public access to information under the Freedom of 
Information Act. The White House has restricted access to presidential 
records. The Administration has refused to provide information about 
the identity of over 1,000 individuals detained in the name of homeland 
security.
  The White House deliberately picked this fight with GAO because it 
wants to run the government in secret.
  GAO's efforts to obtain information about the Cheney task force began 
with a routine request. The task force was formed in January 2001 to 
make recommendations about the nation's energy future. During the 
course of the task force's deliberations, the press reported that major 
campaign contributors had special access to the task force while 
environmental organizations, consumer groups, and the public were shut 
out. Rep. Dingell, the ranking member of the Energy and Commerce 
Committee, and I felt that Congress and the public had the right to 
know whether and to what extent the task force's energy recommendations 
may have been influenced by well-connected outside parties. 
Accordingly, we asked GAO to obtain some basic information on the 
energy task force's operations, such as who was present at each meeting 
of the task force, who were the professional staff, who did the Vice 
President and task force staff meet with, and what costs were incurred 
as part of the process. We did not request, and GAO did not seek, 
information on internal communications.
  From the start, the White House assumed a hostile and uncompromising 
position, arguing that GAO's investigation ``would unconstitutionally 
interfere with the functioning of the Executive Branch.'' Stand-offs 
between Congress and the White House are not new, of course. Typically, 
they are resolved through hard bargaining and compromise. But the White 
House made clear that it wasn't willing to bargain or to compromise. 
Even when GAO voluntarily scaled back its request--dropping its request 
for minutes and notes--the Vice President's office was intransigent.
  The White House's contempt for legitimate congressional requests for 
information was apparent even in the one area in which it conceded 
GAO's authority. The Vice President acknowledged that GAO was entitled 
to review the costs associated with the task force. However, the only 
information he provided to GAO about costs were 77 pages of random 
documents. Some of the pages consisted of simply numbers or dollar 
amounts without an explanation of what the money was for; other pages 
consisted only of a drawing of cellular or desk phones. Without an 
explanation--which the Administration refused to provide, of course the 
information was utterly useless.
  The statutes governing GAO's authority spell out an elaborate process 
which the agency must follow before initiating any litigation against 
the Executive Branch. The statute even gives the White House authority 
to block litigation by certifying that disclosure ``reasonably could be 
expected to impair substantially the operations of the Government.''
  In this case, GAO followed the letter and the spirit of that statute, 
even giving the White House an opportunity to file a certification. But 
the White House position was that GAO had no right even to ask for 
documents. Faced with an Administration that had no interest in 
reaching an accommodation, GAO was left with a stark choice: GAO could 
drop the matter, effectively conceding the White House's position that 
it was immune from oversight, or it could invoke its statutory 
authority to sue the Executive Branch. Reluctantly, on February 22, 
2002, GAO filed its first-ever suit against the Executive Branch to 
obtain access to information.

  It's not hard to figure out why the White House was so eager to pick 
a fight with GAO. After all, GAO provides the muscle for Congress' 
oversight function. Over the past century, Congress has increasingly 
turned to GAO to monitor and oversee an Executive Branch that has 
ballooned in size and strength. Moreover, because it has earned a 
reputation for fairness and independence, GAO is particularly 
threatening to an Administration that doesn't want to be challenged on 
any front.
  GAO's effort failed at the trial level. In December, the district 
court in the case issued a sweeping decision in favor of the Bush 
Administration, ruling that GAO has no standing to sue the Executive 
Branch. The judge who wrote the decision was a recent Bush appointee 
who served as a deputy to Ken Starr during the independent counsel 
investigation of the Clinton Administration. The judge's reasoning 
contorted the law, and it ignored both Supreme Court and appellate 
court precedent recognizing GAO's right to use the courts to enforce 
its statutory rights to information.
  This brings us to last week. Before deciding whether to pursue an 
appeal, the Comptroller General consulted with congressional leaders.

[[Page E260]]

He found no support among Republican leaders for an appeal. And he 
decided not to appeal.
  The judge's ruling raised major institutional issues about Congress' 
power to investigate the Executive Branch. But Republican leaders put 
party ahead of the institution and partisanship ahead of principle.
  The hypocrisy about this issue on the Republican side is simply 
breathtaking. During the 1990s, it was Republicans in Congress who 
embarked on a concerted effort to undermine the authority of the 
President. Congressional committees spent over $15 million 
investigating the White House. They demanded--and received--information 
on the innermost workings of the White House. They subpoenaed top White 
House officials to testify about the advice they gave the President. 
They forced the White House to disclose internal White House 
documents--memos, e-mails, phone records, even lists of guests at White 
House movie showings. And they launched countless GAO investigations 
into everything from President Clinton's Health Care Task Force to his 
working group on China Permanent Normal Trade Relations.
  And if the White House resisted, these same leaders insisted that 
Congress and the public's right to know was paramount. Defending his 
numerous demands for White House records, for example, Rep. Dan Burton 
insisted on the House floor that ``public disclosure of the facts is 
the essence and in large part the purpose of congressional oversight. 
The American people have a right to know the facts.'' And other 
Republican leaders reiterated this message over and over again on 
countless television talk shows.
  But now that President Bush and Vice President Cheney are in office, 
suddenly these priorities have changed. Oversight is no longer a 
priority. In fact, it's something to be avoided at all costs, including 
sacrificing the independence of GAO. Even when GAO asks for the most 
basic information--what private interests met with a White House task 
force--the answer is that GAO is not entitled to ask these questions.
  By pressuring GAO to accept a badly flawed court decision, Republican 
leaders placed expediency over principle. In the short term, they will 
get what they want--a Bush White House that is accountable to no one. 
In the long term, however, they have done lasting damage to the balance 
of powers between Congress and the White House.
  Consider this irony: In their eagerness to undermine the Clinton 
White House, Republicans in Congress tried to tear down the presidency. 
Now, in their eagerness to protect the Bush White House, they are 
willing to tear down Congress.
  The implications of GAO's decision not to appeal are enormous. 
Without a realistic threat of legal action, GAO loses most of its 
leverage. In effect, the agency's ability to conduct effective 
independent investigations is emasculated. And in the process, core 
American values of open government and accountable leaders have been 
sacrificed.
  The Comptroller General has stated that his decision not to appeal 
will have little impact on the day-to-day operations of GAO. There is 
some truth to this. Much of what GAO does every day are routine audits 
of government programs that virtually everyone supports. GAO will be 
able to continue this routine work. And if a Republican-controlled 
committee ever urges GAO to pursue a controversial investigation of the 
Bush Administration, GAO may be able to do this. But don't hold your 
breath.
  What has been lost, however, is something very precious: it is GAO's 
ability to be more than an auditor of government books. To truly serve 
Congress and the American people, GAO needs the ability to take on 
important assignments even if they are not supported by the majority 
party, and it needs the authority to carry them out effectively even if 
they are controversial. This essential independence is now gone.
  For the first time in its history, GAO's shield of nonpartisanship 
has been pierced. In this new world, partisan considerations matter. 
Congressional Republicans can dictate GAO action; congressional 
Democrats can't. That is a sea change in GAO's mission.
  In the last eight years, some of our most important congressional 
powers have been misused for partisan purposes. We've seen the power to 
subpoena documents or individuals abused and twisted beyond 
recognition. The power to immunize witnesses was trivialized. The power 
to hold officials in contempt became a cheap political tool. And the 
power to impeach a President was reduced to a campaign strategy.
  Now the General Accounting Office, with its well-deserved reputation 
for superb work, becomes the latest casualty of partisanship. We are 
losing something very special here, and it is slipping away almost 
without notice.
  I ask unanimous consent to insert three short documents into the 
Record. They are an exchange of correspondence with the Comptroller 
General on this issue and a fact sheet on the Walker v. Cheney case 
that my staff has prepared.

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