Dissenting Views

H.Res. 745

Resolution of Inquiry Regarding Cheney Energy Task Force

The Committee on Energy and Commerce experienced one of its lowest days in the Committee’s history during the consideration of this resolution of inquiry. For the first time in our memory, Members were not permitted the opportunity to make an opening statement despite the recognition of the right to opening statements in our Committee rules. Thereafter, the Chairman refused to permit any debate on the resolution, instead first recognizing a Republican member to make a speech, and then recognizing the same member to make a motion to move the previous question to deny Members an opportunity to debate the issue. The resolution was then reported adversely on a party-line basis. We shall discuss this quashing public debate later, but first we want to explain why we supported the resolution, and why these matters are important.

Resolution of Inquiry

As the report will indicate, the resolution was a very simple resolution. It calls upon the Administration to provide a list of names of individuals who served on the Vice President’s Energy Task Force, the names of people with whom the Task Force met, and the costs of the Task Force. That is all.

Early in 2001, President Bush asked Vice President Cheney to develop a national energy policy. A Task Force was formed called the National Energy Policy Development Group (NEPDG) chaired by the Vice President. On April 19, 2001, Ranking Member John Dingell and Ranking Member Henry Waxman of the Committee on Government Reform asked the Vice President to disclose who was meeting with his Task Force. The General Accounting Office (GAO), at their request, asked for similar information.

The Vice President’s lawyer basically told the requestors to mind their own business, and that the public had no right to the information. The Vice President contended that he could not receive advice from outsiders if he had to tell us who he met with. As the Chairman noted at the markup, this Committee has held numerous public hearings on energy. None of our witnesses were reluctant to provide their views in public, nor have any Committee members ever suggested that the committee could not receive adequate testimony if the hearings were open to the public.

Ultimately, the GAO was required to go to court to seek the information. Here are some excerpts of what Comptroller General David M. Walker told Congress, in a letter dated January 30, 2002, when he went to court:

"The Congress has a right to the information we are seeking in connection with its consideration of comprehensive energy legislation and its ongoing oversight activities. Energy policy is an important economic and environmental matter with significant domestic and international implications. It affects the lives of each and every American. How it is formulated has understandably been a longstanding interest of the Congress. In addition, the recent bankruptcy of Enron has served to increase congressional interest in energy policy, in general, and NEPDG activities, in particular. This, plus the Senate’s expected consideration of comprehensive energy legislation this session, reinforces the need for the information we requested concerning the development of the National Energy Policy proposal. In this regard, we recently received a request for the NEPDG information we are seeking from four Senate committee and subcommittee chairmen with jurisdiction over the matters involved. Importantly, our governing statute requires GAO to perform such committee requests.

"Clearly, the formulation and oversight of energy policy and the investigation of Enron-related activities represent important institutional prerogatives of the Congress. Furthermore, a number of other important principles are involved. Failure to provide the information we are seeking serves to undercut the important principles of transparency and accountability in government. These principles are important elements of a democracy. They represent basic principles of "good government" that transcend administrations, partisan politics, and the issues of the moment. As such, they should be vigorously defended. Otherwise, it could erode public confidence in and respect for the institutions of government.

"The disclosure of the activities of the NEPDG is also important for precedential reasons. Specifically, the NEPDG was financed with appropriated funds and staffed largely by government department and agency personnel assigned to it. We disagree with the White House position that the formation of energy policy by the NEPDG is beyond congressional oversight and GAO review. Were the Vice President’s arguments in this case to prevail, any administration seeking to insulate its activities from oversight and public scrutiny could do so simply by assigning those activities to the Vice President or a body under the White House’s direct control.

"In our view, failure to pursue this matter could lead to a pattern of records access denials that would significantly undercut GAO’s ability to assist Congress in exercising its legislative and oversight authorities. We would have strongly preferred to avoid litigation in connection with this matter, but given the request by the four Senate committee and subcommittee chairmen, our rights to this information and the important principles and precedents involved, GAO will take the steps necessary to file suit in United States District Court in order to obtain, from the Chair of the NEPDG, the information outlined in our August 17, 2001, report. This will be the first time that GAO has filed suit to enforce our access rights against a federal official. We hope it is the last time that we will have to do so." (emphasis added)

Unfortunately, a District Court judge appointed by President Bush denied GAO’s request, effectively saying it is up to Congress to demand the information. So that is what we did today. Despite claims by our Republican colleagues that the request was purely political, the remarks of the nonpartisan Comptroller General should put to rest any doubt as to the value of the information both to the Congress and the public.

Why is this specific information important? Here is an example: Throughout 2001, Vice President Cheney contended that skyrocketing electricity charges on the West Coast were the result of inadequate supplies, not market manipulation. As a result, his energy policy contained no penalties for fraudulent practices. Instead, it repealed the consumer and investor protections in the Public Utility Holding Company Act, and supported further electricity deregulation.

When the Enron scandal was revealed in the fall of 2001, people began to ask about the role of Enron in the development of the energy policy. We learned that there were over 40 meetings between Enron and White House officials, including several involving the Vice President and Enron CEO Ken Lay. Shouldn’t that have been important information in evaluating the Vice President’s false claims that the West Coast energy crisis was about supplies, and not manipulation?

During the limited debate on the resolution, the Chairman alluded to various hearings and markups in the Committee on Energy and Commerce. This discussion, of course, was not relevant to our request, which was directed at the process through which the Bush Administration, and particularly the Vice President’s Task Force as directed by the President, did its work. We also note the Task Force was charged with much more than the transmittal of energy legislation to the Congress. Indeed, as many as three-quarters of the recommendations involved administrative actions.

Documents obtained through private lawsuits have shown how those with access to the Task Force had unique opportunities to influence policy. For example, a proposed Executive Order prepared by the American Petroleum Institute officials relating to the consideration of energy production in all regulations was sent to a Department of Energy official involved in the Task Force’s work on March 20, 2001, and was soon followed with an Executive Order issued by President Bush on May 18, 2001, with almost identical wording. Whether the policy is correct or not is not at issue, but as the Comptroller General said, the issues of transparency and accountability in government is the issue.

The implication that the only reaction to a resolution of inquiry is to vote it down on a party-line basis stands in contrast to the last time such a resolution was considered in the Committee. The last time this Committee dealt with a resolution of inquiry was in 1979, when the Republican Minority Leader John Rhodes introduced a resolution to obtain energy information from the Secretary of Energy. After the resolution was introduced, then subcommittee chairman John Dingell immediately requested the information from the Secretary, the Committee received the information, and the Committee then disposed of the resolution on a bipartisan basis, voting to report the resolution adversely by voice vote, since the information had been provided. When Republicans on the House floor reiterated their desire to adopt the resolution, it passed by a bipartisan vote of 340-4.

But in this case, our Republican colleagues have chosen to ignore their oversight responsibilities for the last four years of the Bush Administration. The request of Representatives Dingell and Waxman was widely publicized, as was the GAO investigation and lawsuit. Yet at no time did our Republican colleagues express any interest in requesting similar information. The resolution before us was introduced on July 22, 2004, yet during the intervening eight weeks, they made no effort to obtain the information from the Administration.

The secrecy surrounding the Vice President’s Task Force is unfortunately not an isolated incident. In fact, this Administration has proven to be the most secretive Administration in recent history. We have learned, for example, that the Director of the Centers for Medicare and Medicaid Services went to extraordinary measures to prevent his Chief Actuary from disclosing to the Congress prior to its vote last year that the cost of the Medicare reform bill would be $139 billion more than the Administration had said. We are now finding out new information about Medicare premium costs scheduled to rise by 17 percent next year.

The effects of this kind of secrecy have only been compounded by our Republican colleagues in the House, who have shown absolutely no interest in asking any tough questions of the Administration on key issues such as energy, Medicare, and contracting for the Iraqi war, to name just a few. Requests by the Minority for information from the Administration are routinely ignored, and it is not difficult to understand why, when the Republican leadership rarely supports such oversight. The resolution of inquiry has become the only procedural alternative remaining to House Members to spur any debate on obtaining information from the Executive Branch, and as today’s markup proved, and as described below, Republicans do not wish to even debate the merits of asking for information.

Prohibiting public debate and extraordinary procedural actions

The Committee consideration of this resolution was extraordinary in the procedures adopted by the Chairman to preclude Committee Members from debating the merits of the resolution. The markup began with the Chairman stating, in response to a Parliamentary Inquiry by Ranking Member Dingell, that he intended only to recognize himself and the Ranking Member for opening statements.

While on occasion the Committee has adopted certain limitations on opening statements at hearings, for example to allow a witness to complete testimony in a timely fashion, we have no recollection of the denial of opening statements at a markup, where Members were seeking recognition. While there is no House Rule on the subject of opening statements, there is a Committee Rule. That rule 4(e) states in part:

"Opening statements by members at the beginning of any hearing or markup of the Committee or any of its subcommittees shall be limited to 5 minutes each for the chairman and ranking minority member (or their respective designee) of the Committee or subcommittee, as applicable, and 3 minutes each for all other members."

The Chairman stated that the rule was not a right of members to give an opening statement, but only a limitation on time. Staff discussions with the Parliamentarians earlier this year indicated that while the rule does not explicitly guarantee a right, its implementation must be determined by looking at precedent.

The precedent could not be clearer. At the organizational meeting of our Committee on January 29, 2003, Former Chairman Tauzin discussed the possibility of amending the rules to provide Members an incentive to forego an opening statement in return for additional questioning. He noted an interest in possibly limiting opening statements, adding:

"I recognize the imperative of not diminishing members’ rights." He went on to say that under the existing rules of the Committee at that time, "the Chairman and the Ranking Member are entitled to 5 minute opening statements. All of the members are entitled to 3 minutes." (emphasis added) (transcript, page 22)

On February 12, 2003, the Committee adopted an amendment to the rule, which allowed Members to waive an opening statement and receive an additional 3 minutes for questioning the first panel. In describing the interpretation of the amended rule, Chairman Tauzin said the following:

"If you want to give an opening statement, that is your right. No one is going to take it away from you." (transcript, page 12)

Yet at the markup, Chairman Barton refused to agree to Chairman Tauzin’s interpretation of the Committee rule, instead saying the committee rule provided no right, just a limitation on time.

The issue also came up at a full Committee hearing on April 1, 2004, with Energy Secretary Spencer Abraham. At the beginning of the hearing, Chairman Barton confirmed the interpretation of former Chairman Tauzin when he stated:

"I was led to believe until last week that we actually had a rule that said all members of the committee had a right to give a specified opening statement."

He later contended that the Parliamentarian had provided an opinion that the rule did not provide a right. That discussion apparently occurred in the absence of Minority representation. The Parliamentarians subsequently confirmed to Minority staff that in discussions with the Majority, they had not been provided with any of the legislative history described above. They noted that the precedents of the Committee should carry great weight in interpreting rules.

It should be noted that the entire discussion of opening statements and concerns over the time spent on them were all in the context of hearings. At no point was there any debate over the amount of time spent on opening statements at markups. The amendment to the rule, providing an incentive to forego an opening statement, applied solely to hearings, as it allowed the time to be used for questioning witnesses.

In this case, the precedents of the Committee were ignored and the rights of Members were abused. Unlike the shared concerns that opening statements can often subject witnesses and Members to long waits before testimony begins, the decision in this case to deny opening statements was based upon a simple political interest. Our Republican colleagues did not want to allow us to speak. Unanimous consent requests by Democratic members were objected to by Republican Members. For example, a unanimous consent request to allow each side to debate the resolution for one hour per side by Representative DeGette was objected to by Representative Issa. A unanimous consent request by Representative Waxman to allow 15 minutes of debate per side was objected to by Representative Radanovich.

The silencing of debate was followed by an extraordinary decision to prohibit debate upon the resolution or amendments to the resolution. At the beginning of the debate, the Chairman recognized Representative Hall, who proceeded to debate the matter, and then moved the previous question to cut off further debate. During Parliamentary inquiries, the Chairman stated that Representative Hall had been recognized to strike the last word, although he also was recognized for purposes of moving the previous question. Had Rep. Hall been recognized for purposes of moving the previous question, his debate would not have been in order. Had he been recognized to strike the last word, he was apparently recognized a second time to move the previous question. In essence, only one Member, a Republican, was recognized to debate the resolution.

It should be noted that there were no time constraints on Members at the markup. The markup began at 10:00 a.m. and there was plenty of time available for debate. In both cases, denying opening statements and denying debate, the purpose clearly was an attempt to muzzle Minority members of the Committee from raising issues that were apparently uncomfortable for our Republican colleagues. The process followed at the markup was unquestionably the most abusive use of the rules we have seen in this Committee in our memory. We intend to continue to vigorously protest these Republican tactics designed to obstruct our right to debate matters of public importance. And more importantly, we intend to fight to allow the American public the right to hear these matters debated in public.

JOHN D. DINGELL
HENRY A. WAXMAN
EDWARD J. MARKEY
RICK BOUCHER
EDOLPHUS TOWNS
FRANK PALLONE, JR.
SHERROD BROWN
BART GORDON
PETER DEUTSCH
BOBBY L. RUSH
ANNA G. ESHOO
BART STUPAK
ELIOT L. ENGEL
ALBERT R. WYNN
GENE GREEN
KAREN McCARTHY
TED STRICKLAND
DIANA DeGETTE
LOIS CAPPS
MICHAEL F. DOYLE
CHRISTOPHER JOHN
TOM ALLEN
JIM DAVIS
JAN SCHAKOWSKY
HILDA L. SOLIS
CHARLES A. GONZALEZ