The second-worst part of the lingering controversy over US Vice-Pres. Dick Cheney's Energy Task Force is the suspicion it casts over involvement of energy experts in the making of energy policy. The worst part is the specter of secrecy.
The Supreme Court's June 24 stiff-arm of a case against Cheney leaves important constitutional questions unanswered. It also perpetuates assumptions that mischief is afoot whenever energy companies talk to government officials about energy.
The issue
At issue is the administration's refusal to identify nongovernment advisers to a task force assembled in 2001 to write energy policy. The Sierra Club and Judicial Watch sued to secure the information and received a favorable ruling from a federal court, which ordered the administration to make the disclosures or assert executive privilege. The administration refused to comply and asked the Supreme Court to rule that the lower court's order, in both of its aspects, violated the constitutional doctrine of separation of powers. Refusing both to uphold the lower-court decision and to rule as the administration wanted, the high court returned the case with orders to tread carefully on the separation question.
The indecisive move suspends, probably until after November, a case Democrats want to use against Cheney and President George W. Bush in the presidential election. The affair's potential for political theatrics rose earlier this year with reports that Supreme Court Justice Antonin Scalia hunted ducks with Cheney. Scalia refused to withdraw from the Energy Task Force case, saying he and the vice-president didn't discuss the matter. He then voted with the majority and joined Justice Clarence Thomas in writing that the court should have issued the ruling the administration sought. This will inspire opportunistic outrage. Without a clear Supreme Court rebuke of the administration, however, the controversy lacks punch—which is not to suggest it would have influenced many votes no matter how the court ruled.
That identities of task-force advisers became a federal case at all is more significant and unfortunate. The administration should have disclosed them. Yes, doing so would have yielded on an important point of Executive Branch prerogative. It's an administration's prerogative to do that kind of thing. Yes, Democrats would have sputtered and fumed about the names. So what? Nobody outside Washington, DC, would have cared.
By stonewalling behind the separation-of-powers principle, the administration has created the appearance that something sinister happened in the energy meetings. Secrecy breeds suspicion. Given the choice between secrecy and disclosure, governments should err on the side of the latter—except, of course, when they have something to hide. Then they should be turned first inside out, then just out.
There can't have been much to hide in the Energy Task Force proceedings. The resulting policy proposal largely assembled measures that had been under discussion for many years. Its biggest surprise was the politically doomed but altogether sensible call on Congress to approve oil and gas leasing of the Arctic National Wildlife Refuge coastal plain. The industry has been proposing that measure since the 1970s. Most of the proposal's real innovation related to managing regulatory changes under way with electricity.
Democrats were going to oppose the energy policy in any case and complain about who advised the task force, if names became available, or about secrecy, if they did not. Secrecy is by far the more legitimate object of scorn.
Dangerous supposition
What's more, the suspicion secrecy casts over the advisory process sustains a dangerous and peculiarly American supposition that energy companies should have no say in energy policy. In fact, with US systems for delivering oil products and natural gas straining to keep up with demand, the government needs more contact with industry, not less. Congress and the administration soon must make important decisions about energy. They need expertise available from the industry—if for no other reason than to balance the do-nothing nonsense they'll hear from the environmental groups, whose skewed programs somehow never provoke suspicion.
Through companies based in its jurisdiction, the US government has access to more energy expertise than is available in any other country. To make important decisions without information only the energy industry can provide is foolish. The exchanges just need to occur where people can see them. It's how democracies work.
