Vice President Dick Cheney doesn’t have to disclose the advice his energy task force got from the industry, an appeals court ruled Tuesday in what probably was a final blow to a politically charged lawsuit over public access to White House decision making.
The task force met in 2001 and produced pro-industry recommendations for sweeping energy legislation now before Congress. The Bush administration fought hard to keep the panel’s workings secret, arguing that public disclosure would make it difficult for any White House to solicit candid advice on important policy issues.
Once seen as a potentially huge political liability for the Bush administration, the task force lawsuit ended up being more Washington political theater, with cameo appearances by Supreme Court Justice Antonin Scalia and former Enron Corp. Chairman Ken Lay.
The two private groups that sued failed to establish that the government had a legal duty to produce documents detailing the White House’s industry contacts, the court said in an 8-0 decision.
The Sierra Club and Judicial Watch alleged that energy executives and lobbyists effectively became members of the task force, while environmental groups and others were shut out of the meetings. Outside participation made the task force a federal advisory committee with an obligation to disclose its operations, the groups argued, a position the court rejected.
“The outsider might make an important presentation, he might be persuasive, the information he provides might affect the committee’s judgment,” U.S. Appeals Court Judge A. Raymond Randolph wrote. “But having neither a vote nor a veto over the advice the committee renders to the president, he is no more a member of the committee than the aides who accompany congressmen or Cabinet officers to committee meetings.”
In a statement, Cheney’s office said the court guarded the confidentiality of internal deliberations and that the Constitution protects such deliberations as essential to informed decision making.
David Bookbinder, a senior attorney at the Sierra Club, said the decision “is not going to be helpful in assuring open and accountable government.”
The appeals court directed U.S. District Judge Emmet Sullivan to dismiss the case. Sullivan earlier had ordered the White House to produce some documents.
The Sierra Club and Judicial Watch could ask the appeals court to reconsider or could ask the Supreme Court to take the case, as it did once before. Either option would be considered a long shot.
Cheney’s task force issued a report that favored expanding oil and gas drilling on public land, rejuvenating nuclear power and lifting the ban on drilling in the Arctic National Wildlife Refuge in Alaska. The focus of the lawsuit: several thousand task force e-mails and 12 boxes of documents.
Scalia took a hunting trip with Cheney while the Supreme Court was considering an appeal of the lawsuit. Scalia then issued a forceful defense rejecting calls for him to step aside and let the other eight justices rule.
Democrats hoped the Supreme Court would uphold an earlier ruling by the appeals court and force the administration to reveal potentially embarrassing details about its relationship with energy company executives ahead of the November election. But the high court sent the case back on a 7-2 vote, saying there was a “paramount necessity of protecting the executive branch from vexatious litigation.”
Lay was involved because he met with Cheney _ a fact the White House acknowledged to Congress in 2002 only after Enron collapsed in scandal. Lay’s contact was among six meetings between Enron executives and Cheney or his task force aides.
The day after meeting with Lay, Cheney said the Bush administration would not support price caps on wholesale energy sales in California.
Even the investigative arm of Congress got into the act, filing a lawsuit seeking the identities of the people with whom the task force met. Under pressure from congressional Republicans, the Government Accountability Office did not pursue the case.
University of North Carolina political science professor Terry Sullivan said the Bush White House’s position supporting confidentiality was sound in principle but could be unwise politically.
“There is a balance between the need for confidentiality and how that process works when it is being carried out; it’s a Caesar’s wife problem,” Sullivan said. “For example, it certainly was embarrassing to have the likes of Ken Lay advising them.”
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