108th Congress (2003-2004)
House Report 108-697
|Committee Reports for the 108th Congress|
|House Report 108-697||1 of 1|
REQUESTING THE PRESIDENT OF THE UNITED STATES TO PROVIDE CERTAIN INFORMATION TO THE HOUSE OF REPRESENTATIVES RESPECTING THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP
[To accompany H. Res. 745]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred the resolution (H. Res. 745) of inquiry requesting the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group, having considered the same, report unfavorably thereon without amendment and recommend that the resolution not be agreed to.
|Purpose and Summary||2|
|Background and Need for Legislation||2|
|Committee Oversight Findings||6|
|Statement of General Performance Goals and Objectives||6|
|New Budget Authority, Entitlement Authority, and Tax Expenditures||6|
|Committee Cost Estimate||6|
|Congressional Budget Office Estimate||6|
|Federal Mandates Statement||7|
|Advisory Committee Statement||7|
|Constitutional Authority Statement||7|
|Applicability to Legislative Branch||7|
|Section-by-Section Analysis of the Legislation||7|
|Changes in Existing Law Made by the Bill, as Reported||8|
PURPOSE AND SUMMARY
H. Res. 745 requests the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group (task force), such as the names of the individuals present at each of the group meetings, the names of professional staff assigned to support the task force, and the names of the individuals with whom the members of the task force and the support staff met to gather information for the National Energy Policy, as well as the dates, subject, and location of each such meeting. H. Res. 745 also seeks the direct and indirect costs incurred in developing the National Energy Policy.
BACKGROUND AND NEED FOR LEGISLATION
On January 29, 2001, pursuant to Presidential Memorandum, President Bush established the National Energy Policy Development Group (task force), `to develop a national energy policy designed to help the private sector, and as necessary and appropriate Federal, State, and local governments, promote dependable, affordable, and environmentally sound protection and distribution of energy.' The task force was directed by the President `to gather information, deliberate, and ... make recommendations to the President.' Members of the task force included the Vice President, the Secretary of the Treasury, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Transportation, the Secretary of Energy, the Director of the Federal Emergency Management Agency, the Administrator of the Environmental Protection Agency, the Assistant to the President and Deputy Chief of Staff for Policy, the Assistant to the President for Economic Policy, and the Assistant to the President for Intergovernmental Affairs. Additionally, other officers of the federal government were invited to participate, including the Chairman of the Federal Energy Regulatory Commission and the Secretary of State.
On May 7, 2001, the General Accounting Office (GAO), now known as the Government Accountability Office, commenced an investigation of the task force at the request of Congressman John D. Dingell and Congressman Henry A. Waxman. Pursuant to that request, the GAO sought information from the Vice President regarding the names and titles of individuals present at any task force meetings, including any non-governmental participants; information pertaining to the purpose and agenda of the meetings; the process used to determine the invitees; and whether minutes of the meetings were kept. Subsequent to its initial demands, GAO withdrew its request for copies of minutes, notes, and information presented by private individuals. On January 30, 2002, after several unsuccessful attempts to obtain the requested information, the GAO announced that it would file suit against the Vice President to enforce its alleged statutory right of access to the requested task force documents.
On February 22, 2002, GAO filed a complaint for declaratory and injunctive relief in the United States District Court, District of Columbia. The Comptroller General moved for summary judgment. The Vice President filed a motion to dismiss and opposed the Comptroller General's motion for summary judgment. After a hearing on both motions, the Court dismissed the lawsuit and ruled in favor of the Vice President, ruling that the GAO (through the Comptroller General) lacked standing to prosecute its claims.
On July 22, 2004, Mr. Dingell (for himself, Mr. Waxman, and Mr. Markey) filed House Resolution 745, which requests the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group. Specifically, the information requested is as follows: (1) the name of each individual who was present at each of the group meetings conducted by the task force; (2) the names of the professional staff assigned to provide support to the task force; (3) the names of all individuals with whom each member of the task force (including the Vice President as chairman) and each support staff met to gather information for the National Energy Policy, including the date, subject, and location of each such meeting; and, (4) the direct and indirect costs incurred in developing the National Energy Policy.
The Committee on Energy and Commerce has not held hearings on the legislation.
On Wednesday, September 15, 2004, the Full Committee on Energy and Commerce met in open markup session and ordered H. Res. 745 unfavorably reported to the House, without amendment, by a roll call vote of 30 yeas and 22 nays, a quorum being present.
Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion to report legislation and amendments thereto. The following is the recorded vote taken on the motion by Mr. Hall to order H. Res. 745 unfavorably reported to the House, without amendment, which was agreed to by a recorded vote of 30 yeas to 22 nays.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee has not held oversight or legislative hearings on this legislation.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
The goal of H. Res. 745 is to seek information from the President of the United States respecting the National Energy Policy Development Group, such information being related to how the policy was formulated by the executive branch.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules of the House of Representatives, the Committee finds that H.Res.745, a resolution of inquiry requesting the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group, would result in no new or increased budget authority, entitlement authority, or tax expenditures or revenues.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared by the Director of the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the following is the cost estimate provided by the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974:
Hon. JOE BARTON,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H. Res. 745, a resolution of inquiry requesting the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group.
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Lisa Cash Driskill.
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
H. Res. 745--Resolution of inquiry requesting the President of the United States to provide certain information to the House of Representatives respecting the National Energy Policy Development Group
H. Res. 745 would request that the President provide certain information about the National Energy Policy Group to the House of Representatives, such as the names of the individuals who participated, the dates, subjects, and location of meetings, and the costs associated with developing the National Energy Policy. CBO estimates that passing this resolution would not affect the federal budget.
The CBO staff contact is Lisa Cash Driskill. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee requested the Federal mandates statement from the Director of the Congressional Budget Office pursuant to section 423 of the Unfunded Mandates Reform Act. The Congressional Budget Office did not provide the statement. The Committee believes the bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act were created by this legislation.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds that the Constitutional authority for this legislation is provided in Article I, section 8, clause 3, which grants Congress the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to the terms and conditions of employment or access to public services or accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
H. Res. 745 requests the President of the United States, to the extent possible, to furnish the House of Representatives, not later than 14 days after the date of adoption of the resolution, information respecting the National Energy Policy Development Group (the `task force'), to-wit: (1) the name of each individual who was present at each of the group meetings conducted by the task force; (2) the names of the professional staff assigned to provide support to the task force; (3) the names of all individuals with whom each member of the task force (including the Vice President as chairman) and each support staff met to gather information for the National Energy Policy, including the date, subject, and location of each such meeting; and, (4) the direct and indirect costs incurred in developing the National Energy Policy.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal statute.
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, no 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 statue 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 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 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.
Frank Pallone, Jr.
Bobby L. Rush.
Eliot L. Engel.
Albert R. Wynn.
Hilda L. Solis.
Charles A. Gonzalez.
|1 of 1|