H. Rept. 108-697 - REQUESTING THE PRESIDENT OF THE UNITED STATES TO PROVIDE CERTAIN INFORMATION TO THE HOUSE OF REPRESENTATIVES RESPECTING THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP108th Congress (2003-2004)
Committee Report
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108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-697
======================================================================
REQUESTING THE PRESIDENT OF THE UNITED STATES TO PROVIDE CERTAIN
INFORMATION TO THE HOUSE OF REPRESENTATIVES RESPECTING THE NATIONAL
ENERGY POLICY DEVELOPMENT GROUP
_______
September 23, 2004.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
ADVERSE REPORT
together with
DISSENTING VIEWS
[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.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
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
Dissenting Views................................................. 9
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.
HEARINGS
The Committee on Energy and Commerce has not held hearings
on the legislation.
COMMITTEE CONSIDERATION
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.
COMMITTEE VOTES
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:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 22, 2004.
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.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
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.
DISSENTING VIEWS
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.
Rick Boucher.
E. Towns.
Frank Pallone, Jr.
Sherrod Brown.
Bart Gordon.
Peter Deutsch.
Bobby L. Rush.
Anna Eshoo.
Bart Stupak.
Eliot L. Engel.
Albert R. Wynn.
Gene Green.
Karen McCarthy.
Ted Strickland.
Diana DeGette.
Lois Capps.
Mike Doyle.
Chris John.
Tom Allen.
Jim Davis.
Jan Schakowsky.
Hilda L. Solis.
Charles A. Gonzalez.