WASHINGTON’S LABYRINTHINEWAYS

By Otto J. Hetzel

GAO Reluctantly Initiates Constitutional Confrontation to Force Vice President Cheney to Disclose Private Firm Roles in Developing Bush Energy Policy. Culminating a nine-month effort to obtain voluntary release of documents, Congress’ investigative arm, the General Accounting Office (GAO), sued Vice-President Cheney, who chaired the White House Task Force that developed Bush national energy policy. The suit would force him to release documents revealing identities of participating energy industry executives. At stake are whether political campaign contributions to Bush by energy corporations, such as Enron, can be linked to participation and positions taken in development of the Bush energy policy, viewed by many as very favorable to industry.

GAO seeks to find out those present at each meeting and lists of persons task force members met with, including date, subject, and location of each meeting. GAO described this as "who met with whom, when and about what." No vice-president has been subject to such a suit. Cheney responded that his opposition was philosophic because disclosure would hamper the executive branch’s ability to solicit advice of outside experts. He added he wanted to restore executive branch powers eroded by Watergate and that it was wrong for past administrations to have acquiesced to congressional demands. The White House counsel termed the issue a matter of statutory construction related to GAO’s authority to conduct such an investigation.

The GAO lawsuit is not the only effort to force disclosure. Judicial Watch, frequently referred to as a conservative watchdog for freedom of information, had already filed a Freedom of Information Act (FOIA) suit against the Energy Department to release its task force records and Public Citizen, another public interest group, also had filed a FOIA suit. A federal district court judge has already ordered release of the documents, noting the "glacial pace" of the Department’s response to the FOIA request. The judge commented, "The government can offer no legal or practical excuse for its excessive delay." In another FOIA action, the judge has also ordered records of nine other federal agencies involved in the task force actions released. These cases, however, do not include records controlled by the Vice-President, which may differ from agency records, so the focus of the GAO lawsuit is still considered apt.

Given the specter and continuing scandal related to Enron, arising out of hearing testimony and press reports observing its influence on energy policy, many political analysts have questioned why the White House has taken a position that is likely to keep its relationship to Enron continually in the news. While Cheney has said the agencies should quickly turn over their records, he still intends to fight doing so himself. It’s hard not to draw comparisons to the ill-conceived efforts by Mrs. Clinton to keep her records secret when as a nongovernment official she was developing health policy. Her resistance was unsuccessful and embarrassing, and it is difficult to envision that Cheney is likely to fare any better. In the interim, he is likely to suffer from public suspicion over what he is hiding.

• Election Law Reforms Near Passage. Congress is close to enacting an unprecedented incursion into areas traditionally reserved to the states fueled by various problems arising in the 2000 elections. The bill authorizes $3.5 billion over five years for upgrading voting technology and establishes federal standards that apply to voting procedures used in federal elections. States would need to meet minimum error rates for voting machines used and to provide opportunities for voters to correct improperly marked ballots. Statewide voter lists would also need to be maintained, key to combating registration in multiple counties.

Unable to garner sixty votes to cut off debate, Senate Democrats, led by sponsor Chris Dodd (D-Conn.), dropped a controversial amendment that certain new voters could vote if "signature verification" could be shown at the polls to establish their eligibility to vote. Opponents objected that it increased the potential for voter fraud. Agreement on the type of identification required from such first-time voters appeared near. For instance, those registering by mail, when they came to the polls to vote, could show photo identification, such as driver’s licenses, or documents such as bank statements, utility bills, or checks that matched a voter’s name and address.

Proponents were still concerned that new voters, particularly minorities who did not drive and live in larger cities, and had no driver’s license with a photo, could be rejected at polling places. One resolution proposed was that those without such identification with them would be allowed to cast provisional ballots that would be counted if they could later confirm their identity and address.

Acceptance of a compromise would still require proponents to muster sixty votes to cut off a GOP-led filibuster. The identification requirements would have the most effect in states using mail balloting, as in Oregon, which fully votes by mail, and in Washington, where many do so. Could the 2000 results in those states be influencing congressional positions?

• Enactment of Federal Education Standards, While Overshadowed by War on Terrorism, Touted by Bush as Voters Start to Focus on Domestic Policy Issues. The Bush strategy to capture education as a major tenet in his domestic policy agenda has provided a refuge for Republicans who must stand for election this fall. Termed by some Republicans "an inoculation" that will prevent Democrats from capturing domestic issues as they have in the past, the President has launched a campaign to emphasize the new legislation for which polls show a majority of the population have little awareness. The legislation, signed January 8, 2002, is aimed at increasing teacher competency and linking federal funding to classroom success measured by statewide testing. Mandatory testing is required in grades 3 through 8.

Democrats are responding to the Republican domestic campaign by pointing out the lack of funds in the Bush budget for education as well as for prescription drugs for seniors. Senator Edward Kennedy (D-Mass.), who joined Bush in championing the education bill, has criticized the Bush budget for its failure to provide sufficient funds for education and particularly for students in disadvantaged school districts.

• A National NIMBY: Nevada Fights Bush Selection of Yucca Mountains as a Federal Nuclear Waste Site. State Republicans have warned that Energy Department designation of a Nevada site for burial of nuclear wastes may result in loss of Republican seats in Congress due to voter backlash and widespread anger over Bush’s decision. Bush carried Nevada in 2000 promising to oppose this measure unless it has been deemed scientifically safe. State legislators predicted Bush’s decision could affect the 2004 presidential election. Objections to the site include the potential of groundwater contamination by long-term leaching from nuclear trash and exposure of 50 million Americans to radiation living within one mile of the routes in forty-three states over which the waste will be transported.

The site, 1,000 feet beneath the mountain, has been a primary focus of Congress and prior administrations for twenty years. Opponents contend hundreds of problems, scientific and technical, remain to be resolved and that the decision was premature and irresponsible. The Nuclear Energy Institute, an industry group, countered that after two decades of exhaustive scientific evaluation the site was suitable and the administration was acting responsibly. This may be the ultimate NIMBY example. The stakes are high.

• Legal Challenges Being Readied as Campaign Funding Law Approaches Enactment. Although campaign funding reform is likely to be enacted this term, significant legal challenges can be anticipated. The Shays-Meehan House bill, the likely vehicle for banning unregulated "soft money" that is a major focus of the law, will be challenged on First Amendment grounds. Senator Mitch McConnell (R-Ky.), a leading opponent of the bill, is getting set to raise the free speech doctrines considered in Buckley v. Valeo before three-judge panels whose decision can be immediately appealed to the Supreme Court under the legislation.

The bill limits contributions and requires disclosure of those providing TV and radio advertising. Courts will need to define the language "referring to a candidate" to decide when an "issue ad" actually defines candidates so as to become support for an identifiable candidate. How the language in ads will be interpreted and what viable standards can be crafted to withstand challenge will need to be determined.

Another concept likely to be challenged is the validity and extent of limits on use of "soft money" for noncampaign activities by state political parties, for instance, for voter registration. Soft funds are free of limits on personal contributions that apply to what is now termed "hard money." All in all, Senator John McCain (R-Ariz.), the bill’s chief proponent, may have to wait awhile before declaring victory.

• What Budget Surplus? A recent National Housing Conference Budget Forum provided insights into the real impact of the Bush 2001 tax cuts and examined potential longer-term effects of Bush’s tax cuts on domestic programs. In January 2001, the Congressional Budget Office (CBO) projected a $5.6 trillion budget surplus for the next ten years. Without Social Security allocations, the figure was $3.1 trillion, with the other $2.5 billion for the "lockbox." One year later, CBO finds the surplus will be only $1.6 trillion, a 71 percent reduction. For those who believe in a "lockbox" for Social Security, excluding those amounts leaves a cumulative deficit of $741 billion by 2011.

• Deficits Will Be Worse. The CBO projections do not include significant additional costs of $1 to $2 trillion for expected increases for: (1) defense spending, national missile defense, and homeland security; (2) subsidies in the farm bill rapidly approaching enactment; (3) various expiring tax credits that will be extended; (4) costs of prescription drug benefits; (5) necessary funding to respond to natural disasters; and (6) major revenue losses occurring because pressures to limit the Alternative Minimum Tax to the 1 million currently affected will prompt legislation to avoid impacting the 39 million who will be covered by 2012 if current triggers are not reset to reflect inflation.

• Analyzing Reasons for Loss of Budget Surpluses. The CBO estimates last year’s tax cuts are responsible for 24 percent of the $4 trillion reduction in the surplus this year, program increases (primarily military or triggered by 9-11 events) caused 12 percent of the loss, and increased program costs due to the economic downturn resulted in 64 percent of the reduction. As additional tax cuts become effective over the next nine years, however, by 2010 the CBO projects 52 percent of the lost surplus will be a result of tax cuts, program increases will account for 19 percent, while only 29 percent will have resulted from an economic downturn.

• Longer-Term Impact of 2001 Tax Cuts. Reducing taxes is a major Republican tenet of faith. Although in 2010, the cuts revert to last year’s tax levels (this gimmick avoided an even greater budget impact), only if Republicans lose control of Congress and the White House will cuts made in 2001 not be extended after 2010. If extended, the budget deficit in the following ten years, including interest, will be drastically enlarged from roughly $250 to $750 billion by 2019.

• Who Benefits Most. Some in Congress have urged the remaining tax cuts be cancelled since those in the top 1 percent income bracket are its primary beneficiaries. The average reduction for all others, per Citizens for Tax Justice, will be $243 under the provisions made effective this year, while the top 1 percent gets an average cut of $3,120, 13 times greater. If the remaining scheduled tax cuts are not reversed, the average benefit to the top 1 percent by 2010 increases to $50,003, while the average benefit for others will only rise another $104.

• Potential Disaster for Domestic Programs. Despite the imbalanced impact of the tax cuts, it seems unlikely that election results will halt or reverse the planned cuts. Thus, states and local governments need to gird for the drastic consequences for domestic expenditures. And they say you can’t fool most of the people, most of the time. Not since David Stockton pulled off a similar feat for Ronald Reagan have so few benefited so much.

• Impact of Predicted Inability of Congress to Pass a Concurrent Budget Resolution. Congress annually is to adopt a Budget Resolution setting overall appropriation limits. In light of fundamental policy differences with each House controlled (barely) by different parties, prospects for agreement on a resolution look dim. Appropriations subcommittees in each House will be without limits making reconciliation of differing emphases difficult. An incredible level of horse-trading will be required. Combined with the limited time to consider legislation in an election year, there will be great pressure to resort to riders, especially to the thirteen annual appropriation bills funding government that must be enacted. Although effectively prohibited last year, riders are likely to become the primary means to enact special interest bills.

• Bipartisanship Strains Appearing in War Against Terror. The Administration’s penchant for playing its cards close to the vest has resulted in criticism for its failure to reveal the existence, role, and location of a "shadow government," of 100 senior executive branch officials operating in two secret East Coast bunkers away from D.C. because Washington is a potential terrorist target. The COG (Continuity of Government) effort was implemented apparently without conferring with Congress or the Judiciary. This increased congressional unease over the goals and perceived expansion of the war on terrorism. Commitment of U.S. troops to operations in the Philippines, Georgia, and Yemen without express congressional approval, combined with concern about Bush’s catchy phrase, "axis of evil," implying action against Iraq, Iran, and North Korea, have stimulated congressional demands for greater disclosure about White House objectives. Pending Administration requests for an additional $48 billion will allow Democrats to question Bush’s goals for the war effort.

Your correspondent

Otto J. Hetzel is a professor of law emeritus at Wayne State University and practices law in Washington, D.C.