Trying to duck under executive privilege (Cheney and the Energy Task Force )

WASHINGTON (SH) - Politics is nothing if not about whose ox is getting gored, to use a trite expression from my grandmother's era. It is the one consistency in an utterly capricious science.

Back in the early '90s when Hillary Rodham Clinton was putting together her nightmarish proposal to overhaul the nation's health-care industry, Democrats saw nothing wrong in the fact that the then-first lady was conducting nearly all her deliberations in secret with a handpicked panel that excluded Republicans and most of the real experts in the field. The result, of course, was so ludicrous that not only could most congressional Democrats not support it, even her husband had a difficult time presenting it with a straight face.

Republicans howled about the exclusion and the secrecy and demanded that some official action be taken to reveal what actually went on behind those closed White House doors. Executive privilege be hanged.

But those stances have been conveniently reversed when it comes to Vice President Dick Cheney's fight to keep private those who participated in a task force that formulated an energy policy that is nearly as controversial as the Clinton health-care proposal.

Democrats are outraged and their presidential candidates want nothing more than to paint Cheney as a venal tool of special interests. Republicans, meanwhile, argue just as strenuously that the separation of powers gives the chief executive the right to draft national policy by consulting whomever he wishes and to protect the identities of those involved. To do otherwise, the White House contends, would discourage and inhibit participation by outside experts.

Now the fight, which is to be settled by the judiciary, is threatening to encompass the Supreme Court from an ethical standpoint as well as a constitutional one. Those after Cheney want Antonin Scalia to recuse himself from participating in the coming Supreme Court deliberations about the constitutionality of the White House's arguments because he went duck hunting with the vice president, a friend. The appearance of impropriety is clear, they charge. So far, Scalia has scoffed at the demands and Chief Justice William Rehnquist has made it clear that he doesn't believe a few hours of hunting with a participant in such a volatile case constitutes an ethical gaffe.

The fact is, Scalia clearly should have avoided this situation. It is amazing that anyone as brilliant and as attuned to the ethical nuances would get caught in such a predicament. No one can seriously believe that sharing a duck blind with Cheney would influence his vote. But that isn't the issue here. Scalia's action, no matter how innocently undertaken, was thoughtless and has left himself and the court in a highly vulnerable position. Ultimately, he may be forced to concede this to avoid legitimizing allegations of arrogance neither he nor the court can afford.

As for protecting the identity of those participating in the energy task force, the truth, as always, lies somewhere in between the two positions. There is strong merit to the White House argument that it has a right to consult whomever it pleases to formulate policy. On the other hand, the public has a right to know that those with input aren't going to directly benefit from their influencing of that policy and at the expense of the public's welfare.

In the end, it comes down to a matter of trusting those we elect to protect our interests and to allow them certain leeway in doing so. No administration, Democratic or Republican, could exist completely isolated. Those who push energy industry causes aren't much different from those who push labor's causes or the causes of those who proclaim themselves the defenders of the national good, whether that is the case or not.

That may seem naive in the light of recent history, when executive privilege too often has been misused - the most blatant example being Watergate, of course. The press and public groups have been diligent in their watchdog roles. But what Democrats in Congress are now challenging occurs every day in the drafting of our laws and the carrying out of our everyday business. Few pieces of legislation are drafted on Capitol Hill without the input of outside experts with special interests, and much of that influence goes utterly undetected by the public despite lobbying registration laws.

It is more than a safe bet that however the Supreme Court rules in the energy task force case, the issue of executive privilege will continue into future administrations, with the political positions shifting to accommodate whatever party is in the White House.

Dan K. Thomasson is former editor of the Scripps Howard News Service.

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