Cheney Wins, Public Loses

Vice President Dick Cheney scored big-time, to use one of his favorite phrases, when a federal judge on Monday tossed out a General Accounting Office lawsuit against him. The lawsuit, which was instigated by Reps. Henry A. Waxman (D-Los Angeles) and John D. Dingell (D-Mich.), sought to force Cheney to release records of participants in and the topics of private meetings held by his energy task force. To hear Waxman and Dingell tell it, unless the GAO appeals the decision, it might as well shut up shop. Hardly. But the implications of Judge John D. Bates’ decision are serious.

Whether Cheney had a legal obligation to provide the documents can be legitimately disputed -- as can the question of whether the GAO was venturing into new territory. But Bates was wrong in denying the ability of the GAO to launch almost any lawsuit because it is not, in his view, “an independent constitutional actor.”

In fact, each year the GAO carries out numerous investigations into government affairs, and in 1980 Congress passed a law giving the comptroller general judicial enforcement power -- in other words, the right to sue. Furthermore, in 1983, the Supreme Court ruled that the GAO had a statutory right to obtain drug company documents.

Bates, however, has construed this right so narrowly that the current comptroller general, David M. Walker, will probably be forced to appeal. Given that this is the first lawsuit the GAO has filed, the mere threat of legal action appears to be a potent weapon for the agency -- and one that it has not abused. While it is premature to forecast the demise of the agency, the inability to threaten a lawsuit certainly would be a blow to its power and authority.

The truth is that Cheney should never have let it come to this. The GAO was seeking information that was probably trivial, at worst embarrassing, to the administration. But the public has a fundamental right to know who is in the room when high officials craft energy policies that affect the lives of Americans.

Cheney may see his victory as significant for restoring the power of the executive branch against congressional intrusions, but he loses in the court of public opinion. More important, those who believe in open government also lose.