BACK WHEN the General Accounting Office was preparing to sue the White House over access to records from Vice President Cheney's task force on energy policy, we found fault with both sides. The GAO, at the request of Reps. John D. Dingell (D-Mich.) and Henry A. Waxman (D-Calif.), wanted to know whom the task force met with. Nobody doubted that the records would show that it heard a lot more from energy companies than from environmentalists. But the specific records were never the only point. The Bush administration was eager to reestablish executive prerogatives and confidentiality. And the GAO, an arm of Congress, was eager to clarify that it could investigate White House decision-making. So both sides unnecessarily went to the wall. Such games are fun only until someone loses a lawsuit. And in this case, the GAO has taken a big -- and foreseeable -- hit.
U.S. District Judge John D. Bates ruled last week that the head of the GAO does not even have standing to sue the White House in a matter such as this one. It isn't clear, Judge Bates wrote, what power the judiciary has to decide disputes between the political branches over documents even when those disputes are presented squarely. But he held that absent a subpoena from a congressional committee or a clear statement of support for the GAO's position by Congress, the courts should avoid even considering the merits of such a fight. In other words, if Congress wishes to seek these records, it is free to do so, but the same power does not belong to individual members, who have enlisted the GAO as their proxy.
Judge Bates's opinion is well reasoned. Its institutional consequences for the GAO are significant. The previously ambiguous limits of the agency's power encouraged negotiations when disputes arose. Now that healthy balance has shifted hard against the agency, and in a losing battle in which the stakes were never worth the risk.
Meanwhile, the White House's refusal to release more material about the task force is no more sensible today than it was a year ago. We have sympathy for some claims to executive confidentiality. But there is no good reason to keep the names of those who worked for or consulted with the task force secret. Non-deliberative factual information concerning the task force ought to have been released even without litigation. Now that he has won, Mr. Cheney should release the material.