A Grab Bag of Issues That Outrages This Congress-Watcher

Posted September 28, 2004 at 2:39pm

So much to talk about, so little time. In this column, I’ll hit on a variety of big topics on and about Capitol Hill. [IMGCAP(1)]

• Last week, Sens. Fritz Hollings (D-S.C.) and Conrad Burns (R-Mont.) gave a big wet kiss to the National Association of Broadcasters and a sharp stick in the eye to American taxpayers when they rammed through an amendment in the Commerce, Science and Transportation Committee that lets broadcasters off the hook on the issue of analog spectrum.

Broadcasters had pledged in 1996 to give its analog spectrum rights back to the public in a decade’s time, as part of a deal in which they took control of a huge swath of new airwaves to convert to digital television. But Hollings and Burns managed to block a move by Sen. John McCain (R-Ariz.) to get that spectrum back even two or three years after that generous giveback date. It is worth tens of billions of dollars to taxpayers.

It may be too late for Hollings and Burns to prevail completely this year; fortunately, the Federal Communications Commission and its chairman, Michael Powell, have a plan to recapture this valuable public property in an utterly reasonable time frame, and Powell seems resolute.

But I am ashamed at what the Senate did, and especially disappointed in my friend Hollings, who is leaving the Senate soon, after a remarkable career in public life. No one has been more outspoken about the dangers of deficits and more honest about the things we need to do to keep them from careening out of control. That he would defer to the insatiable and unreasonable demands of broadcasters in the face of our huge fiscal problems just makes me sad.

Fortunately, the Commerce Committee action wasn’t entirely negative. Another amendment reiterated the need for specific public-interest obligations from the broadcasters, something that has almost entirely disappeared in recent years, especially in public affairs.

• I also feel compelled to hit House ethics Chairman Joel Hefley (R-Colo.) and his Democratic counterpart, Rep. Alan Mollohan (W.Va.), on the way they have handled the ethics complaint against House Majority Leader Tom DeLay (R-Texas).

I do not know whether DeLay is guilty of ethical violations. What I do know is that the two top members of the House ethics committee had 90 days to decide whether to go forward with a full-fledged investigation, or else to give a compelling reason for not doing so. What they did sure looks like an effort to run the clock out on the issue — until the complainant, outgoing Rep. Chris Bell (D-Texas), leaves Congress — and then hope and assume that no Member will have the cojones to renew the demand for an investigation next year.

By failing to act, Hefley and Mollohan passed the buck on to the full committee and created the serious prospect of a deadlock along partisan lines — a deadlock, if it happens, that would be made even more smelly because of the links between the GOP members and their Majority Leader. What a failure of leadership! And what an indictment (as if another one were necessary) of an ethics process that desperately needs some outside force to mitigate against the conflict of interest that both parties have when asked to investigate one of their own — especially one in a position of great power and influence.

• Since we’re on a roll on embarrassments, let us not forget the chutzpah of the House Judiciary Committee, which is determined to bring up a balanced budget amendment in a year in which the deficit, in dollar terms, reached its highest level in history, and a year in which Congress couldn’t even come up with a budget resolution.

Instead of offering my own assessment, let me defer to one of the all-time great former lawmakers, Rep. Bill Frenzel (R-Minn.): “I don’t know whether to laugh or cry,” he said. “The same folks who vote relentlessly to increase spending and cut taxes are now pushing a constitutional amendment to balance the budget. We’re making great progress, aren’t we?”

You could call this the “stop us before we kill again” strategy — if you were to assume that this was anything more than a cynical ploy to deflect attention from other problems.

• Last week, federal Judge Colleen Kollar-Kotelly slapped down the Federal Election Commission, witheringly rejecting a slew of regulations the FEC had rammed through after enactment of the Bipartisan Campaign Reform Act.

Kollar-Kotelly was on the three-judge panel that first scrutinized BCRA before it went to the Supreme Court. She read the entire legislative history, the act itself, and a staggeringly detailed accumulation of briefs and depositions. Few people know the ins and outs of the law, and its meaning and intent, better than she does. So Kollar-Kotelly’s harsh indictment of the FEC, and particularly its chairman, Bradley Smith, carries significant weight.

I have written this before, but it bears repeating: In 35 years of Washington-watching, I have never seen a regulatory commissioner like Smith. I have never seen anyone flout so openly the fiduciary responsibility of a commissioner. I have never seen anyone come remotely close to his level of disdain for the laws he has sworn to uphold. And I have never seen anyone who has actively lobbied Congress the way he did when BCRA was being debated.

His casual dismissal of Judge Kollar-Kotelly’s opinion shows that he has no shame, and that he’s learned nothing.

• Earlier this year, the House Rules Committee held a single hearing on a proposal to change the House rules to redefine the constitutional quorum requirement unilaterally in the event of a terrorist attack or other catastrophe that impairs large numbers of Members of Congress.

Republicans on the committee shopped around to find a constitutional scholar who would support their plan. It wasn’t easy; as letters to Sen. John Cornyn (R-Texas) from prominent constitutional scholars across the political spectrum show, there is a remarkable degree of consensus that such a step by the House would fly in the face of the explicit and unambiguous language of the Constitution.

They did find one, however. Walter Dellinger basically testified that even if such a step were unconstitutional, the dire circumstances following a devastating attack would mean that the House could get away with it. But Dellinger emphasized that such a step should only be taken with broad bipartisan consensus in Congress, and by the concurrence of both parties’ leaders.

So, big surprise: The Rules Committee is about to bring up its proposed rule that not only shuts out the minority party from any meaningful role and gives the Speaker unilateral power, but also makes his actions unappealable!

Democrats on the Rules Committee, led by ranking member Martin Frost (Texas), were prepared to accept a rule if it made the actions subject to concurrence by both parties’ leaders. Instead, we get another example of the House leadership unnecessarily turning a nonpartisan issue into a partisan one. When Chairman David Dreier (R-Calif.) discussed the issue last week on the floor, he tried to make the case that it would be partisan to involve both party leaders, and that his way was the bipartisan one. Down is up and up is down.

Few Members of Congress have a better record, or a longer record, of concern about institutional issues than Dreier. It is hard to understand, or accept, what has happened to him on this issue.

• Frankly, the problem is even worse than simply giving the power to a Speaker alone. It would be wrong for any Speaker to have this unilateral authority — but as Speaker Dennis Hastert (R-Ill.) has demonstrated repeatedly in recent weeks, it is particularly jarring to give the authority to him.

No Speaker in modern times has been more partisan and more political, more willing to inject himself into bitter and controversial partisan debates instead of leaving such matters to his Majority Leader and Whip.

First, Hastert slimed George Soros, perhaps the most active donor this year to 527s, suggesting he might be backed by drug cartels. Then he said, and reiterated, that he believed al Qaeda was hoping for a victory by Sen. John Kerry (D-Mass.).

The Speaker, as Dreier noted on the floor, is a constitutional officer. He is first and foremost Speaker of the whole House — and only secondarily a leader of his own party. Not this Speaker.

Norman Ornstein is a resident scholar at the American Enterprise Institute.