Tuesday, July 31, 2007

Congress passes ethics reform


The House finally joined the Senate in passing its ethics reform bill. Because objections from Republican Sen. Jim DeMint prevented the bill from going through conference committee, we have two curious effects: The law features different rules for the House and Senate, and the Senate will now have to vote on the new version before a unified bill becomes law.

The House on Tuesday overwhelmingly approved a sweeping lobbying and ethics reform bill on a 411-8 vote.

“We have kept our promise to drain the swamp that is Washington, D.C.,” Speaker Nancy Pelosi (D-Calif.) said, adding that the legislation is “historic.”

Among the few dissenters was (of course) John Murtha. And for pure ironic humor, you can't beat this: over in the Senate, Ted Stevens has threatened to place a hold on the legislation.

Pelosi's grandiose words aside, this is a work in progress, not a finished product. For one thing, at least some of DeMint's fears appear justified: the House version appears to be less stringent than the Senate version in a few respects. (Here's the text (pdf) of the revised bill that the above link is working from.)

Are they key respects, however? Not really. Let's go through their objections:

The old version (passed by the Senate) required conference / committee reports to list all earmarks and required the chairman of the relevant committee to distribute the earmark list. But the new version of the bill allows the Majority Leader (as opposed to the Senate parliamentarian, a more objective judge) to determine whether or not a conference report complies with the disclosure requirements.

True, but minor. Somebody has to certify it. The Senate parliamentarian is by tradition nonpartisan and accorded a fair bit of deference, but s/he serves at the pleasure of the majority leader, so the distinction is less material than it might seem. That said, I'd support changing it back to the original.

The new version removes the requirement for earmark lists posted online to be in searchable format.

This appears to be simply wrong. For example, Page 68, line 6 and Page 69, line 3 expressly require a searchable format. The exception seems to be when a bill emerges from conference committee. The earmark data is still required to be publicly available 48 hours prior to vote, but the "searchable" requirement is missing (page 69, lines 22-24). Whether that's deliberate or simply a mistake, I don't know. But again it's a minor, easily fixed problem that doesn't change the underlying reporting requirement.

The new version removes the provision that prevented any bill from being considered at all prior to the disclosure of earmarks; now the text only prohibits a formal motion to proceed, which leaves open a procedural loophole that would allow bills to slip through without disclosure.

I'm no parliamentarian, but I'm not sure what loophole the writer envisions here. In the Senate, procedure is everything. Can someone tell me how a bill could reach the Senate floor for debate without a motion to proceed?

The old version prohibited earmarks which benefit a Member, their staff, or their family/their staff’s family. The new version waters that down and only prohibits earmarks that would “only” affect those parties --- which means so long as you can make a case that your shiny new project affects at least one person other than you positively, you’re all set.

This again appears to be wrong. Page 73, lines 8-11 require senators to certify that their relatives do not have a monetary interest in the item. That prohibition is fleshed out (and weakened somewhat) on Page 76, lines 3-12. But it does not go as far as the writer suggests.

It says no member may knowingly request an earmark if "a principle purpose" of the earmark is to benefit "only" the member, or members of his family, or (and this is the biggie) a "limited class of persons or enterprises" of which the member or his family is a member.

That language seems pretty reasonably drawn to prohibit narrowly directed self-benefit. It wouldn't, for instance, outlaw the kind of earmarks I wrote about a year ago, in which a project in a member's district benefits the member. Which only makes sense. Lawmakers live in their districts; a rule that banned earmarks that benefited lawmakers even indirectly or in a small way would be unworkable.

So this list appears to be a collection of mostly minor complaints, the strongest of which is the issue with the parliamentarian.

Now that we know what the bill doesn't do, here's what it does do:

1. Lawmakers must disclose "bundled" contributions of $15,000 or more from lobbyists.

2. Earmarks must be disclosed 48 hours in advance of a bill's consideration, along with the name of the Congressmember that requested it, the cost and a description of the project and the beneficiaries.

3. Senators and candidates would have to pay full charter fare to fly private jets. House members cannot fly in private planes.

4. Legislators and their staff may not accept gifts from lobbyists.

5. Senators must wait two years after leaving office to become lobbyists; House members must wait one year.

6. Lawmakers may not attempt to influence hiring decisions at lobbying firms -- a direct blow at the K Street Project idea.

Those are real reforms. Could Congress do more? Of course. Severe statutory restrictions on the number and value of earmarks would be a great idea, for instance, as well as some basic rules for justifying them. But Democrats can honestly say they've enacted more reforms than any Congress in recent memory. And Republican criticisms ring pretty hollow considering it was their misbehavior that led to Democrats promising such reform. Anything this Congress does will be more than the previous Republican Congresses did.

The next step -- after passage of the final bill -- is to watch and see how and if members try to get around the rules. There will almost certainly be some unintended consequences that will need to be fixed, which could be an opening for weakening some of the rules. Democrats have talked the talk and walked the walk as far as passing the legislation goes; now we have to see if they'll walk the walk as far as following it.

But it's a good start, and deserving of praise.

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14 Comments:

Anonymous Anonymous said...

She's wrong about one thing: it's NOT "historic" and it's not "draining any swamp." It's like a lot of what they do there in D.C.......things that make THEM feel as if they've done something, so they can go around slapping each other on the backs.

JP5

8/01/2007 8:57 AM  
Blogger Tully said...

The original had some emat. Bets the passed version will be sawdust sausage?

8/01/2007 12:57 PM  
Blogger Sean Aqui said...

JP5: While one can lament what was not done and accuse Pelosi of rhetorical overreaching, the bill does in fact achieve several concrete and laudable reforms. Credit where credit is due.

Tully: Took me a while to figure out what "emat" meant. ;)

I understood that the bill Porkbusters was hyperventilating about was the revised version, as passed by the House.

It awaits a vote in the Senate, where it could be watered down. But given that the Senate's original version was more stringent than the House's, and that DeMint is waiting there to tie the thing in knots if necessary, it seems unlikely that the bill will be weakened significantly at that juncture.

I'm confident that if it is we'll learn about it, given the scrutiny this particular piece of legislation is getting from all sides of the spectrum.

8/01/2007 1:16 PM  
Anonymous Anonymous said...

"While one can lament what was not done and accuse Pelosi of rhetorical overreaching, the bill does in fact achieve several concrete and laudable reforms. Credit where credit is due."

The bill is weaker than the one the Republicans wanted to pass in 2006 when they were still the Majority. The one blocked by Democrats.

"I'm confident that if it is we'll learn about it, given the scrutiny this particular piece of legislation is getting from all sides of the spectrum."

Probably not in time to do anything about it. The Dems fast-tracked this and conferenced about it in secret....so as to avoid public scrutiny. So, good that you are hopeful, but I am not.

JP5

8/01/2007 2:22 PM  
Anonymous Anonymous said...

Per the WSJ this morning......."Republicans and Democrats alike are bragging that they've now banned such occasions of sin as having lunch with a lobbyist or traveling on a corporate jet. Only Congressfolk could take pride in claiming they can be corrupted by a free lunch. These ethics "reforms" do less to limit the Members than they do to limit the ability of voters to influence their elected Representatives."

That pretty much says it all. I don't see much "reform" at all for the Congress members themselves. They've limited the minimum provision for the lobbyists bundling....which means that lobbyists can give $30,000 each year to a candidate or campaign....and it goes unreported. They've cut out riding on corporate jets, which will only cost the taxpayers now. Just two examples. And why? It's an acknowledgement that they can be bought for a $25 lunch and a ride on a jet.

From the WSJ today: "A prohibition on allowing Members to trade earmarks for votes? Gone. A restriction on allowing Members and their staff from promoting earmarks from which they or their families would receive a direct financial benefit? All but gone. The original reform required earmarks to be listed on the Internet and searchable 48 hours before consideration of legislation; the new bill says this is only required if it is "technically feasible." Here's betting Congress finds other urgent uses for its tech staff during Appropriations season.

Our favorite switcheroo: Under the previous Senate reform, the Senate parliamentarian would have determined whether a bill complied with earmark disclosure rules. Under Mr. Reid's new version, the current Majority Leader, that is Mr. Reid himself, will decide if a bill is in compliance. When was the last time a Majority Party Leader declared one of his own bills out of order?"

So....ole Harry himself gets to decide. It's laughable.

http://online.wsj.com/article/SB118593310712184254.html

8/01/2007 2:36 PM  
Blogger Sean Aqui said...

The bill is weaker than the one the Republicans wanted to pass in 2006 when they were still the Majority. The one blocked by Democrats.

Republicans were a major obstacle to that legislation, nearly embarrassing the GOP leadership. The reason: the bill didn't go far enough.

Here's how the bill (HR 4975 of the 109th Congress) was weaker than the current one:

1. The ethics rules would only apply to the 11 big spending bills, and they would have sunsetted at the end of the year.

2. Instead of banning gifts from lobbyists, it simply required that such gifts be reported.

3. It didn't increase the wait time before members can become lobbyists.

4. It allowed members to accept privately funded travel.

5. Earmarks needed only be identified, including the sponsoring Congressmember. It didn't include, for instance, the requirement that the list be available 48 hours before the bill is voted on, or that members certify they have no financial interest in the earmark.

So tell me again how this was stronger than the current bill?

8/01/2007 2:47 PM  
Blogger Sean Aqui said...

You're raising many of the same quibbles I dealt with above, and working hard to ignore the substantive improvements.

I'm not sure where you get the bit about lobbyists being able to give $30,000 unreported. The bill tightens lobbyist reporting requirements, reducing the dollar amounts involved. And the "bundling" threshold is $15,000.

Read the bill (it's S.1, and you can read the final version at thomas.gov). It's a pretty good piece of legislation overall.

I especially like Section 511, which prohibits conferees from either eliminating provisions that passed both Houses of Congress or adding provisions that weren't passed by one of them. That greatly reduces the opportunity for last-minute chicanery.

8/01/2007 3:12 PM  
Blogger Sean Aqui said...

It's an acknowledgement that they can be bought for a $25 lunch and a ride on a jet.

You don't think that freebies -- particularly substantial freebies like a $12,000 plane ride -- influence them at all? Surely you're not that naive.

And we're not talking $25 lunches, either, though they're banned in passing. We're talking expensive meals or banquets at political conventions and the like.

If lawmakers have a legitimate need to travel, taxpayers should pick up the bill. That's not a waste of taxpayer money; it's an investment in good government. But taxpayers should pay only for coach-class tickets (or, in the spirit of generosity, business-class). The difference between that and the price of a private charter should be paid by the politician.

8/01/2007 3:23 PM  
Anonymous Anonymous said...

Sean wrote....
"Here's how the bill (HR 4975 of the 109th Congress) was weaker than the current one:"

"1. The ethics rules would only apply to the 11 big spending bills, and they would have sunsetted at the end of the year."

The sunsetting was an attempt to get Dems on-board. Dems did not want to pass anything during a Republican Majority control.

"2. Instead of banning gifts from lobbyists, it simply required that such gifts be reported."

Which is really ALL that was needed.

"3. It didn't increase the wait time before members can become lobbyists."

Neither does this one. The original legislation was for a 2-year "cooling off" period. This one keeps it at one year.

"4. It allowed members to accept privately funded travel."

It still does. House and Senate have different rules....but the Senate can STILL travel on corporate jets, but they must pay the charter rate for that ride.


"5. Earmarks needed only be identified, including the sponsoring Congressmember. It didn't include, for instance, the requirement that the list be available 48 hours before the bill is voted on, or that members certify they have no financial interest in the earmark."

You'd best look at some of this stuff again. The 48hours before on the internet rule no longer exists. The Dems said they'd do it IF "technically" possible.

"So tell me again how this was stronger than the current bill?"

It's so convoluted now.....and there are different rules for the House than the Senate. For instance, in the House where many have cashed in on lucrative lobbying jobs after their time in the House....the "cooling off" period remains at only 1 year. Many of the changes are ridiculous and almost NONE of them call on the Senators and Congress to ACT responsibly.

I see it as more of the same.

JP5

8/01/2007 4:07 PM  
Blogger Tully said...

Tully: Took me a while to figure out what "emat" meant. ;)

Sorry, dyslexic fingers. "Meat." :-)

8/01/2007 4:28 PM  
Blogger Sean Aqui said...

The original legislation was for a 2-year "cooling off" period. This one keeps it at one year.

For the House. It raises it to two years for the Senate.

It still does. House and Senate have different rules....but the Senate can STILL travel on corporate jets, but they must pay the charter rate for that ride.

The House bans such trips completely, and the Senate requires that they pay full charter fare. That means it's not "privately funded."

The 48 hours before on the internet rule no longer exists. The Dems said they'd do it IF "technically" possible.

Read Sec. 521. The 48 hour rule applies regardless. The searchable rule applies to all bills except those coming out of conference committees. The "if technically feasible" loophole applies only to conference committee bills and earmarks introduced as amendments on the floor during debate over a bill.

You need to read the bill.

8/01/2007 5:02 PM  
Anonymous Anonymous said...

"The House bans such trips completely, and the Senate requires that they pay full charter fare. That means it's not "privately funded."

Yes: convoluted. One set of rules for each branch...seems crazy. And do you think paying for their ride on the lobbyists jet makes a huge difference? I don't. It's the face time they get with them on the trip that's most important to the lobbyists.

"Read Sec. 521. The 48 hour rule applies regardless. The searchable rule applies to all bills except those coming out of conference committees. The "if technically feasible" loophole applies only to conference committee bills and earmarks introduced as amendments on the floor during debate over a bill.

You need to read the bill."

I would need to do more than read the bill. I'd need to carry around my own in-house lawyer to try and figure it all out. It's a mixed-up mess.

And how about that "ban on lunches paid for by lobbyists.....EXCEPT when they are "campaign related?" Hmmm.....guess how many lunches will become campaign related now. They always gotta stick a huge loophole in for themselves, don't they??? Some of these, you can drive a truck through.

JP5

8/01/2007 7:14 PM  
Anonymous Anonymous said...

"I'm not sure where you get the bit about lobbyists being able to give $30,000 unreported. The bill tightens lobbyist reporting requirements, reducing the dollar amounts involved. And the "bundling" threshold is $15,000."

But it's a weaker version than the original one. "The original House bill mandated the disclosure of bundled contributions of more than $5,000 every three months. Under the final bill, lawmakers must report every six months any lobbyist-bundled contributions totaling more than $15,000. In one year, a single lobbyist could funnel nearly $30,000 to a candidate or campaign committee without any of those actions being disclosed."

I've read it in more than one resource. This is just one.

http://www.statesman.com/news/content/news/stories/nation/08/01/0801ethics.html

8/01/2007 7:52 PM  
Blogger Sean Aqui said...

I would need to do more than read the bill. I'd need to carry around my own in-house lawyer to try and figure it all out. It's a mixed-up mess.

That's a cop out. The bill isn't that hard to follow, nor is it particularly long as such things go.

And how about that "ban on lunches paid for by lobbyists.....EXCEPT when they are "campaign related?" Hmmm.....guess how many lunches will become campaign related now. They always gotta stick a huge loophole in for themselves, don't they??? Some of these, you can drive a truck through.

I didn't see that when I read through the bill. Can you please point to that provision?

It's conceivable that that was an existing rule that the bill simply didn't change. But I'd like a cite.

8/03/2007 10:16 AM  

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