American Bar Association
Section of State and Local Government LawState and Local Law News
Vol. 24, No. 1, Fall 2000
WASHINGTON’S LABYRINTHINEWAYS
By Otto J. Hetzel
Congress Has Little to Show and Only Five Weeks Before Its October Adjournment to Complete Its Required Work. Returning after Labor Day from its recess for conventions and vacation, Congress has little time to complete even its essential tasks of enacting appropriations legislation to keep government running before adjourning in October for campaigning and elections. Congress has been posturing with many of the legislative measures before it, since the President has indicated he will veto many of them because they have not provided sufficient funds, contain unacceptable "riders" (many affecting environmental regulations), or have failed to fund his priorities. Given high estimates of surpluses (most recently $118 billion aside from Social Security funds) that continue to climb, it will be hard for a Republican Congress that set a $600 billion spending limit to counter presidential demands for an additional $30 billion for his priorities and for such measures as a prescription drug program as well as re-targeting of tax relief bills.
Two bills, one to eliminate the estate tax over ten years and the other to prevent higher taxation of married couples, have already been targeted for vetoes because higher income families were the primary beneficiaries. In a campaign where the "powerful" are under attack by Democrats, it seems unlikely that the proposed tax breaks or most of the funding measures Congress has been considering will be acceptable to the White House in their current form. Further, considerable pressure is building for Congress to approve White House appropriation demands since funding bills to keep government running are to be completed by the start of the new federal fiscal year on October 1, 2000. The Republican-controlled Congress learned from the bruising it took in 1995 that a showdown over keeping government open could hurt Republican election chances.
The White House has signaled it will be taking a tough negotiating posture on these bills. Republicans have gone to great lengths to separate their presidential candidate from Republican actions in Congress. Democrats would appear to like nothing better than to make actions of congressional Republicans part of the campaign. What seems likely to result is further posturing until a last minute Omnibus Appropriation Act is enacted that contains much of what the President has requested and members go home to campaign.
Uncompleted Legislative Agendas Form Campaign Issues. Given the time constraints under which Congress will operate until its October adjournment, one should not expect much progress on: campaign finance, health care and Social Security reform, Medicare prescription support, a patient bill of rights, gun control measures, a higher minimum wage, or more federal educational aid to local schools. While there is a basis for compromise on many issues, there is insufficient time and probably limited incentives for much progress on these measures, although support for a compromise combining a minimum wage increase with a limited tax relief package, primarily for businesses, has been gaining momentum.
Report Issued Critical of HUD’s Administration of Public Housing. Congress provided funds last year for a National Academy of Public Administration (NAPA) review of the Department of Housing and Urban Development (HUD) administration of public and assisted housing. On July 21, 2000, a draft report was issued to Congress and HUD: Interim Report: Evaluating Methods for Monitoring and Improving HUD-Assisted Housing Programs, June 2000. The report substantiates criticism of HUD’s paternalistic administration of public and Indian housing, stating that "HUD’s current monitoring and oversight systems have significant deficiencies that must be remedied" and observing that "HUD’s . . . culture, which has evolved over many years, does not foster effective consultation with partners and stakeholders."
The Report recommends: "Modify the current system [for monitoring and overseeing affordable housing programs] . . . to ensure accountable performance by housing providers without excessive oversight or intervention in housing providers’ operations. The system should be adapted to measure outcomes which HUD and its private and public partners agree on."
In keeping with the 1998 legislation by Congress that calls for devolution to local governments for administration of these programs, the report recommends that: "The objective should be to transfer to state and local housing agencies and elected officials substantial flexibility and discretion over the use of funds for legislatively authorized purposes. Those officials should be held accountable for meeting performance goals through their own political processes and through streamlined HUD monitoring and oversight mechanisms."
HUD’s current problems and the importance of making these changes in its existing culture is reflected in the following recommendation from the report:
Modify the organizational culture in HUD to foster better collaboration between the department and its housing partners. HUD should transform its organizational culture and normal way of doing business into one that relies much more heavily on consultation and collaboration with its stakeholders. Regulation and enforcement, although necessary, should not be the routine way of conducting day-to-day business. Voluntary compliance with generally accepted goals and standards should be the norm. Gaining general acceptance for its modified assessment system will require far more consultation and collaboration in developing the goals, standards, performance measures, regulations, and assessment protocols than HUD has practiced in the past.
Given past experience, reform of HUD’s authoritarian public housing culture will not be easy. Hopefully, local government administrators may soon be given more flexibility.
Slow Pace Continues for Senate Judicial Confirmations, Especially for Women and Minorities. As of August 23, 2000, the 106th Congress, with only slightly more than a month in its two-year tenure remaining, had received 110 nominations for judicial appointments. Three nominations were withdrawn. During this Congress, the Senate has confirmed 69 persons: 15 to the courts of appeal, 53 to district courts, and one to the Court of International Trade. Only one nominee, for a district court, has been rejected. Only 30 nominees have been approved thus far during the Second Session, as compared to approval of 66 Bush nominations in 1992 when the Democrats were in control.
As of July 31, 2000, there were 40 district court and 20 court of appeals vacancies. Thirty-three nominations for these 60 vacancies are still pending, 14 of them from the First Session (pending at least over a year), and 19 nominated in the Second Session. During the Second Session, 39 persons were nominated, three were withdrawn, and 35 nominees were confirmed. No Senate Judiciary Committee action has occurred on 29 of the 33 pending nominations, meaning that many nominees have been waiting well over a year for Senate action. Only four of the pending nominees have actually been given a hearing, but no vote has been taken on their nominations. A sitting District Court Judge, Johnnie B. Rawlinson, was confirmed to the Ninth Circuit on July 21 along with four nominees for district courts. She will be the first African-American female judge to sit on that circuit.
Her approval by voice vote in the Senate followed two days after the Congressional Black Caucus charged racist and sexist bias was holding up judicial appointments. The Caucus said the Senate had confirmed 42 percent of the President’s white nominees in the First Session, but less than 18 percent of his African-American nominees, noting that during that session consideration of black nominees took two months longer than whites and women took 65 days longer than men.
The Senate Judiciary Chair Orrin G. Hatch (R-Utah) responded that more minority and female judges were approved under his chairmanship than ever before. Of course, the current Administration has nominated more minority and female persons for federal judgeships. Hatch pointed out that the Senate had confirmed 59 percent of minority, 65 percent of women, and 64 percent of white nominees. Unless major changes occur, however, there is little prospect for Judiciary Committee action on 90 percent of the nominations still pending before Congress adjourns. That nominations for 27 of the vacant positions have not occurred appears to reflect that reality.
Tit for Rat-a-Tat-Tat: The Handgun Litigation and Legislative Responses. While gun control legislation has languished in Congress, both private lawsuits and suits by roughly thirty U.S. cities and counties have been proceeding for more than a year against gun manufacturers for damages caused by their weapons. The suits allege as grounds: guns create a public nuisance; they threaten residents’ health and safety; manufacturers are negligent; and they should be liable for their dangerous products. Cities, including Chicago, Detroit, St. Louis, Cleveland, New Orleans, San Francisco, Los Angeles, Washington, D.C., and Atlanta, have asked for damages to recover gun violence costs for police, fire and emergency services, and for money lost because of depressed property values and loss of tax base when businesses moved out of the city because of violence.
The gun industry and National Rifle Association responses have not been limited to the courts. In Louisiana, they obtained enactment of two state laws intended to prevent New Orleans from proceeding with its lawsuit. These were invalidated, however, as unconstitutional. In Florida, Ohio, and Connecticut, courts dismissed litigation brought by various cities and counties on standing to sue grounds, but Atlanta, Georgia, was found to have standing to proceed with its litigation. In California, gun litigation used a state provision permitting prosecutions of unfair or deceptive business practices previously invoked successfully against telemarketing firms, travel agencies, and pharmaceutical distributors. Among the invalid advertising alleged was that guns increase an owner’s personal safety.
The NAACP also filed an action on behalf of its members against gun manufacturers. Pressure was also exerted on gun manufacturers by their insurers, who announced they would not pay for their legal defense in the suits. In a reaction to the initial lawsuits, a national gun rights group, the Second Amendment Foundation, sued the U.S. Conference of Mayors and mayors of twenty-three cities contending that the litigation against manufacturers had harmed consumers. The case was dismissed by the D.C. District Court in April on grounds it failed to state a cause of action.
In this context, last December HUD convened sessions involving over 3,100 local public housing authorities to explore having legal actions jointly filed by these federally funded local authorities against gun manufacturers, perhaps through a giant class action. The 3.25 million public housing residents, HUD contended, suffer disproportionately from handgun violence. Federal leadership in negotiations arising out of the threatened litigation sought a comprehensive negotiated settlement as a better alternative than protracted litigation. After several months of negotiation, an agreement was reached with the largest and oldest manufacturer of handguns, Smith & Wesson. The company was seeking to avoid bankruptcy and obtain dismissal of cases already filed against it and to prevent filing of the new actions threatened by HUD and public housing authorities.
Smith & Wesson produces about 20 percent of the 2.5 million handguns sold nationally. The company agreed to take certain actions including installing trigger locks and working toward incorporating other smart-gun techniques that could restrict use of its weapons only to authorized users. Sales to law enforcement and the military would be exempted. Hidden serial numbers were also to be put on guns and within twelve months guns were to be designed so that they could not be readily operated by children under six years of age. Dealers for Smith & Wesson would be prohibited, by a code of conduct imposed under threat of losing their franchises, from selling guns at gun shows unless buyers had passed background checks.
Under the agreement, purchase of more than one gun would require a delay of two weeks before the buyer could receive the rest. Buyers also had to produce a certificate or other evidence that they had completed firearms safety training. Smith & Wesson dealers also had to commit to applying the restrictions to all guns sold by them, not just Smith & Wesson weapons. Thirteen cities withdrew their claims against the company in pending litigation. The New York and Connecticut attorneys general also agreed not to bring suits against the company. Other cities indicated they may continue their suits against all manufacturers, however, since the agreement did not provide any compensation for the damages alleged.
In May, Maryland became the first state to require that all handguns sold in the state after 2003 had to incorporate smart-gun technology, limiting use of guns to those authorized to own the gun. In a further effort to encourage such settlements, federal agencies and a number of states and local governments indicated they would buy guns only from companies and dealers who had adopted Smith & Wesson’s code of conduct.
The gun industry attacked the agreement and Smith & Wesson. This approach triggered responses, in turn, by New York and Connecticut to determine whether the other manufacturers were conspiring in violation of the antitrust laws to retaliate against Smith & Wesson. The two states subpoenaed records of the other companies to determine if there was evidence of a private agreement or conspiracy to injure Smith & Wesson’s competitive position, such as by companies pulling their own ads from magazines that continued to advertise Smith & Wesson products.
Thereafter, seven gun manufacturers sued HUD and a group of states and local governments in federal court in Atlanta, alleging a novel theory of an illegal conspiracy by these governments to force police to buy guns that comply with safety requirements. An injunction to prevent the governmental agencies from limiting purchases of guns only to manufacturers who signed the code of conduct was requested. Legislation also passed the House that would prevent government agencies from giving effect to preferences for Smith & Wesson guns in government procurement.
This has been a truly unique saga of government and private industry using the courts and threats of expensive litigation to achieve policy objectives when Congress seems unable to act on gun controls. The scenario continues to unfold. This is an important issue in this fall’s elections. The presidential candidates’ positions on gun control provide a significant basis for differentiation between them.
Fashioning the Lockbox Commitments for Social Security and Medicare Funds.
Democrats joined Republican calls for preserving adequate surplus funds for Social Security and Medicare through "lockboxes," when Vice-President Gore in his acceptance speech committed Democrats to a similar strategy. As often is the case, the devil may be in the details. Gore did not provide specifics on exactly how he would preserve these funds. Republican legislative proposals to preserve surplus funds collected for these two programs would require a three-fifths vote in the Senate and a special House vote even to use any of these funds to pay down the federal debt. These set-asides still could not fund other initiatives in the national budget.
In times of budget surpluses, these tight controls may make little difference, but if the economy were to falter, more flexibility in their use might be an important economic tool that could be blocked unless a super-majority vote could be achieved in the Senate, equivalent to that needed to force a cloture vote and end debate. While keeping these funds out of the other party’s hands has an initial appeal, how to provide more flexibility in using them should the economic need arise (as it has in the past) is likely to be a contentious issue until the next Congress is elected.
Your correspondent
Otto J. Hetzel is a Professor of Law Emeritus at Wayne State University and practices law in Washington, D.C.
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