WASHINGTON'S LABYRINTHINE WAYS

By Otto J. Hetzel

Otto J. Hetzel is a professor of law emeritus at Wayne State University and practices law in Washington, D.C.

• After Taking Off Much of July and August for Party Conventions, Most Congressional Action After Labor Day Aimed at Defining Issues for November Elections. Among those issues that will provide considerable controversy before Congress is likely to adjourn in mid-October are: another vote on proposed constitutional amendments to ban same-sex marriages and flag desecration; votes on bills making Bush tax cuts permanent; on imposing restrictions on abortion; on prohibiting courts from hearing suits challenging “under God” in the Pledge of Allegiance; on restricting class action powers in state as well as federal courts; and, on reducing available tort law damages. Positions on these issues are firmly set in the current Congress and are unlikely to change until a new Congress takes over, if then. Efforts also may be made to force votes on a measure that would provide major tax cuts for corporations and on a very large highway and transportation funding bill supporting local projects of interest to members, but that faces a presidential veto as a “budget buster.”

• Budget Priorities Also Provide Clear Differences to Present to Voters. What programs should be cut and what new ones funded provide fertile areas for political debate. Thus far, only Defense appropriations have been passed. Homeland Security funding almost assuredly will be enacted as well. However, the other pending departmental budget measures are not likely to be resolved. The immense costs for Defense and Homeland Security mean that insufficient funds will be available to cover most other federal spending without either tax increases or at least reversing some of the Bush tax cuts that have not yet come into effect. Thus, there still appears little likelihood that Congress will enact others of the thirteen budget measures needed for Fiscal Year 2005 that starts October 1, 2004. In that event, “continuing resolutions” permitting expenditures within current spending levels will support existing programs, and no funds will be available for new ones. A timely Bush proposal relating to providing $2 billion as a result of the two-hurricane impact on election-critical Florida may be one of the few exceptions.

The House has adopted its version of these budgets, but the Senate has not acted because of disagreement on the “pay to play” issue requiring either cuts in programs or revenue increases for further tax cuts. So, don’t expect the 2005 budget to be resolved before elections, and if that is the case, an omnibus measure enacting the remaining budget items is likely to go over to the next Congress rather than leaving the issue for a lame-duck session involving some members who will not be there in January.

• A Race for Implementation of the 9/11 Panel’s Forty-one Recommendations for Reorganization of Nation’s Intelligence Apparatus. An issue likely to impede Congress’s addressing other matters during the remaining days of its session is each party’s efforts to gain credit for enacting or avoiding blame for not quickly implementing commission recommendations publicly announced in July. While the congressional leadership initially took the position that it needed time to make these decisions, the political fallout of not acting means that the only real issues are how closely what is enacted will resemble the commission’s July recommendations. The President, to cover himself, has already issued an executive order implementing some of the changes called for that are within his current authority. Don’t be surprised, however, if other matters get incorporated in proposed legislation involving such controversial issues as capital punishment and immigration changes, creating potential land-mines for some members in districts with contested races. Everything is considered fair game in politics, the saying goes, even if it involves dealing with counteracting the terrorist threats.

• Consequences of Assault Weapon Ban Expiration on September 13, 2004. The Consumer Federation of America announced that manufacturers will flood the market with military assault weapons the day after the ban expires. The legislation that imposed the ban on assault weapons contained a sunset provision requiring Congress to reenact or extend that restriction after ten years. While the Bush Administration has indicated it supports an extension, it has not taken leadership in achieving it. The Republican-controlled Congress, siding with National Rifle Association (NRA) objections, refused to include an extension as part of earlier gun-control legislation and has failed to move on it thus far. Not all Democrats are willing to oppose the NRA, even if the issue is assault weapons and not restrictions on guns used for hunting, a distinction Kerry tries to make. Don’t be surprised to see this become a major election controversy given that Congress was not willing to act on it before it adjourns.

• Assessing Job Creation Contentions. The Administration announced that 144,000 additional jobs were created in August 2004, reflecting a positive economic trend. The increase is illusionary, however, since an equivalent number of persons were entering the work force during this period. In fact, the work force actually became smaller. Eight million persons were unemployed in August, the same as in July. More importantly, hourly wages are not keeping up with inflation. Service-oriented jobs do not pay as well as the jobs lost during the last three years.

The Economic Policy Institute notes that “[a]fter almost three years of recovery, our job market is still too weak to broadly distribute the benefits of the growing economy. Unemployment is essentially unchanged, job growth has stalled, and real wages have started to fall behind inflation.” The Institute pointed out that the “weakness in the labor market has left the nation with over a million fewer jobs than when the recession began.” The report also notes that real median income fell by $1,500 (in 2003 dollars), a significant 3.4 percent decrease. Increases in productivity that have occurred have tended to benefit employers. Workers have not shared in growth of profits.

• 4.3 Million Added to Poverty Rolls over Last Four Years. The Census Bureau has verified that 35.9 million persons are now below the poverty line, some 12.5 percent of the population. Women and children were especially hard hit with women experiencing reductions in earnings. Persons without health insurance grew last year to 45 million, representing 15.6 percent of the population. An additional 1.4 million lost their health insurance in 2003. Persons receiving health insurance from employers fell to 60.4 percent. Median household income was stagnant at $43,318. White adults in the South accounted for most of the increases. The jobless recovery has made clear that any rising economic tide is not lifting all boats the same.

• New Administration Regulations Reduce Eligibility for Overtime Pay. The new rules, justified as clarifying the earlier regulations, expand those considered in the management classification, making fewer persons eligible for overtime. The revised rules, for instance, include worker group team leaders, who can only recommend the hiring and firing of workers, as management. Unions claim that as many as 6 million workers previously entitled to do so will be unable to qualify for overtime pay. The changes may have been pressured by successful litigation obtaining multi-million dollar judgments from such companies as Rite Aid, Bank of America, and Radio Shack, who did not make required overtime payments to some employees. The House has passed legislation to override the regulations, but Senate action this year is unlikely.

• A Portent of Voting Problems to Come Arises in Florida’s September Primary. Florida election laws allow persons to vote either by showing a photo ID or by signing an affidavit swearing to their identities. One observer group found that in the September election in Broward and Miami-Dade Counties, scenes of major improper denials of the right to vote in 2000, voters without a photo ID were being turned away. A confusing sample ballot put out by Osceola County noted only “Photo and Signature ID Required at Polls” without reference to the affidavit option. Hopefully, renewed publicity on these voting eligibility issues may foreclose problems on Election Day, but don’t count on it.

• Congress Reviewing Potential Wrongdoing in the Withholding from Congress of Information Showing That Medicare Prescription Drug Legislation Would Cost Considerably More Than Congress Had Been Advised. The inspector general of the Department of Health and Human Services is investigating charges that Medicare’s chief actuary was threatened with firing if he released data to Congress it had requested that showed Medicare prescription drug costs would be far higher ($534 billion), almost $140 billion more over the next decade, than Congress had been advised by the Congressional Budget Office ($395 billion). The actuary’s figures were available well before congressional voting occurred, but he was ordered not to release them.

Democrats have charged that the decision to withhold the data puts politics above accuracy on an issue that the Administration has tried to make central to the President’s reelection campaign. The Congressional Research Service reported to Congress in May that Congress had the right to receive truthful information from federal agencies. Members of Congress often request data relating to specific pending legislation from professional staff of agencies. The HHS inspector general also is looking into whether the threat to fire the actuary violated federal laws, including whistleblower protection statutes.

The controversy has added to other charges: that use of prescription drug discount cards was improperly touted through fake news stories created by the HHS in the form of TV videos presented as if they were news stories and sent out to television stations for airing. The cards are to help low- and moderate-income persons transition to the time, several years from enactment, when federal support for purchase of prescription drugs is scheduled to start. Considerable confusion in eligible populations can be seen. Questions also have been raised as to whether the discounts are actually lower than prices otherwise available to those eligible.

• Several States Challenge FDA Restrictions on Importation of Cheaper Drugs That Are Purchased with State Funds. Vermont sued the Food and Drug Administration (FDA) challenging its restriction on out of country drugs that the FDA says may pose health risks. Its Republican governor stated: “Vermont will not sit back and watch as the cost of health insurance and prescription drugs continues to rise.” The suit asks for an order compelling the FDA to allow transportation of the drugs and appropriate consideration of the state’s plan. The state’s earlier request for a waiver of the existing restrictions was denied. While purchases would be primarily from Canada, the FDA points out that the drugs, available in Canada, often originate in Thailand, China, or other countries. Illinois, Wisconsin, New Hampshire, and Minnesota already have defied the FDA and set up plans to help residents import medicines, primarily from Canada, where prices are considerably lower than in the United States, and now the U.K. and Ireland as well. Minnesota set up a website, www.minnesotarxconnection.com, directing residents to reliable Canadian pharmacies. Legislation passed so far only in the House would legalize drug importing from Canada and twenty-five other nations.

• Four Northeastern States Sue Five West Virginia Power Plants Under the “New Source Review” Provisions of the Clean Air Act Since EPA Failed to Do So. The states, New York, New Jersey, Connecticut, and Pennsylvania, sent letters of intent to file suit triggering a sixty-day negotiation period because they disagree with the changes in EPA’s enforcement policy under new Bush Administration interpretations of the Act’s provisions. Some fifty investigations of violations that had been under way by the EPA were halted because of changed interpretations of statutory language concerning the need to install new pollution controls to coal-fired power plants built before 1970 if “modifications” are made to prolong the plant’s useful life.

Major modifications were made to these facilities, the states charge, but owners labeled them “routine maintenance” to avoid the need to update pollution equipment. The states charge that emissions of sulfur dioxide and nitrogen oxide that cross into their jurisdictions cause smog, acid rain, and respiratory disease, and new interstate controls are required. Other litigation is challenging the restrictive EPA interpretations of the Act.

• Alphonso R. Jackson Confirmed as HUD Secretary; Roy Bernardi Given Recess Appointment as Deputy Secretary. Leadership at HUD is now set through the remainder of the current Bush term. Having solved objections about pending RESPA measures by withdrawing them, Jackson received Banking and Currency Committee endorsement and was then quickly approved by the Senate. His replacement as deputy secretary, Roy Bernardi, was promoted from within HUD, from assistant secretary responsible for overseeing HUD’s Community Development Block Grant program. His nomination was also supported by the committee, but given tight congressional agendas, he was given a recess appointment by the President that lasts through the current Congress. The nomination must be renewed and Senate consent obtained or the office holder must leave when the current Congress does.

• First-time Affordable Housing Homebuyer Assistance to Be Provided Under the “American Dream Downpayment Initiative.” Secretary Jackson has announced that federal funds are being allocated to states and localities to provide assistance for downpayments and closing costs for new homebuyers. The $161 million now available will provide up to $10,000 for roughly 16,000 families. To qualify for these grants, family income must be less than 80 percent of the area’s median income.

• Interior Department Forced by Court Order to Shut Down Its Employees’ Internet Access and Halt Sale of Indian Lands. A bitter interchange between District Court Judge Royce Lamberth and the Interior Department (DOI) about a dispute over billions of dollars of funds of some 300,000 beneficiaries of the Indian Trust Fund that surfaced in 1996 continues to escalate. As a result of DOI’s inability to fix computer security problems related to its fiduciary responsibility for Indian Trust Funds, the judge in March 2004 ordered additional portions of the department to disconnect from the Internet. In 2001, the judge required portions of DOI to close down their Internet connections because his special master had discovered that even a novice hacker could penetrate the site’s security and access data related to the Indian Trust Fund revenues.

His March 2004 order terminated connections until the units could certify they were safe from hacking. The latest offices affected were DOI’s Inspector General’s Office, the Minerals Management Service, the Bureau of Land Management, the Bureau of Reclamation, the Fish and Wildlife Service, the Office of the Special Trustee, the Bureau of Indian Affairs, the Office of Surface Mining, and the National Business Center. Services related to firefighting and police, the National Park Service, the U.S. Geological Survey, and the Interior’s Budget Office were exempted because the judge felt those offices’ Internet connections had been shown to be secure. He took this latest action, he said, because Interior officials have refused to address obvious lapses in computer security and have given conflicting information about its status.

In a related matter, the Interior Department’s sale of 2,000 acres of oil-rich, Indian lands was halted by Judge Lamberth to clarify if the Indians owning the twenty-six parcels gave knowing consent to the sale.

• Courts Asked to Examine If Paper Trail Required for Electronic Voting Machines. As a result of contentions that electronic voting machines are insecure, vulnerable to tampering, and could result in corrupt vote counts and deletion of election results, several cases have been filed questioning whether use of machines manufactured by Diebold Election Systems violate state election laws. Some critics of the new touch-screen machines attended hearings in Maryland wearing T-shirts saying, “The computer ate my vote.”

Earlier in the spring, a Johns Hopkins professor released a report of his examination of the machines, noting that “[o]ur analysis shows that this voting system is far below even the most minimal security standards applicable in other contexts . . . we must carefully consider the risks inherent in electronic voting, as it places our very democracy at risk.” A similar challenge has been mounted in California and its Attorney General has joined a suit brought by private parties, after initially considering criminal action. Of course, any action as a result of this litigation is unlikely to have effect until after this fall’s elections.

• Justice Department Asked for Explanation for Rescinded Order to Destroy Documents at Federal Library Depositories. The ranking Democrats in both the House and Senate Judiciary Committees have requested an explanation from Justice of its rationale for a June directive from its Criminal Division, requiring the 1,300 libraries that have government document depositories to destroy information on federal asset forfeiture procedures. A challenge from the American Library Association to the directive resulted in a halt to its implementation.

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