WASHINGTON’S LABYRINTHINEWAYS

• Specter of September 11 Casts a Shadow on Most Decisions in D.C. In the general spirit of bipartisanship following the terrorist attacks in New York and on the Pentagon, partisan confrontations have been put aside over the budget for fiscal year 2002, that started October 1, and regarding appropriation bills for federal departments and agencies. With the focus on the "war" against terrorism, a united front is being shown. As of December 1, twelve of the thirteen major appropriation bills had been enacted and the last one was moving forward, with only minor political skirmishing occurring over varying emphasis on particular projects within the bills.

• Fiscal Restraints Released. Whatever fiscal constraints existed before 9/11, they have now been blown away. An initial $40 billion measure was approved for the war effort, with half to aid New York’s recovery. Other measures to bail out affected industries also sailed through. A supplemental appropriation bill was passed by House Republicans is stalled in the Senate where Democrats want additional security measures funded, and more for New York. Other bills with a variety of provisions to assist various industries hard hit by the economic impact of the attacks are under consideration. White House concerns over the economic impact of such free spending are starting to kick in, but such rescue packages and increased security are politically popular and difficult to restrain.

• Federalization of Airport Security Reverses Trend of Reducing Federal Workforce. Over 28,000 new federal workers will be hired to take over airport security from poorly screened private contractor employees. Despite Republican resistance to increasing the federal workforce, a federal takeover of these responsibilities was driven by the need to preserve the airline industry and getting patronage up by increasing passenger confidence in airport security.

• Prior Rosy Estimates of Surpluses Now Replaced by Visions of Deficits for Next Three Years. OMB estimates that with all the current spending fervor and the costs of waging war in Afghanistan, surpluses will be replaced by deficits. Decreased revenues resulting from the recession just discovered to have started last March means less money coming in. Next year’s spending levels portend a return to stringent controls on domestic expenditures. Right now, the most thriving economy seems to be in the Washington, D.C. area as it gears up for an increased military role, related defense industry buildup, and an augmented federal workforce.

• States That Relied on Federal Surplus Predictions Face Their Own Budget Deficits. Possibly thirty-five states may need to raise taxes or cut services to balance their budgets because revenues will be much lower than anticipated. Unlike the federal government, most states cannot run annual deficits. Several cut taxes in anticipation of continuing revenue surpluses. Many states do not have sufficient reserves to meet increased demands for unemployment benefits, while others have no reserve funds to shore up welfare payments. Congressional authority for supplemental welfare grants and contingency funds to help states handle increased welfare caseloads has expired. With too many grasshoppers and too few ants, state coffers were over-exposed to the economics of a recession.

• Plans to Stockpile Smallpox Vaccine Hit by Budget Realities. An early commitment to provide smallpox vaccine for every American is now being undercut by concerns over costs. The Department of Health and Human Services planned to buy almost 300 million doses, but when it came time to contract for the vaccine, this was reduced to having 209 million doses available by the end of 2002. What about the 77 million shortfall? "Don’t worry," they say, "we can cover them by diluting the 15.4 million doses currently stockpiled to make 5 doses from 1." Hopefully, it can still do the job.

• Congressional Office Operations Disrupted. As a result of anthrax contamination, the Hart Senate Office Building has been closed since mid-October and it just underwent chemical disinfectant treatment for anthrax spores in the ventilation system affecting all the Senate offices in the building. Staff has been required to double up elsewhere in the Capitol. House offices also were closed for several days to carry out searches for anthrax contamination. Operation of Congress has been significantly disrupted and many staff were difficult or even impossible to reach for over eight weeks, thus delaying conference committee resolution of most legislation. Congress’ adjourning much before Christmas is unlikely.

• Lobbying Congress Made Difficult. Finding someone to lobby has been a problem for many wanting to get their positions incorporated in legislation. Members and staff were often back in the member’s home districts rather than in D.C. Some staff were lodged in cooperative committee offices, and House members sometimes put up Senate staff. The difficulty was finding out who was where. Congressional phone answering systems were often filled to the brim with unanswered calls. It wasn’t who you knew, but rather knowing where they were. This may be critical for those pushing for provisions in the economic stimulus packages under consideration, sometimes likened to a gift-loaded Christmas tree. Lobbyists vie to get their ornaments on the tree.

• Breaks in Bipartisanship Starting to Show. Some fissures were opening, particularly over the politically charged issue of a new economic stimulus package. Democrats are pushing for more benefits to those thrown out of work, while Republicans are taking a more macro view of shoring up our industrial capacity by returning fifteen years of minimum tax payments to many large employers. Differences in handling funding for education are also generating partisan reactions in allocating funds. Given that elections are now less than a year away, the truce that was in effect seems to be unraveling.

• Confirmation Countdown. With the Senate soon to close down for the year, the Brookings Institution’s tracking (www.appointee.org) indicates that still one-third of the positions are unfilled. To date, 336 of the 507 positions (these don’t include ambassadors, U.S. Marshals, U.S. attorneys, and judges) have been confirmed. Another sixty-seven nominations await confirmation; a further twenty-one who have been announced have not yet gotten their paperwork to the relevant Senate Committees.

• Judicial Appointments As of November 13, the separately tallied judicial appointments show seventeen confirmations for 104 vacancies (13 percent of the Article III Federal Judiciary). Four of the thirty-one vacant positions on the courts of appeal have been filled and thirteen of the seventy-two district court openings. Only one nominee was rejected by the Senate. (One unfilled position is on the Court of International Trade.) One nomination was pending on the Senate floor, hearings have been held for ten, and thirty-six nominations were pending in the Senate Judiciary Committee. Only four court of appeals openings have no nominee. District courts still don’t have nominations for thirty-six openings. So there still may be a chance for some of you out there.

• Supreme Court to Review HUD’s "One Strike" Eviction Policy. Certiorari has been granted in HUD v. Rucker, a Ninth Circuit 7-4 en banc decision, preventing the Oakland, California Housing Authority from evicting four elderly tenants for the criminal activities of a mentally disabled daughter, a live-in aide to her, and grandchildren of two other tenants. Section 6 of the National Housing Act empowers public housing authorities to evict tenants based on their criminal or drug-related activity, or that of a member of their household, guest, or other person under their control. The appeals court found section 6 fatally ambiguous for its failure to address specifically whether proof of the tenant’s knowledge or ability to prevent the criminal activity was a prerequisite to eviction. The court read such a requirement into the statute, based on legislative statements made in 1990, when a subsequent Congress adopted other drug legislation two years after section 6 was enacted. Since HUD regulations allow eviction based on the tenant’s contractual agreement to "assure" that household members and guests do not engage in criminal activity, they were also invalidated.

• Eleventh Circuit Upholds Eviction of Innocent Tenant for Household Member’s Drug Activity. In Burton v. Tampa Housing Authority, the court, citing the dissent in Rucker, upheld eviction under section 6 of Mrs. Burton and two of her children, after her other son, an adult household member, was arrested for participating in a drug transaction on housing authority property. Although the transaction was not in her apartment and she claimed to be unaware of her son’s alleged criminal activity, the court rejected her contention that an "innocent party" defense should be read into the statute. It also found unpersuasive the argument that the eviction violated her due process and freedom of association rights. Finding the statute’s language clear, the court adopted the Chevron doctrine’s deference to an agency’s interpretation of its own statutes. Noting that Congress included "innocent tenant" protections in other HUD statutes relating to drug activity, it found omission of such a provision in section 6 instructive of Congress’ intent not to provide that defense.

• Federal Court Upholds Albuquerque, New Mexico’s Campaign Spending Limits. A district court decision may provide an opportunity for the U.S. Supreme Court to reconsider its Buckley v. Valeo rationale for refusing to enforce campaign funding limits on individuals. The judge upheld a city limit on personal campaign expenditures of twice the mayor’s annual salary, currently creating a $174,000 cap. A challenger to the incumbent mayor claimed he had to exceed the cap to get his message across because he was a political newcomer. The court narrowly interpreted Buckley as only requiring a higher standard of proof in balancing whether any particular ceiling should outweigh a candidate’s First Amendment interest in unlimited spending. Finding the city’s ceiling narrowly tailored to meet compelling governmental interests of "preserving the public faith in democracy" and "reducing the appearance of corruption, " the judge noted that for twenty-five years the city’s expenditure limits had preserved the integrity of its electoral processes and the public’s faith in its elections. This opinion is in contrast to a Vermont district court’s rejection last year of a state expenditure limit for all candidates that is currently on appeal.

• HUD Foreclosed Property Not Subject to City Nuisance Abatement Action. The Eighth Circuit ruled in United States v. City of St. Paul, that HUD could not be forced to tear down a house that violated local housing codes. When a HUD-insured mortgagor defaulted and abandoned the house, the mortgagee turned it over to HUD. The city inspected the house, found it a public nuisance, and ordered HUD to abate it. When HUD did not comply, the city hired a contractor to demolish the house, but HUD got an injunction preventing the city from ordering HUD to abate nuisances in any properties it acquires, demolish HUD property, or to take any other action inconsistent with HUD’s authority. The court rejected the city’s argument that a federal statute, which preserves state civil jurisdiction, authorized application of the city’s nuisance abatement laws to HUD property, holding that: (1) the preservation provision only applies to property acquired by foreclosure; (2) the purpose of the provision—prevention of treatment of federal property as a federal enclave—was not applicable; and, (3) subjecting HUD properties around the nation to local laws of this type would interfere with the objectives of the National Housing Act.