WASHINGTON’S LABYRINTHINE WAYS

By Otto J. Hetzel

• Mid-Term Election Results Will Facilitate Implementation of Republican Policy Initiatives, But Only Barely. Reversing the tradition of losses in party support experienced at mid-term, President Bush effectively used the threatened military action against Iraq to rally voters and solidify his support in Congress. While several additional seats were taken over by Republicans in the House, adding to control there, the significant change occurred in the Senate. Losses by two incumbent Democratic senators give Republicans a 51–49 control in that House; the delayed reelection of Louisiana Senator Mary Landrieu (D-La.) in a December run-off, however, had the effect of limiting Republican control of committees only to one more Republican than Democrat on each committee. If she had lost, the GOP would have increased its ratio on every committee. Dramatic policy changes are unlikely to be as precipitous as the new Republican control of Congress and the White House might appear to signal. An ameliorating factor is that the positions of a handful of more moderate Republican senators will provide the swing-votes on any close measures. Similarly, in the House, a group of moderate Republican members also will influence most legislative actions.

• Republican Congressional Leadership Has Control of What Will Be Considered and When. The House and Senate GOP leadership will control committee agendas and what legislation proceeds. The resignation of Senate Majority Leader Trent Lott (R-Miss.) over statements perceived as “racist” at the retirement party of Strom Thurmond (R-S.C.) has increased the President’s influence in the Senate. The White House was credited with engineering William Frist’s (R-Tenn) election by the Republican caucus held for the first time via a conference call. Whether “compassionate conservatism” will actually emerge will await events.

• Confirmation of Judicial Appointments Likely to Accelerate. One area where the President clearly will be able to move his agenda in the new Congress is to get his judicial nominations approved. Indicative of this was the President’s announcement that the vacant positions on the powerful D.C. Court of Appeals are now needed, so he would fill them. This overrides Republican objections, when Democrats controlled the White House or Senate spanning several decades, that the workload and costs did not justify the need for those positions. While Republicans will only have a one-vote majority on the Judiciary Committee to move nominees to the Senate floor, that should usually be sufficient. The only realistic tactic left to Democrats to continue the Senate’s “deliberate speed” approach to filling judicial openings, when the White House is in the other party’s hands, will be filibusters that require sixty votes to override. It is unlikely, however, whether such obstructionist tactics could be used frequently.

It also remains to be seen what use will be made of the ABA vetting process. The White House has rejected considering ABA views prior to nominations, and the incoming Judiciary chair, Senator Orrin Hatch (R-Utah), is unlikely to hold up processing nominees pending receipt of ABA views, as did his predecessor, Patrick Leahy (D-Vt.). The ABA role may be important, however, with Chief Justice Rehnquist’s retirement rumored and Supreme Court replacements being considered. A Hispanic nominee appears most likely.

• 107th Congress Adjourns Without Taking Final Action on the Fiscal Year 2003 Budget. Failing to pass appropriation measures for FY 2003 that should have been enacted before October 1, when the fiscal year starts, Congress departed leaving only a “Continuing Resolution” that simply carries funding levels forward into January 2003. It applies only for existing programs, leaving responsibility for wrestling with final 2003 funding to the new Congress. New and re-authorized urban programs contained in bills pending last session, such as State Children’s Health Insurance, HOPE VI housing, and law enforcement grants, will be in limbo until the new Congress acts. Viewed by some as an “abdication” by Congress of its obligations, the lack of action reflects the deeply divided nature of the departing Congress. Some policy issues were simply intractable.

For instance, extension of unemployment benefits that ran out just after Christmas affecting 750,000 was stonewalled. House Republicans proposed only a five-week extension, limited to three Northwest states, while the Democratic Senate version called for a twelve-week extension, nationwide. Given the soft economy and a November increase in unemployment nationally to 6 percent (the highest since 1994), immediate action is scheduled on this matter once the new Congress is sworn in January 7, although its coverage is not settled. That decision will be an early indication of the direction of congressional policies.

• Omnibus Act to Incorporate All Delayed 2003 Appropriations.  The White House is working closely with Republican Appropriations chairs to pull together an Omnibus Bill to consolidate various policy conflicts in the dozen pending major appropriations measures into one “yes or no” vote before the President’s late January State of the Union Message. Only a simple majority is required for approval. Congress previously exempted such budget actions from normal procedural limitations, such as filibusters. So, just when the President traditionally sets his forthcoming budget, Congress will only be resolving matters for 2003. Among critical issues to be resolved are the financial consequences of the President’s proposed further tax cuts favoring the top 1 percent of tax payers and the dramatic spending increases required to carry on the war against terrorism that may expand to Iraq and possibly North Korea. Any shortfalls are likely to impact domestic programs.

• Unresolved Republican Issues in the 107th Congress Likely to Receive More Favorable Treatment in 2003. Last session’s division of party control in Congress delayed completion of Congress’ prime function of approving appropriations for government’s operation. It also left a number of legislative matters unresolved. These issues will be important in the 2004 campaign and many bills blocked either in the House or Senate are likely to be enacted by the new Congress. Among such matters, for instance, were provisions for prescription drug coverage under Medicare, patients rights in managed-health plans, and expanded coverage for treatment of mental illness. Efforts to increase the minimum wage were frustrated along with extension of unemployment benefits for those whose payments had expired.

Bankruptcy law revisions reducing protections for debtors while allowing banks and credit card issuers to force some debtors to continue to make payments on debts pre-existing bankruptcy stalled when an anti-abortion provision was inserted undermining majority support. Restrictions on cloning of human embryos and legislation on stem-cell research also floundered. Bills to increase access of faith-based institutions to federal funding stalled. Attempts to increase energy production by drilling in the Alaskan Wildlife Refuges were also impeded. Efforts to make permanent the nine-year tax reductions passed earlier were denied. Legislation protecting worker pension rights also failed

• Administration Debating Whether to Oppose Affirmative Action in University Admissions in Supreme Court. The federal government was not a party when the Sixth Circuit rejected challenges to the University of Michigan’s admission policies that consider race as a factor and abstained from filing an amicus brief. Now that the Supreme Court has granted certiorari to resolve a conflict between the circuits, a debate ensued in the Administration whether the solicitor general would formally oppose affirmative action in admissions. Amicus briefs are due by mid-January. The controversy engendered over Senator Lott’s statements that pushed racial issues to the forefront, including his endorsement on BET of affirmative action, has made the decision more difficult.

• Supreme Court Hears Argument on Validity of Laws Converting IOLTA Revenues for Legal Aid. The “taking” of interest on Lawyers’ Trust Accounts (IOLTA) is being challenged by the Washington Legal Foundation (WLF) as an unconstitutional seizure of private property without compensation. Last year, $147 million was generated in grants for legal aid from this source. Most states require lawyers to deposit nominal amounts of client funds to be held for short periods in state-supervised IOLTA accounts. The modest interest generated is accumulated for grants for legal services. Defenders of IOLTA argue that interest lost by clients would be minimal or nil since amounts otherwise would be deposited by lawyers in non-interest accounts of banks and bank fees would consume any interest on client funds. Two of the clients represented would only have been entitled to $5 and $2 in interest. Harvard Law Professor, Charles Fried (a former solicitor general), argued for the WLF. Clearly an ideological battle is underway as reflected in WLF fund solicitations to support its fight to “deal a death blow to the single most important source of income for radical legal groups all across the country.”

• White House One, General Accounting Office Zero. A federal district court held the General Accounting Office, Congress’ investigative arm, does not have power to force Vice President Cheney to turn over records of energy industry influence in a task force developing White House energy policy. Avoiding separation of powers issues, the Court found since Congress did not subpoena these records that GAO lacks power directly to require the Vice President to turn over records. An appeal is likely in what could be a major constitutional conflict between the branches of government.