• Republican Congress Imposes Its Will, Enacting Medicare Changes for 2006. In an adroit move that implies seniors’ drug benefits will be covered by Medicare, or at least part of them, but delays implementation for three years, the Bush Administration and the Republican-controlled Congress positioned themselves to blunt a potential Democratic issue for the 2004 elections. And make no mistake, everything happening now in Washington is focused on its impact for next year’s elections. The $400 billion cost over ten years has been referred by some as "budget-busting" when it takes effect.

• The Long-Term Implications for Medicare. The Act’s implications are just now being evaluated. It was solely a creation of the Republican majority. In an unprecedented voting maneuver, House Republicans held off the final vote count for almost three hours in the predawn to work on enough members, through extra targeted incentives supported by the White House, to turn defeat into victory. Concerns have been expressed that it may mean the end of Medicare if too many opt out to the private competition it authorizes, leaving only the sickest in the program. The meager financial support for most seniors, except the very poorest, has also been criticized. Whether it will have the desired impact in an election year, two years before it takes effect, has been questioned as well. An interim measure to provide a "discount card" in 2004, supported by drug companies, is being developed to show more immediate relief. Strong public ad support from AARP was credited to its adoption, but some seniors have burned their AARP cards in protest.

• Sufficient Votes in Senate to Override a Democratic Filibuster on Medicare Were Obtained. While most states have restrictions limiting measures to one topic to prevent minority interests from combining to gain approval, a tactic called "log-rolling" where votes sufficient for passage are accumulated by combining various measures in one bill, Congress has no such limitation. The legislation being enacted this session shows how it works. In addition, strong partisanship practices are emerging in place of bipartisan norms of interaction.

Partisanship is now so pronounced that Senate Minority Leader Tom Daschle (D–S.D.) was prevented by a Republican majority, although a conferee on the Medicare bill’s Conference Committee, from even coming into the room where discussions about the final form of the bill were being held. Democrats had almost no role in shaping what went before each House for approval. What passed was implemented by a Republican party-line vote supplemented by a few straying Democrats.

Riding roughshod over prior congressional traditions and practices that limited conference committees to voting out bills that included only measures approved in at least one house has started to change the dynamics of the legislative process. Now final bills are limited essentially only by what provisions the conference majority decides can be rammed through both Houses.

• Congressional Scorecard for this Session.

—What Was Enacted. Congress passed an "Amber Alert" system to help locate missing children. Creation of "do not call" lists for telephone marketing were authorized. Abortion legislation prohibiting doctors from performing "partial birth abortions" was narrowly adopted. A third consecutive tax cut of $320 billion was enacted including a reduction in income tax rates. Touted as a stimulus package, it included a $20 billion package to assist states. This provision was required in order gain passage of the bill. Permission for controlled burning of underbrush and thinning of trees on some 20 million acres of federal lands was also approved. Two bills to fund the war in Iraq, $79 billion in April and $87 billion in November, were also enacted. Also enacted were consumer measures to curtail spam e-mails, provide access to credit reports and scores, and protect against identity theft.

—Still Pending. Awaiting action, primarily because of resistance in the Senate, are measures: setting a new energy policy involving $31 billion; renewal of welfare changes adopted in 1996; restrictions on class-action suits, limitations on medical malpractice awards, and creation of a fund to resolve asbestos litigation; imposing restrictions on eliminating debts through bankruptcy; increases for child tax credits for millions of poor families not approved in tax cuts adopted; limitation on gun manufacturers and dealers’ liability; increases for minimum wage levels; a school voucher pilot program in D.C.; restructuring of head start programs; expansion of federal financial support for faith-based groups; barring of human cloning; and measures to protect pensions.

• Infighting over Energy Bill Laden with Special Interest Provisions and Tax Advantages Stalls Short of Enactment. An energy bill fueled by the summer power blackout is still having difficulty getting sufficient support. It will go over to the next term. Despite trimming such controversial issues as approval for oil drilling in the Arctic National Wildlife Refuge, squabbles over allocating benefits from the bill to special interests delayed its final approval. The Supreme Court’s surprising agreement to hear Vice-President Cheney’s appeal of a court order requiring disclosure of the role of special interests involved in its drafting ensures at least another year’s delay in revealing those relationships. Whether unveiling who drafted what provisions will make any difference even if before enactment is questionable.

• Implications for the Energy Legislation. The measure is likely to have such a broad impact on the various interests involved that the infighting has been intense. Oil and gas companies, pipeline operators, railroads, and wildcat oil drillers, each with different priorities, many conflicting, are engaged in high stakes lobbying, especially for the limited number of tax breaks available. Differences between regional interests also exist causing conflict between energy participants in different regions.

Among provisions under consideration are tax and other incentives for oil drilling, the obligation of utilities to use a percentage of renewal fuels in their energy generation, continuation of liability protections for the nuclear power industry, and provision of subsidies for hydrogen-powered vehicles. The bill would also repeal the sixty-eight-year old Public Utility Holding Company Act that now prevents state-regulated utility holding companies from subsidizing unregulated businesses with their profits.

Provisions requiring utilities to join Regional Transmission Organizations that would operate and control transmission lines have also been controversial and the White House announced support for voluntary participation instead. This provision, recommended by the Federal Energy Regulatory Commission, is seen by some as necessary to improve operation of the nation’s power grid. Opponents, including the National Consumer Alliance, claim the FERC-supported provision would override traditional state regulation and weaken public accountability. At issue is a fifteen-year federal policy to generate competitive wholesale energy markets. Sorting out this complexity of views and interests can be compared to sausage making, with the public both repulsed over the vying by special interests and its inability to sort out the equities.

• Despite Control of Congress, Republicans Unable to Get 2004 Appropriation Bills for Government Approved Before Year End. Six federal spending measures for the fiscal year that started October 1, 2003, were adopted into law. However, efforts to get unanimous consent for approval of a $328 billion omnibus appropriation bill rolling up the remaining seven in one measure for approval, without a roll-call vote, failed. The FY 2004 Omnibus Appropriations bill that passed the House just before it also adjourned (H.R. 2673) contains HUD appropriations of $37 billion.

• Objections to the Omnibus Approach. Senator Robert Byrd (D–W. Va.), ranking minority member on the Appropriations Committee, withheld his consent, saying: "Instead of sending thirteen fiscally responsible appropriation bills to the president, we are being force-fed a bad piece of legislation dictated to the Congress by the Bush Administration." He added, Republicans "took a balanced package and at the eleventh hour insisted on changes that were never considered when the individual bills passed the House and Senate." The White House insisted that the omnibus bill drop provisions adopted in each House that would have overridden Labor Department overtime rules, prevented Federal Communication Commission loosening of media ownership caps, opposed contracting out of some Transportation Department employees, and overturned the ban on travel to Cuba. Not enough senators were willing to return to Washington for a roll-call vote on that measure. Earlier, a roll-call vote was avoided on the contentious $87.5 billion for military and rebuilding efforts in Iraq and Afghanistan because most members did not want to be accused of not supporting our troops, even if they objected to spending that much on Iraq.

• Second Thoughts Arising about Acceptable Breadth of PATRIOT Act Powers After Second Anniversary of 9/11. The Supreme Court and other federal courts have shown increasing unease about sustaining broad Bush Administration interpretations of powers assumed by the Justice Department. Indicating some concern whether exercise of such broad powers will be upheld, a tactical retreat has occurred. An unusual challenge from the Court requiring justification for withholding of legal counsel to an American citizen, denial of which was based solely on presidential designation of him as a "combatant," has resulted in a grudging allowance of access to counsel, not as of right, but only by leave.

• The Fight over Anti-Terrorism Powers. Further indications of concern over support for Administration powers asserted were shown by efforts of the President to use reminders of the World Trade Center tragedy to bolster support for them. Reflecting a strategy that a good offense may be the best defense, Bush announced he would be sending new legislation to Congress to expand government’s criminal powers to probe and detain suspects in fighting terrorism. The proposal would include power to issue "administrative" subpoenas without going through grand juries, to hold suspects without bail, and to provide the death penalty for more crimes. New provisions would also include the right to revoke citizenship, expressly forbid release of information about detainees, and set up a DNA database for terrorism suspects.

• Prospects for Expanded Powers Poor. Prior to the President’s announcement, Attorney General Ashcroft started making the case for the additional powers, suggesting that measures currently available to go after drug crimes and embezzlers were needed to stem terrorism. Bush, speaking on what he now has declared to be "Patriot’s Day," was seen by the ACLU as attempting to avoid threatened curtailment of existing provisions of the PATRIOT Act that are under criticism. Opposition by Republicans as well as Democrats to augmented powers suggest little chance of adoption of increased powers, but the effort may be sufficient to retain powers in provisions that will automatically expire next year unless expressly renewed.

• Experimental School Voucher Program in D.C. Retained. A D.C. appropriations provision may lead to a five-year experiment in D.C. of a school voucher program for some 1,300 low-income students in poorly performing schools. Unless changed, when the omnibus appropriations act is finally enacted next year, it provides for some $13 million extra for public schools, a similar amount for charter schools, and authorization to provide roughly $7,500 per student for a private school voucher program to be used for tuition, books, and transportation. While a five-city experiment was originally contemplated, the D.C. program is the only one that survived. The D.C. mayor and school board president have argued for the measure. It is opposed by D.C. Congressional Delegate Eleanor Holmes Norton, teacher unions, public school administrators, and civil rights advocates concerned about breakdown of separation of church and state. The opposition is fueled by fears that this might be the start of a national trend. A threatened filibuster against this provision prevented passage of the $545 million federal appropriation to the city.

• Consumer Protection Measures Enacted. Following up on "do-not-call" lists, Congress has authorized the Federal Trade Commission to control spam e-mails. In light of the FTC’s limited ability to police the industry, bulk "mailers" who agree to industry self-policing provisions are exempted. In addition, the Fair and Accurate Credit Transactions Act was enacted creating a national fraud-alert system. Consumers will only need to make one call to report fraudulent activity. A report of possible fraud against them will be maintained in their credit report for seven years. The FTC reports some 27.3 million have been subjected to identity theft over the last five years, with 9.9 million just in 2003. Consumers will now be able to get a free credit report annually from each of the three major bureaus and specialty reporting agencies. Importantly, advance notice of submission of negative credit information must be given consumers, and they will now be able to get their credit scores for a reasonable fee, and if applying for mortgage loans, for no cost. Some provisions will not take effect until 2006.

• Despite Republican Complaints, Few Bush Judicial Nominations Rejected. While Miguel A. Estrada withdrew after failing numerous times to obtain more than 54 of the needed 60 senators to vote for cloture to force consideration of his nomination, very few White House judicial nominees have been opposed. Estrada was one of only six nominees for appellate judgeships that Democrats have successfully opposed. In Bush’s three years, of slightly more than 200 persons nominated, thirty have been approved for appeals courts, and another 139 for other federal courts. The others are still awaiting Judiciary Committee action. Democrats claim Republicans bottled up some sixty nominees in the Clinton years. As some say, what goes around, comes around. Senate Republicans responded with a thirty-nine-hour "Talkathon" to trash Democratic "obstructionism" and dramatize what Republicans feel is unseemly resistance to their nominees. Half the time was allocated to Democrats, who talked instead about Bush’s failure to create jobs. Afterwards, Democrats opposed two cloture votes on court of appeals’ nominees characterized by Senator Ted Kennedy as "Neanderthals" and by other Democrats as too ideologically rigid in their conservatism regarding abortion, civil rights, and worker protections. Three of the five remaining appeals court nominees unable to get a vote are women.