Editorial May 23, 2013

TheWeekinCongress.com

Editorial

What’s In a Word?

     The use of a word or phrase can become viral on Capitol Hill and then show up in every other floor speech. Over the years, ‘draconian’, ‘redact’, and ‘at the end of the day’ were well worn out. Congress hasn’t really produced any obvious words or turns of phrases in the past year or two…until this week. ‘Deems’ is the word in question this week and has the unique role of being legislative language, not just rhetorical reference.

Deems showed up several times in the text to HR 3, a bill seeking expedited approval of the Keystone XL pipeline from Canada to the US Gulf coast. The bill demonstrates frustration supporters of the pipeline have with delays from the President, the US State Department, and the EPA.

HR 3 begins by removing the requirement of a Presidential permit. From there it deems several things will happen-From the bill report; “…(it deems) the final EIS from August 2011 to satisfy all NEPA and National Historic Preservation Act requirements. It deems an incidental take permit to have been issued for the American burying beetle and deems a permit under the Migratory Bird Treaty Act to have been issued. It further deems a right-of-way and temporary use permit to have been issued by the Bureau of Land Management for affected public lands.”

But before we attempt to decide what ‘deems’ actually means, let’s take a look at the players in this deal; TransCanada, the producer who stands to profit from the movement of its oil through the US to an area on the Gulf coast designated as a foreign trade area. TransCanada, according to the bill report, has made no commitment to the oil being used to benefit US consumers, leaving the door open to exporting that oil from the Gulf ports. Then there are the Koch brothers known recently for spending in the tens of millions to elect Mitt Romney president. The Koch brothers are taking on the sale of coke, a bi-product of tar sand extraction and one that is packed with pollutants that are released into the air when burned as fuel. And then you have the political message in supporting the pipeline; that it rebuffs the President as being against US energy independence when, according to TransCanada, it may be exported and so do nothing for US energy independence. The bill would appear then to ‘deem’ that the oil will add to energy independence.

So what does deem mean. It’s an interesting word the definition of which is narrow. Webster’s give four definitions—to judge; to come to think or judge; to consider; and to have an opinion (Believe).

No matter which definition you prefer the bill appears to rest on declaring that the assumption, belief, and the consideration that an action is to have been taken is the same as the action having been taken. It deems that the final environmental impact statement meets the needs of national environmental and historic preservation laws. It deems that the Secretary of Interior concluded in writing that the habitat of a protected insect will not be ‘adversely modified’ (another two words that beg further definition), and it deems the Secretary to have issued right-of-way and temporary use permits.

While the bill appears to be a desperate attempt to get the pipeline going it is likely the bill will not see the light of day in the Senate, so the bill’s only purpose would be to draw attention to a President seen as recalcitrant on the matter. But what cost does this political end run extract?

HR 3 doesn’t qualify as legislative slight or hand. It has no value or future as a law, will have no impact on the pipeline in question, and demonstrates that if we deem law-makers are above this nonsense, even in the face of desperation, we, at the end of the day, will be disappointed. ##

The Invisible Lawmakers

“Opponents of a law are rarely shy about re-legislating it even after it’s been enacted.”

By Lee H. Hamilton

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      Want to know what’s causing a lot of people in Washington to work long hours right now? Here’s a hint: it’s not immigration reform or gun control or, for that matter, any other legislation coming down the pike. Instead, it’s a pair of three-year-old laws.

The Affordable Care Act (known to most Americans as Obamacare) and the Wall Street reform act known as “Dodd-Frank” both became law in 2010. Most people consider these major pieces of legislation old news, but that’s because their civics teachers misled them back in junior high school. In the How-A-Bill-Becomes-A-Law version of Congress that many of us were taught, the story ends when the bill is signed by the President. It doesn’t. In fact, the President’s signature is more like a starter’s pistol.

Because after a bill becomes law is when legislative language — which is often deliberately vague and imprecise, in order to wrangle as many votes as possible — gets interpreted and turned into regulatory language. In other words, Congress drafts a rough blueprint; only then does the federal government decide how the machinery will actually work.

And that’s where money — lots of money — stands to be won or lost. A few years ago, a group of academics studying tax disclosures related to a single 2004 piece of financial legislation found that firms lobbying for a particular provision made $220 for every $1 they spent on lobbying. Which may help explain why, as the Center for Responsive Government recently reported, the health care industry has spent more than $700 million on lobbying Congress and executive agencies since health care reform passed.

Indeed, the political fight that began with the drafting of legislation continues long after a bill is enacted into law — not for days or weeks or even months, but sometimes for years. Unlike the legislative process, which for all its faults is generally visible and accessible to the public, these battles tend to be invisible and inscrutable.

The first arena in which they take place is within the agency or agencies charged with drafting and enforcing the rules that give teeth to legislation. This process can be lengthy — according to one corporate law firm that has been tracking the rule making process for Dodd-Frank, only 38 percent of the rules required by the legislation had been finalized by the beginning of May this year. Special interests trying to have an impact pursue a broad range of tactics, from directly lobbying regulators to getting friendly members of Congress to weaken the agency’s appropriation, cut funding for regulatory enforcers, or even block presidential appointments to an agency they dislike. They might also take the opposite tack, lobbying to bulk up a rule and make it so complicated that very few people can understand it, or to add little-noticed — but highly profitable — exemptions.

If that approach doesn’t work, there are always the courts, which have final judgment over how to construe congressional language. Lawsuits of these types are intensely fought and can go on for years, sometime blocking or restricting implementation until they’re settled.

And then, of course, there’s Congress. Opponents of a law are rarely shy about re-legislating it even after it’s been enacted. They can try to get it repealed, or to cut its funding, or to enact exemptions, or, as medical device makers, insurers and others are doing right now with the health- care law, to overturn pieces of it they especially dislike without taking on the entire thing.

Huge amounts of money are at stake in these fights, which can involve an army of sophisticated players: high-powered lobbyists, former regulators and members of Congress, and the federal officials and current members they’re focused upon. As tough and sometimes mean-spirited as the reasonably transparent legislative process can get, these shadow battles, far out of the public eye, can be even more so.

Former Secretary of State George Shultz once famously said, “Nothing ever gets settled in this town,” and he was right. That is why, as you follow the course of health reform or financial industry reform or any other high-stakes law, it pays to remember that it can take years before it’s really possible to gauge the impact of legislation.

Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.