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The Senate's Ethics Sleight of Hand

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By Robert D. Novak
Monday, September 10, 2007

The final version of the widely celebrated ethics bill, approved by overwhelming margins in both the House and Senate a month ago, finally and quietly made its way last week from Capitol Hill to the White House. It surely will soon be signed into law by President Bush. What only a handful of leaders and insiders realize is that this measure, avowedly dedicated to transparency, actually makes it easier for the Senate to pass pet projects without the public -- or many senators -- being aware of it.

Until now, one or two senators could block provisions not passed by the Senate or House from being inserted, usually at the end of a session, into the final version of a bill. Under the new rule, it will take 40 senators to block any such provisions that are protected by the majority or even the bipartisan leadership. That will make it much easier to enact any number of special-interest measures, the goal of all too many members of Congress.

This momentous change could not have slipped by without bipartisan Senate leadership connivance, but it was unknown to rank-and-file senators -- much less the general public. Deception is the watchword on Capitol Hill. Indeed, outsiders do not realize that the ethics bill was held for a month after final passage before going to the president's desk. It was delayed to prevent Bush from exercising a "pocket veto": not signing the bill during the August recess to eliminate any opportunity for a congressional override.

On Aug. 2, reform Republican Sen. Tom Coburn called the just-passed ethics bill "a landmark betrayal, not a landmark accomplishment. Congress had a historic opportunity to expose secretive pork-barrel spending but instead created new ways to hide that spending." As for the act's highly publicized restrictions on lobbyists, Coburn asserted that "the problem in Washington is not the lobbyists" but "members of Congress." He voted no as the bill passed the Senate, 83 to 14, on Aug. 2 (it had been approved in the House two days earlier, 411 to 8).

Coburn objected to the bill taking new policing of pork-barrel earmarks away from the Senate's nonpartisan parliamentarian and giving it to the majority leader. "That makes the quarterback the referee," he said.

But not even Coburn's detailed analysis of the bill's treatment of earmarks mentioned the audacious change to Senate Rule 28, which covers inclusion in a Senate-House conference report of "extraneous matter" that neither chamber has passed. For years, at the end of a session, party leaders have solicited senators for dozens of pet projects to insert into conference reports. However, it took 67 votes in the 100-member Senate to suspend the rules and enact such provisions. In practice, if a party leader learned of serious opposition by one or two senators in his caucus, he would remove a provision because the dissenters could derail the entire conference report.

But the ethics bill's revision of Rule 28 removes that safeguard. Under the change, any senator could propose that points of order on the conference report be waived for all extraneous provisions, with a mere one-hour debate permitted for the lot of them. That could mean the addition to a bill of 40 or more provisions that never really will be debated. The floodgates will be open.

Multiple earmarks will now be added to conference reports with only 60 votes after just this one hour of debate. As Coburn has complained, the final version of the ethics bill permits the newly required identification of earmarks and posting on the Internet to be waived by the majority or minority leader. The leaders can also waive the new requirement that conference reports be posted on the Internet no less than 48 hours before the Senate vote. So much for transparency.

With recourse to a pocket veto denied him, George W. Bush ought to be in a quandary. Should he consider the option of vetoing the pride and joy of the Democratic Congress and be accused, however unfairly, of pandering to lobbyists? He could at least avoid the signing ceremony for a pork-prone ethics bill and maybe even let it become law without his signature.

? 2007 Creators Syndicate Inc.


© 2007 The Washington Post Company

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