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Legislation by Accident

Editing Required.

by Barnabas
December 18, 2002

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Legislation by Accident_Barnabas-Editing Required. About ten days ago "Good Morning America" reported on a provision in the Homeland Security Act which protects a major drug company from a specific lawsuit. It is not a provision to protect drug companies generally from trivial actions which might hamper their contribution to national security, but one exemption for one company. In the brief original story, the response from Congressional leaders was a puzzled “How did that get in there?” without a hint that anyone was going to bother to find out.

I waited a couple of days to learn more; somebody would raise a big stink. An ethical Congress obsessed by a telephone conversation that Martha Stewart may or may not have had with her stockbroker would surely go after this one. If Congress did not police itself, investigative journalists surely would.

Silly me. A search of Internet headlines turned up nothing, though most news sources wanted to be sure I knew how well Harry Potter was still doing at the box office.

I know that ungermane and self-serving amendments are routinely inserted into national legislation, either to kill a bill or to serve a private interest by hitchhiking on a bill certain to pass. It’s an embarrassing and cynical practice that your ordinary garden club doesn’t allow (everything in a motion is supposed to have to do with the motion) but we have gotten used to it in Congress.

The only safeguard against chaos or tyranny in such a sloppy process is that the Congress keeps track of its sloppiness. We demand of Congress what Congress demanded of Enron.

I did believe that minutes were kept; didn’t you? If something had been inserted into the bill with the consent of the Congress, it would show up in the Congressional Record. An intern could find it in a half-hour, a computer search in 15 seconds. If congressional leaders actually didn’t know and couldn’t find out, we are left with some scary alternatives.

1) There was clerical error. In this case, the provision is not the law of the land. Congress should then rise to the competence of that garden club I mentioned. Somebody needs to say, “Oops,” draw a line through the provision, and report the error. Then a Representative or Senator who objects and declares that it is not a clerical error will have the privilege of clarifying exactly what it is.

2) The White House inserted it late in the drafting process, in the belief that nobody reads the whole fat document or cares that much.

3) Somebody else with access snuck it in, ditto.

Good process doesn’t make good things happen, but bad process guarantees that bad things are going to happen sooner than later. If there is more to the story, tell us!

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