The final version of the widely celebrated ethics bill, passed by overwhelming margins in both 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 any provision that had not been passed by either Senate or House from being inserted, usually at the end of a session, in the final version of a bill. Under the new rule, it will take 40 senators to block such proposals 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, which is the goal of all too many members of Congress.
This momentous change could not have slipped by without bipartisan Senate leadership connivance, but was unknown to ordinary 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 Aug. 2 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 when an absent Congress could not override it.
On Aug. 2, Republican reform Sen. Tom Coburn called the just-enacted 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 new 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 (and the House a day earlier, 411 to 8).
Coburn objected to the bill taking new policing of pork barrel earmarks away from the Senate’s non-partisan 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 in Senate Rule 28 that covers inclusion in a Senate-House conference report of "extraneous matter" that neither chamber passed. For years at the end of a session, party leaders solicited senators for dozens of their pet extraneous projects to insert in conference reports. However, it would take 67 votes to suspend the rules in the 100-member Senate to enact each such provision. In practice, if a party leader learned of serious opposition by one or two senators in his caucus, he would remove the provision because those dissenters might derail the entire conference report.
But the ethics bill’s revision of Rule 28 removes that safeguard. Any senator can 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 can add to a bill 40 or more such provisions that never really will be debated. The floodgates will be open.
Multiple earmarks now will be added to a conference report by only 60 votes after but one hour of debate. As Coburn has complained, the final version of the ethics bill permits newly required identification of earmarks and posting on the Internet to be waived by either the majority leader or minority leader. They can also waive the new requirement that conference reports be posted on the Internet no less than 48 hours prior to 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.