TCS Daily

Making Sausage

By Scott Galupo - January 23, 2002 12:00 AM

WASHINGTON - If you are pleased to hear any sentence that starts "Congress failed to pass . . ." then 2001 was a banner year.

Consider what Congress didn't accomplish last year: Lavish new farm subsidies, expensive prescription drug and special education entitlements, an economic stimulus package that may or may not be necessary, Byzantine new campaign finance regulations. Three cheers for gridlock; more often than not, it's a virtue.

The Senate alone managed to achieve near total otiosity last year thanks to the hissy-fitting opportunism of Sen. Jim Jeffords (I-VT) and the majority leader with his eye on the White House, Sen. Tom Daschle (D-SD).

Taxes and Education

That said, despite the bitter divide between the House and the Senate, and the agenda-scrambling events of September 11, lawmakers did manage to push through a few significant items in the first session of the 107th Congress -- the biggest tax cut since the Reagan era and an overdue education funding overhaul.

Income tax reductions, lessening the impact of the marriage penalty, eliminating the estate tax -- these are all worthy goals. But the simple if often unremarkable goal of returning overpayments to the taxpaying public was an important symbolic as well as practical achievement.

The $1.35 trillion, 10-year tax package President Bush signed in June also included helpful private pension reforms; it increases the IRA contribution limit to $5,000 a year, expands small business retirement plans, and allows employees to roll over their retirement funds when they change jobs. Authored by Reps. Rob Portman (R-OH) and Benjamin Cardin (D-MA), these popular proposals were blocked for years by the Clinton administration.

The tax bill also allows parents to use interest earned on tax-free education savings accounts (ESAs) to pay for private K-12 schooling -- a significant precedent for future school choice reforms.

Speaking of education, Congress reauthorized the 1965 Elementary and Secondary Education Act (ESEA) over the grumbling of many conservatives. No, the final education bill did not include private school choice. But it's a mistake to think that was somehow the "heart" of President Bush's vision for education reform -- he was the first one to give up on it.

The ESEA reauthorization bill, signed by Bush earlier this month, did include the crucial annual reading and math testing requirements for grades 3-8, as well as significant new flexibility for local school leaders to transfer non-Title I education money as they see fit. Conservative negotiators kept the price tag reasonable (much lower than what Senate Democrats wanted) and even managed some modest consolidation of ESEA programs. And they kept at bay the ill-conceived proposal to make federal special education funding a new entitlement, which could've killed efforts to reform the program this year.

Energy, Environment, and Regulation

Congress approved (and President Bush recently signed) a compromise measure to clean up polluted sites known as "brownfields."

And the president's energy bill -- which would've paved the way (pardon the phrase) for oil and natural gas drilling in a godforsaken plot of the Alaska National Wildlife Refuge -- is currently stalled in the Senate. As Congressional Quarterly observed, the energy bill promises to be "one of the major showdowns" this year.

Two small but important items are worth noting: a reversal of onerous Clinton-era regulations on ergonomics (the study of the effects of repetitive motions like typing and lifting), which may have cost businesses $100 billion a year; and an extension of the moratorium on Internet access charges imposed by state or local governments.

National Insecurity

Meanwhile there were two big measures intended to boost national security, both of whose hasty enactments lend credence to the gridlock-is-virtue argument. The airline security bill, which federalized passenger and baggage screening, is looking more and more misguided as implementation begins. There's no reason to believe that the federal government will be able to manage airport screening any better than private security firms. After all, if it's such a good idea, we might as well federalize aircraft mechanics while we're at it.

The government has already dropped the requirement that screeners have high school diplomas, a move that doesn't exactly instill confidence. The second measure, which expanded federal law enforcement powers, is equally dubious. One needn't be a civil liberties fetishist to understand that, as the New Republic's Jeffrey Rosen has argued, the government's new "roving wiretap" and non-warrant search authority may not do much to protect us against future terrorist attacks. The antiterrorism bill, Rosen writes, "carelessly expands the definition of low-level computer crimes" but "doesn't empower the federal government to investigate genuine emergencies nearly enough."

And, of course, there was the $15 billion airline bailout, which predictably opened the door to an insurance industry aid package. The airlines did suffer appreciably after September 11; many of them were already facing bankruptcy. Which brings us to a proposal that should've become law: the bankruptcy code overhaul.

Bill of Wrongs

Congress also dealt with another hardy perennial in 2001, the patients' bill of rights. With a shrewd compromise between the White House and Rep. Charlie Norwood (R-GA) on the usual sticking point of enhancing a patient's right to sue in state courts, Congress seemed to be on the verge of guaranteeing HMO patient rights without enriching trial lawyers. (Throughout the course of this debate, the market has forced HMOs to offer plan participants many of the options required by the bill, and it won't do much to help uninsured people get coverage, but the political appeal of this "bill of rights" remains potent.) The House approved the compromise measure but the Senate dragged its feet -- then September 11 happened. Could 2002 be the year? Maybe. Sen. Daschle recently announced plans to reopen conference negotiations on the measure.

Congress is likely to take up election reform this year too, yet another area where the House has acted but the Senate hasn't. In December, the House approved a $2.6 billion measure to help states revamp their voting systems, but the Senate... well, you know the drill. Nothing ventured, nothing gained.

The same goes for fast track -- or trade promotion -- authority, which requires Congress to vote up or down on international trade deals negotiated by the president. Last month, the House passed it -- albeit barely -- and the Senate... Even the repackaging of fast track as a national security issue (which lawmakers tried to do with just about everything, as the Boston Globe's Robert Schlesinger pointed out) failed in 2002. There's simply too much protectionist sentiment in both parties against free trade expansion.

This being an election year -- when rhetorical victories are more important than actual ones -- don't expect many legislative breakthroughs in 2002. The Senate will likely remain in virtual paralysis and the House will continue to be comparatively productive -- call it unrequited love. The more things change...

The author is a writer living in Virginia.

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