Ninth bunker - Ninth Circuit Court of Appeals’s decision invalidates a rider inserted by Sen. Larry Craig into a conference report
By Editorial
The Hill
January 31, 2007
The Ninth Circuit Court of Appeals’s decision invalidating a rider inserted by Sen. Larry Craig (R-Idaho) into a conference report shines an uncomfortable light again onto the practice of earmarking.
Craig’s rider, upon the merits of which we make no comment, stripped $1.3 million from the Portland-based Fish Passage Center, which counted salmon migrating up the Snake River. The senator was outraged at what he deemed biased reporting by the center, which led to an order to the local utility company to spill water from a dam to help the salmon. The utility, which had contributed to Craig’s election campaigns, estimated the cost of the spill at $60 million.
But however interesting the details, they are also largely irrelevant. What matters from the point of view of the congressional process is that Craig added the rider in conference rather than to the language of the bill and that the Ninth Circuit, when asked, said this did not have the force of law.
So what? you might ask. Hasn’t everyone always known this? Yes, but the civics-lesson simplicity of the analysis does not describe how things have worked in practice. This particular piece of constitutional law was more apparent than real. Government agencies have taken conference report language less as an illumination of the underlying bill than as part of the law itself.
Now, however, interested parties and pressure groups have been given a green light to challenge provisions in conference reports that they do not like. This means that if lawmakers want to add a rider, an earmark, a provision — call it what you will — then they had better add it to the legislative language if they want it protected from challenge.
This is a good thing. It is perhaps unnecessary to say it, but this newspaper has nothing against lawmakers shaping laws; that is their job. And shaping the law can mean adding provisions specific to isolated projects. (Such a practice can and has led to much unnecessary spending, but that is an argument for keeping a close eye on what provisions contain, not for changing the role of lawmakers by banning such provisions altogether.)
If the upshot of the Ninth Circuit ruling is that lawmakers put their provisions into legislation, where they can be seen by everyone else on Capitol Hill and across the country, then they can be debated on their merits. And that is not too much to ask of lawmakers. Members of Congress should do nothing in their work that they are ashamed to explain publicly.
As with most political actions — campaign contributing comes to mind — transparency, light and sunshine turn out to be the best disinfectant.
