Congressional Efforts Research Articles

Kurt Hohenstein . Coining Corruption: The Making of the American Campaign Finance System. DeKalb : Northern Illinois University Press . 2007 . Pp. x, 310. $45.00.

In this thoughtful, well-researched book, Kurt Hohenstein traces the ways that dominant conceptions of political corruption have changed over time, and he persuasively documents the implications of these changing understandings for the regulation of campaign finance. In doing so, he successfully fuses political and policy history with legal history, analyzing reform efforts in Congress with the same insight that he brings to explaining the evolution of legal doctrine in court decisions. At the heart of Hohenstein's text is a long-term struggle between a narrow and an expanded definition of corrupt political practice that demanded regulation. A quid pro quo conception of corruption targeted only the delivery of tangible favors in return for campaign contributions; an expanded definition supported a wider-ranging regulatory regime in order to promote deliberative democracy. Emphasizing the importance of free speech in politics, the Supreme Court's landmark Buckley v. Valeo decision of 1976 adopted the former understanding, and it influentially limited the constitutionally permissible extent of campaign finance regulation. Although it is the narrow conception of corruption that became dominant, Hohenstein persuasively shows that the Supreme Court overlooked a reform tradition that was friendly to regulation for the promotion of effective democratic discourse. In post-Watergate amendments of the 1971 Federal Election Campaign Act—tested in Buckley—Congress had “tended to ignore the broad principles of equality and democratic deliberation that most previous campaign finance reforms had addressed” (p. 222), thus squandering the opportunity offered by scandal for more extensive change. As the Buckley decision then revealed, courts saw the freedom of speech as the best way to protect democratic freedoms; “the decreasing political competence of courts caused them to evaluate and decide cases using individualist principles in which they were trained and with which they were most familiar that allowed them to decide cases without engaging the bigger democratic questions” (p. 216). The result was a definition of corruption that “ignored political reality” (p. 11).

RAIL REFORM ON TRACK

SHIPPERS OF CHEMICALS, coal, and other bulk commodities are one step closer to achieving their long-sought goal of ending what they contend is the railroad industry’s monopoly pricing power. Earlier this month, two Senate committee chairmen agreed to join forces in crafting comprehensive legislation to reform federal rail policy. Efforts are also under way in the House of Representatives to repeal exemptions that freight rail companies enjoy from federal antitrust law. These congressional efforts are supported by the Justice Department’s Antitrust Division. On the Senate side, a floor vote on legislation to repeal the exemptions was canceled on June 1 after Sens. Herb Kohl (D-Wis.), the bill’s chief sponsor, and John D. Rockefeller (D-W.Va.) agreed to include the antitrust provisions in a broader measure being developed to overhaul the Surface Transportation Board (STB), the regulatory agency that referees rate and service disputes between rail shippers and carriers. Kohl, who chairs the Senate Judiciary ...

Low Probability/High Consequence Events: Dilemmas of Damage Compensation

This article was prepared for a Clifford Symposium which challenged paper writers to imagine how our system of tort compensation might look in the year 2020. This paper responds to an aspect of the general challenge: to imagine a tort recovery system which would deal adequately with and events. To get a handle on this problem, the paper looks closely at how the legal system compensated damages attendant on four recent events that might be considered rare and catastrophic - Three Mile Island, 9/11, Hurricane Katrina and the Exxon Valdez oil spill. In no case did the system of compensation meet all the desiderata of a well-functioning tort compensation scheme, but the two no-fault schemes which provided the bulk of the compensation to those injured in the Three Mile Island and 9/11 disasters seem to have done better than the ordinary tort system which provided the bulk of the individual compensation for the damages caused by Hurricane Katrina and the Exxon Valdez oil spill. The 9/11 compensation scheme may, however, have been sui generis since it appears to have reflected both a national coming together after an attack on the homeland and Congressional efforts to protect the airline industry, and the Price-Anderson compensation scheme, which worked well in Three Mile Island, might have failed utterly had the disaster been on the scale of Chernobyl. Ultimately, the article concludes, no imaginable compensation scheme is likely to adequately handle a large, unique and unexpected catastrophe, but some improvements in current law and practice are possible and ad hoc political solutions, as with 9/11, may help in some cases.

Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell

This article advocates that President Obama should act unilaterally to change how the Department of Defense (DoD) implements Don't Ask Don't Tell. It is a controversial position and not one generally supported even by those seeking to repeal the law. Given President Clinton's experience attempting to lift the ban on gays and lesbians openly serving in the armed forces, proponents of repeal are hesitant to suggest that President Obama act without first building consensus within the military and Congress. It is widely perceived that President Clinton's efforts to initiate change backfired, leading to the DoD's discriminatory policy being codified and slowing his legislative agenda. Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly. President Obama should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately. In Part II, I discuss the historical context of Don't Ask Don't, specifically focusing on the lessons of the Clinton era and President Clinton's successful use of executive power to affect gay and lesbian service members. In Part III, I explain why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success. I also explore the recent circuit court decisions on Don't Ask Don't Tell which interestingly set the stage for President Obama's first executive decision on the issue - whether to seek certiorari in Witt v. Air Force. Finally, Part IV provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.

CONGRESS DEBATES CHEMICAL SECURITY

CONGRESSIONAL efforts to pass legislation this year on chemical plant security face several roadblocks. The primary bill, the Chemical Facility Anti-Terrorism Act of 2008 (H.R. 5577), is opposed by the chemical industry and the Department of Homeland Security (DHS) and is caught in a jurisdictional squabble between committees in the House of Representatives. Supporters and opponents aired their points of contention over the bill at a packed June 12 hearing on the plant security legislation held by the House Energy & Commerce Committee’s Subcommittee on Environment & Hazardous Materials. Despite numerous concerns about H.R. 5577, most of the debate was over two provisions: the inclusion of water and wastewater treatment facilities under the federal law and the imposition of “inherently safer technology” on facilities that use hazardous chemicals. Congress needs to pass legislation on chemical plant security because the law giving DHS authority to regulate chemicals expires in October 2009. The House Commit...

Amending the Lieberman-Warner Climate Security Bill to Harness Individual Behavior

This article attempts to answer a question about the design of Lieberman-Warner Climate Security Act (S. 2191) that has not received significant attention: How should Congress engage individuals in the effort to address climate change? Individuals outside of their work are responsible for one-third of U.S. greenhouse gas emissions, and the U.S. has a higher per capita energy consumption rate than virtually any other country. The article recommends a broad range of provisions, including public participation, targets and timetables, numerous forms of public information, and a variety of incentives and pathways for individual action. The purpose of such provisions is to complement, not substitute for, provisions addressing major emitters. A congressional effort to engage individuals would take advantage of some of the nation's key strengths - individual initiative, engaged citizenship, and collective sense of purpose. Such legislation would more likely be at least equal to the challenge in front of us.

Changes Proposed to No Child Left Behind

Changes Proposed to No Child Left Behind

Re-Conceptualizing Booker: How to Prevent Legislatures from Circumventing the Right to Jury Trial

Sixth Amendment sentencing jurisprudence has followed a crooked path. This Article offers a critique, a solution, and a suggested way forward. As currently explained by the Supreme Court, the Booker line of cases lacks a secure foothold in the Sixth Amendment's right to trial, fails to allay concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and cannot explain how the Sixth Amendment underlies the Court's post-Booker decisions regarding federal sentencing. Moreover, this apparently unprincipled constitutional doctrine is pushing courts toward the conclusion that federal district court sentencing decisions are effectively unreviewable - a result that would invite inequitable sentencing disparities. The key to solving these dilemmas is to justify Booker's constitutional rule on the grounds that it discourages legislatures from deliberately shifting fact-finding responsibilities away from juries and toward judges. This jury circumvention approach highlights the possibility that, despite the Booker rule, courts might bow to congressional efforts to empower judges at juries' expense. Gall and Kimbrough are best understood as an effort to address this issue by insisting that federal courts both issue and review sentences based on their own independent judgment, without deferring either to Congress or to the US Sentencing Commission. On this approach, the Supreme Court's Sixth Amendment jurisprudence is fully compatible with robust substantive appellate review of federal district court sentencing decisions.

Muted voices in the legislative process: the role of scholarship in US Congressional efforts to protect children from internet pornography

This analysis brings a range of theoretical perspectives on the politics of the communications policy-making process to bear on US Congressional efforts to protect children from internet pornography. The examination of the Congressional information gathering hearings during the formulation of the Communications Decency Act, Child Online Protection Act and Children's internet Protection Act shows an excess reliance on anecdotal evidence and a lack of social scientific research in informing Congressional inquiries. The authors here argue that such incidental involvement of academic scholarship could be explained through the lenses of `symbolic politics' and `class power', which have important implications for communication scholars who wish to be more closely involved in the communication policy-making process during future debates.

Congress and the U.S.-China Relationship, 1949-1979 (review)

Reviewed by: Congress and the U.S.-China Relationship, 1949-1979 Patrick Fuliang Shan (bio) Guangqiu Xu . Congress and the U.S.–China Relationship, 1949–1979. Akron, OH: University Press of Akron, 2007. 409 pp., appendix, bibliography, index, and three maps. Hardcover $59.95, ISBN 978-1-931968-36-2. The question Guangqiu Xu's book sets out to answer is: what role did the U.S. Congress play in the shaping of the U.S.-China relationship during the Cold War? The author's answers are plentifully rich. He probes in detail the influence of the U.S. legislature on this extraordinary trans-Pacific interaction in the thirty-year period from the Chinese Communist Revolution in 1949 to the establishment of U.S.-China diplomacy in 1979. The Constitution of the United States empowers the president to manage relations with foreign countries. A balance of power system naturally attracts scholars to focus on the executive branch to figure out America's China policy. Consequently, few scholars paid attention to Congress. The existing literature, according to the author, was inadequate, and scholastic views were conflicting. Xu endeavors to redress those problems through his careful examination of congressional efforts in China policy making. Drawing on his expertise in history, relying on rich primary sources, and going through five years of diligent work, the author has produced a solid volume that deals with a unique page of recent history. Xu made full use of The Congressional Records, legislators' papers, newspapers, Department of State documents, archival material, and other secondary sources. Through his skillful selection of convincing evidence, the author offers a persuasive conclusion: the U.S. Congress had been a prime factor between 1949 and 1979 in establishing the general context of China policy and had a wide array of instruments at its disposal to play a crucial part in the formation and conduct of China policy (p. 302). Xu's book is divided into seven chapters, including an introduction and a conclusion. Each of the five core chapters investigates a particular period or an important issue. The first chapter discusses how Congress, within the three years after the Communist victory on the mainland, attacked President Harry Truman's China policy and passed legislation to aid Chiang Kai-shek. Congress repeatedly urged Truman not to recognize Beijing and called for a trade embargo against the Communist state. The second chapter focuses on congressional moves on China policy by holding hearings between 1950 and 1952. The outcome was the passage of the Internal Security Act, known as the McCarran Act, to round up alleged subversives under "loyalty clearance program." A number of America's best China experts were sacked from government jobs, creating a vacuum in U.S. governmental familiarity with the Far East and causing immeasurable loss in advisory resources. The third chapter examines U.S.-Taiwan [End Page 446] policy in the decade after 1953. After heated debates, Congress approved the Formosa Resolution and Mutual Defense Treaty with Taiwan, which pledged support to the Nationalist regime. The fourth chapter probes the significant role of Congress from 1964 to 1972 in creating a new climate in which national discourse on China was initiated. With the support of some congressmen and senators, President Richard Nixon ventured to visit China. The final chapter deals with the long process of normalization of the bilateral relationship from 1972 to 1979. In just seven years, many legislators visited China and supported normalization. Nevertheless, many hurdles, such as the Taiwan issue and numerous congressional hearings, slowed down the process. Through negotiations and dialogues, the two nations eventually established a diplomatic tie in 1979. The book displays how American democracy, in particular the legislative branch, functioned during the Cold War with a special target of containing Communism. Differing from the executive operations, the legislation by Congress was not the decision of a handful of men; rather, it required majority consensus. For decades, the United States remained mired in a Cold War mentality, and only farsighted legislators initiated the engagement policy with China. Seeing the Sino-Soviet split, a number of legislators called for seizing the opportunity to court the Chinese. Those legislators utilized various channels to press the administration...

Jurisdiction, Merits, and Non-Extant Rights

Congressional threats against the jurisdiction of federal courts date to the early days of the Union. The threat even has its own pithy nickname—jurisdiction stripping—to describe congressional efforts to reduce or eliminate the power of the United States Supreme Court and the lower federal courts to hear and resolve particular classes of controversial federal constitutional claims. The scope of congressional power to jurisdiction-strip remains the great, heretofore unresolved, debate among procedure and constitutional law scholars, as well as the courts.

Pay Relief Tied to Unrelated Funding Issue

Pay Relief Tied to Unrelated Funding Issue

Introduction to Focus: Perpetual War

Introduction to Focus: PpfnetUSl War Robin Truth Goodman and Barry J. Faulk, Focus Co-editors ? To collect a set of writings that bring into the present the problem of "perpetual war" seems both of obvious necessity and of doubtful historicity. Yet, as Kant admits, the problem of perpetual war is a problem of representation. Kant defines "perpetual peace" in two prescriptive ways: (1) "perpetual peace," he says, is not the same as "perpetual war," which is man against man in a state of nature; the only way to end the possibility of future outbreak is through a constitution, an authority, an agreement, or a representation oflaw that acts by instituting the suspension of hostilities; and (2) "perpetual peace" is based on a "representative system" that would separate out the executive and legislative powers: the initial proposition of the general will can never contain a second proposition of a particular instance without resulting in despotism and violence. On the other hand, as French political philosopher Jacques Rancière contests in his book Hatred ofDemocracy (reviewed below), contemporary forms ofpower are inadequate to the tasks oflegitimating, representing, and authorizing the limitlessness and anti-foundationalism of practices of democratic politics. The discrepancy here registers a transformation in historical expectations. Representation that should be "of something has become intransitive. What I am saying is not about the need to regain "control" over representation, as though we could somehow change the global future by imagining ourselves differently in relationship to it. Nor is it about representations of the general will being insufficiently general, and so needing to be tweaked for broader inclusion, where the particular can find its point of connection within the general. This is not about some sort of truth, signification, or consciousness that has been concealed, made arbitrary, or forgotten but can come to light through discovery, enlightened reason, dialectics, confession, or analysis. Rather, the institutions through which citizens in a democracy have traditionally staked their claims cannot represent public needs or democratic political force in the present: representations ofgovernance have become disassociated from public agency. Representation has failed at least in part due to contradictions in the logic of liberalism, where the autonomy of the rational actor in economic transactions often blurs into and sometimes replaces the autonomy of the political subject motivated by particular interests, whether personal or civic. Besides the war itself, an example of this might be the recent mainstream media coverage of the 2008 presidential elections, where candidates were evaluated according to the amount of(corporate) funding their campaigns were able to raise. For those three weeks that this story was topping the headlines, the electorate was written out of the elections, as were issues, positions, or interests. The general view of the government's representative function and the particular will of those represented was circulating through disjointed and unjoinable systems: cash value was supposed to read as voter decision, even though the reporters themselves seemed not to believe this. I am not addressing here the question of whether or not the members of the administration lied to us, though it is clear that they did, but rather the question of why they did not think it was necessary to make lies that their citizens could or would believe: why, that is, their lying and our knowledge of their lying—right from the beginning, or even before the beginning—did not matter, as though an appeal to voters was no longer a necessary step in democratic decision making. Another instance is the congressional effort to pass a bill that would put benchmarks on achievements of the Iraqi government and for the withdrawal of the US military, and tie these benchmarks to funding. In this scenario, democracy has been reduced to the semblance of conflict: one position becomes representative because of what it is not, or rather, its significance is based on its difference from another significance, where the attention to the boundaries between opposing actors becomes the political act ratherthan either the content of the positions or the almost total overlap between the positions that makes the taking of positions but the struts and frets ofa poor player upon a stage. The story of the benchmarks controversy...

Thinking Seriously About Cable & Satellite Censorship: An Informal Analysis of S. 616, the Rockefeller-Hutchison Bill

Senate legislation introduced recently that aims to extend broadcast indecency regulations to cable and satellite providers, if passed, would represent the most significant congressional effort to regulate speech since the Communications Decency Act of 1996, and likely form the precursor to regulation of content on the Internet. The CDA was found unconstitutional, but with S-616 Rockefeller and Hutchison clearly are trying to avoid the same fate. The bill applies broadcast rules found constitutional in FCC v. Pacifica in 1978 to cable and satellite offerings because they are all ubiquitous. While this is a more nuanced argument for speech regulation than what we saw during the CDA debate it is precisely for these reasons that cross-media censorship must be rejected. The fact that new media outlets have grown in popularity and that millions of Americans voluntarily subscribe to them, are powerful arguments against speech controls, not for them. The First Amendment will be an empty vessel if a popularity-equals-pervasiveness doctrine is adopted. Shows like The Shield, South Park, and Nip/Tuck would be forced to migrate to premium tiers to avoid regulation, whereby viewers will have to pay significant sums of money to escape censorship in the future. Worth assessing is the findings section's pervasiveness rationale, which has never been applied to newspapers and the Internet, and would be constitutionally suspect for cable and satellite. Meanwhile mandates imposed on warning systems and filters deployed voluntarily by programmers might best be grouped under the theme hanging the industry with its own rope. Ratings systems are subjective, and government shouldn't have any say over them. Section 11 would exempt premium and pay-per-view channels, but what happens if S-616 forces popular content onto these networks and viewers follow? Would they then be regulated as well?

Harnessing Individual Behavior to Address Climate Change: Options for Congress

This article attempts to answer a question about the design of national climate change legislation that has not received significant attention: How should Congress engage individuals in the effort to address climate change? The comprehensive climate change bills introduced in Congress focus primarily on large emitting entities. While this focus needs to be a key element, individuals also need to be engaged. Individuals outside of their work are responsible for one-third of U.S. greenhouse gas emissions, and the U.S. has a higher per capita energy consumption rate than virtually any other country. Individuals can play at least two complementary and mutually reinforcing roles - as citizens participating in the implementation process and as consumers. Although each of the bills contains pieces of an individual engagement strategy, none reflect a comprehensive approach. The article recommends a broad range of provisions, including public participation, targets and timetables, numerous forms of public information, and a variety of incentives and pathways for individual action. The purpose of such provisions is to complement, not substitute for, provisions addressing major emitters. For example, allowances or proceeds from the sale of allowances should be distributed to individuals who engage in energy efficient or carbon-reducing activities. A congressional effort to engage individuals would take advantage of some of the nation's key strengths - individual initiative, engaged citizenship, and collective sense of purpose. Such legislation would more likely be at least equal to the challenge in front of us.

Collaborative Versus Prescriptive Legislating and Rulemaking: A Case Study of the Driver's License Provisions in the REAL ID Act of 2005

The terrorist attacks of September 11, 2001 and America's engagement in the Global War on Terror have added urgency to long-standing Congressional efforts to strengthen the country's system for establishing personal identification. Randolph examines the REAL ID Act of 2005, which legislates uniform requirements for state drivers' licenses. She describes the way the REAL ID Act became law and is being implemented by the executive branch and outlines the objections of state and local government officials to its driver's license provisions.

The Blaine Amendment of 1876: Harbinger of Secularism

The Blaine Amendment of 1876 was a Congressional effort to add a sixteenth amendment to the Constitution. The leading feature and central aspiration of the proposal was to prohibit the states from giving financial aid to schools run by sects. Passed overwhelmingly by the House of Representatives, the Blaine Amendment narrowly failed to secure the necessary two-thirds vote in the Senate. This paper examines the Blaine Amendment as a political phenomenon; that is, as a Republican attempt to exploit anti-Catholic prejudice in a presidential election year. It also looks at the Blaine Amendment constitutionally; that is, for the light it sheds upon the Reconstruction-era debate over church and state as well as upon the relationship between the First Amendment Religion Clauses (the language of which the Blaine initiative incorporated), and the recently ratified Fourteenth Amendment Due Process Clause. Finally and at the greatest length, this paper looks at the Blaine Amendment more broadly; that is, as a telling episode in the continuing American story about the government's proper role in shaping children's character as maturing citizens of the American polity.

Federal Tax Policy Towards Energy

On Aug. 8, 2005, President Bush signed the Energy Policy Act of 2005 (PL 109-58). This was the first major piece of energy legislation enacted since 1992 following five years of Congressional efforts to pass energy legislation. Among other things, the law contains tax incentives worth over $14 billion between 2005 and 2015. These incentives represent both pre-existing initiatives that the law extends as well as new initiatives. In this paper I survey federal tax energy policy focusing both on programs that affect energy supply and demand. I briefly discuss the distributional and incentive impacts of many of these incentives. In particular, I make a rough calculation of the impact of tax incentives for domenstic oil production on world oil supply and prices and find that the incentives for domestic production have negligible impact on world supply or prices despite the United States being the third largest oil producing country in the world. Finally, I present results from a model of electricity pricing to assess the impact of the federal tax incentives directed at electricity generation. I find that nuclear power and renewable electricity sources benefit substantially from accelerated depreciation and that the production and investment tax credits make clean coal technologies cost competitive with pulverized coal and wind and biomass cost competitive with natural gas.

TAX BREAK Chemical makers call on Congress to restore federal R&D tax credit

Chemical manufacturers and other U.S. businesses are urging Congress to pass legislation before the end of the year to restore and expand the federal research and development tax which expired at the end of 2005. ACC strongly supports bipartisan efforts in Congress to extend and strengthen the R&D tax credit, says American Chemistry Council President Jack N. Gerard. An expired [credit] will impose financial consequences for American chemistry and may jeopardize research projects that are essential to the American economy. The 20% credit would again be available for certain R&D expenditures made only in the U.S., primarily spending on employees who perform qualified research activities. Originally enacted in 1981, the R&D tax credit has been extended 11 times by Congress. Nearly 16,000 companies have used the credit. The provision has wide support in Congress. But the tax break failed to advance before the elections when it was included in a controversial measure to ...

Patent Reform and Differential Impact

This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis. Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to prioritize those reforms which will discourage the acquisition and assertion of bad patents without unduly prejudicing the interests of the holders of good patents. The differential impact approach elucidated in this article has at least three distinct advantages over other efforts to rewrite the patent system from the ground up. First, the differential impact approach provides a mechanism by which to evaluate competing claims for legislative resources. Second, the differential impact approach is an appropriate response to the empirical uncertainty surrounding optimal patent scope. Third, differential impact is consistent with the need to take the legitimate expectations of current stakeholders into account.