General Practice, Solo & Small Firm DivisionMagazine
American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Spring 1998
© American Bar Association. All rights reserved.

Legislative Update

BY E. E. ANDERSON

E. E. Anderson, a retired general in the U.S. Marine Corps, is the director of the Solo and Small Firms Division of the ABA General Practice, Solo and Small Firm Division.

The Congressional Research Service has counted a total of 85 campaign finance bills pending before Congress. Some bills provide for no limits on contributions, while others have severe restrictions on campaign spending with strict disclosure rules.

House Ways and Means Committee Chair Bill Archer (R-TX) sponsors a bill that would, in effect, outlaw PACs, prohibiting them from making, soliciting, or receiving contributions; or from spending in federal elections. His bill would also require that at least 80 percent of House campaign receipts come from in-state contributions.

On the other end of the spectrum is a bill by Rep. John T. Doolittle (R-CA) with 54 cosponsors, which would eliminate all donation limits but has restrictive reporting requirements. Candidates would be required to report all donations during the final 90 days before an election and within 24 hours of receiving them.

The best-known bill, S. 25, is sponsored by Senators John McCain (R-AZ) and Russell Feingold (D-WI). As in the 104th Congress, the GOP leadership has kept S. 25 from the Senate floor. While improving the system was a hallmark of the Republicans before they had a congressional majority, now many of them do not want any restrictive changes. The Democratic leadership, on the other hand, has attempted to force a vote on the bill.

In early October 1997, the Senate failed to break two filibusters that would have cleared the way for a vote on S. 25. The first one failed on a vote of 52-48 to end debate and vote on an amendment to the bill. The second one ended when a vote of 53-47 failed to end debate and vote on the McCain-Feingold bill. After these two failures, Senate Minority Leader Tom Daschle (D-SD) stated that he would offer S. 25 as an amendment to all major legislation coming before the Senate unless an agreement was reached for a vote on S. 25.

Faced with this situation, and the adjournment of Congress just two weeks away, Senate leaders on October 30, 1997, agreed to vote on a modified campaign finance measure by March 1998. The agreement calls for consideration of campaign financing legislation by the end of business on March 6, 1998, to allow at least a tabling vote on S. 25. There will be opportunity for amendments or filibuster.

In order to acquire support, the bill has been stripped of its provisions to eliminate PACs and to place limits on campaign funding. The revised version now centers on eliminating unregulated "soft money" and tightening contribution disclosures.

Congressional Election Probes

In the Fall 1997 issue, this column outlined the status of the probes into the elections of Senator Mary L. Landreiu (D-LA) and Representative Loretta Sanchez (D-CA). Since that time, the investigation of the Landreiu election has continued, with the challenger, Louis Jenkins, charging that the Senate Democrats have frustrated a full and effective examination of his allegations by blocking committee meetings and demanding the ending of the probe.

Much of the strength of Jenkins' case was based on tape recordings of individuals who purportedly voted more than once in the election. After months of investigation, FBI agents determined that the tapes could have been made by witnesses who were briefed by Thomas Miller. Miller, a convicted felon, was working for Jenkins. Committee investigators and FBI agents questioned some of those who had provided taped testimony, and some of them offered different testimony. Others retracted their testimony, and it was learned that a few of them were paid by Miller and that he had bought them food and drinks.

On October 1, 1997, the committee, in a 16-0 vote, ended the investigation. While concluding that certain election safeguards were broken, as some election records were destroyed and others never sealed, there was insufficient evidence to conclude that those safeguards were violated intentionally. This probe has cost the taxpayers more than $400,000 to date. Landreiu and Jenkins each have expended more than $500,000, and it is unlikely that the Senate will reimburse either of them for their expenses.

The probe of the election victory of Loretta Sanchez, however, continued with animosity. In fact, the House, on September 18, 1997, voted to bar the challenger, former Rep. Robert K. Dornan, from the House floor, because of Dornan's verbal attack on a sitting representative. As in the Landreiu inquiry, Democrats have frequently stalled investigative proceedings, yet the committee has voted to approve subpoenas to Hermandad Mexicana Nacional, a group registering Hispanic voters and others. Also, it has approved a resolution calling for the Justice Department to file criminal charges against Hermandad for its failure to respond to a previous subpoena.

On January 28, 1998, the House effectively killed a resolution introduced by Minority Leader Richard A. Gephardt (D-MO) that recommended dismissal of the Republican charges of voter fraud in this election. The vote, 214-189, was largy along party lines and set aside the resolution. However, during the first week of February, the task force investigating the alleged fraud released its report, which held that their probe had found evidence of more than 700 illegal votes, but not enough to overturn the results of the election. Democratic leaders are calling the investigation "the single biggest mistake" the Republican Party has ever made, and that they will use this long and bitter challenge to rally Hispanics across the country in their hopes to win back the House.

FDA Streamlined

The Republicans' desire to streamline the FDA's regulatory process by speeding up the movement of new drugs, medical devices, and foods to the marketplace, was finally realized on September 24, 1997, when the Senate passed S. 830 by a vote of 98-2. The House had passed its version, H.R. 1411, on October 7, 1997, by a voice vote. President Clinton signed the legislation on November 11, 1997, as P.L. 105-115. The enactment of this legislation became possible when the Republicans attached the revisions to a five-year reauthorization of the widely approved Prescription Drug User Fee Act (P.L. 102-571) of 1992.

The bill is the product of three years of work on the part of the Republicans, the Democrats, the FDA, the White House, and industry and consumer groups.

Some of the provisions of the bill are as follows:

• Medical devices. Outside groups, such as university laboratories, could evaluate medical devices submitted to the FDA for approval. However, Class III devices, such as heart valves, would not be included for outside review. The FDA was also authorized to reduce the medical devices it must track.

• Dissemination of information. Permits drug and medical device manufacturers to distribute information on the uses of their products that the FDA has not yet approved, provided the information comes from textbooks or medical journals.

• Prescription drugs. The act requires drug manufacturers to help underwrite the costs of FDA drug reviews. The program has permitted the hiring of 700 full-time employees, thereby increasing the FDA staff to 9,500. In the past decade, the user fee, which is now a quarter of a million dollars for a manufacturer's submission of a drug application to the FDA, has resulted in reducing the evaluation time for drug approval from 33 months to 15 months.

• Patients with life-threatening illnesses can now use drugs or medical devices that the FDA has not finished evaluating. Anyone with a serious illness, such as cancer and AIDS, can petition the FDA for a treatment not yet approved by the FDA. The petition must be filed by a physician who must assert that the patient has no comparable or satisfactory alternative treatment available.

• Health claims. Allows food manufacturers to use health claims from scientific federal agencies, such as the Center for Disease Control and Prevention or the National Academy of Sciences, unless the FDA objects within 120 days of their receiving a notice of an intent to use such a claim.

Energy and Water Bill

On September 30, 1997, the House, by a vote of 404-17, passed the Energy and Water Law. The Senate cleared the bill the same day by a vote of 99-0. On October 13, 1997, the president signed the bill (P.L. 105-62), but he also exercised his line item veto on five water projects. Additionally, he vetoed three research and scientific projects, declaring them unwarranted corporate subsidies.

While the vetoes amounted to only 0.09 percent of the bill's total, they did step on the toes of some of the most powerful people in Congress. One water project vetoed, $1.9 million to dredge a section of the Sardis Lake in northern Mississippi for a private marina and convention center, was worked on and supported by Senate Majority Leader Trent Lott (R-MS), as well as Senator Thad Cochran (R-MS). This lake is slowly filling in with sediment and was visualized for residential housing use as well as for a marina and convention center.

President Clinton's veto pen also struck Senator Ted Stevens (R-AK) by eliminating $800,000 to dredge the shoals of the Chena River. While the administration claimed that the dredging would only benefit a single tour-boat operator, Senator Stevens said that the river is also used by barges of all sorts, taking supplies in and out of Alaska's interior.

The White House had requested $18.4 billion for this bill, and although the bill provided $141 million more than in 1997, it was 14 percent less than the White House had requested. One important aspect of the bill was transfer of the responsibility for civilian radioactive waste cleanup from the Department of Energy to the Army Corps of Engineers. The administration's request for funds for nuclear waste cleanup programs at Energy Department defense sites was funded at 9 percent less than requested. The administration also requested in excess of $1 billion to fund its environmental privatization program to revamp the way nuclear sites are cleaned up by utilizing fixed-price contracts to hold down costs. Congress appropriated only 20 percent of the White House request.

FY-1998 Funding Bill Signed

On November 26, 1997, President Clinton signed P.L. 105-119, which included funding for the Depart-ments of Com-merce, Justice, and State, as well as the Judiciary. This legislation had been stalled for months over such provisions as the use of sampling in the census process and legalization requirements for certain immigrants.

Several provisions of the bill are very important to the ABA. First and foremost is the provision of funding for the Legal Services Corporation in the amount of $283 million. The House Appropriations Committee slashed the proposed funding to $141 million but the full House, in a vote of 246-176, increased the amount to $250 million. The Senate had approved $300 million and a compromise resulted in the $283 million funding, the same amount as in fiscal year 1997.

The ABA had made LSC funding a legislative priority and the officers and members of the ABA, as well as state bar organizations, mounted a strong campaign to obtain adequate funding for the program. It was emphasized to Congress that the LSC had already suffered deep cuts in funding and the number of cases handled had dropped significantly.

In addition to continuing all the statutory requirements and restrictions of last year, some new provisions have been added. Certain public disclosure reporting requirements for litigation initiated by LSC grantees are imposed. Also, the LSC can terminate a grant if a grantee violates statutory or other restrictions.

P.L. 105-119 also included a waiver allowing federal judges to receive a 2.3 percent cost of living adjustment (COLA). Judicial salaries and the salaries of top federal executive employees are linked to the pay of members of Congress. Further, since 1981, judicial COLAs must be separately and specifically authorized by the Congress. This is the first increase for the judges in four years. The ABA continues to argue for the delinking of congressional and judicial compensation, and for the repeal of Section 140 of P.L. 97-42 that requires this linking.

The judges themselves have not been silent, having filed a class action suit in the U.S. District Court for the District of Columbia on December 29, 1997, to restore the cost of living adjustments that were denied from 1993 to 1997. The judges contend that the non-payment violates the Ethics Reform Act of 1989 and the U.S. Constitution's guarantee that judicial salaries will not decrease while in office. The lawyer for the judges, Kevin M. Forde, has stated that if the COLAs had been granted annually since 1993, circuit judges would have earned about $9,000 more and district judges about $8,600 more.

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