In discussing the 1,248-page Omnibus Public
Land Management Act of 2009,
signed yesterday by President Barack Obama after being rammed
through the House and Senate by use of unprecedented
parliamentary maneuvers designed to cut off debate, two aphorisms
come to mind. The first is the old saying that sunshine is the
best disinfectant. But the second is that, at least for many
members of Congress, it’s easier to disguise the flavor of
spoiled ingredients if one throws them into a big toxic stew.
Like its cousin, the $410 billion Omnibus spending bill that
President Obama earlier
signed into law, the Omnibus lands bill contains several
bills from previous sessions of Congress wrapped into one. The
final legislative package — which passed the House last week
after clearing the Senate the previous week — actually contains
a whopping 170 different bills, according to
CNSNews.com. As House Natural Resources Committee ranking
Republican Doc Hastings of Washington put it in a House floor
speech, “This legislative strategy behind the creation of
this…was to make a bill that, like AIG, is too big to fail.”
And as with the AIG bailout, there will be plenty of regrets for
this big rush job’s lack of initial scrutiny. Like its Omnibus
cousin, this bill contains plenty of earmarks that stand out for
their parochialism, like $3.5 million in federal funds for the
local 450th anniversary celebration of St. Augustine, Florida.
But unlike the earlier Omnibus spending bill, this bill also
contains provisions that will be even more destructive to the
economy and individual liberties than overspending.
This time, President Obama simply cannot claim, as he did with
the earmarks in the previous Omnibus bill that he signed, that
this is last year’s business and we will spend better next year.
This is because, under the guise of “managing” federal lands, the
bill, according to Hasting’s
analysis, permanently bans energy exploration — even for
environmentally correct sources like wind and solar — in more
than 1 million acres, puts 2 million acres of public land off
limits to transportation including even bicycles and wheelchairs,
and imposes fines and even imprisonment for the collecting of
common rocks and fossils.
In signing the bill, Obama
proclaimed, “This legislation guarantees that we will not
take our forests, rivers, oceans, national parks, monuments, and
wilderness areas for granted; but rather we will set them aside
and guard their sanctity for everyone to share.” But this
analysis by Robert J. Smith, longtime free-market
conservationist who is my colleague at the Competitive Enterprise
Institute and a fellow at the National Center for Public Policy
Research, pointed out that the bill actually “lock[s] up tens of
millions of acres of public lands in categories that much of the
public will never be able to use, destroying energy production,
mining, timber harvest, grazing, and recreation.”
But the bill’s sheer length meant its worst parts had yet to be
digested, Smith argued. “This is another massive ‘mystery meat’
bill with well over a thousand pages of bills which no one has
read or understands,” Smith wrote.
As more and more people of diverse viewpoint began to “read and
understand” the bill, some bipartisan opposition mounted to many
of its provisions. But “driven by the shameful lust of
Congressional members to bring pork to their districts at the
expense of American freedom,” as Smith put it, more and more pork
was added to the stew. Plus, the head chefs severely limited the
ability to take the most harmful ingredients out of the pot.
As the Democratic Congressional leadership attempted to ram
through this bill, it met unexpected resistance to many of the
bill’s provisions. And not just from Republicans, nor even from
blue dog Democrats. House leaders skipped entirely the
jurisdiction of two relevant committees: Agriculture, which has
jurisdiction over the U.S. Forest Service, which is actually a
part of the Department of Agriculture; and Judiciary, which has
jurisdiction over bills that create or make changes to the
nation’s federal crimes.
House Agriculture Committee Chairman Collin Peterson, D-Minn.,
was so upset he became one of four Democrats to vote against the
bill of his own leadership. And serious reservations were also
expressed by the chairman of the House Judiciary Committee —
that notorious Blue Dog (Not!) John Conyers, D-Mich. And none
other than the American Civil Liberties Union signed a bipartisan
letter protesting the criminal penalties in the bill’s provisions
regarding “paleontological resources preservation.”
This section, in the name of protecting fossils on federal lands,
makes it a crime to “excavate, remove, damage, or otherwise alter
or deface or attempt to excavate, remove, damage, or otherwise
alter or deface any paleontological resources located on Federal
land” without special permission from the government. Penalties
for violations include up to five years imprisonment, and
“paleontological resources” are loosely defined as all
“fossilized remains…that are of paleontological interest and that
provide information about the history of life on earth.”
“Paleontological resources” are defined so broadly and the
offenses defined so loosely that many fossil lovers — from
scientists to amateur rock collectors — became concerned that it
would criminalize innocent error. After all, many common fossil
rocks could be “of paleontological interest” and “provide
information about the history of life on earth.” Tracie Bennitt,
president of the Association of Applied Paleontological Sciences,
wrote
that “we can visualize now a group of students unknowingly
crossing over an invisible line and ending up handcuffed and
prosecuted. An honest mistake is just that and should be treated
accordingly.”
As word spread of these provisions, this association was later
joined in this objection by CEI, NCPPR, and two groups that don’t
normally sign on to letters with free-market organizations about
lands bills — the National Association of Criminal Defense
Lawyers and the ACLU! “We are concerned that the bill creates
many new federal crimes using language that is so broad that the
provisions could cover innocent human error,” the
letter from the diverse coalitions stated. “Above all, we are
concerned that a bill containing new federal crimes, fines and
imprisonment, and forfeiture provisions may come to the House
floor without first being marked up in the House Judiciary
Committee.”
Judiciary Committee Chairman Conyers had his own concerns about
his committee being bypassed. In February, Conyers wrote to House
Natural Resources Committee Chairman Nick Rahall that while he
understood and supported the “attempt to pass it in the House
without amendment to ensure it reaches the President,” he
“regret[ed] that we will be unable to make appropriate
refinements to the provisions in the Judiciary Committee’s
jurisdiction before the bill becomes law.”
But these and other concerns about the bill didn’t have much of a
chance to be debated. On March 11, the House leadership brought
the bill up under “suspension,” a procedure where the minority’s
“motion to recommit” with instructed changes is denied, but the
bill needs two-thirds for passage. The bill failed to get
two-thirds support of the House by two votes.
So the Senate “preconferenced” the bill by glomming on the
hundreds of pages that had failed in the House to an unrelated
House bill protecting battlefields that had already passed. Then
on March 25, because of the Senate change, the House brought up
the bill as a Senate amendment to the House battlefields bill
under a rule forbidding a motion to recommit and
requiring only a simple majority to pass. The bill passed
285-140, with four Democrats voting against, but 38 Republicans
voting “aye.”
There already is talk of a bipartisan bill to change some
provisions, particularly the criminal penalties in the
paleontology section. Conyers wrote in his letter that he wanted
“refinements” to the criminal provisions “as soon as practicable
in subsequent legislation.” He may get some bipartisan help, and
this would be all to the good. But members should also ask
themselves, isn’t the correct way to rid a bill of bad provisions
to debate those provisions before the bill is passed?
In an interesting side note, the Washington Times
noted that President Obama did not — as promised as part of
his “transparency” initiatives — wait five days to sign this
bill so that the public could comment on the White House website.
The bill had been posted on the site on Friday, and the signing
was Monday, making not even three full days.
And in a way, it is a shame that the president didn’t wait two
more days to sign this bill on this coming Wednesday. There is no
day more appropriate than April Fool’s Day for this monstrosity!
