Political Hay

Toxic Omnibus Anti-Energy, Anti-Civil Liberties Stew

Rammed through by Reid and Pelosi and signed into law yesterday, the whopping Omnibus Public Land Management Act of 2009 is a huge stinker all Obama's own.

By 3.31.09

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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!

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About the Author
John Berlau is Senior Fellow for Finance and Access to Capital at the Competitive Enterprise Institute and blogs at OpenMarket.org.