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Court Ruling on Salmon Hooks Pork

by Elana Schor
The Hill, January 30, 2007

On paper, the debate deals with swimming salmon and spilling water.

But in Congress, the federal court decision that last week invalidated a rider written by Senate Appropriations Committee member Larry Craig (R-Idaho) threatens to upend the influential panel's authority.

The unanimous ruling allows a small group of salmon-watchers to stay on the job while reminding appropriators of a hard truth they rarely acknowledge: Earmarks included in report language, but not bill text, do not have the force of law.

Craig was so aggravated in 2005 at what he deemed biased reporting by the Portland-based Fish Passage Center that he moved to eliminate its $1.3 million budget through an Appropriations Committee report. Several local groups filed suit against Craig's effort, and the longtime appropriations cardinal said their victory last Wednesday would set a worrisome example for future challenges to appropriations decisions.

"It's very significant," Craig said in an interview. "We've always viewed report language as having the force of law." Sen. Thad Cochran (Miss.), the senior Appropriations Republican, declined to judge the case definitively until the Justice Department decides whether to pursue an appeal to the Supreme Court. But he said "it may be that [the decision] is wrong.

"Report language explains the intent of Congress in appropriating money and limits on the use of funds," Cochran said. "[It has] been effective in explaining what Congress intended. We will stay tuned, because this story may not be over yet."

During the earmark-transparency debate that briefly imperiled the Senate's ethics bill this month, lawmakers acknowledged that federal agencies are not required to follow instructions made only in appropriations reports that have all the weight of "sending a note from your sister," as Majority Whip Dick Durbin (D-Ill.) put it. Yet agencies still remain loyal to the appropriators who fund them, making the court decision a triumph for fiscal watchdog groups.

"This is going to throw the appropriations process for a loop," said Steve Ellis, vice president at the nonpartisan Taxpayers for Common Sense. The new precedent being set, he added, "should make appropriators and other earmarkers look over their shoulder and wonder if they're going to stand any legal test."

Craig took aim at the fish center after its counts of endangered salmon on the Northwest's Snake River were employed in another federal lawsuit. That suit ended with an order that the Bonneville Power Administration (BPA), a hydroelectric-power agency, spill water from dams to help migrating salmon.

The hydroelectric industry, which has contributed heavily to Craig's campaigns, estimated a $60 million-plus power loss from the spillage order that put low electricity rates in the region at risk (bluefish notes: $60 million equates to about a 0.1 cent per kwh increase in BPA rates.). Craig responded with an appropriations rider that traveled through the committee process unchallenged, telling the BPA to close the fish center and hire a private company to count Snake River salmon.

Richard Condit, general counsel at Public Employees for Environmental Responsibility, was a member of the legal team challenging Craig. He invoked another congressional donnybrook, over allegations of Bush administration interference with impartial science, by describing Craig as seeking to silence government-funded scientists with whom he disagreed.

"Agencies have to make good decisions," Condit said of the BPA. "You can't just jump because Sen. Craig says jump."

Appropriators, hardened from battle with conservatives over the growth of earmarks, will face another dose of reality this winter as Democrats draft a joint resolution to fund the government and keep special projects to the barest minimum. Spending gadflies such as Sen. Jim DeMint (R-S.C.), meanwhile, are encouraged by the Ninth Circuit decision.

"It was a matter of time," DeMint said. "If we do something in report language that makes them mad, the courts are obviously going to point out that it doesn't have the force of law."

DeMint said he had not considered the lawsuit's relevance to his quest to tamp down the rapid growth of earmarks until he read the first news reports on the decision. The door may be open for ordinary citizens to consider bringing suit against congressional mandates inserted outside of bill text without a vote, he added.

"It's a good precedent, because it shows there's going to be more scrutiny of [provisions] we hadn't voted on" that agencies give weight to, DeMint said.

Craig's quest to keep electricity rates low in the Northwest has touched off turf fights beyond the salmon center lawsuit.

When the White House's 2006 budget proposed using extra revenue from BPA power sales to decrease the deficit, rather than hold down regional power rates, Craig inserted language in last summer's war supplemental, with Democratic support, blocking the move.

The Ninth Circuit is also a familiar foe for Republicans, who have employed some of the court's more contentious rulings in their campaign to rein in perceived judicial activism. Craig shook his head at the source of the anti-earmark decree, calling it "another misguided decision by the Ninth Circuit.

"Trying to be politically acute, they have caught themselves in a precedent that has a political impact on Congress," Craig said.

The Senate adopted a DeMint amendment subjecting report-language earmarks to the same disclosure standard as those in bill language, though not without partisan wrangling. Still, any uncertainty among appropriators about the legal standing of report-language earmarks could shift more member projects into bill text, allowing DeMint, Rep. Jeff Flake (R-Ariz.) and their allies to offer motions to strike.

"This adds lot of firepower to efforts to move earmarks into statute," Citizens Against Government Waste President Tom Schatz said. Referring to the Ninth Circuit's famous opinion that the Pledge of Allegiance's invocation of God is unconstitutional, Schatz added: "This is not the ิone nation under God' case. This is a pro-taxpayer decision."

Condit and others involved in the case cautioned, however, that lawyers advocating for the fish center were able to argue that Craig's report language openly contradicted an earlier law. That standard would be hard to meet in future court challenges to report earmarks, Condit said, and may limit the long-term precedent set by the ruling.

Documents from the salmon-science lawsuit offer a stark depiction of agencies' readiness to accommodate members of Congress. "It is an understatement to say that BPA gave great weight to [appropriations] reports," the three-judge panel wrote. "More accurate is the observation that BPA slavishly deferred to what it thought the reports commanded."

BPA Vice President Gregory Delwiche considered the committee report a direct order to his agency, according to court filings, e-mailing an official at the fish center that "my thinking ... isn't really relevant, what's relevant is what the direction from Wash DC is."

The BPA did not respond by press time to a request for comment on whether internal policies regarding the impact of committee-report mandates would change in light of the ruling. Craig said he would consider using statute to cut off funds for the fish center, although the BPA could eventually privatize the center's duties by alternate means.

Yet any new attempt by Craig to eliminate the fish center would not sway his fellow Idaho senator, Mike Crapo (R), who instead called for improvements in the center's management. As for the precedent set by the case, Crapo said, "Report language didn't have the force of law anyway."

Elana Schor
Court Ruling on Salmon Hooks Pork
The Hill, January 30, 2007

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