Congressional Compromise: Ailing But Still Alive

August brings quiet days in the Capitol. Scaffolding is being erected for a cleaning-painting project in the third floor corridor on the Senate side. The doors to the House and Senate chambers are closed, as is — alas — the basement coffee shop. Except for the summer vacationers enjoying a cool respite from the heat outdoors, and perhaps taking in the Brumidi paintings in the Rotunda (perhaps in celebration of the painter's 200th birthday), the building is all but deserted.

It's a stark contrast to last week, when there was a lively bustle to the place. Lawmakers worked feverishly to clear their desks before the August recess. The House passed a couple of appropriations bills and the Central American Free Trade Agreement (CAFTA), and both House and Senate approved both the highway and energy bills.

It's these last two bills that merit special attention. While each makes some changes in national policy, both were primarily spending bills that deliver billions of dollars back to the states and congressional districts. That makes both popular with lawmakers, nearly all of whom remain devoted acolytes of the church of Bringing Home the Bacon.

Yet neither the highway bill nor the energy package had an easy road to passage. And it took a return to old-fashioned accommodation to get each done.

It took three years spread over two Congresses to finish the $286.5 billion highway bill. The measure was held up by wrangling over an obscure-but-crucial funding formula, which determines how much each state gets back in road and transit dollars from what that state's residents have paid in gasoline taxes to the highway trust fund.

States in the East with large urban populations tend to pay more into the fund then they get back in project support, while states in the interior West get back proportionately more. This year, after much posturing, lawmakers agreed to a new formula ensuring that each state will get back at least 92 cents on every dollar paid into the highway trust fund. That's about two pennies more than under current law, but it was enough to seal the deal.

The energy bill has also stalled in the last several sessions of Congress, despite hard pressure from President Bush and Vice President Dick Cheney. The Bush team had made energy a priority, organizing an energy task force, headed by Cheney himself, shortly after the 2000 election results were known.

The results of that task force got to the Senate and stopped there because of two controversial provisions. One called for opening the Arctic National Wildlife Refuge in Alaska (ANWR) to oil drilling, which led to filibusters by environmentally concerned senators. The other was a provision in the bill inserted at the insistence of House Majority Leader Tom Delay, R-Texas. DeLay's provision would have given lawsuit protection to the makers of a chemical known as MTBE and to refiners who put it in their gasoline.

MTBE has been contaminating drinking water supplies around the country. Water districts and cities have said it may cost $30 billion or more to clean up the contamination, which is believed to be especially bad in the Northeast and California. They want to recover that cost from someone, and they're suing those refiners and MTBE makers.

This year again the issue threatened to derail the entire bill, as senators from Eastern states, led by New Hampshire Republican Judd Gregg, made it clear they would go to the mat over MTBE again.

So how did the energy bill's authors circumvent those acronym obstacles of ANWR and MTBE this time? Well, for one thing they learned from the lessons of the past. If the bill can't pass the Senate because of the ANWR provision, then why not take it out and put it on a bill that isn't subject to filibuster? The Senate can do that with the budget reconciliation bill that comes up this fall, because an ANWR element was included in the budget the chamber approved earlier this year.

Lesson Two: Learn to read the writing on the wall. The energy negotiations between House and Senate this year were led by House Energy and Commerce Committee Chairman Joe Barton, another Texas Republican who wanted MTBE liability protection just as badly as DeLay. But Barton came up with a new wrinkle, drafting a compromise that called on the industry to share the cost of groundwater cleanup with the states — sort of a new Superfund.

It sounded like a better deal than going to court. But it turned out the industry was not eager to foot any of the bill for the cleanup, arguing with some justification that it had only used the additive to improve engine efficiency under mandate from (you guessed it) Congress.

So when the compromise fell apart, and Barton saw he'd have no bill if he insisted on his MTBE provision, he swallowed hard and dropped it. His willingness to value the end product over the parochial issue made all the difference.

There is one other noteworthy and most welcome thing about this year's energy bill. By and large, the process was conducted in the open. In recent years, conference committees, in which key members of the House and Senate meet to work out the differences between their respective bills, have been conducted behind closed doors and have involved only the majority Republicans.

The minority party, the Democrats, had been shut out of the process — along with the media and the public. But to Barton's credit, he conducted this year's conference differently. Many of the bill's particulars were worked out among the "Big Four" of Barton, Senate Energy Committee Chairman Pete Domenici and their Democratic counterparts, John Dingel of the House and Jeff Bingaman in the Senate.

In the conference process, the Big Four gave all conferees a chance to offer amendments. Most of the attempts by Democrats to change the bill failed, but at least they were given the chance. And that makes life at least bearable in the minority.

It's something of a quaint concept in the atmosphere of scorched-earth partisanship that has gripped Congress for the last decade or so. But sometimes it pays to work out your differences with a little give and take.



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