by Matt Taibbi
Therefore it was with some desperation that Barton decided to apply the non sequitur trick to Hurricane Katrina while bodies still floated in the Ninth Ward. New Orleans is underwater! Quick, repeal those tough air-pollution emissions standards!
Even within the logically discordant parameters of non sequitur politics, this particular piece of legislation was unusually ridiculous and transparent. The ostensible justification for the bill was still about six logical steps removed from the Katrina disaster it was designed to provide an emergency remedy for.
The silliest aspect of the bill was its very status as an “emergency” measure. It would be hard to imagine anything more absurd than the idea of combating a current, immediate national fuel-cost crisis—taking on high fuel and gas prices affecting citizens right now, this week—by passing a deregulation bill that at best provides an oblique and indirect incentive for oil companies to build new refineries years from now at the earliest. Yet the bill was rushed through Congress with all the alacrity of an emergency relief package, as though industry simply could not wait to hurry up and maybe build new plants.
Beyond that, what little logic there was in the bill was based upon the assumption that oil companies even want to build new refineries. As Barton surely knew—he had heard plenty of testimony on the matter in the Energy and Commerce Committee debates over this bill—it had been more than three decades since a major American energy company had evinced any interest at all in building a new oil refinery. In fact, in a thirty-year period dating back to 1975, the federal government had received just one application to build a new refinery.
In truth, the trend in the industry had been exactly the opposite: oil companies had steadily reduced the number of functioning refineries over the years, closing down nearly half of all America’s refineries in the course of three decades.
The reason for this was obvious and freely admitted to by industry leaders who met with members of Congress in anticipation of this bill. Fewer refineries meant a reduced supply, which in turn meant higher prices—and higher prices were, for obvious reasons, desirable. The idea of providing subsidies to build new refineries was as absurd as giving away farmland to grow wheat during a grain glut.
Higher prices also meant larger profits for the oil and gas industry. In fact, at the time Barton was writing his relief bill—which was designed, remember, to help struggling oil and gas companies bear the burden of high regulatory costs—the oil and gas multinationals were experiencing record revenues. At the time the bill went to the House floor, ExxonMobil had just come off a quarter with $7.62 billion in profits.
In sum, oil companies had no interest in building new refineries, could easily have afforded to build them even if they wanted to, and were in fact, instead of building or trying to build, closing down existing facilities. For all these reasons, and for many others, the core premise of the Barton bill—that costs associated with new source review were preventing the construction of oil refineries and therefore driving up fuel prices—was clearly absurd on its face. In its own way, even the Bush administration had itself admitted as much years before, when the EPA issued a report flatly denying a link between new source review and refining capacity.
“The NSR has not significantly impeded investment in…refineries,” the agency wrote in June 2002, in its “New Source Review: A Report to the President.”
Barton’s bill almost certainly had nothing to do with refineries at all. Clearly, this was about repealing new source review restrictions on other kinds of Clean Air–governed facilities.
New Orleans was still underwater, gas prices were still soaring, a mean winter for nearly a million displaced persons was just around the corner—and the first emergency response of America’s reigning political party is to help the very richest companies in the world get out of paying fines for dumping acid rain on Canada, whether or not they produced gasoline or heating fuel. That’s what this bill amounted to. It was an ingenious, inspired piece of cynical insider politics—and Barton was the perfect man for the job.
EVERYONE IN CONGRESS knows what the real job of most House members is: to carry water for their campaign donors. When you get $80,000 from Company X, you’re not being paid to vote your conscience. And while companies obviously seek the support of the rank-and-file House members, the giving strategy in this Congress had been honed to an exact science, one that mostly revolves around compensation of the really important members. There’s no better proof than the giving habits of certain campaign donors that the congressional apparatus has been manipulated to the point where it can now be controlled by a handful of key players.
To wit, when you’re looking at the process by which any bill gets passed into law, on the House side at least there are only a few people who really matter. Those people are the majority leader, the chairman of the relevant “committee of jurisdiction” (i.e., Energy and Commerce for the oil industry, Financial Services for Wall Street firms, etc.), the chairman of the Rules Committee, the chairs of the House-Senate conference committee, the House Speaker, and perhaps a few other members of the conference committee.
These people are important because this small group can essentially ram a bill into law all by themselves. If you control all of these seats, you control every space on the congressional Monopoly board within which the bill can be written or altered unilaterally.
There are four main way stations on the road to a bill’s passage. There’s the committee of jurisdiction, where the bill, after being introduced, goes through what’s called a markup process. In a markup, the committee decides what goes in the bill and what does not. The markup process is supervised by the committee chairman. Theoretically the markup process is put to a general vote by the committee, but in this Congress the reality is that the chairman puts in what he wants and chucks what he doesn’t want out the window.
He then sends the bill to the Rules Committee, where other House members from outside the committee—usually freaked-out minority members desperate to stop this or that criminally insane provision cleverly hidden in the committee version—have a chance to submit amendments to the bill. The Rules chairman tries not to laugh, somberly nukes every meaningful amendment request with a pained, regretful expression, and then takes the bill behind closed doors, where it can be rewritten (usually in the middle of the night) to include all the shit the House leadership knew was way too evil to survive public discussion in the original committee of jurisdiction.
Rules then puts the finishing touches on the bill’s language and sends it to the floor the very next morning. The version that leaves the Rules Committee is now called not a bill, but a rule. The Rules Committee is supposed to give House members three days to read the rule before it goes to a vote, but the three-day period can be waived in case of emergency. The “emergency” has been in place for five consecutive years now; virtually every bill that has passed through the House in the Bush era has been voted on just hours after emerging from the hairy womb of the Rules Committee.
After the House passes the rule, which of course no one voting on it has read, the world then waits for the Senate to pass its own hideous version of the legislation. But alas, the bill cannot be sent to the president until the differences between the House and Senate versions—consisting generally of differing sets of campaign donor hand-jobs hidden in the two bills—can be ironed out. This ironing out is done in the conference committee.
The mechanism of conference committee is a special voodoo all unto itself, a monstrously complex bureaucratic maze whose diabolical scheme is known to a select few congressional practitioners. But for the moment, only two facts are important.
The first is that the bill can again be completely rewritten here, rewritten from top to bottom, rewritten even so that it has a completely opposite meaning from the bills that passed the two houses—in a word, rewritten in such fashion as to render the whole process up till now meaningless.
The second is that a majority vote of conference committee members,
called “conferees,” is not even required for passage. Again, the conference committee chairs are the key players here. Whatever the top dogs from the House and Senate want generally occurs. They redo the bill according to whatever swinish commercial dynamic happens to govern this back-room deal (for the conference hearings are almost always conducted out of the public eye), then send the final version to a vote, again giving the members just a few hours’ notice before they make an essentially blind decision on the by-now completely revised legislation.
Somewhere along the line, campaign donors apparently figured out that by a careful stewarding of their contributions, they could—instead of spending gargantuan sums to buy the wide majority of House and Senate members necessary for an open vote on the floor—instead target those members who could simply rewrite the important parts of the bill in secret. God knows when this revelation first hit home, but when they were caught for the first time, one of the key players was none other than Joe Barton.
This landmark nonmoment in congressional history (for although it should have been a huge story, it fizzled to nothing and all the guilty got away with everything, as usual) came in the spring/summer of 2003.
It was the misfortune of Tom DeLay, Joe Barton, Billy Tauzin, and other then-influential House members that a Kansas-based energy company called Westar came under the scrutiny of shareholders for a series of allegedly corrupt practices by its corporate leadership. As part of its internal investigation, the company posted a slew of internal communications on its Web site. A number of those outlined a scheme in which the company leaders, in a series of e-mails traded back and forth, worked out contribution levels for various Republican congressmen in exchange for “a seat at the table” in an upcoming energy bill.
Essentially, Westar paid $56,000 to get an item inserted in the energy bill exempting their company—and their company alone—from a section of the Public Utility Holding Company Act, also known as PUHCA. The only purpose of the amendment was to make possible a split of the company in such a way that Westar CEO David Wittig would get a $15 million payout. These are the kinds of services congressmen perform in reality, putting them morally somewhere on a level between a Rwandan gorilla poacher and a Bushwick Avenue hooker.
Westar’s internal memoranda made it clear that they were buying the influence of those members actually important to the passage and/or back-room rewriting of the bill. One memo from Westar VP Doug Lawrence to executive VP Douglas Lake puts it plainly:
Right now, we are working on getting our grandfather provision on PUHCA repeal into the senate version of the energy bill. It requires working with the Conference committee to achieve. We have a plan for participation to get a seat at the table, which has been approved by David [Wittig.] The total of the package will be $31,500 in hard money (individual) and $25,000 in soft money (corporate). Right now, we have $11,500 in immediate needs for a group of candidates associated with Tom DeLay, Billy Tauzin, Joe Barton and Senator Richard Shelby.
Lawrence then goes on to explain why the influence of each of these members is needed:
DeLay is the House Majority Leader. His agreement is necessary before the House Conferees can push the language we have in place in the House bill. Shimkus is a close associate of Billy Tauzin and Joe Barton, who are key House Conferees on our legislation…
The Westar story looked like clear proof of a number of felonies, and in any case proved in writing what everyone already knew: Congress was for sale. But in the end the only action taken was a nonbinding censure of DeLay by the Ethics Committee.
Significantly, the committee also rebuked Chris Bell, the freshman congressman from Texas who brought the complaint to the Ethics Committee, for the curious offense of using “inflammatory” language in his complaint. The offending language involved, chiefly, Bell’s allegation that DeLay had violated federal bribery laws by taking money from Westar in exchange for favors. Bell, incidentally, would have to leave Congress after losing a primary in the wake of DeLay’s infamous Texas redistricting plan.
Westar was ultimately fined about $40,000 by the Federal Election Commission, but the case stopped there. As is often the case with corruption investigations involving Congress, the FEC’s Westar investigation was ultimately sealed. Most congressional scandals end not when the investigation is concluded, but when it stalls in perpetuity, with the papers sealed to keep the press from fanning the flames any higher.
With the exception of DeLay, most all the members involved in the Westar affair came off clean. Tauzin, the esteemed congressman from the incorruptible state of Louisiana, fared the best of all. He left Congress to take a $2-million-a-year job heading the nation’s leading pharmaceutical lobbying firm, PhRMA, seemingly just hours after shepherding the Bush prescription drug benefit bill into law.
Barton, meanwhile, ascended to the chair of the Energy and Commerce Committee, where he continued, by all appearances, to perform exactly the same role he had in the Westar case—the securing of favors for donors at the crucial way stations of the legislative process. Again, this involved stuffing desired bits into bills in the original committee of jurisdiction, keeping undesired parts out, chaperoning the bill through the Rules Committee, coming through in conference, and so on.
Barton performed ably on most all of these counts with the post-Katrina energy bill. The original plan for the bill included virtually the full energy industry wish list, including the opening of ANWR to drilling, the loosening of regulations to allow offshore drilling in the previously restricted outer continental shelf area (also known as OCS, which includes waters off Florida and Georgia, among other states), the repeal of parts of the Marine Mammal Protection Act (allowing the expansion of oil traffic in Puget Sound), and a long list of other horrors.
Eventually the ANWR and OCS provisions were junked, but Barton did manage to put together a bill in the Energy and Commerce Committee markup that included the extension of Clean Air cleanup deadlines for states located upwind of polluting states, the rewriting of judicial procedures to force litigants opposing the construction of a refinery to pay the legal fees of the refinery proponents, and the designation of new classes of federal property for use in private refinery construction. Deregulation and giveaways, all of it—the currency of American congressional politics.
The bill also included a measure against price gouging, which at the time was a hot-button issue, as gas consumers were being hit hard by opportunistic energy suppliers after the storm. But the Barton price-gouging measure affected only retailers and not suppliers, and the only penalty was a one-time $11,000 fine. In other words, Barton’s bill punished the owners of small individual mom-and-pop gas stations for price gouging but specifically exempted the large oil companies from the same offense.
The bill also contained no clear definition of what price gouging was. It had no teeth or meaning. High-sounding meaningless bullshit: the currency of congressional public relations.
Michigan Democrat Bart Stupak, a member of Barton’s committee, tried to force language into the bill that would have made oil companies subject to price-gouging regulations, but Barton, again doing his job, managed to keep the Stupak language out.
The resulting bill ended up being so completely irrelevant to its alleged emergency function with regard to Hurricane Katrina that even the habitually degraded minority members of Barton’s committee permitted themselves a rare spontaneous public outburst, protesting that the leadership had really gone too far this time. Their frustration resulted in a priceless witness-congressman exchange during the markup process, in which the committee all but admitted that the so-called emergency bill had nothing to do with any emergency.
At the end of the markup process, the members of the committee of jurisdiction are allowed to question the committee counsel about the legal implications of the bill. The majority-picked lawyer essentially testifies to what the law means.
Here, California representative Henry Waxman interrogates Tom DiLenge, Barton’s squirrelly committee c
ounsel, about the Gasoline for America’s Security Act. Specifically, he is asking about the repeal of the new source review provision of the Clean Air Act.
WAXMAN: Well, let me ask you specifically. Would it apply to chemical plants?
DILENGE: It is a stationary source, yes, sir.
WAXMAN: Would it apply to large manufacturing plants, iron and steel plants?
DILENGE: If emitting the pollutants, yes, sir.
WAXMAN: Okay. Would this apply to large pulp and paper mills?
DILENGE: Yes.
WAXMAN: Coal-fired power plants?
DILENGE: Yes.
WAXMAN: It seems to me that this would apply to every industrial facility with high pollution levels…
Waxman asks about the geographic parameters of the bill, then gets around to asking his main question—what does any of this have to do with either gasoline or the hurricane?
WAXMAN: So this would help a pulp or paper mill in North Carolina to expand and increase its air pollution without installing modern control technology. How does that address the harm done by Katrina? It wouldn’t do that.
DILENGE: Well, I’m not sure that I would characterize the first part of your sentence that way. What it does is—
WAXMAN: No. Does it affect the harm done by Katrina?
DILENGE (after a long pause, biting lip): It…does not exclude the harm done by Katrina.
WAXMAN: It doesn’t just affect the—it is not related to the harm done by Katrina?
DILENGE: That is correct.
WAXMAN: Okay. And how would this provision affect gasoline prices?
DILENGE: I’m not sure I’m qualified to answer that question.
This exchange took place just days before Barton carried his bill to the Rules Committee. Nothing came of it, of course; there is no technical knockout system in Congress, under which a bill dies if its proponents happen to admit in public to its being bullshit.
