Don't Stock the Pond: The Clout of an Individual United States Senator Is Challenged
By Marion Edwyn Harrison (01/26/07)
The quiet or relatively quiet clout - or, to phrase the noun less inelegantly, the power - of an individual United States Senator oft-times reaches well beyond the Senator's expected participation in a de rigueur Senatorial action. Voting, speaking, convening a committee session and the like are readily expected public acts. One normally would not expect a Senator to exercise power by inserting language in a Senatorial committee report. At any rate, a Federal appellate court considers it fishy.
The United States Courts of Appeals are those of the (highly specialized) Federal Circuit, the (also functionally mostly specialized) District of Columbia Circuit and the eleven numbered Circuits. These eleven are spread across the country while the first two are in Washington, D.C. (although the specialized Federal Circuit jurisdiction is national).
The United States Court of Appeals for the Ninth Circuit in many respects differs from the other nine numbered Circuits. Among notable differences, it has the largest dockets and the most Judges, handles appeals from United States District Courts covering the largest geographical area (Alaska, Arizona, California, Guam, Hawaii, Idaho, the Marianas, Montana, Nevada, Oregon, Washington) and is the most reversed by the Supreme Court of the United States. Although scholars are not in accord, the Ninth probably also has the strongest activist composition but much - if probably not enough - of its work product is non-activist.
So much for introduction. Now to something unusual and potentially significant.
Yesterday the Ninth Circuit, functioning through the usual three-judge panel composition, granted a petition for review - in other words, took substantive jurisdiction - of a claim that a Senator unlawfully influenced action by a Federal agency. The Court then set aside the agency’s action. Northwest Environmental Defense Center et al v Bonneville Power Administration [“BPA”]; Confederated Tribes et al v BPA.
The unanimous Opinion, running some 35 pages, is fascinating. It may tell some readers more than they choose to learn about fish, fishing, other wildlife, the Columbia River, navigation, generation of electrical power, administrative law generally and the Administrative Procedures Act, the (sometimes wildly expanded) Constitutional “injury in fact” litigation requirement, Ninth Circuit jurisdiction, interpretation of legislation, governmental organization, attitudes of environmentalists and Indian tribes, so forth.
What about a Senator’s unilateral action? The Court found that in November, 2005 a Senator inserted language into a conference report accompanying an appropriations act. Why did he do so? To defend a tiny (twelve-employee) Federal agency, the Fish Passage Center, in Portland, Oregon, to stop it from doing something to which he was opposed.
BPA treated the language in the report as binding law. The Court found no statutory language to support that language. Therefore, it overruled BPA. Thus, the Fish Passage Center appears to have gained a renewed life.
More important in the broader context, the Court relegates a Senator’s comment, poked into a committee report, as nothing more than that which plain meaning would suggest it really is: A Senator’s comment. On the merits, the Court also finds it fishy but that’s another subject.
Language in committee reports often causes trouble. That is why some judges - perhaps most notably Justice Antonin Scalia - concentrate upon the language of the statute, not what some (often staff-level) writer said the language meant. In other words, read the law, accord it when the language is plain its plain meaning.
By way of realism, two comments cited in the Opinion reveal a lot:
From the Supreme Court 2005 case:
“. . . [L]egislative materials like committee reports . . . may give unrepresentative committee members - or, worse yet, unelected staffers and lobbyists - both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text.”
From a Ninth Circuit 1986 case:
“Reports are usually written by staff or lobbyists, not legislators; few if any legislators read reports; they are not voted on by the committee whose [sic] views they supposedly represent, much less by the full Senate or House of Representatives; they cannot be amended or modified on the floor by legislators who may disagree . . .”
In short, some fishy language may swim into a committee report. Beware one Senator, one Representative or one Congressional employee thereby attempting to stock the pond.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
(Printer friendly version) 
Send Feedback
