Writing Legislation on the Fly

Otto Von Bismarck is credited with having said, “Laws are like sausages; it is better not to see them being made.”

It’s a cliché, but having watched a fair number of laws being made, I can testify that it’s absolutely true.

Consider the $2 trillion coronavirus stimulus package enacted last month.

Anytime you cobble together legislation of that size in a couple of days, there are going to be what is commonly known as “drafting errors.”

Drafting errors are provisions in legislation that do the exact opposite of what was intended or something else screwy.

That was the case with the first draft of the stimulus bill put together by Senate Republicans.

When it was released, NAFCU President/CEO B. Dan Berger sounded the alarm. In a few places, he said, the definition of “financial institution” was faulty.

The problem, he said, was that the definition used did not include credit unions.

Let’s take a closer look.

Various sections of the legislation defined depository institutions in different ways.

For instance, one section of the bill refers to a financial institution “as defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 91813).”

That section appears to say: “Wherever the word ‘bank’ is used in this chapter, the word shall be held to include State bank, banking association and trust company, except where national banks or Federal reserve banks are specifically referred to. For purposes of this chapter, a State bank includes any bank which is operating under the Code of Law for the District of Columbia.”

There are six references to banks in those two sections.

Credit unions?

Nope.

Using that definition would appear to exclude credit unions, right?

Other sections had similar problems, but in a bill that totaled more than 800 pages and was prepared in a short period of time, mistakes are inevitable.

But those mistakes could have had a profound impact on credit unions and others.

The final legislation corrected the problems.

For instance, one section of the final bill that originally did not include credit unions said, in the final version, “‘insured credit union’ has the meaning described in the Federal Credit Union Act.”

And then, it included credit unions in other sections of the provision.

Still with me?

Good.

Sometimes, the mistakes aren’t so corrected and arguments aren’t so settled.

For years, the groups representing military banks and military credit unions have been battling over whether banks should be given the same free rent benefits that credit unions now enjoy.

In 2018, the two sides appeared to have come to an amicable agreement.

But credit unions said whoever wrote the provision that was supposed to provide parity between banks and credit unions made a dreaded “drafting error.”

Trade groups said that, as written, credit unions would have been excluded from the free rent benefit – far different than what the legislation was intended to accomplish.

Well, the deal fell apart. Credit unions continued to receive their free rent benefits and the bankers remain ticked off about it.

These kinds of screw ups are far from uncommon. There’s even a name for the legislative vehicle that Congress uses to do it.

It’s known as a “technical corrections bill.”

Now of course, sometimes the corrections in those bills are far from “technical,” but that’s a discussion for another day.

Everything’s Coronavirus

Not to be too cynical, but everything you see coming out of Washington for the next 10 years or so is going to be linked to the coronavirus crisis.

Whether it’s really related or not.

Looking back to 9/11, everything suddenly was needed for “homeland security.”

“It is amazing how people can relate anything to ‘homeland defense,’” then-House Appropriations Chairman Bill Young (R-Fla.) said in an interview in 2003. “I don’t think I have received any ‘04 request that has not been related to ‘homeland defense.’”

Now back then, earmarking funds in appropriations bills for specific projects was allowed.

That was before Congress decided that pork wasn’t kosher.

And so, colleges and universities, such as the New Mexico Institute of Mining and Technology, received millions of dollars for homeland security projects.

One year, that college received a $56.1 million earmark to purchase a largely abandoned mining town for a counterterrorism project.

Of course, it helped that the late Sen. Pete Domenici (R-N.M.) was a senior member of the Senate Appropriations Committee, which helped guide the project into legislation.

Sometimes, members would make sure their projects were included in an appropriations bill.

Then, they would vote against the bill itself.

This allowed them to bloviate about how they voted to cut spending, while at the same time bragging about how they had brought this all-important project back home.

Imagine that. Two-faced politicians.

The New York Times and others have detailed how the coronavirus crisis has resulted in every lobbyist in town trying to tuck some provision into a stimulus bill.

Anticipating that problem, House Financial Services Chairwoman Maxine Waters (D-Calif.) issued a statement early in the crisis warning people not to try to use the crisis to get something they otherwise wouldn’t be able to get.

Now, Congress has banned earmarks. And so, bills are supposed to be as kosher as a Hebrew National salami.

Of course, even that prohibition can be overcome and some creative lawmakers can make sure that a project is tucked into some innocuous legislative language.

All it takes are the magic words.

Those words used to be Homeland Security.

Now, it’s going to be coronavirus.

David Baumann is a correspondent-at-large for CU Times. He can be reached at dbaumann@cutimes.com.