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The Saga of a Senate Bill
By T. R. Reid
Henry Holt and CompanyCopyright © 2012 T. R. Reid
All rights reserved.
Anyone who has had the good fortune to visit Washington, D.C., in the spring knows that the capital then takes on the appearance of a greenhouse where the flowers have staged a coup. From the middle of February, when the first saffron crocus pokes up through the snowy mud, to the end of May, when the last scarlet azalea fades away, the city is a blooming rainbow. The traditional center of this urban rainbow has been the Tidal Basin, where delicate cherry blossoms framing the graceful dome of the Jefferson Memorial set the scene for what is, according to the Kodak people, the country's most popular snapshot.
In fact, though, Washington's lushest concentration of vernal blossom can be found on the sloping grounds surrounding the U.S. Capitol. Although members of Congress love to boast about how miserly they can be with public funds, both houses have always spent generously to enhance their own surroundings. The annual budget for upkeep of the Capitol grounds is about $2 million, giving Congress one of the world's most pampered public gardens. The results are spectacular. On Capitol Hill, and in the Botanical Gardens at its foot, the springtime visitor can find hundreds of species of annuals, biennials, and perennials.
In the spring of odd-numbered years, in the first months after a newly elected Congress convenes, the Capitol also blooms with a legislative species of perennial — the tried and true bills that are introduced, year after year, whether or not they have a chance of being enacted into law. Some of these bills, such as the famous one proposing that the marigold be designated the national flower, are introduced mainly for the sake of tradition. "It just wouldn't seem like Congress," explains Senator Howard H. Baker, Jr., a Tennessee Republican who is the marigold's current champion, "if somebody didn't put in a marigold bill." Some perennials have political roots: Congressmen from New York City, where tenants are more numerous than homeowners, invariably introduce bills to give renters the same tax breaks that mortgage payers enjoy. (The bills invariably die in committee.) And some of the never-say-die bills are introduced because their sponsors are convinced that this year, finally, the thing might actually pass. "After all," they would say, "look what old Ed Hebert did."
It was a few months after the Japanese attack on Pearl Harbor when a newly elected Democratic Congressman from Louisiana, F. Edward Hebert, first proposed legislation to give the armed services their own medical school. Nothing came of it at first, but Hebert kept dropping it in the hopper, Congress after Congress. By the 1970s, Congressman Hebert had become Chairman Hebert of the House Armed Services Commitee and, like most chairmen, he had little trouble winning approval for this pet project. Today Hebert's impossible dream, the Medical College of the Armed Forces, stands as a $42-million reality in Bethesda, Maryland.
Beginning in the 1930s, the catalogue of legislative perennials regularly included a short-lived species called a "waterway user charge bill" that set forth a simple proposition: Those who ship freight on the nation's canals and rivers should help the government pay for building and maintaining those waterways.
The legislation was generally launched with a glowing press release pointing out that it would save the government hundreds of millions of dollars and eliminate a fundamental inequity of national transportation policy. Nonetheless, the water-freight industry, which had never paid a penny of tolls or taxes to use the multibillion-dollar network of canals, channels, dams, and locks built by the Army Corps of Engineers, always managed to sink the legislation before it could navigate the first step toward passage.
Prospects were not exactly bright, then, on February 24, 1977, when Pete V. Domenici, a casual, friendly Republican Senator from New Mexico, strolled to the front of the Senate chamber and plopped a waterway user charge bill on the long marble desk there. Not many of Domenici's colleagues noticed the new bill — the 95th Congress was six weeks old, and hundreds of bills had been introduced already — but those who did were surprised. After four years in the Senate, the 44-year-old Domenici had a reputation as a reasonable, realistic sort — not the type given to futile gestures. Why had a practical guy like that latched onto this hopeless case?
Domenici was aware of that sentiment, and it left him sorely frustrated.
"Man, it's so frustrating!" the Senator said a few days after he had introduced his bill. "This is an important issue — we're talking big money here. And anybody with common sense can see that this user charge is way overdue. But nobody around here takes it seriously."
The Senator had a point. To most members of Congress, the waterway fee seemed to be of a piece with the marigold bill and other frivolous forms of perennial legislation. In fact, though, the user-charge bill raised a fundamental question about governmental policy toward one of the oldest industries in the nation's history.
The industry, in fact, was older than the nation. Even before the end of the Revolutionary War, leaders of the nascent United States recognized that a reliable transportation system would be essential to mold the 13 disparate colonies into a single country. In an era before railroads and paved highways, watercourses for barge and boat traffic offered the obvious solution. Between 1800 and 1840, more than 3,000 miles of canals were built, and hundreds of miles more of water highway were created by leveeing large rivers and dredging shallow ones.
For the first half-century of the republic, inland waterway development was left largely to the states, because of a general belief that "internal improvements" were outside the bailiwick of the federal government. Chief Justice John Marshall sank that notion for good in 1824 when he ruled in the steamboat case, Gibbons v. Ogden, that Congress had "plenary" authority over interstate commerce. Within months, Congress had passed a River and Harbors Act authorizing federal money and manpower — specifically, the Army Corps of Engineers — to construct navigation improvements on the Ohio and Mississippi rivers.
Nearly every Congress thereafter passed at least one Rivers and Harbors Act, and by the beginning of the twentieth century the annual authorization bill for waterway construction and maintenance became one of Capitol Hill's cherished political institutions. It still is today. For Congressmen, winning new water projects for their districts is unassailable evidence that they are working hard in Washington for the folks back home. For the Army, waterway work is a useful public relations tool for staying on the good side of members of Congress. As a result, Congress and the Army Corps of Engineers developed the philosophy that no water project was too big or too expensive to build. This "can do" attitude reached its apogee in the early 1970s, when the Army finished a 30-year, $1.2-billion effort that tranformed the Arkansas River from a muddy gulch into a shimmering blue freightway, creating bustling "international" ports in such prairie towns as Pine Bluff, Arkansas, and Catoosa, Oklahoma — several hundred miles from the nearest ocean.
Congress has been so generous in approving such pork-barrel projects that today there are more than 25,000 miles of inland waterways, which serve as highways for fleets of barges that move huge loads of bulk commodities — grain and soybeans, coal and oil, cement, salt, and chemicals. As the waterway network has grown, the barge industry has expanded with it. At the end of World War II, barges carried about 1 percent of the nation's freight; by the end of the Vietnam War, the barge share had grown to 16 percent. The barge boom did not escape the notice of Wall Street and the major corporations; some of the largest energy, agribusiness, and manufacturing conglomerates have acquired barge lines and found them to be highly profitable subsidiaries.
A major reason for the profitability of the water-freight business is that barge lines have been the only form of transit that pay nothing for their rights of way. Railroads pay for and lay their own track. When the track needs maintenance, the repair work is done, not by the U.S. Army, using federal funds, but by the railroads, with their own money. Truckers move their loads on government-built highways, but the trucks pay for the roads through tolls, license fees, and a federal gasoline tax that is deposited in the Highway Trust Fund, a sort of federal bank account that has paid for the interstate highway system. Air-freight firms pay airport fees and a fuel tax that supports an airport trust fund.
But barge operators paid neither toll nor tax for the damming, dredging, and diking the Corps of Engineers carried out on their behalf. The dollar value of this free service was a matter of dispute; by the late 1970s, the cost ran somewhere between $400 million and $1 billion annually, but it was hard to get agreement on a precise total (like many government figures, the statistic varied depending on the political bias of the statistician). There was no dispute, though, about the commercial impact: While competing modes of transit had to factor in tolls, taxes, construction, and maintenance when setting rates and computing profits, the barge lines enjoyed, on the whole, the lowest rates and the highest profits in the transportation industry.
This unusual federal boon dated back to the birth of the nation, when Congress, in its zeal to encourage interstate transportation, forbade any charge for the use of inland waterways. The policy was enunciated, among other places, in the Northwest Ordinance of 1787, which declared that inland waterways "shall be common highways and forever free ... without any tax, impost, or duty therefor."
As Congressional declarations go, that policy had a remarkably long life. With a few scattered exceptions, it was 150 years before anyone raised a serious question about the validity of the "forever free" ideal. The question came from Franklin D. Roosevelt, who ordered, in 1938, a detailed study of "the whole subject of taxation upon waterborne commerce." President Roosevelt's panel recommended immediate imposition of a barge tax to pay for waterway construction, but that conclusion sparked a bitter political argument in Congress. Before the smoke cleared, world war had broken out, and Washington shifted its attention to more pressing concerns.
But the idea did not die. Over the next four decades, a dozen more Presidential studies recommended a user charge on the inland waterways. The studies generally found that the "free ride" policy had some positive aspects: it kept shipping rates low, both on the waterways and, through competitive pressure, on rail lines and trucking routes that paralleled the water routes. But that benefit was outweighed, the studies concluded, by considerations of equity, economy, and environment.
Proponents of the waterway fee argued that it was inequitable for the government to provide free facilities for one form of transportation while competing modes had to pay. There was geographic inequity, too; a farmer in western Missouri, for example, who shipped grain to market by rail had to pay higher freight bills than a farmer in eastern Missouri who shipped down the Mississippi by barge.
The economic issue was simple. The federal treasury, the various studies concluded, could not afford to pass out hundreds of millions of dollars in subsidies to profit-making private industry. But the argument went deeper than that. The laws of economics say that any useful goods or services offered at minimal cost will generate infinite demand. Since the services of the Army Corps of Engineers came at no direct cost to the barge interests, the industry's appetite for new projects was never-ending. Economic principle and common sense suggested that, if the barge interests had to pay for the Corps' work, the political pressure for expensive new locks, dams, and canals would diminish.
The environmental argument followed similar lines. Environmentalists, who looked on the Army's battalion of dredgers and dam builders as a scourge upon the earth, hoped that adding a price tag would lead the traditional proponents of waterworks to think twice before asking for new ones.
These arguments had convinced every President from Franklin D. Roosevelt through Gerald R. Ford to ask Congress to impose some form of waterway user charge. But on Capitol Hill, the policy considerations took a back seat to politics. Since there was nothing much to be gained, politically, by taking up this particular cudgel, almost nobody did. There were always one or two lonely souls — mainly members who depended on campaign contributions from railroad interests — who would introduce the perennial bill at the start of each new Congress, but the sponsors generally gave up on the legislation as soon as they introduced it. During the 20 years before Pete V. Domenici got interested in the legislation, only two Senators — Caleb Boggs, a Republican from Delaware, and James L. Buckley, a Republican from New York — really worked on the subject, and neither one made much progress.
This was partly a credit to the lobbying work of the water-freight industry, but it also reflected the fact that "waterway reform" did not strike many Congressmen as a particularly exciting issue. The only members who took much interest in waterway bills were those whose states had major rivers or canals — and they, naturally, were perfectly happy with the policy set forth in the Northwest Ordinance.
Moreover, the members from the waterway states had a great deal of power. By the 95th Congress, when Pete Domenici took over the user -charge idea, coincidences of geography and political longevity had given the barge operators a number of friends in high places — particularly in the U.S. Senate.
Barge traffic moving down the Mississippi, the nation's major water highway, ran through the backyard of James O. Eastland, a Mississippi Democrat who was the senior member of the Senate as well as the chairman of the Judiciary Committee, and of John C. Stennis, another Mississippi Democrat who was chairman of the Armed Services Committee, on its way to New Orleans, home base of Russell B. Long, a Louisiana Democrat who chaired the Finance Committee and was famed for getting his way on just about every bill that mattered to him. Feeding into the Mississippi was the Corps' magnum opus, the Arkansas River waterway, which had brought the blessings of water transit to the home state of John L. McClellan, an Arkansas Democrat and chairman of the Appropriations Committee. The only major freight waterway in the West, the Columbia–Snake River system, snaked through the constituency of two influential Democrats from the state of Washington: Warren G. Magnuson, chairman of the Commerce Committee, and Henry M. (Scoop) Jackson, the Energy Committee chairman.
With senior Democratic firepower like that on its side, the barge industry seemed to have little to fear from Pete Domenici, a first-term member of the minority party who had never successfully sponsored any significant piece of legislation. Even Domenici conceded, shortly after he introduced his user-charge bill, that its chances for passage were exceedingly dim. "Oh, I'd say the odds against me are about 90 to 1," the Senator said. "Of course, a lot of other guys around here will tell you it's more like 900 to 1."
Still, the Senator brought two formidable assets to his uphill fight. First, Domenici's easygoing manner concealed a tenacious determination to succeed at anything he tried; he had an iron will to pass his bill. Second — and more important — Domenici had a strategy.CHAPTER 2
"Get Me a Bill"
Pete V. Domenici inherited his will to succeed from his father, an Italian farmer who had come to the New World in 1906 and opened a tiny fruit stand in Albuquerque. Domenici padre worked so hard there that by 1932, when Pete was born, the stand had grown into a wholesale grocery operation. Young Pete helped out around the warehouse now and then, but because the boy had a quick mind and a wicked fast ball, he was encouraged to devote his time to schoolwork and baseball. When he graduated from the University of New Mexico in 1954, Pete signed on with the then Brooklyn Dodgers and donned the uniform of the team's Class D farm club. His fast ball was torrid, but it found the strike zone so rarely that Domenici was out of uniform and into law school, at the University of Denver, within a matter of months.
As a young lawyer back in Albuquerque, Domenici grew interested in a new kind of competition. One day in 1966 he called a dozen friends together for lunch and announced, over dessert, that he was going to run for the city council. "I've never seen so many people agree on something so quickly," he recalled years later. "The whole table stood up and told me I was crazy." But Domenici was determined to succeed. There were 27 candidates that year for three vacant seats; Domenici simply campaigned harder than anyone else, and, when the votes were tallied, he led the ticket. A year later, he was council chairman; three years later, he was the Republican nominee for governor — but he lost the election.
Excerpted from Congressional Odyssey by T. R. Reid. Copyright © 2012 T. R. Reid. Excerpted by permission of Henry Holt and Company.
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