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Analysis: Anatomy of the midnight rider aimed at Cobell litigants

WASHINGTON - To offer a "rider" or late amendment to a bill that has been fully debated in Congress is to fly beneath the radar of public comment. In addition, because of their often improvisational nature, riders often disfigure bills that would have a better chance of passing without them. They get their name because they try to ride into law on the coattails of more fully considered, carefully drafted bills.

For that reason, most members of Congress frown on riders. But where careers are long and stakes are high, most will have offered, supported, winked at, or turned a blind eye to a rider.

A midnight rider is another matter. A midnight rider comes at the last minute of a bill's debate process. Often as not, that is during late hours, when energy is spent, attention languishes and the will to debate has been blunted. A successful midnight rider may involve a maneuver or two that sails close to the wind of dirty politics (this tends to be the view of its opponents). Or again, it may be considered a valid legislative provision for accomplishing legal and necessary purposes. (This tends to be the view of its proponents.)

The amendment that put a one-year moratorium on a court-ordered accounting of the Individual Indian Money trust was a midnight rider, attached to the Interior Department appropriations bill. The maneuvers around the rider were many, the objections vociferous and the debate charged. The main issue was whether paying between $3 and $13 billion for a full historical accounting of the IIM trust would be a wise expenditure of congressional funds.

The vote on the final bill and its midnight cargo was close in the House, at 216-205. The Senate then passed the Interior appropriations bill, H.R. 2691, to the desk of President Bush by a vote of 87-2, with only Tom Daschle, D-S.D., the Senate Minority Leader, and Evan Bayh, D-Ind., voting against it.

The key to unlocking the process that ushered the rider into law is found in the remarks of Rep. J.D. Hayworth, R-Ariz., co-chair of the House Native American Caucus. Speaking against the rider on the House floor, Hayworth mixed insight with eloquence:

"What we witness tonight, my colleagues, is the triumph of the unelected, where legislative staffers, along with staffers from the executive branch, presume to know more than the duly elected officials of this body. And so in a closed conference, in 15 minutes time, a provision is added to this [appropriations] bill which passed neither the House nor the other body and is thrust upon us at the last nanoseconds of the 11th hour in a cynical attempt to say, Come on, we dare you. There is needed firefighting money in here. We dare you to vote against it."

The "unelected" legislative staffer Hayworth would have had most in mind is Joel Kaplan, longtime staff assistant to the House Appropriations Committee Subcommittee on Interior and Related Agencies. Kaplan has had a hand in drafting previous riders to address trust reform funding, only to see the efforts rebuffed by, most recently, Richard Pombo, R-Calif., chairman of the House Resources Committee. Kaplan drafted the current rider as well.

Though Hayworth's remarks imply a certain self-directed initiative, as a staff member Kaplan would not have acted on his own initiative but at the behest of "Approps" Subcommittee on Interior Chairman Charles Taylor, R-N.C. The subcommittee is on record opposing the cost of the Cobell litigation in both the 107th and 108th Congresses. In the current instance, Taylor conducted extensive discussions before directing Kaplan to draft the rider that succeeded in staying the court-ordered accounting in Cobell.

It would be cavalier to disregard altogether the influence of Taylor and Dicks on Kaplan, and of the White House on Taylor in particular. Interior Secretary Gale Norton has acknowledged that the White House asked Interior for a figure reflecting the cost of the court-ordered accounting, In addition, the Bush administration weighed in on the constitutionality of Kaplan's draft language. Taylor Gross, a Bush point man in communications, has gone so far as to acknowledge that the White House was not against the rider.

With that as background, here is the bare-bones anatomy of a midnight rider.

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Interior appropriations bills that had passed separately in the House and Senate had gone to a conference committee that would reconcile the differences. In mid-October, Kaplan and other staff began giving shape to the rider. Hayworth and his Native American Caucus co-chair, Dale Kildee, D-Mich., jointly sent Taylor and Dicks a letter urging the rider be dropped. Pombo too spoke out against it.

But this time, the rider would go around House protocols that make Pombo's the committee of jurisdiction on Native-specific appropriations. The reasoning seems to have been that the subcommittee simply wasn't going to fund the court-ordered historical accounting, no matter what, and if Pombo wasn't going to accept that on the merits - drastic steps would have to be taken.

In order, apparently, to make sure the point was made, Taylor authorized the attachment of the rider to appropriations for wildfire recovery in California and Arizona, the two states most devastated by the recent outbreak of wildfires - and home to two of Indian country's most dedicated advocates, Pombo and Hayworth. For them, to oppose the rider would be to delay release of the fire recovery funds.

On Oct. 27, with Pombo in Montana to hold a House Resources Committee hearing on the trust funds reform effort and court-ordered accounting, the House-Senate conference committee on Interior appropriations met late into the night.

With every other issue resolved, out came the midnight rider as one last amendment. Sen. Bryon Dorgan, D-N.D. strongly objected. Sen. Ben Nighthorse Campbell, R-Colo., also objected but less strenuously, explaining later that the rider represents a "wake-up call" that may stir the Cobell litigants and Indian country to resolve the case in the year of breathing space it provides. In essence, Campbell didn't approve of the way the rider was offered but also felt that something had to be done. In any case, it was too late to turn enough members against it. The conference reported a bill, midnight rider and all, out of conference to the full House floor.

In the ensuing days, Pombo rallied resistance to the midnight rider on the House floor. Joined by Hayworth, Kildee, Nick Rahall, D-W. Va., Frank Pallone, D-N.J., Oklahomans Brad Carson (a Democrat and Cherokee) and Tom Cole (a Republican and Chickasaw), Pombo sought first to "recommit" the reported bill back to conference for rescission of the rider.

But the authors of the rider had calculated the dynamics in the House accurately. At the end of session, with lawmakers anxious to recess and get out of Washington, recommitting a conference report takes a Herculean effort. This one fell short.

As a fallback, Pombo and his allies had argued long and strong for a vote against the appropriations bill and its midnight rider. Here the Republican leadership miscalculated. Anticipating 300-plus votes for the bill and rider, they watched Pombo and Hayworth make it close, with help of course from their allies across the aisle. But here too they fell just short. The final vote on Oct. 30 was 216-205 in favor of the bill with its rider, termed by Pombo a "poison pill."

The Nov. 3 vote of the Senate was anti-climatic.

President Bush is expected to sign the $20 billion appropriation into law with minimum delay.

In a separate but related development, the Bush administration filed notice Oct. 29 that it will appeal the court rulings that have gone against Interior in the trust funds lawsuit.