WASHINGTON - In a Jan. 10 vote, the Senate dealt a setback to an amendment that sought to define tribes as corporations under the Federal Election Campaign Act. By tabling the amendment on a 56 - 40 vote, the chamber killed the amendment's chances of being attached to lobbying and ethics reform legislation.
But 40 senators voted in favor of keeping the amendment alive. For an amendment that did not make it out of the Rules Committee in the 2006 Senate session, according to Capitol Hill senior staff who spoke on background but not for attribution, 40 votes is a surprisingly strong showing. Unlike the House of Representatives, the Senate abides by no ''germaneness'' rules on amendments, meaning the amendment of Sen. David Vitter, R-La., can be offered to any bill, regardless of whether it is germane to its subject matter.
The Federal Election Campaign Act of 1971 actually leaves tribes out of account, like a bevy of laws from that era. In implementing and enforcing the law, the Federal Election Commission has made rulings on tribes in light of the 1971 enactment. Several leading results of the commission's rulings are that 1) tribes are defined for election purposes as ''persons'' but not as ''individuals,'' and so are not subject to any aggregate limit on their political contributions; 2) tribes are not political action committees ''because their major purpose is not to influence the election or defeat of candidates''; and 3) ''Because Indian tribes do not typically incorporate, are not labor organizations, and are not national banks, the prohibitions ... on these entities making contributions do not extend to Indian tribes.''
Vitter's amendment would change all that - reducing tribes to corporations for the purposes of the Federal Election Commission Act, forcing them to form political action committees for the purpose of making political contributions (as corporations must) and putting new limits on their political contributions. Tribes have argued against any precedent that would undermine tribal sovereignty or curtail Indian political participation.
Given the high stakes for Indian country and tribal governments, the Capitol Hill senior staff member quoted above said tribes would be wise to educate new congressional members about tribal governments and communities.
But a number of senators who voted against tabling the Vitter amendment would not seem to need the lesson, based on their past engagements with Indian country. Among them: Sen. Richard Burr, R-N.C., sponsor of proposals for federal recognition of the Lumbee in his state; Sen. John McCain, R-Ariz., former chairman of the Senate Committee on Indian Affairs; and Sen. John Thune, R-S.D., long familiar with tribal sovereignty from his experience with South Dakota tribes.
Also of interest: Sen. Charles Schumer, D-N.Y., a leading Democrat who has urged an end to tribal land-claims cases in the courts of his state, voted to table the Vitter amendment. And among a handful of Republicans who broke with the majority of their party to reject it was Sen. Craig Thomas, R-Wyo., incoming vice chairman of the Senate Committee on Indian Affairs. During his years on the committee, Thomas has never been particularly forward in the debates, but legislative staffers on Capitol Hill have found him approachable on several divisive Indian-specific issues.