Signature laws that may not leave signature
Hard part for campaign finance, school, and corporate reform is implementation.
One of the most frequently cribbed lines on Capitol Hill is a comment widely attributed to the 19th century German statesman Otto Von Bismarck: If you like laws and sausages, you should never watch either one being made.
But for three of the signature legislative reforms of the 107th Congress - education, campaign finance, and corporate accountability - the tough part is making sure the new laws take effect.
Already, each faces looming obstacles:
• For education, it's convincing 50 states and 14,859 school districts to change the way they test and teach children.
• For campaign finance reform, it's surviving an epic court battle - and curbing the new strategies already proliferating to evade the intent of the new law.
• For corporate accountability, it's finding a team to help restore confidence in Wall Street that the public will find credible.
The history of such laws is a constant effort to find ways around them or through them, says Stephen Hess, senior fellow at the Brookings Institution.
Unlike campaign-finance and corporate-accountability reforms, the education law comes with the full support of the Bush administration. President Bush calls the No Child Left Behind Act "the cornerstone of my administration."
As drafted, it's a dramatic bid to use federal-education dollars to leverage better results in the classroom. It requires states to set up their own accountability systems that measure the "adequate yearly progress" of children in Grades 3 to 8. All students are expected to be "fully proficient" in reading and math by the end of the 2013-14 school year. As an incentive, Washington is increasing education aid to states and local school districts by 40 percent this year - the highest increase ever.
This week, the Education Department issued final regulations to implement the law. They require states to submit a plan by Jan. 31 to show how they will meet new requirements. It will be a stretch. Some 17 states are still not in compliance with the last big education reauthorization in 1994, which required states to set academic standards and create a system to measure whether students are proficient in them. This administration promises they will not be swayed by political pressure from governors to ease up on the terms of the law.
"We're pleased to see that the department has held firm on the law's accountability requirements," says Kati Haycock, director of the Education Trust, a lead supporter of the reform.
However, one big loophole is already beginning to surface: Some states, including Louisiana, Colorado, and Connecticut, are lowering the threshold for what it means to be proficient. If this trend continues, it could blunt the impact of the new reform.
"We would like to think that the response to this law would be to meet the challenge, rather than to duck it," says Deputy Secretary Eugene Hickok. But he promises that an intensive "conversation" with state officials over the period of implementing this law can address such problems.
The hurdles for campaign- finance reform look considerably higher: Four of the five commissioners on the Federal Elections Commission (FEC) are on record as opposing the law they are supposed to implement.
The commission approved rules in July that allowed political parties to set up "shadow" entities that can continue to accept unregulated "soft" money from corporations, labor unions, or individuals. To supporters of campaign-finance reform that provision is a violation of the intent of the law. The four lead sponsors in Congress called the regulations "arbitrary and capricious" and promise to introduce a bill to curb the FEC as a first act of the new Congress in January.
In addition, McConnell v. FEC, which challenges the constitutionality of the new law, will be heard before a three-judge panel in Washington on Wednesday, after which it is expected to go straight to the Supreme Court. The case includes 80 plaintiffs and 54 lawyers, whose 11 cases were consolidated into one.
"Clearly the political establishment is not taking the new law as a fait accompli, they are challenging it at every step of the way," says Trevor Potter, a former chairman of the FEC and currently general counsel of the Washington-based Campaign and Media Legal Center.
The challenge for the new corporate accountability law is to get its regulatory arm up and functioning. The intent of the new law is to restore public confidence in the financial statements of publicly traded companies, after scandals at companies like Enron and WorldCom.
But from the start, the new accounting oversight board has been dogged by controversy. Its first head, former FBI and CIA director William Webster, was chosen by the Securities and Exchange Commission on a partisan 3-2 vote. He and SEC chairman Harvey Pitt resigned soon after.
"We know that the accounting industry mobilized to influence the composition of the very oversight board that was to monitor it," says Sen. John McCain, the new chairman of the Commerce Committee, in a speech earlier this month. The next appointments will be critical to the success of the new law, backers say.
"The new chairman of the oversight committee will be a crucial appointment," says Sen. Richard Shelby (R) of Alabama, who will chair the Senate Banking Committee that holds hearings on this appointment. "I will do everything I can ... to bring back investor confidence in our capital markets."