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Election 1994: What Will It Mean?


November 1994

by Eric E. Sterling, J.D., president of The Criminal Justice Policy Foundation

The takeover of the Congress by the Republican party is nothing less than an earthquake in the Capitol. Just as an earthquake would knock down the walls, and massively dislocate long established structures, this election physically bounces out of office every legislative officeholder associated with the old majority. Control over every room -- even over every broomcloset -- shifts from the Democrats to the Republicans.

Congress writes the laws, and for the first time in forty years, the Republican party has a majority in both houses. Congress has the power to rewrite any Federal law. Every statutory law now "on the books," if the new majority so decides, can be repealed. Every Federal regulation now in place can be repealed. Congress, unlike the courts, is not bound by precedent. And, unlike the Executive Branch, it is not subject to oversight with the power of the purse. The President retains the power of veto, and a veto will be sustained unless a two-thirds majority is obtained in both Houses, super majorities that the Republicans do not possess in either House. The exercise of the veto carries enormous political consequences, and the expenditure of "political capital." The President will be most wary in vetoing legislation that might expose him to ardent charges that he is soft on crime or soft on drugs.

The majority party takes the reins of power over every Congressional committee, which gives the Republicans the power to set the agenda. All committee chairmen of the House and the Senate will now be Republicans. No hearing will be held nor bill considered except by the decision of the Republican chairman.

Less obviously but just as profoundly, the Republican majority has the power to rewrite the Rules of the House of Representatives. Committees can be abolished and the jurisdiction of the remaining committees can be changed. Rules of procedure can be completely rewritten. For example, changes can be made in rules regarding how Congressional investigations can be conducted, or in the rights of witnesses subpoenaed before the Congress.

Every agency of the Federal government is subject to Congressional oversight. Every Federal bureaucrat, and every Federal decision is now subject to review and investigation by a Republican congressional investigator. Every official piece of paper held by a Federal officeholder is subject to subpoena duces tecum from a Republican-controlled committee.

What does this mean in practical terms? Strategically, the Republicans will be working to solidify their majority, to take control of the White House in 1996, and to enact their legislative program.

A key part of this strategy is to embarrass the President and his Administration. If I were a Republican, I would begin an investigation of any Federal activities that might have such embarrassing potential. For example, I would open a Congressional investigation of the raid, shootout, siege and fire at the Branch Davidian compound in Waco, TX. This would be an opportunity to argue that the Attorney General approved a major law enforcement activity without getting all of the facts, without thinking through all of the options, and with a consequent enormous loss of life. I would call upon the Surgeon General to testify about her condom and sex education pronouncements. I would read back her most outspoken remarks and ask her to confirm them or repudiate them and try to cast her into a position in which she either appears to be disrespectful of the committee or appears to be weaseling. I would bring in Ron Brown and examine his clients and what he did for them before he became Secretary of Commerce; and examine whether Henry Cisneros lied to the FBI in his pre-confirmation background hearings. And these attacks on the highest profile members of he President's cabinet would just be the start. I would put the word out to disaffected Federal employees everywhere to "drop the dime" on their bosses. The GOP is well-skilled in the use of CSPAN, expose television, National Empowerment Television, and numerous other outlets that will enable them to roast the Clinton Administration.


Who are the new leaders of the Republican Congress regarding drug issues? The picture, as of this writing, is still incomplete. On the House side, two key figures are Rep. Henry J. Hyde (R-IL) and Rep. Benjamin Gilman (R-NY).

Rep. Hyde has been tapped by the GOP leadership to chair the House Judiciary Committee, and in my opinion, he was the GOP's best choice. He is probably best known nationally since the late 1970s for the "Hyde Amendment" limiting the use of Federal funds to pay for abortion. This has principally affected military servicewomen and poor women who had sought Medicaid to pay for abortions. Hyde, however, has a broad range of legislative interests. He is a powerful, intelligent and articulate debater (he is a former trial lawyer). On the foreign affairs committee he has been a strong anti-communist. He was a powerful defender of the Reagan Administration's policies in El Salvador and Nicaragua, and served on the Select Committee on Iran-Contra in 1987-88. He is adept at building legislative coalitions and has collaborated with liberal Democrats such as Rep. Charles Schumer (NY) on legislation to penalize parents who fail to pay child support, and Rep. Howard Berman (CA) to prevent the sale of weapons to terrorists. He voted for bills identified as liberal such as the Brady Handgun Violence Prevention Bill, and the Family and Medical Leave bill.

On Judiciary he is a strong "law 'n order" supporter. However, as an ardent conservative (and friend of rights of private property), he became a leading critic of asset forfeiture procedures. In June 1993 he introduced the first forfeiture reform bill in the 103rd Congress, H.R. 2417. He announced his introduction of the bill at a press conference flanked by Prof. Nadine Strossen, the President of the American Civil Liberties Union, and by Nancy Hollander, then the President of the National Association of Criminal Defense Lawyers. While defeated Judiciary Chairman Jack Brooks (D-TX) never fulfilled his promise to hold hearings on forfeiture, I am confident that Hyde will move ahead with forfeiture reform this summer.

I worked with Hyde during my years on the House Judiciary Committee staff. He is respected because he is honest in his arguments. He is trustworthy. I processed two bills that he was the original sponsor of: the False Identification Crime Control Act of 1982 which made it a Federal crime to manufacture or traffic in counterfeit identification documents such as state driver licenses. He also pushed a bill I processed to make robbery and burglary of controlled substances from a pharmacy a Federal crime. He recognized the need for limited Federal jurisdiction for such crimes and was quite agreeable to go along with amendments to limit those measures.

More recently, Hyde joined 7 other House Republican leaders in writing a letter to U.S. District Judge Jack Weinstein (Eastern District of New York -- a senior judge who was for many years the highly respected chief judge) threatening him with impeachment when Weinstein said that he would no longer take drug cases because of the pointlessness and harshness of the anti-drug laws.

Rep. Ben Gilman (R-NY), one of the most senior Republicans (tied for 8th in seniority among Republicans), is more liberal than most of the Republican conference, and is perhaps accurately described as a "Rockefeller Republican." For many years he was the ranking Republican on the House Select Committee on Narcotics Abuse and Control, and as a fellow New Yorker who had served in the New York legislature with Rep. Charles Rangel (D-NY) in the late 1960s, he was Rangel's close ally. He helped give Rangel bipartisan cover as Rangel established a national reputation on drug matters during the 1980s. Gilman succeeded to the position of ranking Republican on the Post Office and Civil Service Committee in 1989, and gave up his ranking seat on Narcotics, although it remained one of his top priorities. On the Narcotics Committee he was a staunch advocate of tougher measures. With his seniority on the Foreign Affairs Committee (he became the ranking Republican in 1993) he has been a regular participant in United Nations and international parliamentary groups that discuss narcotics matters. Gilman has been a strong supporter of Israel and an expert on the problems of terrorism. He steadfastly encourages more law enforcement, strong roles by the State Department and the use of the military to fight narcotics production and trafficking. In the summer of 1983, I accompanied Reps. Gilman and Rangel (and other members) to Mexico, Peru, Bolivia, Colombia and Jamaica to meet with the leaders of those nations to encourage stronger anti-narcotics efforts. Gilman, from the New York City suburbs, is very popular among his colleagues and in his district, typically winning two-thirds of the vote. Gilman was one of only two Republicans to vote against the balanced budget amendment in 1992. In 1992 he received a 75 rating from the liberal Americans for Democratic Action.

The defeat of Jack Brooks has opened up the top Democratic spot on the House Judiciary Committee. Rep. John Conyers, Jr. (D-MI) is the most senior Democrat but Rep. Patricia Schroeder (D-CO) announced that she was challenging him for the position. The rules of the Democratic Caucus provided for a secret ballot vote by all of the members of the Caucus for the top position on a Committee, when the Democrats controlled the chairs. Several times in recent years, the Caucus disregarded seniority (e.g. Rep. Les Aspin for the Armed Services Committee and Rep. David Obey for Appropriations). Conyers and Schroeder are both very liberal as measured by the Americans for Democratic Action (Schroeder scores slightly higher, but she also scores higher with the American Conservative Union. Conyers scores higher with the AFL-CIO), but neither is known for legislative brilliance or sophistication. They both have personality characteristics that have limited their success in building alliances with their Democratic colleagues. At the end of November, the grapevine was that Schroeder's bid for the top spot on the Judiciary Committee was running out of steam.

Conyers has been much more active on Judiciary than Schroeder and chaired a Judiciary subcommittee on either crime or criminal justice for 14 years. Since 1989 he has chaired the House Committee on Government Operations. He is a staunch civil libertarian and opponent of the death penalty. He has always had a very smart and aggressive staff. In 1992, Conyers chaired hearings in the Government Operations Committee on the abuses of forfeiture which helped put the issue in the national spotlight. But it was not until a year later, September 1993, that he introduced a forfeiture reform bill, H.R. 3347. This kind of slow pace is indicative of his lack of legislative aggressiveness. However, it must be granted that his forfeiture reform bill was quite comprehensive. If he is the ranking Democrat on Judiciary, even though he and Hyde share a concern about the need for forfeiture reform, one might wonder whether Conyers' potential for irritating his allies could actually delay action. On the broad drug policy questions, Conyers has routinely made anti-legalization statements that don't demonstrate that he has seriously thought about the issue, although his Detroit colleague, Rep. George Crockett (D-MI) endorsed legalization in 1990 (after he announced his retirement).

Rep. Schroeder, many NewsBriefs subscribers remember, participated in the PBS sponsored debate on drug legalization on March 26, 1990 held in South Carolina and moderated by Michael Kinsley. Schroeder was on the team with Rep. Rangel and Customs Commissioner William Von Raab against legalization, and against Ira Glasser, William F. Buckley, and Judge Robert Sweet arguing for legalization.

The third ranking Democrat is Rep. Barney Frank (D-MA) who many believe would be the most effective ranking Democrat on Judiciary, but there has been no suggestion that he would mount a challenge to the seniority system. Frank has endorsed the need for medical marijuana, and in the fall of 1994 spoke at both the annual meeting of the National Organization for the Reform of Marijuana Laws, and the Drug Policy Foundation.

At this point is unclear how the Republicans will structure the Judiciary Committee's subcommittee jurisdiction. In recent Congresses, the Committee has revamped the subcommittee structure. Four years ago, the separate subcommittees on crime and criminal justice were combined into one subcommittee. The Republican leaders of Judiciary -- Reps. Jim Sensenbrenner (WI), Bill McCollum (FL), George Gekas (PA), Howard Coble (NC), Lamar Smith (TX) and Steve Schiff (NM) -- are extremely conservative. They have fought zealously for the death penalty, for longer sentences, for more prison cells, for expanded drug enforcement.

The situation in the Senate is more stable and predictable. Sen. Orrin Hatch (R-UT), will be the chairman. Sen. Strom Thurmond (SC), 91-years old, who chaired the Judiciary Committee from 1981-87, will chair the Armed Services Committee. Third on the Committee is Sen. Alan Simpson (WY). Simpson is the Republican Whip (number two in the Senate Republican leadership) but he is being challenged by relatively junior Sen. Trent Lott (MS) who left the House six years ago. (Ironically, Lott gave up the House Republican Whip position to run for the Senate, opening the way for Newt Gingrich to become Whip. If Lott had remained in the House it is likely he would be the incoming House Speaker. Lott is very close to Gingrich). Simpson has a Libertarian streak that Lott does not have. Hatch, Thurmond, and Simpson co-sponsored a bill to create a mandatory minimum safety valve in the 103rd Congress.

Generally, it is believed that the ranking Democrat on Judiciary will be Sen. Joseph Biden, Jr. (DE), the chairman since 1987, who had this position from 1981-87. Recently The Washington Post printed the rumor that Sen. Biden might challenge or be encouraged by his Democratic colleagues to challenge Sen. Claiborne Pell (RI) for the position of ranking Democrat on the Foreign Relations Committee. The theory is that the Democrats need a stronger player to face Sen. Jesse Helms (NC) who will chair the Foreign Relations Committee, and that Pell is not aggressive or dynamic enough. If this should transpire, Sen. Howell Heflin (AL) is the likely ranking Democrat by virtue of seniority (assuming Kennedy would stay at Education and Labor, and Leahy would stay at Agriculture). Heflin often voted with the Republicans.


The House Republicans, as part of their campaign unveiled a "Contract With America" on September 27, 1994. It set forth ten proposed bills including a "Taking Back Our Streets Act" to pander to the public fear of crime. This bill repeals many provisions of the 1994 crime bill and what the GOP calls its "expensive 'Great Society-esque' programs." It would expand the 1994 crime bill's prison construction program from $7.9 billion to $10.5 billion.

The Contract's anti-crime bill would replace three major provisions of the 1994 Crime bill -- the $8.8 billion community policing program, the $1 billion drug court program, and the $5+ billion for prevention programs -- with a simple $10 billion block grant program. The funds would be distributed on a formula based on a State's proportion of violent crime to the national total of violent crime in 1993, and distributions to local governments would be according to the same formula. There would be no matching funds requirement.

The funds could be used to hire and train police officers and pay them overtime; to purchase basic law enforcement equipment and technology; to enhance school security with police patrols, metal detectors, fences and surveillance cameras; to establish neighborhood watch programs; and to fund programs "that have as their principal purpse the teaching of citizenship and moral standards, including programs using law enforcement officials as role models ..."

Contract With America promises to limit habeas corpus review in death penalty cases, to provide special funding to the States to prosecute death penalty cases, and to make it easier for juries to impose the death penalty. It includes provisions for mandatory restitution for victims of crime. It would eliminate the "exclusionary rule" for evidence found by police officers who conduct searches without legal probable cause, but who had "good faith" that they had probable cause.

In a provision called mandatory miminum sentencing for drug crimes, the Contract With America proposes a mandatory minimum sentence of 10 years for a State drug crime carrying a sentence of 1 year or more, or a "violent crime" (loosely defined) that involves the possession of a gun. (Possession means "touching" the firearm in a violent crime or having the firearm "readily available" in a drug crime.) It should be noted that there is already a 5-year mandatory sentence for such crimes if they are Federal crimes. No one has presented evidence that state legislatures are incompetent in deciding adequate punishment for serious state crimes.

In what demonstrates, literally, the "topsy-turvy" nature of this legislation, it takes the current ceiling penalty for another crime and makes that penalty the floor. For the crime of possession of a machine gun or other destructive device during the commission of a drug or violent crime, the new punishment in the Contract With America would be a 30-year mandatory minimum sentence floor. However, current Federal law provides a mandatory minimum of 10 years with a maximum of up to 30 years -- the ceiling. Without explaining the need for a mandatory minimum sentence that is triple the current mandatory minimum sentence, the ceiling becomes the floor.

The Contract With America helped Republicans turn the Congress topsy-turvy; too bad its logic for longer sentences and expanding prisons is topsy-turvy too.