Dear Readers:
Elena Kagan, U.S. Solicitor General and nominee for the U.S. Supreme Court, talks to Democratic Senator Tom Udall from New Mexico, as she made the rounds talking to U.S. senators about her qualifications for the court. (Photo courtesy Sen. Udall's office)
And here's another thing that perplexes and distresses me about Congress.
The ink was barely dry on my column decrying Congress' budgetary trickery when a Washington Post story highlighted an obscure but far-reaching passage in the just-enacted financial regulation law that has nothing to do with financial regulation.
My earlier column criticized the shell games Congress plays to hide the true cost of legislation. But as the Post story indicates, there are other Congressional ploys, such as burying hidden bombs in the bowels of legislation. In this case, a 2,300-page law that's supposed to prevent financial calamities contains a provision aimed at -- I kid you not -- ending the sexual violence that has marred the Democratic Republic of Congo's 15-year civil war.
The provision requires publicly traded companies to file annual reports with the Securities and Exchange Commission disclosing whether their products contain gold, tin, tungsten or tantalum from the Congo or neighboring countries. The idea is to discourage, through publicity, the use of these "conflict materials," which finance the bad guys.
Supporters argue the provision will allow consumers to choose whether to buy products that fund gang rape in central Africa. Opponents say companies will be hard-pressed to track down, through complicated global supply chains, where the metals in their products were mined.
Is this law a good idea? Maybe, but before enacting it, shouldn't Congress have debated it? Shouldn't it have at least crossed the public's radar screen? By furtively tacking it on to a must-pass bill, Congressional leaders assured that wouldn't happen. I'd wager most Congressmen didn't know it was in the bill.
To be sure, this has been going on for years, both parties are guilty and some bills benefiting farmers might not pass without hitching a ride on legislation with broader appeal.
Still, it's a heck of a way to run a railroad.
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Having tied up one loose end from a previous column, here's another:
When it came time for the Senate Judiciary Committee to vote on Elena Kagan's nomination to the Supreme Court, only one Republican joined the Democratic majority in saying "Aye." Lindsey Graham of South Carolina explained his vote with a rebuke to his fellow senators, Democrat and Republican, but especially Republican.
A conservative, Graham said, should vote yes for constitutional reasons. The constitution, Graham argued, gives the Senate the power of "advice and consent" but not the power to substitute its judgment for the president's.
Graham cited Federalist No. 76, in which Alexander Hamilton said the Senate would only deny confirmation for "special and strong reasons," which Hamilton listed as "to prevent the appointment of unfit characters from family connection, from personal attachment and from a view to popularity."
To be faithful to his constitutional duty, Graham said, a senator shouldn't "think of the 100 reasons I would pick somebody different." The senator should ask: "Is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she's passed all those tests."
In my first column on the nomination, I argued for a farmer to be named to the Supreme Court. Alas, but not surprisingly, that didn't happen. In a second column, I argued senators shouldn't vote against nominees just because they disagreed with them politically.
Graham invokes the Constitution in support of that argument. To vote against Barack Obama's choice of Kagan and Sonia Sotomayor because they're too liberal, as the Republicans did, or against George W. Bush's choice of John Roberts and Samuel Alito because they're too conservative, as the Democrats did, ignores the founders' intent.
Both parties decry "judicial activism." But Congress, too, is bound by the Constitution. Thank Lindsey Graham for raising an issue that deserves more attention: legislative activism.
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And yet another loose end:
Want to make the stock market go down 109 points? Get Ben Bernanke to say what everybody already knows about the national economy.
In a column in early June, I discussed how the financial crisis has taught farmers that agriculture is not an island, untouched by the financial storms that shake the general economy. With gold prices warning of inflation ahead while treasury-bond prices forecast deflation, I said the economy's current transition is "fraught with uncertainties, and markets hate uncertainties."
This pronouncement did not move markets. Equity traders don't read my writings, for one thing, but more importantly, what I wrote was a statement of what markets already knew. I wrote it not as a pronouncement but as a transition sentence between weightier thoughts.
Yet when, in late July, Bernanke testified before Congress, all it took to make the Dow Jones shudder was for the Federal Reserve chairman to observe that the economy faces "unusual uncertainty."
Were markets unaware of this? Hardly. Uncertainty has been unusual for some weeks now.
Did Bernanke's affirmation of it suggest lower interest rates ahead? Hardly. The Fed can't get them much lower than they are.
Has the position of top central banker become modern America's equivalent of the oracle at Delphi? Yes, well, I suppose it beats reading the entrails of animals.
Still, for whatever it's worth, I'm glad to be able to say you read about uncertainty here first.
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As always I welcome your feedback on this letter and your suggestions for how DTN might serve you better.
Sincerely,
Urban
Urban C. Lehner
Vice President, Editorial
Office: 800-485-4000 / Direct:402 399 6440
Cell: 402 301 6143 / Fax: 402 390 7187
urban.lehner@telventdtn.com
(AG/KM)
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