How a bill becomes a law (almost)

Everyone remembers it -- the excruciatingly dull chapter in high-school government class that explained how a bill becomes a law.

But if you didn't get it, don't despair. Events surrounding a recent piece of legislation suggest that some members of Congress may not have gotten it, either. For them, the process would seem to depend more on interest groups, lobbying and campaign contributions.

The bill in question is S. 2271, more commonly known as the Property Rights Implementation Act of 1998. It was drafted in part by the National Association of Home Builders (NAHB), a federation of over 800 builders' associations across the U.S. In the House, the bill found a sponsor in Elton Gallegly, a California congressman and former real estate developer, and was passed under the title H.R. 1534 before it finally was struck down in the Senate on July 13, coming up just eight votes short of the number needed to avoid filibuster.

S. 2271 dealt with what are known as "takings," which refer to any actions by government that restrict the use of private property -- for example, through environmental regulations or zoning codes. The Fifth Amendment of the Constitution has been interpreted to mean that if a taking occurs, the property owner must receive "just compensation." Under the current system, claimants who feel unjustly rewarded must first file suit at the state level. Only after that suit has reached an end can they advance their case to federal court. The main thrust of S. 2271 would have paved an easier path to the federal courts for those who dispute local regulations or seek still greater compensation. Property-rights advocacy groups such as NAHB feel this would provide much-needed reform to a system that is unjustly expensive and time-consuming for developers.

Glenn Sugameli, counsel for the National Wildlife Federation, has been fighting bills like S. 2271 for eight years. "There is no real evidence that that is a problem," he says, "and certainly not a problem requiring this sort of radical, draconian bill."

Indeed, if passed, the bill would have undermined the spirit of compromise. Rather than developers and local governments working out their disagreements, the former suddenly would have a big club to wield at those who they felt were blocking the use of their land. Thus, local governments reluctant to battle in court might let borderline projects slip past -- or else settle in for potentially costly litigation.

How costly? "Tens of thousands of dollars, at a minimum," Sugameli said, meaning that "even if `local governments` are confident that they could win the case, they may not be able to afford to win the case." Of course, the tab for such disputes would be left to taxpayers to pick up.

This is a huge factor in Florida, where building and growth activity are constantly on the rise. If state and local governments have less ability to fight on their own turf, what would result? Would we see more billboards in residential neighborhoods, or dumps near drinking water reservoirs. Consider this extreme: in Get Away Club, Inc. v. Coleman, an Arkansas bar filed a takings claim when roadblocks conducted by state troopers went up on the highway near the establishment. The bar sought compensation for what it argued were lost profits "taken" by the government because patrons did not drink as much at the bar out of fear of being stopped at a roadblock on their way home. (The bar lost, but not without driving up the public expense to end the complaint.)

How is it that this legislation came so close to being passed? In part it followed a blitzkrieg of lobbying by the NAHB to promote what Sugameli referred to as their "development-at-any-cost agenda." A little bit of money from the NAHB's political action committee didn't hurt either. According to Federal Election Committee reports, one day after the bill gained its first hearing in the House, the NAHB PAC contributed $173,000 to the campaigns of various House and Senate candidates. "There is no question," Sugameli said, "that this bill would've been laughed out of Congress had it just been proposed by a ideological property rights group and hadn't had the home builders pushing it with everything they had."

Take a look at Florida. Of 23 Congressional representatives, 16 voted for the bill's passage. The nonpartisan Center for Responsive Politics reports that all 16 received campaign contributions from the NAHB PAC during the 1995-96 election cycle; 10 received PAC money during the current election cycle as well. In all, the NAHB PAC contributed nearly four times as much money to the campaigns of those supporting the bill versus those opposing it.

S. 2271 was defeated this year. But the home builders' association has vowed to advance the issue again in the next legislative session, rallying behind the fact that no takings bill has ever made it as far through Congress.

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