Slipping tech laws in via the back door

To learn how Congress really works, News.com's Declan McCullagh says to follow the paper trail of tech legislation.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
President Bush just signed into law a bill slapping more restrictions on online gambling. The odd thing, though, is that at his press conference on Friday, Bush mentioned neither gambling nor the Internet.

That's because the restrictions were buried in Section 801 of a massive port security bill, which had nothing to do with the Internet and became one of those must-pass-before-November-7th political gambits of which Congress becomes so enamored in election years.

If this happened only rarely, perhaps we could forgive our elected representatives for gluing unrelated amendments onto a proposal that's destined to become law. (With a tight election just weeks away, how many politicians have the mettle to vote against "port security"?)

But the problem is that the technique has become commonplace, meaning that even the sniping sessions that have come to define debate in the U.S. Congress are bypassed. Voters also lose a chance to learn how our supposed public servants vote on specific topics, rather than on a 300-page bill with scores of unrelated components.

Which, of course, is precisely the point. Because politicians dislike being held accountable for their actions--specific votes can be compiled into embarrassing scorecards and inconvenient voting records--they prefer to lump everything together. The U.S. Senate Web site offers an official definition of the practice: a "Christmas tree bill," meaning unrelated amendments that adorn legislation.

Another example is a proposal backed by the Bush administration, to force labels on certain Web sites. The measure says that commercial Web sites must not place "sexually explicit material" on their home pages upon pain of felony prosecution--and that they must rate "each page or screen of the Web site that does contain sexually explicit material" with a system to be devised by the Federal Trade Commission.

How Congress celebrates Christmas

Excerpts from an appropriations bill (HR 5672) to fund the State Dept., Justice Dept. and other agencies for the 2007 fiscal year:

"It is unlawful for the operator of a Web site that is primarily operated for commercial purposes knowingly, and with knowledge of the character of the material, to place sexually explicit material on the Web site unless--

(i) the first page of the Web site viewable on the Internet does not include any sexually explicit material; and

(ii) each page or screen of the Web site that does contain sexually explicit material also displays the matter prescribed by the Federal Trade Commission...

Violation of this subsection is punishable by a fine under title 18, United States Code, or imprisonment for not more than 5 years, or both.

Such a law probably would be unconstitutional. Courts have taken a dim view of mandatory rating systems: In a 1968 case called Interstate Circuit v. Dallas, the U.S. Supreme Court ruled that Dallas' ordinance requiring that movies be rated was unconstitutional because the criteria for rating were unclear and vague.

But the advisability is almost beside the point. Rather than permitting an up-or-down vote, the Republican leadership stuffed the language into a must-pass appropriations bill (HR5672) to fund the State Department, Justice Department, Commerce Department and other agencies for the 2007 fiscal year.

Even though that bill technically awaits votes in both the Senate and the House of Representatives, it already enjoys an air of inevitability. After all, how many politicians will uphold the First Amendment at the cost of shuttering large portions of the federal government?

An alarming trend
Other legislative Christmas trees include:

• The Real ID Act, which creates a national ID card starting in 2008, was glommed onto an $82 billion "emergency" military spending bill (HR1268) last year. Unless Americans are outfitted with these federalized ID cards, they won't be able to do things like board airplanes or enter national parks and some government buildings.

Rep. Ron Paul, a libertarian-leaning Texas Republican, warned at the time that the Real ID Act "offers us a false sense of greater security at the cost of taking a gigantic step toward making America a police state." But the spending bill sailed through the Senate unanimously and met with only a few dissenting votes in the House.

• Slapping a $15 tax on .com, .net and .org domain names in 1998 was part of an "emergency supplemental appropriations" bill (HR3579) to fund the Army, Navy, Air Force and Marines. The cash went to politically savvy Network Solutions, now part of VeriSign.

• Enacting a controversial proposal to punish Web masters with six months in prison if they publicly post anything that's "harmful to minors." Instead of holding an honest, up-or-down vote on the Child Online Protection Act, politicians slipped it into an "omnibus" bill (HR4328) to fund the bulk of the federal government, including the Treasury Department. COPA is being challenged in court by the American Civil Liberties Union.

• Coercing libraries and schools into filtering Internet connections was done through the simple expedient of attaching it to an unrelated spending bill (HR4577) to fund the Treasury Department, Labor Department and Congress itself. A divided Supreme Court upheld the restrictions as constitutional.

I could go on, but you get the idea. The practice of hanging unpopular amendments on a Christmas tree bill isn't even limited to spending measures: A few weeks after the terrorist attacks of Sept. 11, 2001, the Recording Industry Association of America tried to insert its own copyright-hacking-authorization language into what eventually became the Patriot Act.

The worrisome thing is that, even though politicians have left Washington to campaign, they've only enacted two of the 12 spending bills necessary to fund the federal government for the 2007 fiscal year. (WashingtonWatch.com estimates the remaining bills will cost each American family about $10,766.)

So we should expect plenty of mischief when they return after the election: Think of it as an early Christmas present that Congress gives itself every year.