Reckless Legislation With Perverse Consequences

One story that's creating buzz in Washington but is little known anywhere else – the New York Times has not deigned to mention it – is the fight over the final report of independent counsel David Barrett. Barrett was appointed in 1995 to investigate charges that Clinton housing secretary Henry Cisneros lied to the FBI about payments he made to a former girlfriend (Cisneros pleaded guilty to a misdemeanor in 1999). Most people would be dumbfounded to learn that Barrett's office is still in business -- he has spent about $21 million so far –- but the word is that along the way Barrett received information from an Internal Revenue Service whistleblower who told him that IRS higher-ups acted improperly to protect Cisneros during the investigation. So for the last few years, Barrett has, in effect, been investigating the IRS to see if it obstructed his investigation. Now, he has finished his final report –- it was done last August -– and we are waiting for the court to decide if it can be made public.

The buzz came when Democratic senators John Kerry, Byron Dorgan, and Dick Durbin tried to close Barrett's office by writing an amendment that would de-fund it, and then attaching that amendment to a larger war spending bill. Had the amendment passed, it would have probably made it impossible for Barrett to publish his report. A few days ago, the amendment was dropped, so it looks like we'll see the report after all, perhaps as early as this month. The buzz is it's a big deal –- never before has the IRS been the target of such an investigation –- but we won't know until it's out. In any event, $21 million in taxpayer money has been spent on this, and we ought to be able to see the results.

All this is a reminder, if anybody needed one, of the damage done by reckless legislation. The independent counsel statute was an insane law –- as Antonin Scalia tried to tell us years ago -– but Congress passed it, the president signed it, and the Supreme Court upheld it (over Scalia's great dissent). So we had the independent counsel follies of the 1990s, and Republicans who did not like the law and voted to let it die in 1993 thought it only right that Democrats, who had forced its reauthorization, should have to live with its consequences. And lo and behold, we're still living with its consequences, even if most of us had forgotten about it. And speaking of reckless legislation with perverse consequences felt years after its passage -– McCain-Feingold, anyone?