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How Congress Changed The Rules on US Attorney Appointments

Patriot Act Reauthorization Bill of 2005

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Updated January 20, 2007
This is a story that illustrates, perfectly, the old adage about avoiding watching anyone make sausage or law.

The bill in question? The Patriot Act Reauthorization Bill of 2005.

When introduced as HR 3199 in July 2005, the bill totaled seven pages (web text converted to PDF). When signed by the President in March 2006, it had morphed into Public Law 109-177, a "final print" behemoth at 277 pages.

The bill is in the news because of this clause:
    SEC. 502. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.
    Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:

    ''(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.''.


What Does It Mean?
The language that was replaced by PL 109-177 specified that if a US Attorney resigned before the end of his term, that the Court nominated an interim US attorney until the Senate acted on a Presidential nomination. The term for the interim US Attorney was limited by law to 120 days.

Now, the President makes the appointment, there is no limit to the interim appointment, and there is required no Senate oversight.


How Did It Happen?
On 11 July, Rep James Sensenbrenner, Jr (R-WI), introduced the seven-page bill. There were no co-sponsors. The Judiciary and Intelligence Committees had their way with the bill, and when the House passed the bill on 21 July, it totalled 117 pages.

The Senate didn't like any of it; they sent the House a complete substitution on 29 July 2005.

On 9 November, the House agreed that the solution was a conference committee, where legislators from both chambers hammer out differences. It was in the conference process that this clause -- as well as several other "miscellaneous" items -- was added to the bill.

The conference committee revision was filed on Thursday 8 December 2005. The House passed the conference report on Wednesday 14 December, 251-174 (roll call vote - 207 Rs, 44 Ds). A full week = plenty of time to read the bill (or have a staffer read the bill.) Don't say you didn't know what you were voting for!

A storm of controversy ensued; the Senate did not vote on the measure until 2 March 2006; it passed 89-10 (roll call vote).
    NAYs ---10
    Akaka (D-HI)
    Bingaman (D-NM)
    Byrd (D-WV)
    Feingold (D-WI)
    Harkin (D-IA)
    Jeffords (I-VT)
    Leahy (D-VT)
    Levin (D-MI)
    Murray (D-WA)
    Wyden (D-OR)

    Not Voting - 1
    Inouye (D-HI)
The President signed the bill on 9 March 2006.


So there you have it -- a handful of (mostly) men (I can find three women appointed to the conference committee) rewrote the bill behind closed doors. The conference process is not "open" -- there is no record in the Congressional Record of who made what changes to the text. So we'll never know who inserted this clause, unless they 'fess up (or someone rats them out).

References
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