Dereliction of duty

We all know that few members of Congress bother to read the bills on which they vote and often don’t seem anxious to examine much evidence for or against a bill before they vote. Senate Majority Leader Harry Reid (D-Nev.), perhaps inadvertently, summed up the feelings of many of his colleagues when, as the Senate began considering Judge Sonia Sotomayor’s nomination to the Supreme Court, he acknowledged that he hadn’t analyzed any of the controversial jurist’s decisions and “hoped” that he would never have to even read them.

What’s more frightening, though, is that it is becoming apparent that many members neither read nor grasp the real meaning of their own legislative proposals. Most legislation is written by either a staffer or a lobbyist with an agenda that may or may not coincide with that of the member. Although most bill language is reviewed by the legislative counsel’s office for germaneness and to see if it will actually accomplish its intended purpose, bill sponsors can all too often be heard whining that they didn’t really mean what the wording clearly states or implies.

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Thus, while Rep. Elton Gallegly (R-Calif.) swears that he never intended an amendment he authored, or at least introduced, to prohibit the production, sale or dissemination of hunting and fishing videos, photographs or programming, it seems others are convinced that’s exactly what the language does.

Gallegly claims that all he wanted to do back in 1999 when he included language doing this in H.R. 1887 was outlaw what are known as “crush videos” in which women are filmed stepping on and killing small animals. There are weirdos out there who will buy just about anything, but I doubt most of us have ever heard of such a thing. I don’t know how Gallegly found out such things even exist or why he took it upon himself to make it a legislative priority to criminalize activity that most agree could already be prosecuted under existing federal, state and local laws, but he did.

I suspect that the problem, its solution and the language that eventually became part of the federal criminal code were brought to the congressman’s attention by one of the so-called animal rights organizations with a far grander agenda than saving the mice or spiders or whatever other small animals had been crushed by whoever stars in such bizarre videos. One suspects this because the language he introduced went far beyond his stated intention by making it a federal felony to “depict” an act of “animal cruelty,” which was defined rather broadly in what is now Section 18 U.S.C. 48(c) 1) as “conduct in which a living animal” is “wounded” or “killed” when “such conduct is illegal under Federal law or the law of the State in which the creation, sale or possession of [the video or other depiction] takes place, regardless of whether” the wounding or killing “took place in that State.”

If Gallegly were an outdoorsman, hunter or fisherman, he would have immediately seen that this language would unavoidably be interpreted to includes depictions of legal hunting enjoyed by millions of Americans, which is actually promoted by the very government he has successfully asked to criminalize it, including hunting the government promotes to decrease populations of animals that would otherwise starve in horrible deaths.

Consider the potential reach of this language. Sporting-goods stores and Wal-Mart sell millions of dollars in hunting videos and you can turn on your television right now and find hunting programs on various outdoor channels produced and distributed by people whom Gallegly has — consciously or not — branded as federal criminals now subject to arrest, prosecution and imprisonment.

What this means is that an ambitious prosecutor in a place like the District of Columbia, where deer hunting is illegal, could curry favor with animal rights types or garner publicity by indicting anyone who sells or broadcasts a video of a deer hunt filmed in, say, Texas within the boundaries of the District. This may not have been what Gallegly and his friends intended, but it is what the provision he says he authored allows.

This makes the boys and girls at PETA happy, but plays havoc with the First Amendment and is why a case challenging the whole idea will soon be heard by the Supreme Court, where it is almost inconceivable that it will be upheld.

The real lesson here, however, is that if Congress can’t even avoid such horrendous unintended consequences in drafting something conceptually so simple, what sorts of dangers lurk in the unread thousands of pages in the healthcare bill that passed the House so quickly last week?

Keene is chairman of the American Conservative Union and a managing associate with the Carmen Group, a Washington-based governmental consulting firm.