Drug Makers Cutting Back on Discounts for the Elderly Bristol-Myers Squibb and GlaxoSmithKline said that they had raised the prices they offer in a widely promoted discount program out of concern that federal officials will demand similar deep discounts for the government Medicaid program, which provides health care for the poor. But federal officials expressed surprise at the moves and said that they had not taken any action against the discount plans. At issue is whether the discounts by the two companies � as well as those offered by five other drug companies, all under a program called Together Rx � are subject to a federal law requiring drug makers to offer the Medicaid program the lowest price available to any buyer. For some of the 300,000 low-income people participating in Together Rx, the higher prices will hurt. For example, Bristol-Myers said it had been offering a month's supply of the cholesterol-lowering drug Pravachol for $15 to elderly people with incomes of $18,000 or less. On Tuesday, the company raised the price to $59. Under GlaxoSmithKline's plan, patients will get roughly a 25 percent discount from retail drugstore prices, the company said, rather than 33 percent. For asthma patients, for example, an Advair Diskus will cost $118. Previously, patients paid $106 for that drug. Thomas A. Scully, administrator of the Centers for Medicare and Medicaid Services, said this week that he was perplexed by the moves to reduce the discounts. "We have had hours of meetings with them trying to make sure we did not impact their discount programs," he said. Mr. Scully said he believed that the two drug companies had decided to raise their prices for a reason unrelated to the government. "Unless I see some solid evidence, I don't believe it is related to Medicaid," he said. At the request of one drug company, Mr. Scully sent a letter to the industry's trade group in June explaining the circumstances in which a discount plan could prompt the government to demand comparable prices. The letter left GlaxoSmithKline executives concerned that their program could force the Medicaid pricing rule to go into effect, said Mary Anne Rhyne, a company spokeswoman. A meeting with federal officials late last month confirmed those concerns, she said, prompting the company to raise its prices to try to avoid enforcement of the law. Extending the discounts to the Medicaid program could cost the drug companies hundreds of millions of dollars. State and federal governments spent $20 billion on prescription drugs last year for the 42 million Medicaid beneficiaries, an increase of more than 12 percent over 2000. A year ago, GlaxoSmithKline became the first company to offer discounts to low-income elderly people who were not poor enough to be covered by the Medicaid program but did not have private insurance to cover their prescription medicines. Under heavy public criticism for high drug prices, other manufacturers followed suit. The seven companies participating in the Together Rx program say that qualifying elderly people receive discounts of 20 percent to 40 percent off the prices they would normally pay at pharmacies. http://www.nytimes.com/2002/10/05/business/05DRUG.html

Death Toll Rises but Money in Mine Fund Goes Unspent This spring, an 8-year-old boy in western Pennsylvania died when he tumbled down a 60-foot sheer rock embankment, a dangerous vestige of an abandoned coal mine. Dozens of people die at abandoned mines each year in accidents that are supposed to be prevented by a government program intended to clean up such dangerous sites, subsidized by a tax that coal companies have paid since 1977. These tax revenues have collected in a government trust fund that now holds $1.54 billion. But the federal government refuses to spend most of the money, holding it back to help offset the budget deficit, raising continuing complaints from state officials as more people die. The federal government has recorded 78 deaths in abandoned or inactive mines since January 2000, including 26 this year. The numbers are incomplete, and the actual death count is probably higher, the government concedes. "With all these deaths and injuries, I would think that is all the proof you would need to free up this money," said Mike Kastl, director of the abandoned mines program in Oklahoma, where 25 people � 14 children and 11 adults � have died in old mine accidents in recent times. The government taxes coal companies 10 cents to 35 cents a ton for the cleanup fund, and that money is added to the Abandoned Mine Lands Trust Fund, which holds enough money to clean up almost half of the most dangerous abandoned mines nationwide. But this year, like every year since the fund's inception in 1977, the money is caught up in the federal budget battle, though by law it cannot be spent on anything other than mine cleanup projects. "We'd like to use more of the money," said Danny M. Lytton, a senior official in the Interior Department's Office of Surface Mining, which administers the fund. "Most years we aren't able to spend even as much as we collect." This is a result of a peculiar federal budget idiosyncrasy. When the abandoned mine trust fund was authorized, it was designated "on budget," as are most government trust funds. That means the money is held in the government's general treasury pool, although it cannot be spent on anything else. When the Interior Department asks to spend part of the fund, the request must compete with those from every other program in the department. Any increase in spending must be offset by a decrease somewhere else. A result, federal officials acknowledge, is that that the money is held back to help lower the budget deficit. "The fund is being used as a budget balancing tool," complained Gary Conrad, director of the Interstate Mining Compact Commission, a multistate government agency. "As with any appropriation bill," said James H. Zoia, Democratic staff director for the House Natural Resources Committee, "if you doubled the abandoned mine lands budget, you'd have to cut that money from someplace else." The appropriation from the abandoned mine fund is routinely cut, "to try to balance things out," Mr. Zoia said. http://www.nytimes.com/2002/09/26/politics/26MINE.html

Justice Dept. Balks at Effort to Study Antiterror Powers The Justice Department has rebuffed House Judiciary Committee efforts to check up on its use of new antiterrorism powers in the latest confrontation between the Bush administration and Congress over information sought by the legislative branch. Instead of answering committee questions, the Justice Department said in a letter that it would send replies to the House Intelligence Committee, which has not sought the information and does not plan to oversee the workings of the U.S.A. Patriot Act. Representative F. James Sensenbrenner Jr., the Wisconsin Republican who is chairman of the panel, and Representative John Conyers Jr. of Michigan, its ranking Democrat, sent Attorney General John Ashcroft a list of 50 questions about the use of the new powers in the act, which the committee worked on before Congress approved it in October. They asked about "roving" surveillance; lists of calls to and from telephone numbers; demands for bookstore, library and newspaper records; and subpoenas under the amended Foreign Intelligence Surveillance Act served on Americans or permanent residents. Some simpler questions, about Immigration and Naturalization Service employees the Canadian border, were answered. Mr. Conyers complained that the letter was "yet another shot in this administration's ongoing war against open and accountable government." He said Mr. Ashcroft was telling Congress that "his activities are not to be oversighted." " `Congress, butt out,' " Mr. Conyers said. http://www.nytimes.com/2002/08/15/politics/15PATR.html

Florida Court Bars Use of Vouchers The judge, P. Kevin Davey of Leon County Circuit Court, struck down a 1999 Florida law that gives money to students from poorly performing public schools to pay tuition at private schools, including ones run by churches. In his decision, Judge Davey wrote that the Florida Constitution was "clear and unambiguous" in prohibiting public money from being used in any sectarian institution. "There is scant room for interpretation or parsing," he wrote. "While this court recognizes and empathizes with the salutary purpose of this legislation � to enhance the educational opportunity of children caught in the snare of substandard schools � such a purpose does not grant this court the authority to abandon the clear mandate of the people as enunciated in the Constitution." Teachers groups and civil rights organizations called the ruling a victory for public schools. "Vouchers violate the Florida Constitution by taking taxpayer dollars from our struggling public schools and diverts them to private and overwhelmingly religious schools," said a statement from Maureen Dinnen, president of the Florida Education Association, which was a plaintiff in the case. About 9,000 students in 10 Florida schools that had received poor performance ratings were eligible this year for the vouchers under the program that was overturned, the Opportunity Scholarship Program, according to the Florida Board of Education. Parents of 659 students had applied for the vouchers for the school year that begins next week. Gov. Jeb Bush, who instituted the program, said the state would appeal. http://www.nytimes.com/2002/08/06/national/06VOUC.html

Loophole Lets Lobbyists Hide Clients' Identity It is a fact of life on Capitol Hill that new lobbying coalitions sprout almost every day to try to influence everything from electricity policy to bankruptcy law to health care legislation. But the rising popularity of such coalitions goes beyond simply a desire to influence policy. Thanks to a loophole in the federal lobbying law, some companies and individuals � especially those pursuing controversial or potentially embarrassing causes � are using coalitions to conceal their identities. "You can have unpopular causes such as a tobacco interest or one of these corporations that have renounced its American citizenship hide their interests through this device," said Representative Lloyd Doggett, Democrat of Texas. "You can have foreign interests, if they combine with others, hide their involvement through this device." The Congressional Research Service, a part of the Library of Congress, recently examined lobbyist registration forms, Congressional testimony and media databases and found 135 lobbying coalitions for which it could find only limited information or none at all. One such group, the Section 877 Coalition, has been largely dedicated to keeping Congress from tightening the section of the tax law applying to the estates of wealthy individuals who gave up their American citizenship. The coalition paid more than $760,000 to two firms in 2000 and 2001 to press its case, disclosure forms filed with Congress by the coalition's lobbyists show. But the reports give no clue about precisely who wanted to protect expatriates, and some of the group's lobbyists have hardly been forthcoming. "It is our policy not to comment on client matters, except to note that with respect to the registration of these entities, we are in full compliance with the letter and the spirit of the law," said Steven Silber, a spokesman for PricewaterhouseCoopers, which had been one of the lobbying firms for the Section 877 Coalition. This year, the accounting firm sold its federal tax lobbying operation. Only in recent days, after repeated inquiries from a reporter and a request from a former lobbyist who now is an official at the Treasury Department, did lobbyists say that the coalition was made up of trusts for members of the Arison family. In the 1990's, Congressional Democrats used Ted Arison, the founder of Carnival Cruise lines who saved millions in taxes by renouncing his United States citizenship and returning to Israel, as a case study of why the tax law should be rewritten. Mr. Arison was one of the richest men in the world when he died in 1999. A spokesman for the Carnival Corporation, whose chairman is Micky Arison, a son of Ted Arison's, referred questions about why the Arison family trusts had operated through the Section 877 Coalition to one of the lobbying firms, Alcalde & Fay. At the firm, Hector Alcalde said he had listed the client as the Section 877 Coalition for "simplicity's sake," because PricewaterhouseCoopers had already done so. "There's no hidden agenda," Mr. Alcalde said http://www.nytimes.com/2002/07/05/politics/05LOBB.html

In Capitol, Last Names Link Some Leaders and Lobbyists With a pierced tongue, a goatee and previous employment as the owner of a record store and label called Seven Dead Arson, the young man is not a typical buttoned-down Washington lobbyist. But Joshua Hastert, 27, does have something increasingly common in lobbying circles � family ties to a Congressional leader. Mr. Hastert is the eldest son of J. Dennis Hastert, the speaker of the House. Chester T. Lott Jr., the son of the Senate Republican leader, Trent Lott, is a registered lobbyist. Linda Daschle, the wife of the Senate majority leader, Tom Daschle, is a senior public policy adviser at one of Washington's premier lobbying firms, serving aviation interests. Numerous relatives of Congressional and administration officials are employed in lobbying shops around Washington, as they have been for years. Some ethics watchdogs say such arrangements are potentially troublesome, and the fact that relatives of three of the four top members of Congress work as lobbyists illustrates how pervasive and accepted the practice has become. Others say the lobbyists have every right to pursue their line of work as long as they observe ethics rules and keep their professional distance from their powerful relatives. Mr. Hastert and Mrs. Daschle, 47, say that their well-known last names can hurt as well as help, and that they are entitled to pursue their chosen livelihood, especially in a city where so much employment is government-related. "Why should a spouse, just because she is married to a high-profile public official, have to walk away from a career?" asked Mrs. Daschle. No rules prohibit lobbying by relatives, and any effort to regulate it raises free speech concerns. But it has always made ethics groups a little uneasy. http://www.nytimes.com/2002/08/04/national/04LOBB.html

Again, Election Confusion for the Florida Secretary of State Here they go again. Florida elections officials and political candidates are confused about another election. And once again, the controversy involves Katherine Harris, who is leaving her post as Florida secretary of state to run for Congress. She did not follow state elections procedures regarding her candidacy and, after realizing the oversight, was forced today to do a bit of damage control. Florida's "resign to run" law requires that elected officials seeking another office submit a letter on the day of qualifying for the upcoming race stating when they intend to resign. If they do not, their resignation becomes effective immediately. Ms. Harris, whose office enforces state elections law, said she did not realize that the law applied to her because secretary of state becomes an appointed position next year.

For Homeland Security Bill, a Brakeman The government's summer urgency to fend off terrorists by reorganizing security agencies seemed to melt away today when Robert C. Byrd walked onto the Senate floor in his seersucker suit and let loose a thundering demand to slow things down. The stripes on his jacket appeared to be trembling as much from indignation as from the infirmities of his 84 years as the senator held out his palm, and the power of parliamentary rules, before the onrushing bulldozer of the proposed Homeland Security Department. "Have we all completely taken leave of our senses?" he said, his tremulous drawl mocking the high-speed world flying by outside his timeless chamber. "The president is shouting, `Pass the bill, pass the bill!' The administration's cabinet secretaries are urging the adoption of the president's proposal without any changes." But that is not the way of the Senate, he argued. "If ever there was a time for the Senate to throw a bucket of cold water on an overheated legislative process that is spinning out of control," he said, "it is now. Now!" It might have been just another of the eight-term West Virginia Democrat's legendary diatribes against executive excess, except for the Senate rules that give a single member enormous power for tossing water buckets. All but single-handedly, Mr. Byrd has slowed the Homeland Security juggernaut by implicitly threatening a filibuster, almost certainly forcing the Senate to postpone debate until after the August recess. Tom Daschle, the majority leader, predicted on Friday, when the House passed its version of the legislation, that given the time needed to cut off Senate debate, a vote would be pushed back to September. That would threaten Congress's self-imposed memorial deadline of Sept. 11 for creating the department, and it did not sit well today with Trent Lott, the minority leader, who said the delay was a "huge mistake" that could be dangerous to the country. "What if we leave town," Mr. Lott said in an interview, "and in August we have some terrorist attack, some disaster, that maybe could have been prevented if we had a way to move people and money and get a focus in an appropriate way? I just think that's unacceptable. This really to me is emergency legislation." Although Mr. Lott's accusation carried with it a potent political threat, Mr. Byrd's plea for deliberation seemed to win some adherents today, particularly because the delay now seems inevitable. Mr. Daschle, eager for his party not to be portrayed as obstructionist, said a little cogitation might not be a bad idea. "This is the single biggest reorganization of the federal government in my lifetime," he told reporters, "and for us to take it up and to pass it in a couple of days asks a lot of our judgment and of our ability to deliberate on something of this import. Senator Byrd and others are suggesting that they may support in the end the proposal, but they want more care, more attention, more careful consideration given to a proposal of this magnitude. And frankly, I don't think that's too much to ask." http://www.nytimes.com/2002/07/31/politics/31SECU.html

KFF State Health Facts Online Kaiser Family Foundation's State Health Facts Online. This new resource contains the latest state-level data on demographics, health, and health policy, including health coverage, access, financing, and state legislation. http://www.statehealthfacts.kff.org/cgi-bin/healthfacts.cgi?

Red Flags New Fears and Lingering Doubts. The public has faced more bad news about the economy in the past year than it has since the recession of the early 1990s, and public opinion on the economy has become more negative as a result. Only a third of the public says the economy is in good shape, and seven in 10 say they�re concerned about July�s dramatic drop in the stock market. Yet some level of public doubt and dissatisfaction with the economy is normal, even during prosperous times. In the late 1990s, when most Americans were optimistic about both their personal outlook and the overall economy, people still were critical in some specific areas. Many Americans admitted having trouble saving money and keeping up with the cost of living, while large majorities said the gap between rich and poor is widening. http://www.publicagenda.org/issues/red_flags.cfm?issue_type=economy

Clinton Says Republicans Blocked His Audit Reforms "Arthur Levitt, my Securities and Exchange commissioner, tried to stop the Enron accounting issues � using the same accounting company being consultant and accountant � and the Republicans stopped it." Later, Mr. Clinton added that Republicans had fought Mr. Levitt's effort, "and Harvey Pitt was the leader trying to stop us from ending those kind of abuses. That is a matter of record." Mr. Pitt, who was a securities lawyer before being appointed by President Bush to head the S.E.C., counted accounting firms, including Arthur Andersen, among his clients. When asked if he agreed with senators and representatives who have called for Mr. Pitt's resignation, Mr. Clinton demurred. "I don't have to make those decisions anymore," he said. Mr. Clinton also said he had been overridden by Republicans when he vetoed a securities-industry bill he said would have "basically cut off investors from being able to sue if they were getting the shaft." And he recalled that his Treasury secretary, Lawrence H. Summers, had tried to crack down on the use of offshore accounts to conceal corporate financial information, but that Senator Phil Gramm of Texas "and other Republicans stopped that." http://www.nytimes.com/2002/07/25/business/25CLIN.html

Revised View of 2nd Amendment Is Cited as Defense in Gun Cases �criminal defendants around the nation have asked federal courts to dismiss gun charges against them based on the Justice Department's recently revised position on the scope of the Second Amendment. The new position, that the Constitution broadly protects the rights of individuals to own guns, replaced the view, endorsed by the great majority of courts, that the amendment protects a collective right of the states to maintain militias. While the challenges have been rejected by trial court judges, based largely on appeals court precedent, supporters and opponents of broad antigun laws say the arguments have forced the Justice Department to take contradictory stances. http://www.nytimes.com/2002/07/23/national/23GUNS.html

Brookings Study Calls Homeland Security Plans Too Ambitious Adding to a growing list of Congressional concerns about domestic security, a study released today warns that the president's plan for a new Department of Homeland Security is too ambitious and could create more problems than it solves. The report by the Brookings Institution recommends a pared-down department concentrating on border and transportation security, intelligence and threat analysis, and protecting the country's infrastructure. In a letter to the White House, Representatives Henry A. Waxman of California and David R. Obey of Wisconsin, both Democrats, wrote this week that the president's new department would have far-flung responsibilities like administering the National Flood Insurance Program, cleaning up oil spills at sea and eradicating the boll weevil. That, the lawmakers said, could dilute the department's mission to fight terrorism and "risks bloating the size of the bureaucracy." For similar reasons, the eight Brookings scholars and former government officials argued in their study today that the Federal Emergency Management Agency should remain separate from the new department. "Fortunately, terrorist attacks are rare, but you can count on national disasters every year � right now there are floods in Texas, fires in Arizona � so why should the Department of Homeland Security be pulled away from its mission and worry constantly about those disasters?" asked James M. Lindsay, an author of the study, "Assessing the Department of Homeland Security." The study also recommended that Congress delay deciding whether to include scientific and technological research on chemical, biological, radiological and nuclear countermeasures against terrorist attacks. "The proposal put on the table is too big; it needs to focus on just those functions directly related to homeland security like the Coast Guard, customs, intelligence analysis and protecting public and private infrastructure that doesn't really exist today," said Ivo H. Daalder, another author of the study and a former member of the National Security Council. http://www.nytimes.com/2002/07/14/politics/14HOME.html

Congress Looks at How Justice Uses New Power After passing the antiterrorism bill in record time in the fall, the House and Senate Judiciary Committees are making an unusually prompt and thorough, if sometimes unsuccessful, effort to determine how the Justice Department is using its new powers. This week, the House panel agreed to let the department have a few more days to finish answering 50 questions, some with as many as seven parts, that it submitted on June 13. Representatives F. James Sensenbrenner Jr., the Wisconsin Republican who leads the panel, and John Conyers Jr. of Michigan, its senior Democrat, asked about the law section by section, questioning how new authority like sharing grand jury information, easier search warrants, greater ability to deny entry to the United States and other features had been used and to what effect. The Senate committee, which has shorter lists of questions that await replies, had planned to question Attorney General John Ashcroft on Thursday. But Mr. Ashcroft canceled his appearance, which would have been his first before the committee since Nov. 25. The cancellation prompted Senator Patrick J. Leahy of Vermont, the chairman, to send what the senator's spokesman called a stern letter of complaint. Senator Charles E. Grassley, the Iowa Republican who is probably the Senate's most devoted advocate of vigorous oversight, complained that the department's answers were not very satisfying. He characterized the response as stonewalling and said that considering all the additional power voted, "there is less reason for us to tolerate this stonewalling." http://www.nytimes.com/2002/07/14/politics/14PATR.html

Suffer the Children Millions of American children are facing such serious issues as substandard housing and homelessness, inadequate and crumbling schools, and restricted access to health care, even as the money that might help alleviate some of these ills is being squandered on tax cuts that are scandalously huge � and growing! An analysis of the Bush tax cut released jointly by Citizens for Tax Justice and the Children's Defense Fund found that while the wealthiest Americans "have already received a hefty down payment on their Bush tax cuts � averaging just under $12,000 each this year � 80 percent of their windfall is scheduled to come from tax changes that won't take effect until after this year, mostly from items that phase in after 2005." For the vast majority of Americans, three-quarters of the Bush tax cuts � averaging about $350 this year � are already in place, the study said. From 2001 through 2010, "the richest Americans � the best-off 1 percent � are slated to receive tax cuts totaling almost half a trillion dollars. The $477 billion in tax breaks the Bush administration has targeted to this elite group will average $342,000 each over the decade." The clincher: "By 2010, when (and if) the Bush tax reductions are fully in place, an astonishing 52 percent of the total tax cuts will go to the richest 1 percent, whose average 2010 income will be $1.5 million." Kids don't stand a chance in that environment. Marion Wright Edelman, president of the Children's Defense Fund, put the matter well: "The Bush administration's words say, `Leave no child behind.' The Bush administration's deeds say, `Leave no millionaire behind.' " http://www.nytimes.com/2002/07/11/opinion/11HERB.html

When When Patriotism Wasn't Religious �"God" does not appear in the Constitution of the United States, a document that erects if not quite a wall, at least a fence between church and state. "In God We Trust" began to appear on American coins in the 19th century, but in the early 20th century President Theodore Roosevelt, having asked the sculptor Augustus Saint-Gaudens to design new coinage, was relieved to find no statute mandating "In God We Trust" on coins. "As the custom, altho without legal warrant, had grown up," T. R. wrote to a clergyman distressed over the prospect of godless coins, "I might have felt at liberty to keep the inscription had I approved of its being on the coinage. But as I did not approve of it, I did not direct that it should again be put on." T. R. expressed his "very firm conviction that to put such a motto on coins . . . not only does no good but does positive harm." His objection to "In God We Trust" was not constitutional; it was aesthetic. He felt that the motto cheapened and trivialized the trust in God it was intended to promote. "In all my life I have never heard any human being speak reverently of this motto on the coins or show any sign of its having appealed to any high emotion in him," he wrote. Indeed, he added, "the existence of this motto on the coins was a constant source of jest and ridicule." http://www.nytimes.com/2002/07/07/opinion/07SCHL.html

Succeeding in Business �George W. Bush is scheduled to give a speech intended to put him in front of the growing national outrage over corporate malfeasance. He will sternly lecture Wall Street executives about ethics and will doubtless portray himself as a believer in old-fashioned business probity. Yet this pose is surreal, given the way top officials like Secretary of the Army Thomas White, Dick Cheney and Mr. Bush himself acquired their wealth. As Joshua Green says in The Washington Monthly, in a must-read article written just before the administration suddenly became such an exponent of corporate ethics: "The `new tone' that George W. Bush brought to Washington isn't one of integrity, but of permissiveness. . . . In this administration, enriching oneself while one's business goes bust isn't necessarily frowned upon." Unfortunately, the administration has so far gotten the press to focus on the least important question about Mr. Bush's business dealings: his failure to obey the law by promptly reporting his insider stock sales. It's true that Mr. Bush's story about that failure has suddenly changed, from "the dog ate my homework" to "my lawyer ate my homework � four times." But the administration hopes that a narrow focus on the reporting lapses will divert attention from the larger point: Mr. Bush profited personally from aggressive accounting identical to the recent scams that have shocked the nation. In 1986, one would have had to consider Mr. Bush a failed businessman. He had run through millions of dollars of other people's money, with nothing to show for it but a company losing money and heavily burdened with debt. But he was rescued from failure when Harken Energy bought his company at an astonishingly high price. There is no question that Harken was basically paying for Mr. Bush's connections. Despite these connections, Harken did badly. But for a time it concealed its failure � sustaining its stock price, as it turned out, just long enough for Mr. Bush to sell most of his stake at a large profit � with an accounting trick identical to one of the main ploys used by Enron a decade later. (Yes, Arthur Andersen was the accountant.) � http://www.nytimes.com/2002/07/07/opinion/07KRUG.html

The Competing Visions of the Role of the Court For Justice Scalia, constitutional principles are fixed, not evolving � "The Constitution that I interpret and apply is not living, but dead," he declared at a conference earlier this year � and Congress needs to be held to the words it wrote, not to interpretations written by committee aides or judges. "Our first responsibility is to not to make sense of the law � our first responsibility is to follow the text of the law," he said from the bench. In his view, the Supreme Court's job is to give lower court judges not factors to weigh, but rules to apply. �Justice Breyer presented an integrated theory of the role he sees for the court in society and for himself as a justice. Delivering New York University Law School's James Madison Lecture last October, he said three principles should guide the court's decision-making. First was the purpose (as opposed to text) of the constitutional provision or law under review. Second was the likely consequence of a decision, which he contrasted to "a more `legalistic' approach that places too much weight upon language, history, tradition and precedent alone." Without mentioning Justice Scalia by name, he said the "literalist" approach leads to a result "no less subjective but which is far less transparent than a decision that directly addresses consequences in constitutional terms." Third, Justice Breyer said, the court should bear in mind the Constitution's overall objective, that of fostering "participatory democratic self-government." The court should be wary, he said, about preempting a "national conversation" in which new legal understanding "bubbles up from below." JUSTICE BREYER'S lecture did more than clarify his own approach. It meant that Justice Scalia was no longer the solitary voice framing the debate on the role of the court. http://www.nytimes.com/2002/07/07/weekinreview/07GREE.html

Study Faults U.S. Regulators in Aftermath of Power Crisis More than a year after California endured power shortages and soaring energy prices, the nation's energy regulators are still not up to the task of protecting consumers and ensuring that electricity is sold at reasonable rates, a Congressional study to be made public on Tuesday has concluded. The study by the General Accounting Office, an investigative arm of Congress, says the Federal Energy Regulatory Commission is hobbled by antiquated procedures, legislation and perhaps a mind-set more suited to the old days when energy producers were regulated monopolies. "FERC has not yet adequately revised its regulatory and oversight approach to respond to the transition to competitive energy markets," the report states. While the energy agency recognizes that it must "fundamentally change how it does business," it has been unable to transform itself, partly because of leadership changes and high staff turnover created by higher salaries in private business, the report said. Moreover, the study found, the agency "lacks adequate enforcement `bite' to deter anticompetitive behavior or other violations of market rules" because it is simply unable to impose meaningful civil penalties. Without stronger enforcement power, the report says, the agency will not be able to deter anticompetitive behavior or outright violations of market rules. http://www.nytimes.com/2002/06/18/business/18FERC.html

G.O.P. Is Moving to Slow Action on Tax Loophole Republican leaders in Congress are using procedural tactics like walking out of committee hearings to keep Congress from voting on measures to close the so-called Bermuda loophole in the federal tax code, measures that would almost certainly pass overwhelmingly if given the chance. The loophole allows big companies to pretend legally that they are based offshore (Bermuda has been the country of choice) and then filter profits through a third country (most often Barbados), avoiding American income taxes. The administration and the Republican leaders have said the loophole should be closed but have emphasized that flawed tax laws are forcing companies to make the Bermuda move. Representative Lloyd Doggett, Democrat of Texas, will try to change the law again today with a measure that would forbid companies to use the loophole unless their shares actually trade on an exchange in the tax haven country or most of their stock is owned by people living there. The proposal would close the loophole for companies like Tyco International, nominally a conglomerate based in Bermuda but which manages its operations from Exeter, N.H. There would be no effect on legitimate multinational corporations, like DaimlerChrysler, that have not used a haven to avoid American taxes. "It seems eminently fair to require that people in your own country be the ones to benefit from the tax treaty," Mr. Doggett said. "We did not negotiate these treaties so that American companies could stop paying taxes on profits earned in the United States, but to benefit commerce between our country and the tax treaty countries." "We cannot let these fair-weather friends choose when to wrap themselves in the flag and when, renouncing the flag, they will wrap themselves in a tax treaty," Mr. Doggett said. "Enjoying the rights means sharing the responsibility." The determination of Republicans to not allow a vote on closing the Bermuda loophole has been seen in both the Senate and House in recent weeks. Republicans left a Senate Finance Committee meeting last Thursday, ending the meeting for lack of a quorum, shortly before a vote on a bill by Max Baucus, Democrat of Montana, and Charles E. Grassley, Republican of Iowa, the two senior members of the committee, to close the loophole for new companies. Aides to both senators said that they were confident that the bill would pass by a wide margin if brought up for a vote on the Senate floor. The committee is to take up the bill again tomorrow. Three weeks ago, Republican leaders in the House cut off a vote on making permanent partial relief from the so-called marriage penalty to avoid allowing Democrats to bring up an amendment closing the Bermuda deals. The marriage penalty occurs when a working married couple pays more in taxes than if they lived together without being married. The Bermuda deals, according to the Treasury, reveal deep flaws in the system for taxing multinational companies. The administration has warned that a quick remedy, like the moratoriums proposed in the House or the denial of tax benefits in the bill by Mr. Baucus and Mr. Grassley, might make American multinational corporations vulnerable to takeovers by foreign companies or could damage their global competitiveness. Still, were a bill creating a moratorium on the Bermuda deals to come up for a vote in the House while a study was under way, it would easily win 300 votes, far more than needed for passage, said Representatives Jim McCrery, a Republican from Louisiana, who is on the House Ways and Means Committee. Mr. McCrery said that he favored a comprehensive review of the tax regime for international companies. http://www.nytimes.com/2002/06/18/business/18TAX.html