October 16, 2007

October 16, 2007 | Commentary on Political Thought

They Just Don't Get LOST

This year a Democratic majority took power on Capitol Hill. But new leadership has done nothing to address an old problem: Lawmakers racing to pass bills they haven't actually read.

Recall the Senate's ill-fated immigration reform bill last spring. Senators didn't bother to hold committee hearings on the measure. Had they done so, they'd have realized it would have granted amnesty to millions of illegal aliens. Robert Rector of The Heritage Foundation did read the bill, and calculated it would cost taxpayers $2.6 trillion.

That bill died without a vote, because the more that senators learned about it, the less they liked it.

But that raises the question, "Are lawmakers paying attention?" Because sometimes even a proposal that's been around forever manages to crawl forward, without anyone seeming to have read it.

Consider the Law of the Sea Treaty.

President Reagan first scuttled LOST back in 1982 because it would've hurt American sovereignty. But President Clinton brought it back in the 1990s, and the treaty's been floating around Capitol Hill ever since. Now, mistakenly, the Bush administration has endorsed LOST, and the full Senate may soon consider it.

But in 25 years, has anybody bothered to look beyond the title? Experts who have know that LOST would create a bureaucratic International Seabed Authority with the power to regulate trade, exploration and mining in the world's oceans.

This authority would basically be an aquatic United Nations of the sea (indeed, LOST is a U.N. convention). Except, instead of issuing toothless condemnations of the U.S., this authority would have the actual power to thwart American interests. For example, the treaty would give environmental activists the power to bring action against the U.S. for violating the Kyoto Protocol, even though the Senate never ratified that accord and senators sensibly made it clear they wouldn't agree to Kyoto if it would harm American economic interests.

But LOST wouldn't stop even at the water's edge.

During a recent Foreign Relations Committee hearing, Sen. David Vitter, R-La., asked State Department Legal Adviser John Bellinger III whether the treaty would cover pollution from land-based sources. "We've worked our way through the treaty. We are confident that pollution from land-based sources would not be subject to the jurisdiction of the tribunals or arbitral panels," Bellinger assured the committee.

But Vitter seems to have, amazingly enough, read LOST. "I would point you to Section 6, Article 213, page 176, which is about enforcement with respect to pollution from land-based sources," the senator said. "It seems to me the very title of that article at least sets up a prima facie case that your statement isn't correct."

Indeed, Vitter -- not the State Department lawyer who's supposed to be the expert on this treaty -- is correct. The treaty insists that any country that signs it will be required to pass "laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere."

The problem is that once the Senate ratifies a treaty, we're bound by the entire thing, not just those parts we agree with. That's a point that came up recently during Supreme Court arguments in Medellin v. Texas. Our country "accepted the authority of this tribunal, and to be bound to follow its decisions," Justice Ruth Bader Ginsburg said. A treaty thus supersedes state laws.

Our republican form of government requires lawmakers who carefully consider the consequences of every law they pass and every treaty they approve. Senators should take a few hours to actually read the Law of the Sea treaty before they put it to a vote. If they do, there's little doubt that this bad proposal will be beached.

Ed Feulner is president of The Heritage Foundation (heritage.org).

About the Author

Edwin J. Feulner, Ph.D. Founder, Chairman of the Asian Studies Center, and Chung Ju-yung Fellow
Founder's Office