Tuesday, June 10, 2014

The Case of Wolves and the 2012 Montana Senate Race: Part II

This is the second of a three part blog on what we can learn about representation by the fight between Senator Tester and Congressman Rehberg for credit over wolf delisting.

Credit Claiming and the Virtue of being Senator 

Congressman Rehberg and Senator Tester became actively involved in the delisting of wolves after a controversial court decision made by federal district Judge Donald Molloy, who ordered the U.S. Fish and Wildlife to return wolves in Montana and Idaho to the Endangered Species list. Molloy contended that the “Endangered Species Act does not allow the Fish and Wildlife Service to list only part of a species as endangered, and the federal agency must protect the entire Northern Rocky Mountain wolf population.”[1] Montana, which had been managing the state’s wolf population since 2004 according to a plan established by the state and approved by the federal government, could no longer allow wolves to be hunted. According to Montana’s wolf program coordinator Carolyn Sime, the decision meant that “ranchers in northwestern Montana will no longer be able to haze, harass or kill wolves that prey on their livestock”. [2] Within a month, both Rehberg and Tester had introduced or co-sponsored legislation to return control of wolf management to Montana and Idaho. Neither bill gained traction in the closing days of the 111th Congress.[3] Shortly after the 112th Congress convened, Rehberg and Tester reintroduced versions of their bills to remove control of wolves from federal management.[4] Rehberg’s bill removed the gray wolf completely from the protection of the Endangered Species Act, while Tester’s bill (co-sponsored with Senator Max Baucus) gave the Fish and Wildlife’s original federal order returning management of gray wolf populations in Idaho and Montana “the full force and effect of law.”[5]
                Neither the Tester nor the Rehberg bill passed Congress—in fact, they didn’t even make it out of committee. But in an era of polarized political parties where passing legislation has become increasingly rare, that fact should not surprise. Wolves got delisted because of deft parliamentary maneuvering in the spring of 2011 surrounding negotiations concerning must-pass appropriations legislation funding the Department of Defense. Appended to the House Appropriations Bill was language that effectively reinstated the federal rule promulgated by the U.S. Fish and Wildlife service while removing the issue from judicial review.[6]
                Did Rehberg or Tester deserve credit? The stakes were high for both candidates because of what wolves represented to them. In an August 2011 interview with KPAX television in Missoula, Rehberg expressed frustration with Tester claiming credit for the success: "I led the issue. The wolf issue was mine.” Rehberg continued: I helped lead the effort, ultimately from the House, but the guys in the Senate tried to take credit for it. [Rep.] Mike Simpson of Idaho got it in the House bill and frankly the Senate never did pass a version. Everything that was put into place was done in the House.”[7] Rehberg’s agitation stemmed from two points. First, Rehberg had begun his political career defending property rights from arbitrary and costly federal rules. The pattern is clear in his legislative efforts in the state legislature and in the House of Representatives. He introduced legislation to protect Montana from the creation of national monuments, and he spearheaded an effort to prevent the removal of a religious statute from U.S. Forest Land.[8] Wolves provided yet another opportunity to bolster his property rights and freedom credentials. Most importantly, wolf delisting provided a ready-made moment to attract independents and other Republicans who were not Libertarian minded or terribly fond of the Tea Party back into Rehberg’s camp.
Second, Rehberg believed Tester’s credit claiming on wolves illustrated a fundamental disregard for the differences in how the House and Senate legislated. House members cannot simply amend legislation on the House floor—in fact, the appropriations legislation containing language delisting the wolf was not subject to floor amendment.[9] Rehberg explained as we drove back from Butte that much of his legislative work shows up in language inserted into bills during committee markup and, even if he had a substantial role in the process, the credit by tradition goes to the committee or subcommittee chairman that sponsoring the legislation and shepherding it to passage. “I am in the arena” said Rehberg as we drove to Bozeman. Even if he doesn’t get his name on the bill or credit for its passage, he deserves recognition.[10]
In fact, nearly identical language from the Tester-Baucus bill introduced on February 10, 2011 appears in a House-led disaster relief appropriations bill introduced the following day by House Appropriations Chairman Harold Rogers.[11] This is the bill to which Rehberg referred when he claimed that Representative Mike Simpson led the effort in the House to insert language into defense appropriations legislation. It is also this language which seems to have been adopted in the must-pass Defense Appropriations bill in April—credit for which Simpson himself claimed in a press release from his office shortly after the bill passed.[12] Notably absent from Simpson’s press release is any mention of Tester.
Rehberg had a point. He may very well have worked with Simpson to draft the language that ultimately ended up delisting the wolf and protecting the law from the capacious federal courts. On the other hand, the final language does not resemble at all the language in Rehberg’s initial bill, HR 509, which removes the gray wolf completely and everywhere from the protections of the Endangered Species Act in all the states. In Tester’s own press release, he takes credit for what he calls a bipartisan effort and acknowledges Simpson’s role.[13] As we drove between Helena and Bozeman in November, Tester claimed that Rehberg was lying and that he—along with Simpson—deserved the lion’s share of the credit. He suggested Rehberg’s complaining fit a larger pattern:
“I would say to you or Dennison or anybody else who wants to write a story about this: Look at Dennis Rehberg's bill. It never go out of committee. Mine was signed by the president. . . . And as I also told you a long time ago, they've been trying to take my record and give me theirs. This is another prime example.”[14]
Tester believed that his approach to legislating, which involved bringing people together and building cross-party coalitions won the day. And his approach was different from what he characterized as Rehberg’s divisive and irresponsible behavior.

[1] Matt Volz. “Judge orders protections reinstated for gray wolf.” Billings Gazette, August 5, 2010.
[2] Ibid.
[3] Mike Dennison. “Rehberg, Tester clash over who’s telling the truth on solving wolf issue.” Billings Gazette, August 30, 2011. Rehberg co-sponsored H.R. 6028, which amended the Endangered Species Act to remove the gray wolf from protection. Senators Tester and Baucus introduced the Restoring State Wildlife Management Act of 2010, S.3864.
[4] H.R. 509 “To amend the Endangered Species Act of 1973 to provide that Act shall not apply to the gray wolf” and S.321 “To provide for the status of the Northern Rocky Mountain distinct population segment of the gray wolf, and for other purposes”, respectively.
[5] S.321, “To provide for the status of the Northern Rocky Mountain distinct population segment of the gray wolf, and for other purposes.”
[6] “Wolf Protections Expected to be Lifted by Congress.” Billings Gazette, April 12, 2011; Mike Dennison. “Reporter’s Notebook: Where’s the Truth in the Wolf Issue?” Billings Gazette, September 3, 2011
[7] Dennison, “Reporter’s Notebook.” Emphasis added.
[8] Tristan Scott. “Rehberg promises to stand watch over Jesus statue.” Missoulian, July 16, 2012.
[9] House Resolution 218, the rule adopted by the House concerning the supplemental defense appropriations, was considered under a closed rule allowing general debate and a motion to recommit from the minority party. Otherwise, all other motions were waived according to the provisions of the bill. The increasing use of closed rules on major legislation by the House majority has been amply documented. See Barbara Sinclair. Unorthodox Legislating: New Legislative Processes in the U.S. Congress. 4th Edition. (CQ Press: Washington D.C., 2011), Table 6.4, p. 151.
[10] Rehberg, August 21, 2011.
[11] Dennison; H.R. 1 “Disaster Relief Appropriations, 2013”.
[12] Press Release. “Simpson’s Wolf Language Included in Final Funding Bill.” April 12, 2011. http://simpson.house.gov/news/documentsingle.aspx?DocumentID=235258 .
[13] Press Release. “Tester’s Wolf Provision ‘Will Get us Back on the Responsible Path.” April 12, 2011. http://www.tester.senate.gov/?p=press_release&id=1987 .
[14] Interview with Tester, November 11, 2011.

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