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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