Subject: After Keating, Must I Never Call My Congressman? Date: Published: 12/31/91 (115 lines) Source: Wall Street Journal. Copyright Dow Jones & Co. Inc. After Keating, Must I Never Call My Congressman? ---- By Jay P. Urwitz The legacy of the Keating Five may be to deprive Americans of the only effective oversight they have over the federal bureaucracy -- intervention by their congressmen. This sort of intervention has been much deplored since Sen. Alan Cranston (D., Calif.) and his colleagues helped out Charlie Keating. But you should cry foul only if you think decisions are better made by long-term government officials than by elected representatives of the people. In the two years since the initiation of the "Keating 5" investigation, the best tool for controlling wrong-headed Executive Branch decisions is increasingly being wrenched away. Congressional offices are more and more apprehensive about making legitimate inquiries "because of the Keating thing." These inquiries are needed. Bureaucrats make thousands of decisions each day, and some of them are very shortsighted. The bureaucrat may have made an honest mistake; he may be unfamiliar with the business being regulated; he may take a narrow reading of his mandate; he may be lazy in reviewing the facts; or he may just be risk averse and prone to saying no whenever in doubt. If the mistaken decision is pointed out to the official or his boss, he may reconsider. But often, he acts like most other people in this world-justifying his initial decision rather than reviewing it. The only way to overcome this reluctance to admit error is to have someone looking over the regulators' shoulders. In just the past few months, I've asked congressmen for help in the following situations: -- The State Department barred the wife of a renowned AIDS researcher from re-entering the U. S. The researcher and his wife were both foreign citizens, and the State Department consular official in her home country did not think she had provided sufficient evidence that she would return at the end of her husband's work in the U. S. The researcher was prepared to leave the U. S. and his critical research in midstream. Only congressional intervention got the Immigration and Naturalization Service to take an active role to let her in so his work could continue. -- The Defense Department awarded a contract to a company that had made an offer which, on its face, did not meet the government's own requirements. There was also clear evidence that the company could not meet the delivery schedule. When this was pointed out to the Defense Department lawyer, he squared his shoulders and did two things -- waived the requirements and changed the delivery schedule. The competing company protested to the General Accounting Office, which ruled that Defense had made a mistake. Only after the GAO ruling was ignored by Defense did a congressman direct the head of the procurement agency to review the acquisition -- and only then did the agency admit its mistake. Still, the contract was not rescinded. -- A Department of Education official insisted -- post hoc -- that a college should return hundreds of thousands of dollars in student aid grants because, in her view, the students in a program were not "matriculating." The students met the standard definitions of matriculation and were more likely to get their degrees than those in other programs at the college, which were considered "matriculation" programs by the department. But the official viewed a college catalog statement as an implicit suggestion to students that they could pursue the program with no intention to graduate. Were it not for the intervention of a Senator, the college would have paid unowed funds for fear of losing student aid eligibility. (As a yellow-dog Democrat, I must note that it was Sen. D'Amato (R., N. Y.) who intervened. He had never received a nickel's contribution from any college official -- and, it is quite likely, not a vote from that crowd, either. In no instance did the congressman direct the agency to come out the other way. Each did demand that the agency review its decision and report back to him what the agency would now do and why. If the agency continued to do wrong, not one of the congressmen involved would have considered attempting personal reprisals -- and it would have been difficult to have taken such action even if a congressman so desired. But each could consider whether corrective legislation were necessary. Why not go to our impartial judiciary instead of to Congress, as is advised in all those administrative law treatises? Three reasons. First, the courts give tremendous deference to agency decisions. This Supreme Court-writing either for the ages or till an election installs a Democratic executive, whichever comes first -- has widened that discretion. Second, it takes too long. By the time of an adjudication, the executive wrong is usually of historical interest only. Third, it's too expensive to go to court. Only the big boys can afford a lawsuit, while a congressman will listen to most of his constituents. Of course, a few congressmen may want a result regardless of the facts. A few congressmen may dispense special favors to contributors or buddies, regardless of the facts. And government officials are very often right in their decisions. Most decisions are based on the facts and the official's expertise, and go unremarked. But for a congressman to make sure that the executive makes the right decisions is not a violation of democratic ethics -- it is the embodiment of it. I'd rather have civil servants have to explain their decisions to our elected officials than answer only to their own conscience. Consciences don't do much good when they talk only to themselves. --- Mr. Urwitz is an attorney in Washington. [This article is made available here by Dow Jones Co. for the personal and non-commercial use of callers to this bbs, in the hope that it will be of some help to those who are suffering from the disease and others who are seeking to help them.]