The Honest Truth about Crime Bills

As Congress looks to crack down on corporate fraud, an age-old party split will be on display: Punishment vs. prevention

By Dan Carney

Sometimes, the past truly is prologue. Take the latest Washington debate over cracking down on corporate crime. The most striking thing is how utterly familiar it all is. Anyone who covered the catch-all crime bills of 1990 and 1994, or the Brady Act of 1993, could tell you one thing about the politics of crime-fighting: Whether it's white-collar accounting fraud or gang violence, the Republicans want punishment, and the Democrats want prevention.

Sure, that's a bit of an oversimplification. The parties poach from each other from time to time. In the 1990s, when Bill Clinton was President, the Democrats learned to accept some get-tough provisions -- or be forever associated with Willy Horton, the convicted murderer whose release from a Massachusetts prison became a campaign issue successfully used by Bush Sr. to defeat Bay State Governor Michael Dukakis in the 1988 Presidential campagn. And after consulting with pollsters and soccer moms, the Republicans figured out that the nation would endure no lasting harm if Washington threw a ittle "compassion" money at counseling agencies and after-school programs. But each party is most comfortable when on its own ideological ground.


  In the latest efforts to crack down on corporate crime, Bush is focusing mostly on punishment, the Democrats more on prevention. Bush's key items: a doubling of the maximum penalty for mail fraud and wire fraud, to 10 years; creating a "swat team" to bring to justice white-collar fraudsters; and a law providing for "disgorgement" of the ill-gotten gain of those who engage in fraud.

The Senate Democratic plan centers on an independent oversight board to look over the shoulders of folks working on the ledger sheets. Democrats have offered their own expanded penalties and have even accepted Bush's package as well. But these are considered ancillary.

To Democrats such as Senator John Corzine of New Jersey, Bush's offering is "woefully inadequate." He and others argue that the President is merely fine-tuning existing criminal laws. "Substantial portions of what the President has asked for he can get already," observes Eric H. Holder Jr., deputy attorney general in the Clinton Administration. "Take disgorgement: A judge can do that simply by granting restitution."


  To the White House, the Democrats' plan is a vast overreach that will hamstring even law-abiding accountants. Change a few of the details, and you've got the 1993 Brady bill debate. Back then, Republicans charged that Democrats were out to punish law-abiding gun owners, which, in the current debate, can be read as law-abiding CEOs and the markets. And Democrats charged that Republicans were in the pocket of the gun lobby (read as business lobby).

So, what can previous crime debates tell us about what is likely to happen now? A lot.

For starters, with an issue such as this, you can bet subtle differences in policy will create major rhetorical skirmishes. During debate over the last big crime bill, the parties fought heatedly for years over whether to give police departments more money earmarked for specific purposes (Clinton's idea) or in block grants to be spent by departments as they deemed (the preferred Republican approach). Never mind that the amounts were roughly the same.

This time, Senate Democrats would create a new crime, punishable by up to 10 years, covering anyone who devises "a scheme or artifice" to defraud. It hardly looks like fodder for a partisan clash -- it passed 97-0 in the Senate. But Bush thinks his idea is better: doubling mail and wire fraud penalties to 10 years in prison.


  Whether the Dems' strategy is better than Bush's is an interesting discussion for a couple of career prosecutors, but it should leave the general public scratching its collective head. Both approaches have their pros and cons. The Senate Democrats' scheme, had it been on the books, might have prevented some of the Enron chicanery. On the other hand, prosecutors tend to like laws that provide a maximum amount of flexibility, on the theory the next scandal will unfold just a little differently.

A second truth about crime bills: Behind much of the bravado, you'll find much breast-beating over some very modest proposals. Take the task force -- what Bush calls his SWAT team -- chaired by Deputy Attorney General Larry Thompson. I don't want to belittle it too much. As anyone who has worked in a vast bureaucracy knows, at times the best way to get disparate factions working together is to have someone atop the organizational chart cracking heads. But this task force won't do a single thing the Justice Dept. isn't already doing.

Perhaps the most important truth about crime bills is that they always pass. After all, they come about only if a crime spree becomes a big national issue. Under such circumstances, neither party can afford to look out of touch or unconcerned. It's mathematically possible that the House and Senate could fail to produce a common bill. And it's also possible that Bush could veto the measure. But don't count on either.


  The only real question is how much of the Democrats' proposal for a new accounting board will make it to Bush's desk. Bet on this: Whatever he gets, he'll sign. When Bush's father was President, he once sent a bill to Congress that would create a number of new federal capital offenses. By the time Congress was finished with the legislation, it dealt mostly with savings and loan cheats. As Representative Henry Hyde (R-Ill.) observed: "It left as Arnold Schwarzenegger and came back as Woody Allen." Bush didn't like it, but he put his name on it anyway.

The current Senate bill is likely to pass overwhelmingly, given the public anger since WorldCom disclosed its $3.8 billion mistake. Then, it would go to conference committee with a much-less-ambitious bill passed by House Republicans before the WorldCom scandal erupted.

Whatever comes out of that committee will be determined by two things: what Republican pollsters determine is the price the GOP will pay for saying no to new Democratic regulatory proposals, and what new accounting scandals come to light while the committee is deliberating. But don't count on the President or House Republicans drawing many deep lines in the sand.

Carney has covered crime and justice issues on Capitol Hill for more than a decade

Edited by Douglas Harbrecht

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