When Lobbyists Write Bills

By John Miano, February 3, 2012

Those of us who went through the H-1B expansion battle in 1998 know well that industry does not have good faith when it comes to H-1B visas. Now that the H-1B visa has again come to the attention of the public, let me take this opportunity to describe how things work in Washington.

What Americans fail to appreciate is that controlling the text of legislation is the key to controlling Washington. When lobbyists can write the bills, they can control the government. Here, lobbyists are assisted by the American media. The media is so lazy that they rarely actually read bills. A lobbyist can count on the media's research ending at a congressman's claims in a press release. If a bill does something else, the media will never notice.

H-1B provides an excellent example of rule by bill text. Here's a little history. The H-1B program was created in 1990. By 1994 the first large-scale replacements of Americans by H-1B workers were taking place.

While it was technically illegal for an employer to replace an American workers with an H-1B worker, there was a big (and probably unintentional when created) loophole. The expectation in the legislative history was that companies would only hire H-1B workers when Americans were not available. What Congress did not anticipate was that the H-1B program created the business of importing H-1B workers. Companies would import H-1B workers in bulk and subcontract them out to other companies.

When AIG did the first large-scale replacement of Americans with H-1B workers, they used an H-1B importer called Syntel to supply the workers. AIG could then claim they did not apply for any H-1B visas. Syntel could say they did not fire any Americans.

By 1998, industry was seeking an expansion of the H-1B program. The House Judiciary Committee produced a bill that expanded the H-1B visa program but added protections for American workers, including closing the replacement loophole.

But a funny thing happened along the way to the House floor.

Here is the text of the bill when it left the House Judiciary committee, and here is the text of the bill when it reached the house floor.

Industry leaders screamed they would rather have no H-1B expansion than lose the ability to replace Americans with H-1B workers. When big money talks, Congress listens. The Republican leadership arranged for the substitution of a lobbyist-written "compromise" bill that eventually became law.

If you compare the two bills, the first thing you should notice is that the lobbyist-written version of the bill is 23 pages longer than the original.

The main offending provision in the original bill can be found on p. 3 in "SEC. 3. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES WORKERS." That section contains a provision that prohibited replacing an American with an H-1B worker "obtained by contract, employee leasing, temporary help agreement, or other similar means." (p. 4, lines 2–4) It would have closed the loophole in the law (that still exists) allowing employers to replace Americans with H-1B workers.

This demonstrates that Congress was clearly aware of the mechanism employers were using to replace Americans with H-1B workers.

If you go the version that reached the full house you find on p. 4, "SEC. 102. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES WORKERS IN CASE OF H–1B DEPENDENT EMPLOYERS".

The "protections" have grown from 4 pages to in the original to 10 pages in the lobbyist version – but the ban on replacing Americans with H-1B workers obtained through third-parties has disappeared. The "protections" in the lobbyist-written version are written in a convoluted manner and are carefully crafted to ensure that they protect no one.

Here's one for President Obama: the original bill (p. 7) contained a new requirement that employers actually have to look for Americans before hiring H-1B workers. That magically disappeared in the lobbyist-written version. There is no requirement that employers hire Americans before H-1B workers.

There are a number of things the public should take away from this:

1. The firing of Americans and replacement by H-1B workers is in the law because of deliberate, affirmative action of lobbyists and lawmakers.

2. Long bills are the lobbyists' tool. "More regulation" means "worse regulation".

3. When you studied civics in school you probably learned that a law gets created using a process like the one shown in this video. You probably never heard of the process of lobbyists hijacking bills after they come out of committee and substituting their own text. Such is the state of corruption in Washington today. This video gives a better explanation of how things work now.

H-1B is, quite simply, the best legislation money can buy. Despite repeated calls by government audits to reform that H-1B program, no reform has been enacted. For 22 years, lobbyists have maintained ironclad control over the H-1B statute text.

Keep in mind that H-1B is just one small piece of legislation. This buying and selling of the law takes place in all types of legislation. That's why we have gone from a Glass-Steagall of under 40 pages (that kept the financial markets stable for decades) to the 848 pages of Dodd-Frank "reform" of today.

Big bills mean big mischief and big lobbying money. You have to read the text of the bills to see how the corruption takes place.