The weakness of the contemporary Senate is not only reflected in the absence of stirring debate on pivotal issues. It's evident nearly every working day. It's the rare senator who can ask extemporaneous questions of a witness before a committee. The impulse for serious investigating, which is time-consuming, hard work, is also all but dormant. Despite the stunning intelligence failure that preceded the war in Iraq, the Intelligence Committee has yet to explore the Bush administration's misuse of the flawed estimates produced by the intelligence community. More recently, the Senate roused itself, at least temporarily, and blocked renewal of the Patriot Act. But that only occurred because, on the day of the vote, many senators apparently learned from reading the New York Times that President Bush had signed a secret and unprecedented order in 2002 authorizing the National Security Agency (NSA) to conduct warrantless intercepts and wiretaps domestically. Traditionally, the NSA has been highly restricted in its operations inside the United States.

One has to go back to the Gilded Age to find a time when the Senate seemed of equal inconsequence. At that time, senators were widely criticized for being captive to moneyed interests and bent on self-enrichment. It was thought that these twin evils stemmed from the fact that senators were elected by state legislatures rather than by popular vote.

Apparently not.

rofessor Ziobrowski and his colleagues excluded "qualified blind trusts" from their analyses of senators' investment patterns, because they had to. When the Senate Ethics Committee approves a senator's application for a "qualified blind trust," the senator still must list (within bands) the trust's annual value and income, but many of the trading details become exempt from disclosure. Qualified blind trusts are becoming increasingly popular among the Senate's millionaires; according to the Capitol Hill newspaper Roll Call, 45 senators now list such trusts in their annual disclosure reports. Recent revelations about the investments of Majority Leader Bill Frist (R-TN), however, raise questions about just how blind these qualified trusts are.

Frist's stock trades first made news this past June, when it was revealed that the senator had sold off his entire stake in Hospital Corporation of America Inc. (HCA), the nation's largest hospital chain. HCA was founded by his father and brother in 1968, and provided the foundation for Frist's political career and fortune (a medical doctor, Frist is the seventh-richest member of the Senate). In the six months previous to Frist's divestiture, 25 senior HCA executives had sold off $166 million worth of shares in the for-profit hospital chain, with the heaviest selling occurring in February and April. In April, Frist began making inquiries to see if he could direct his trustees to sell off any remaining HCA shares, which he was ultimately allowed to do, since the stock was an "original asset" in the trusts. The divestiture finally began in mid-June, and days after its completion, in early July, HCA nose-dived by 9 percent in a single day because of a steep decline in reported profits. This led to speculation that the senator had either traded on information obtained in advance, or was following the lead of HCA executives. Eventually the Securities and Exchange Commission and the Justice Department announced investigations into Frist's stock sale, which are ongoing.

Frist has denied trading on privileged information, and maintains the divestiture was based primarily on wanting to put persistent questions about his holdings to rest because of "what may come next," a reference to his widely anticipated run for the 2008 GOP presidential nomination. Frist claims that the planned divestiture and sudden drop in the price of HCA stock were entirely coincidental. That might be plausible, but it leaves open several questions. The rule permitting a senator to order a divestiture is linked to the assumption of new duties, but Frist's responsibilities have not changed since 2003. And his ethics seem too adaptable. If he was concerned about wanting to avoid the suggestion of a conflict looking ahead to 2008, why wasn't he equally worried when he first became majority leader in 2003?
When Frist established the blind trusts in 2000, according to the Washington Post, the agreement released his trustee(s) from "any obligation . . . to diversify the investments," which were concentrated in the HCA stock. In addition, Frist's trustee(s) were permitted to communicate with him whenever new contributions were made to the trusts, most often in the form of additional HCA stock. Thus, the senator's statements after 2000 that he no longer knew if he owned any HCA stock because it was in a blind trust were a bit of a sham.

All this raises the question: are the Senate's qualified blind trusts a widening loophole in the annual FDRs? They are not genuinely blind, at least in the conventional sense. And they put otherwise discloseable facts about senators' investments behind a shroud.