THERE IS something in the nature of Congress that makes it periodically subject to fits of fear. Certain issues cause these Gadarene rushes: communism, of course. Pornography. Crime.
Legislators have to be tough on such things -- or, rather, look tough. So a demagogue can come up with the most irrational proposals, call them tough and frighten his colleagues into voting for them. A Joe McCarthy or Jesse Helms trades not on the regard of other members but on their fear.
It happened again in June. The Senate was debating the crime bill when Sen. Alfonse D'Amato, R-N.Y., proposed two amendments. They were calculated to strike political terror into the hearts of senators, and they did.
One amendment would make any murder committed with a gun that has crossed state lines a federal offense. It would also make the crime punishable by death, even in states that do not have the death penalty.
The second D'Amato amendment was even more sweeping. It would make federal offenses of all state and local drug and violent crimes committed when the offender has a gun.
Those two proposals add up to the most radical incursion on state legal power since the Constitution was adopted. The Constitution envisaged ordinary law enforcement as a state function, with federal criminal law limited to particular federal concerns. That balance remains intact today, as statistics show.
Last year 176 homicide cases were brought before federal judges, while the other courts around the country handled more than 11,000. In 1989 more than 340,000 robberies and aggravated assaults with a gun were reported, and the second D'Amato amendment would allow all of those cases to be moved into the federal courts.
The small number of federal judges could not possibly handle such a flood of new cases. To move even a modest share of them would mean that federal courts could no longer perform their essential function of deciding constitutional questions in civil cases. In fact, federal judges would have no time to hear any civil cases.
When such realities were mentioned, supporters of the amendments replied that federal prosecutors would probably take only a small number of murder and other cases, leaving most of them where they are now.
But that answer only emphasizes what a radical change the amendments would make in American federalism, the balance of authority between the states and the federal government. Federal prosecutors would be given the power to pre-empt state attorneys general and district attorneys, whenever they felt like it, in a wide variety of cases.
The second D'Amato amendment would also introduce new rigidity into the criminal law by fixing mandatory sentences: 10 years for a drug or violent crime when the defendant had a gun, 20 years if he fired it, 30 years if the gun had a silencer.
D'Amato called those provisions tough on crime. But mandatory sentences are known to have the opposite effect. When such Draconian prison terms are in prospect, many juries will not convict defendants. Prosecutors often duck the problem by bringing lesser charges.
But legal realities counted for little when the Senate voted. What mattered was politics: the fear that someone would accuse a member of being soft on crime. The first D'Amato amendment was approved by a vote of 65 to 33, the second by 88 to 11.
Those 11 senators who had the courage to do what most of their colleagues knew was right deserve to be named. There were six Republicans: Bond of Missouri, Burns of Montana, Cohen of Maine, Gorton of Washington, Jeffords of Vermont and Rudman of New Hampshire. And five Democrats: Bingaman of New Mexico, Cranston of California, Heflin of Alabama, Metzenbaum of Ohio and Simon of Illinois.
When the Senate finally passed the crime bill, last month, 26 members voted no: 16 Republicans, 10 Democrats. The Senate bill was well characterized by a Democrat who is the image of toughness, John Silber of Massachusetts. Writing in the Boston Globe, he said the bill showed "the legislative process at its grandstanding worst. . . . It has nothing to do with controlling crime, but a lot to do with winning elections."