Fool me once, twice, three times you're out.

Mark McGwire today refused to say whether he used steroids when he broke the single-season homerun record in 1998. He was never forced to take the Fifth on the issue so he was saved the PR hit of a video showing him declining to answer to avoid self-incrimination. But now we know how he did it. McGwire is not the issue, though.

The money quote from the hearing today didn't come from McGwire, it came from Commissioner Bud Selig's comment on Major League Baseball's new penalties for steroids use: "That's the best we could do in collective bargaining. The penalties would be tougher if I had my way."

And there's the problem. Baseball is pretty much left alone by Congress to govern itself because of its anti-trust exemption. The US made steroids use illegal in 1991. Yet it took baseball 11 years until 2002 to ban the use of steroids by its players. And then it took another two years before baseball implemented a system for testing and penalizing players for steroids use.

And even now baseball's steroids policy is weak compared to other sports. The National Football League, for instance, suspends a player for 4 games for a first violation. A comparable baseball policy would suspend a player for 40 games without pay. When baseball announced its new policy it claimed first-time offenders would be suspended for 10 days without pay. The hearings have revealed that the suspension is optional along with a $10,000 fine.

Buried in this story from last year are two quotes that reveal the sentiment behind Congress's current play on steroids in baseball. Last year, when Congress and President Bush were pressuring baseball to take action against steroids use, Senator John McCain warned Selig to take action: "Your failure to commit to taking this issue straight on and immediately will motivate this committee to search for legislative remedies. We will have to act in some fashion unless the major league players union acts in the affirmative and rapid fashion, and I very, very, very much regret that, because I don't think we have any business doing that." And Senator Byron Dorgan, perhaps more mindful of the Constitution's Commerce Clause than Senator McCain, said, "I just don't understand why this is even part of collective bargaining."

Under pressure from the government, but given room to maneuver by Congress, baseball amended its collective bargaining agreement to strengthen its steroids policy in 2004. But Congress has now learned that baseball hardly did anything at all.

Major League Baseball is used to sticking it to its fans with impunity. It knows that fans love baseball and will keep coming back to the game no matter how badly they are treated. Now baseball has been caught trying to do the same to Congress. It should be interesting to see who wins this battle.

-tdr