Editorial: Boxer Amendment Misses the Real Issue
April 24, 2008
IN CASE YOU MISSED IT...
From Transportation Weekly, April 23, 2008 p. 12
Editorial: Boxer Amendment Misses the Real Issue
This publication began to raise a ruckus over the Coconut Road earmark beginning with our September 5, 2007 issue, following the disclosure in mid-August 2007 that the earmark in question had been modified while the bill was being enrolled for transmittal to the President in such a way that, in reality, it was transformed from one project to a new project. This was an obvious violation of legislative rules and norms. The purpose we tried to serve by giving the project so much ink was twofold: to draw as much negative attention to the enrollment aspect as possible, so as to make it politically radioactive for any legislator or staffer to attempt such an enrollment change in the future, and to get Congress to put new procedures in place for the decidedly non-transparent bill enrollment process so that problems like Coconut Road (and the innocent typo that was intentionally ignored, then becoming a constitutional problem for the 2005 budget reconciliation bill) don’t happen in the future.
We had ignored the project until that point, even after the big June 5, 2007 New York Times article which explained how the local authorities did not want the money and tied the project to the funds raised by project sponsors for then-chairman Don Young (R-AK), because we (falsely) assumed that the project had been in the conference report when the House and Senate agreed to the report on July 29, 2005, and we operate under the assumption that as long as Members of Congress are willing to vote for a 1,000-page stack of paper that has been available for less than twelve hours, they deserve all the negative consequences that come from enacting the words on that stack of paper into law.
But adding new words to the paper after the House and Senate have had their final vote is simply wrong — the Members of Congress were not even given the opportunity to fail to pay attention to the words in question.
Last week, Young’s staff told the press something that some former Young aides have been saying for some time — that the earmark in question was intended all along to read “Coconut Road Interchange I-75/Lee County”; that the fact that the text of that provision in the conference report instead read “Widening and Improvements for I-75 in Collier and Lee County” was simply an error by overworked staff, and that Young’s staff later got the enrolling clerk to change the language after the House and Senate passed the “final” version of the bill because that’s what Young originally intended.
This may well be true. In fact, it probably is true. But it doesn’t matter.
Imagine a geography class at a junior college somewhere. The instructor has just given the class an exam on Italian geography. The next day, a student goes to the instructor and says “On question 46 on my test, I think I wrote ‘Naples’ but I meant to write ‘Salerno’ which I now realize was the correct answer. They’re just a few miles apart on the southwest coast of the Italian peninsula, and I got confused. Can I change my answer to ‘Salerno’? Because that’s what I meant to write down.”
The only correct response the instructor can give is “Well, that’s too bad. Because that isn’t what you wrote on the piece of paper when you turned it in at the deadline. And for me to allow you to go back and change what you wrote wouldn’t be fair to anyone else who took the test. It would be cheating them. No, you cannot change your answer.”
Likewise, Young’s staff now says that while the original language in the conference report would have sent an extra $10 million for the megaproject widening I-75 in Florida from Naples to Fort Myers, they intended to send the money to the Coconut Road project in Bonita Springs, which is just a few miles down the road on the southwest coast of the Florida peninsula, and so they were justified in making the change afterwards at the enrolling desk.
If they had presented the change to the enrolling clerk in those terms, the enrolling clerk should have said “Well, that’s too bad. Because that’s not the project you wrote down. And for me to allow you to go back and change which project you wanted to fund wouldn’t be fair to anyone who voted for the bill. It would be cheating them.” But it is more likely that Young’s staff did not fully inform the enrolling clerk that the proposed change was not a modification of that project but would instead essentially make the earmark a new project. The problem with earmarks is that without a road atlas, a few hours of googling and a few phone calls, there is no way to tell if a small change in the project description is an innocuous modification to the project or a transformation into an entirely new project.
The Senate had an opportunity to get to the bottom of the enrollment question by creating a joint House-Senate committee to investigate the joint House-Senate process of enrolling the bill. But instead, the Senate chose, in the words of Norman Ornstein, to outsource the investigation to the executive branch. Party leaders in both chambers appear disinclined to shine any new light on the enrollment process. Perhaps they wish to retain the ability to “tweak” future legislation at the enrolling desk should they feel the need.
The sad fact is this — if anyone in any position of authority in the House of Representatives had stood up in public within the last eight months and said “Regarding Coconut Road — here’s what happened, it should not have happened, we are going to restore the original project language, and we’re going to take these specific steps to make sure that nothing like this ever happens again”, the issue would likely have faded away. The willingness by the leaders of both political parties in the House to pretend that the Coconut Road issue did not exist (until last week), combined with the eagerness of Senate Democrats to score political points rather than deal with complex underlying issues, is leading to an outcome that does not serve the best interests of the legislative branch or the public.
From Transportation Weekly – April 23, 2008, p. 1
House Likely To Accept Senate’s DOJ Earmark Probe
The House of Representatives is likely to accept the Senate-passed version of the surface transportation corrections bill (H.R. 1195), which now includes a requirement that the Justice Department investigate “allegations of impropriety” regarding the infamous “Coconut Road” earmark in the 2005 SAFETEA-LU law to determine if there was a violation of federal criminal law.
House aides familiar with the plan say that the Democratic leadership will most likely bring the Senate’s version of the bill before the House under the “suspension of the rules” procedure in the next few weeks. Suspension prohibits amendments but requires a two-thirds vote of the chamber for passage.
The Democratic leadership’s thinking is that between the hundreds of legislators who have obtained correction language for their earmarked projects in the underlying bill, the many members who are afraid to cast any vote that could be seen as insufficiently anti-corruption, and the unknown number of members who bear ill will against Rep. Don Young (R-AK), the sponsor of the Coconut Road project, the leadership should have no trouble rounding up the necessary two-third margin (290 votes if a full House is present and voting).
The Coconut Road issue, festering for months, was brought to the forefront last week when Sen. Tom Coburn (R-OK) offered an amendment to create a special bipartisan joint committee of Congress to find out the specifics of how the language of the earmark was changed from “Widening and Improvements for I-75 in Collier and Lee County” in Florida (which is this project: www.irox75.com) was changed to “Coconut Road Interchange I-75/Lee County” (which is a completely different project) after the House and Senate had voted on the final version of the bill.
But Senate Environment and Public Works Chairman Barbara Boxer (D-CA) trumped Coburn by instead moving to refer the issue to the Justice Department (see text and analysis of her amendment below) — a move which she said was recommended by Majority Leader Harry Reid (D-NV).
The Senate debate on the Boxer and Coburn amendments, which stretched over April 16 and 17, was marked by a great deal of hazy discussion of important constitutional powers and protections that was not grounded in any detailed legal analysis. Boxer and Reid had three main objections to the Coburn approach. First, Boxer said that creating a joint investigative committee populated by Members of Congress would “injects politics into it right away.”
However, Boxer then asked the Bush Justice Department to instead take over the investigation — a Department which is characterized by Democrats on a daily basis as the “most politicized Justice Department in U.S. history” and which believes that the FBI has the right to seize legislative documents from Capitol Hill offices without Congressional consent. Second, Reid said that ...an investigation of the conduct of a Member of the House of Representatives should be done by the House. I think we get ourselves into a problem we should not, constitutionally or morally, by having the House tell us what we should do as far as our own Senators.
This is true as far as it goes, but ignores the fact that the House snookered the President pro tempore of the Senate into signing a bill that was improperly enrolled, and that oversight of the enrollment process by a joint House-Senate committee has precedent dating back to the First Congress in 1789 (see page 11). Also, placing the emphasis solely on Young allowed the Senate to avoid shining any public light whatsoever into the enrollment process, since Justice investigations are carried out behind closed doors. Third, Boxer said that the Speech and Debate Clause of the Constitution might somehow make the Coburn amendment unconstitutional.
This is unlikely (see page 10) — but in the same breath she indicated that the Justice Department was the proper place for the investigation, and the Speech and Debate Clause most certainly would interfere with Justice investigating the enrollment process, just as it has interfered with the DoJ investigation of Rep. William Jefferson (D-LA). (At one point, Boxer made a serious misstatement regarding the Jefferson case, saying that the problem with the search of Jefferson’s office arose “because there was no warrant.”
In fact, there was a search warrant, signed by Judge Thomas Hogan on May 18, 2006. The problem, as ruled by the D.C. Circuit Court of Appeals, was that legislative documents in Jefferson’s office were protected by the Speech and Debate Clause.) We asked two experts what they thought of the Senate debate and decision.
When it comes to the separation of powers between Congress and the executive branch, there is no expert more highly regarded than Louis Fisher, former longtime Senior Specialist in Separation of Powers at the Congressional Research Service and author of such books as President and Congress: Power and Policy (1972), The Constitution Between Friends: Congress, the President, and the Law (1978), Constitutional Conflicts Between Congress and the President (1985), The Politics of Shared Power: Congress and the Executive (1998) and (with David Adler) American Constitutional Law (new edition, 2007). Fisher said that “On the enrolling issue, I wonder why Congress would invite the Justice Department to investigate legislative procedures and legislative staff.” He likened the case to the Senate Intelligence Committee’s decision to ask the FBI to investigate an internal leak in 2001 instead of handling the investigation within the Senate.
“A Congress intent on preserving its independence and coequal status would take care of these matters by itself,” Fisher said. Noted Congressional scholar Norman Ornstein, co-author of the Vital Statistics on Congress series and of 2006’s The Broken Branch: How Congress Is Failing America and How To Get It Back On Track, questioned the references to the Speech and Debate Clause of the Constitution made by Boxer in defense of her amendment: “I must say I am baffled by the citation to the Speech and Debate Clause, and have no idea what their rationale is here. Nor do I understand outsourcing this investigation to the executive branch.”
Ornstein said that the Speech and Debate Clause “protects Congress's prerogatives; how do you blithely then turn around and bring in the executive? Beats me.” The Senate vote (64 to 28 in favor of the Boxer amendment) indicates a willingness by the Senate (mostly Senate Democrats) to emphasize the flashier side of the Coconut Road story over the more troubling side. The Coconut Road earmark has two distinct irregularities. Irregularity #1: the Florida earmark was put into the law at Young’s direction without being formally requested by any federal legislators from Florida. (Some close to Young privately claim that Rep. Connie Mack (R-FL) made a verbal request, or at least gave a nod and a wink to Young’s proposal for the project, but no one has yet produced any piece of paper from Mack supporting the project before the law was enacted.
Mack did write a letter supporting the project in March 2006, but that was seven months after the project was signed into law, and getting behind an enacted project after the fact is fundamentally different than requesting it beforehand.) Irregularity #2: the earmark was added after the House and Senate had passed what they believed was the final version of the bill (the conference report).
While the bill was being enrolled by the House enrolling clerk, Young’s staff directed the enrolling clerk to strike the language of an item and replace it with the Coconut Road language that completely changed the meaning of the item – in real terms, this was not so much the alteration of an project but the removal of that project, to be replaced by a new project which happens to be in the same state and have the same dollar amount. Irregularity #1 is unusual, but not unprecedented.
It is impossible to say just how rare it has been – prior to last year’s ethics reforms, there was no formal requirement that the sponsors of earmarks be publicly identified, so the only way to find out the real sponsor of an earmark was to ask the staff or to check contemporaneous press releases. But most legislators simply don’t get enough earmark money to allow them the luxury of sparing some for constituencies other than their own, so we can safely assume this does not happen very often.
The act of a legislator giving money from his own project allotment for projects that have no connection to his constituency raises legitimate questions about the motives of the legislator, particularly when done in secret. But it is not, by itself, damning. Irregularity #2 is incredibly rare – we have read through every one of the thousands of highway earmarks in the 1987, 1991, 1998 and 2005 highway laws and compared the conference report version with the enacted version. This is the only earmark that received an enrollment alteration that fundamentally changed the purpose of the project. The only one. (We did not check pre-1987, but there were very few highway earmarks prior to 1987.)
Such an action contravenes House and Senate rules and precedents for the enrollment of bills and runs counter to the intent of the Presentment Clause of the Constitution. While the Supreme Court decided in 1892 that it did not choose to look too closely into the inner workings of the enrollment process and would accept the word of the Speaker of the House and the President pro Tempore of the Senate that an enrolled bill was, in fact, identical to the versions that had passed the House and Senate (Field v. Clark, 143 U.S. 649), the intentional alteration of legislative documents is a serious ethical breach. The Boxer amendment tasks the Justice Department with investigating “allegations of impropriety” relating to the Coconut Road earmark, which would presumably take in both Irregularity #1 and #2. But the Justice Department is not well suited to investigate either one.
With regard to the first, the Speech and Debate Clause of the Constitution (to quote the U.S. Attorney’s Manual), “broadly protects members of Congress against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts”, which prevents Justice, or any other law enforcement body, from using those acts as evidence in any court proceeding. And the Boxer amendment only directs Justice to determine if any violation of federal criminal law took place – and it is hard to see Irregularity #2, even though it may violate House rules, Senate rules, and the Constitution, as a violation of any federal criminal law. (The Speech and Debate prohibition against looking into legislative acts applies here as well, since there are few acts that appear more legislative than actually writing up a bill and sending it to the President.)Young’s office said that the process by which a package of enrollment corrections to H.R. 3 were made was bipartisan and bicameral. Senate staffers who were involved with H.R. 3 vehemently disagree with that assertion, saying that they were not allowed anywhere near the House enrolling clerk’s office, and with one staffer saying that they look forward to testifying under oath that the Senate was not informed of the Coconut Road enrollment alteration.
Between constitutional concerns and grand jury secrecy rules, the Boxer amendment may never produce a public accounting of the enrollment of the SAFETEA-LU law.
From Transportation Weekly, April 23, 2008, p. 10
QUESTIONS RAISED BY LAST WEEK’S COCONUT ROAD DEBATE IN THE SENATE
What is the Speech and Debate Clause, and why is it in the Constitution?
It’s there because the Stuart kings of England had a nasty habit of arresting Members of Parliament for criticizing the crown. Harvey & Bather’s The British Constitution and Politics says that “In 1621, James I complained to the Speaker because the House criticized him and, when the House, formally protested, [the King] tore the offending page from its Journal. Charles I went further, arresting Sir John Eliot and other MPs in 1629 and attempting to arrest The Five Members on a charge of treason for the views they had expressed in 1642.”
When the Glorious Revolution deposed the Stuarts in 1689, Parliament passed a Bill of Rights guaranteeing certain freedoms, which the new House of Orange monarchs agreed to. The Bill of Rights contained speech and debate protections for Parliament:
“…the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
The original form of the American version of this proviso was almost identical to the English version – the Committee of Detail’s draft Constitution, presented to the Constitutional Convention on August 6, 1787, phrased it so:
“Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature.”
Once the Convention had agreed to the clause in that form, a Committee of Style was appointed to clean up the language of the draft Constitution and make it consistent. They reduced the number of articles in the draft Constitution from 23 to seven and dropped all references to the “Legislature”. In the Committee of Style’s September 12, 1787 version, the word “Congress” was only used when referring to House and Senate acting jointly. But in making the language consistent and consolidating articles, the Committee of Style (whose recommendations were agreed to almost without change) made the Speech and Debate Clause slightly less clear:
“for any speech or debate in either house, [the Senators and Representatives] shall not be questioned in any other place.”
The intent of the Convention was that “any other place” means outside of Congress, and the courts have consistently interpreted it in such a manner. The Supreme Court held in 1966 that the Clause existed to protect the legislature “against possible prosecution by an unfriendly executive and conviction by a hostile judiciary”. (U.S. v. Johnson, 383 U.S. 169, 179.) The Clause was put in place to protect Congress collectively from the executive and judicial branches, not to protect the House and Senate from each other. The House and Senate are protected from each other by the principle that they are distinct and co-equal chambers (see below) and, of course, by fear of retaliation if one chamber goes too far against the other.
Can a joint committee of Congress be empowered to investigate irregularities in an enrolled bill?
It appears a joint committee can be created and empowered to investigate anything it wants to investigate, so long as both chambers vote to give the committee such investigative power. The question is one of political will, not law or procedure. Neither chamber of Congress can force the other chamber to take any action that chamber does not wish to take, with the exception of staying in session (the Constitution says that neither chamber can adjourn for more than three days without the other’s consent). The Rulemaking Clause of the Constitution (not the Speech and Debate Clause) says that “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”
Congress has often established joint committees to study and investigate problems with the legislative process and recommend solutions that would allow both chambers to better function together. Congress established Joint Committees on the Organization of Congress from 1944-1946, from 1965-66 and from 1991-1994 and a Joint Committee on Congressional Operations (which had subpoena power) from 1971-1976. These committees were generally constrained in their power to make recommendations — any recommendations that only affected one chamber could only be voted on by joint committee members from that chamber — but when dealing with joint matters the joint committee could issue the same set of recommendations for both chambers.
To be clear: such a joint committee could only investigate and recommend – it could not punish. One chamber cannot punish a member of the other chamber, no matter how severe the offense. If they could, the Senate would have done something to Rep. Preston Brooks (D-SC), who entered the Senate chamber on May 22, 1856 and beat Sen. Charles Sumner (D-MA) with a heavy cane – beat him so badly that he was bedridden for months and unable to return to his duties for three years. They also would have punished Brooks’ colleague Rep. Lawrence Keitt (D-SC), who pulled a gun on other Senators to cover Brooks’ escape from the Senate floor.
The Senate appointed its own select committee to investigate the assault, which took testimony from witnesses. But the committee report relied on precedent and an old British parliamentary ruling that “The leading principle which appears to pervade all the proceedings of the two Houses of Parliament is that there shall subsist a perfect equality with respect to each other, and that they shall be, in every respect, totally independent one of the other. From hence it is that neither House can claim, much less exercise, authority over a member of the other…” The report concluded that:
The Senate, therefore, for a breach of its privileges, cannot arrest a member of the House of Representatives, and, a fortiori, cannot try and punish him. That authority devolves solely on the House of which he is a member.
It is the opinion of the committee, therefore, that the Senate cannot proceed further in the present case than to make complaint to the House of Representatives of the assault…
The House appointed its own committee to investigate (which also took testimony from House and Senate witnesses), which recommended Brooks’ expulsion from the House because the assault was “a breach of the privileges of the Senator assailed, and of the Senate and House, as declared by the Constitution”. But the House could not muster the votes to expel Brooks (the vote was 121-95 in favor of expulsion, 23 votes short of two-thirds).
The record is clear – one chamber cannot punish the members of another chamber. But if the House and Senate both choose to exercise their authority under the Rulemaking Clause and create a joint committee to investigate an irregularity in the internal workings of the bicameral legislative process, there is no law or precedent that stops them.
And the enrollment of a bill is uniquely bicameral – an enrolled bill presented to the President has to bear the signatures of both the Speaker of the House and the President of the Senate (or President pro tempore). This is why the First Congress, meeting in 1789, decided that bill enrollment was so special that a joint House-Senate committee should be appointed to oversee the enrollment process. The joint rules adopted by both chambers said that:
When bills are enrolled, they shall be presented to a joint committee of one from the Senate, and two from the House of Representatives, appointed as a standing committee for that purpose, who shall carefully compare the enrolled bills with the engrossed bills, as proposed by the two Houses, and correcting any errors that may be discovered in the enrolled bills, make their report forthwith to their respective Houses.
Numbered among the membership of the First Congress were no less than nineteen of the delegates to the Constitutional Convention, among them James Madison, known to posterity as the “Father of the Constitution.” (Ed. Note: we submit that these members of the First Congress knew at least as much about the true intent of the Speech and Debate Clause and the propriety of a joint committee overseeing the enrollment of bills as do the members of the current Congress, if not more.)
Why did Congress stop using a joint committee to oversee the enrollment process?
Those joint rules established by the First Congress stayed in effect until 1876, when the House refused to amend the joint rule on electoral vote counting as part of a dispute with the Senate over the disputed Hayes-Tilden presidential election, causing a difference of opinion between the chambers as to whether or not any of the joint rules were still binding, after which the two chambers were not on good terms for several years.
After that, each chamber had its own standing Committee on Enrolled Bills to examine that chamber’s own enrolled bills and send them to the other chamber. The process became based on trust. The contemporary precedent (which is still on the books today) from 1885 says that:
In the case of a House enrolled bill signed by the Speaker and transmitted to the Senate for the signature of the Presiding Officer the accompanying certificate of the Committee on Enrolled Bills of the House (now Committee on House Administration) is taken as evidence that it has been correctly enrolled.
On January 30, 1945, the Senate agreed to S. Res. 64, which took control of the enrollment process away from the Committee on Enrolled Bills and vested it in the Secretary of the Senate.
As the precedent notes, pursuant to the Legislative Reorganization Act of 1946 (which came from the recommendations of the Joint Committee on the Organization of Congress), the Committees on Enrolled Bills in each chamber were abolished and House Administration Committee and the Senate Rules and Administration Committee were created and given the responsibilities formerly held by the Committees on Enrolled Bills.
The Republican House leadership decided in January 2001 to take the House Administration Committee out of the equation entirely and vested all control of the enrollment process for House bills and joint resolutions with the Clerk of the House, who answers directly to the Speaker.
Should Congress go back to using a joint committee to oversee the enrollment process, like the Joint Committee on the Library now oversees the Library of Congress and the Joint Committee on Printing now oversees GPO?
That’s a very good question.
# # #