Legislative Transparency and Accountability Act of 2007
LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY ACT OF 2007 -- (Senate - January 12, 2007)
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Mr. DURBIN. Will the Senator yield for a question?
Mr. VITTER. Certainly.
Mr. DURBIN. I am not finding fault with the Senator from Louisiana, but the fact is, we do not have a copy of the modification. The reason I raise that is later I am going to suggest a change in the Senate rules so that when you file an amendment or modification, copies will be given to both the ranking member and the Chair on the floor, as is the custom and rule of the House. That is a good way to make sure there is knowledge of what is being considered and debated as promptly as possible.
Going to the substance of the matter, does the Senator's modification change the original language in his amendment which makes this provision on spousal lobbying retroactive, not prospective? In other words, if there is some Member on either side of the aisle today who has a spouse lobbying at the Federal level, it is my understanding that the Senator would prohibit that in his original amendment unless that spouse was lobbying a year before the marriage or a year before the first election of Congress. Does the modification change that in any respect?
Mr. VITTER. No, it doesn't. I will tell you exactly what it does. First of all, I appreciate the question. Certainly I am eager to give the Senator and all Members a copy of it, which I will do immediately, and that will be well before any full debate and vote. But let me use the opportunity to explain what the modification does.
The modification is very simple. It moves the provision to the Senate rules, and it makes it apply to lobbying Members of the Senate only. I did the modification for one reason and one reason only--not because I think that limitation excluding activity on the House side is better but because it makes it germane to the bill and therefore guarantees me a vote.
So, to go to the question, the provision--it is only about lobbying the Senate. But in that context, there is an exclusion if the spouse lobbyist was an active lobbyist a year or more before the marriage or the first election. But there is no grandfathering clause other than that. I hope that answers the question of the Senator.
Mr. DURBIN. It does. I would like to ask the Senator from Louisiana, in the spirit of your amendment, would you consider an amendment which would make the 2-year prohibition on lobbying also retroactive, so that Senators who have not lobbied previously would be prohibited from lobbying for 2 years and it would be retroactive as well?
Mr. VITTER. I will be happy to consider that idea. I am not going to change my amendment to include that because I think it would lose votes from our amendment and I want first of all to pass my amendment, but I am completely open to that discussion and that idea. Without making a final decision, I am completely open to supporting that on the floor of the Senate if somebody were to bring it forward.
Mr. DURBIN. I thank the Senator.
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AMENDMENT NO. 44 TO AMENDMENT NO. 11
Mr. DURBIN. Madam President, pursuant to the unanimous consent request, it is my understanding that we now return to the DeMint amendment No. 11.
The PRESIDING OFFICER. That is correct.
Mr. DURBIN. Madam President, I rise to offer a second-degree amendment to the DeMint amendment No. 11 which I send to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Illinois [Mr. Durbin] proposes amendment numbered 44 to DeMint amendment No. 11.
Mr. DURBIN. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER (Mr. Casey). Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To strengthen earmark reform)
In lieu of the matter proposed to be inserted insert the following:
SEC. 103. CONGRESSIONAL EARMARK REFORM.
The Standing Rules of the Senate are amended by adding at the end the following:
RULE XLIV
earmarks
``1. It shall not be in order to consider--
``(a) a bill or joint resolution reported by a committee unless the report includes a list, which shall be made available on the Internet to the general public for at least 48 hours before consideration of the bill or joint resolution, of congressional earmarks, limited tax benefits, and limited tariff benefits in the bill or in the report (and the name of any Member who submitted a request to the committee for each respective item included in such list) or a statement that the proposition contains no congressional earmarks, limited tax benefits, or limited tariff benefits;
``(b) a bill or joint resolution not reported by a committee unless the chairman of each committee of jurisdiction has caused a list, which shall be made available on the Internet to the general public for at least 48 hours before consideration of the bill or joint resolution, of congressional earmarks, limited tax benefits, and limited tariff benefits in the bill (and the name of any Member who submitted a request to the committee for each respective item included in such list) or a statement that the proposition contains no congressional earmarks, limited tax benefits, or limited tariff benefits to be printed in the Congressional Record prior to its consideration; or
``(c) a conference report to accompany a bill or joint resolution unless the joint explanatory statement prepared by the managers on the part of the House and the managers on the part of the Senate includes a list, which shall be made available on the Internet to the general public for at least 48 hours before consideration of the conference report, of congressional earmarks, limited tax benefits, and limited tariff benefits in the conference report or joint statement (and the name of any Member, Delegate, Resident Commissioner, or Senator who submitted a request to the House or Senate committees of jurisdiction for each respective item included in such list) or a statement that the proposition contains no congressional earmarks, limited tax benefits, or limited tariff benefits.
``2. For the purpose of this rule--
``(a) the term `congressional earmark' means a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process;
``(b) the term `limited tax benefit' means--
``(1) any revenue provision that--
``(A) provides a Federal tax deduction, credit, exclusion, or preference to a particular beneficiary or limited group of beneficiaries under the Internal Revenue Code of 1986; and
``(B) contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of such provision; or
``(2) any Federal tax provision which provides one beneficiary temporary or permanent transition relief from a change to the Internal Revenue Code of 1986; and
``(c) the term `limited tariff benefit' means a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities.
``3. A Member may not condition the inclusion of language to provide funding for a congressional earmark, a limited tax benefit, or a limited tariff benefit in any bill or joint resolution (or an accompanying report) or in any conference report on a bill or joint resolution (including an accompanying joint explanatory statement of managers) on any vote cast by another Member, Delegate, or Resident Commissioner.
``4. (a) A Member who requests a congressional earmark, a limited tax benefit, or a limited tariff benefit in any bill or joint resolution (or an accompanying report) or in any conference report on a bill or joint resolution (or an accompanying joint statement of managers) shall provide a written statement to the chairman and ranking member of the committee of jurisdiction, including--
``(1) the name of the Member;
``(2) in the case of a congressional earmark, the name and address of the intended recipient or, if there is no specifically intended recipient, the intended location of the activity;
``(3) in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit, to the extent known to the Member;
``(4) the purpose of such congressional earmark or limited tax or tariff benefit; and
``(5) a certification that the Member or spouse has no financial interest in such congressional earmark or limited tax or tariff benefit.
``(b) Each committee shall maintain the written statements transmitted under subparagraph (a). The written statements transmitted under subparagraph (a) for any congressional earmarks, limited tax benefits, or limited tariff benefits included in any measure reported by the committee or conference report filed by the chairman of the committee or any subcommittee thereof shall be published in a searchable format on the committee's or subcommittee's website not later than 48 hours after receipt on such information.'.
Mr. DURBIN. Madam President, yesterday there was a debate about the disclosure of earmarks. It was an interesting debate, and Senator DeMint and Senator Coburn of Oklahoma offered an amendment.
I felt that amendment had several flaws in it. The purpose of my second-degree amendment is to address those flaws. It does not go to the heart of their argument about expanding the number of earmarks that would be subject to disclosure. In fact, if anything, it expands the number of earmarks subject to disclosure.
My amendment would strengthen the DeMint amendment in three ways: It retains the Reid-McConnell bipartisan language in the underlying bill. The DeMint amendment No. 11 now pending does not go far enough in terms of covering so-called targeted tax benefits. A lot of attention has been given to Duke Cunningham, the former Congressman from California, who was steering Department of Defense funds to certain contractors and benefiting from it personally. He paid dearly for this transgression and is currently in prison. That is an example of an egregious abuse of the appropriations process.
We understand, as well, there are decisions made by Congress outside of the appropriations process which can be just as beneficial, if not more profitable, to individuals and businesses. One of the categories would be in the area of targeted tax credits. However, it could be others, as well.
Even though my amendment does not go to this issue, consider the fact that the asbestos legislation pending before Congress 2 years ago would have benefited one of the corporations from Illinois to the tune of $1 billion had it passed. That figure was arrived at not by myself or anyone in Congress but, rather, by those who filed the annual report for that corporation. So you can understand that decisions made in the Senate and the House of Representatives can have a direct positive financial impact on businesses and individuals.
As we go after earmarks and try to change those because of the Duke Cunningham scandal and others, we should also be mindful of the fact that other decisions made by Congress can be just as beneficial, if not more so. They cry for transparency, too. Unfortunately, the underlying DeMint amendment has a restrictive view of targeted tax credits.
The Senator from South Carolina has said he has agreed to language considered by the House. In all honesty, as good as they are in the House of Representatives, what I am offering may be an improvement. Senator DeMint's amendment covers revenue-losing provisions only that provide tax benefits to 10 or fewer beneficiaries or contain eligibility criteria that are not the same for other potential beneficiaries. This unnecessarily limits the definition of revenue-losing provisions instead of all revenue provisions. My amendment corrects this.
The DeMint amendment also allows for a loophole. Someone could easily write a provision that affects 11, 15, or 50 beneficiaries and be exempt from the disclosure requirements of the DeMint amendment. The Reid-McConnell definition, which I include in my second-degree amendment, says a tax earmark is anything which has the practical effect of providing more favorable tax treatment to a ``limited group' of taxpayers when compared with similarly situated taxpayers. We do not come up with a number--10 beneficiaries, 20 beneficiaries--but, rather, keep it in the category of a tax benefit that is clearly designed to help a limited group of taxpayers of a certain number compared with others. This is a more flexible and more realistic standard to be applied than the language currently in the DeMint bill.
Moreover, the Reid-McConnell language is for the language that they, in fact, created. It is language that Senator Judd Gregg, former chairman of the Senate Committee on the Budget, included in his line-item veto bill. Senator Gregg has found what I think is a sensible definition we ought to use and adopt as part of our reform and ethics changes we are currently debating. My amendment retains the concept of Reid-McConnell language, amends the DeMint provision to remove the limitation of ``10 or fewer beneficiaries' and would cover ``any revenue provision that provides a Federal tax deduction, credit, exclusion, or preference, to a particular beneficiary or a limited group of beneficiaries.'
Finally, under the DeMint amendment, information about earmarks must be posted 48 hours after it is received by the committee. In the case of a fast-moving bill, it is possible that the information would be made public only after a vote on the relevant bill containing the earmarks. So there is a weakness in the DeMint language when it comes to this public disclosure. On the other hand, in the interest of full disclosure, the Reid-McConnell language requires the earmark disclosure information be placed on the Internet, available to the public 48 hours before consideration of the bills or reports that contain the earmarks. Senator DeMint's amendment does not have a similar provision. My amendment retains the stronger Reid-McConnell earmark disclosure language.
These are three important changes necessary to improve the DeMint amendment. As I noted yesterday, there are some positive elements of the DeMint amendment. In some instances it does not go far enough. I question the whole notion that committee report language should be treated the same as bill language. Those who have gone through the basics of legislation understand that bill language can be a law. Committee report language is never going to be a law. It is only a recommendation. Having said that, though, I don't address that issue in any way at all.
I urge my colleagues to support my secondary amendment to the underlying DeMint amendment. I believe it strengthens the DeMint amendment. I urge the DeMint amendment, with these changes, be agreed to, as well.
AMENDMENT NO. 36 TO AMENDMENT NO. 3
At this point I ask unanimous consent to set aside this pending amendment and call up amendment No. 36 which is at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Illinois [Mr. Durbin] proposes an amendment numbered 36.
Mr. DURBIN. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require that amendments and motions to recommit with instructions be copied and provided by the clerk to the desks of the Majority Leader and the Minority Leader before being debated)
At the appropriate place, insert the following:
SEC. __. AMENDMENTS AND MOTIONS TO RECOMMIT.
Paragraph 1 of rule XV of the Standing Rules of the Senate is amended to read as follows:
``1. (a) An amendment and any instruction accompanying a motion to recommit shall be reduced to writing and copied and provided by the clerk to the desks of the Majority Leader and the Minority Leader and shall be read before being debated.
``(b) A motion shall be reduced to writing, if desired by the Presiding Officer or by any Senator, and shall be read before being debated.'.
Mr. DURBIN. Madam President, I welcome you to the Senate. I am glad you are presiding. I will describe one of the procedures in the Senate I discovered when I came over from the House that I did not understand. It is the fact that an amendment filed at the desk by a Member is then taken to the corridor, to a copy machine, copies are made and then brought back to the floor. Sometimes these amendments are large. Sometimes it takes a while to get copied. In the meantime, the debate is underway. So for those who want to engage in a real deliberation and debate, there is a mystery quality here for minutes, sometimes longer. You wait until you get a copy of the amendment.
There has to be a better way. The better way is obvious. Members who bring modifications to the floor should bring three copies, at least--one copy for the clerk, one copy for the Republican side, and one copy for the Democratic side--so that as they are filed, each side has the language in front of them. As the Senator who is moving the amendment is making the argument, those who want to follow the amendment have at least one copy on each side of the aisle to look at. That is the only way to have a meaningful debate.
There is a way to change this which is clumsy and awkward. As you probably heard me suggest earlier, I asked unanimous consent to suspend the reading of the amendment. I could have allowed them to read the amendment and hear it firsthand. But I think it is more valuable to have it in writing and have it in front of you.
I have suggested this change in the Senate rules since I arrived 10 years ago. It turns out to be one of the biggest challenges I have faced in the Senate, to have two additional copies of the amendment come to the Senate floor. This is a venerable institution. It prides itself on deliberation, but we operate in Senate years, as opposed to real years, or dog years, and sometimes things take a lot longer than they should, so I am offering this amendment.
I have already spoken to the ranking member, Senator Bennett, about it. I have not spoken to Senator Feinstein, the chairman of the Rules Committee. I hope it is the kind of noncontroversial amendment that makes life easier here, but, more importantly, will lead to a debate which, in fact, would be more meaningful.
I am going to, at some point, ask this be agreed to. I hope my colleagues will consider supporting it.
I yield the floor.
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