Legislative Transparency and Accountability Act of 2007
LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY ACT OF 2007 -- (Senate - January 11, 2007)
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AMENDMENT NO. 11
Mr. DURBIN. Mr. President, I come to the Chamber to discuss DeMint amendment No. 11 which relates to earmark reform.
First, let me say that I welcome the Senator's efforts to strengthen this bill. We certainly all have a mutual interest in making this process more transparent. Senator DeMint, in his amendment language, adopts the language passed by the House in several important ways. As we move through the process, we are going to work together to ensure that the earmark provisions are carefully crafted and as strong as possible.
Unfortunately, overall the DeMint language is not ready for this bill. The DeMint amendment defines earmarks to include amounts provided to any entity, including both non-Federal and Federal entities. The Reid-McConnell definition which is before the Senate covers only non-Federal entities. On its face, the DeMint language may sound reasonable. After all, I have no problem announcing to the world when I have secured funding for the Rock Island Arsenal in my State. But the DeMint language is actually unworkable because it is so broad.
What does the Appropriations Committee do? It allocates funds among programs and activities. Every appropriations bill is a long list of funding priorities. In the DeMint amendment, every single appropriation in the bill--and there may be thousands in any given appropriations bill--would be subject to this new disclosure requirement, even though in most cases the money is not being earmarked for any individual entity. How did we reach this point in the debate?
There is a concern expressed by some that there is an abuse of the earmark process. When you read the stories of some people who have been indicted, convicted, imprisoned because of earmarks, it is understandable. There was a corruption of the process. But as a member of the Senate Appropriations Committee, I tell my colleagues that by and large there is a race to the press release. Once you put an earmark in to benefit someone in a bill, you are quick to announce it--at least I am because I have gone through a long process evaluating these requests and come up with what I think are high priorities. So there is transparency and there is disclosure.
The purpose of our debate here is to consider reasonable changes in the rules to expand that disclosure. Senator DeMint is talking about something that goes way beyond the debate that led to this particular bill. We are not talking in his amendment about money that goes to non-Federal entities--private companies, for example--or States or local units of government. Senator DeMint now tells us that we have to go through an elaborate process when we decide, say, within the Department of Defense bill that money in an account is going to a specific Federal agency or installation. That is an expansion which goes way beyond any abuse which has been reported that I know of. Frankly, it would make this a very burdensome responsibility.
If I asked the chairman, for example, to devote more funds to the Food and Drug Administration to improve food safety--think of that, food safety, which is one of their responsibilities--that is automatically an earmark under the new DeMint amendment, subject to broad reporting requirements. No one can be shocked by the suggestion that the Food and Drug Administration is responsible for food safety. They share that responsibility, but it is one of theirs under the law. So if I am going to put more money into food safety, why is that being treated as an earmark which has to go through an elaborate process? I think that begs the question. Every request, every program, money for No Child Left Behind, for medical research at the National Cancer Institute, for salaries for soldiers, for combat pay for those serving in Iraq, for veterans health programs, every one of them is now considered at least suspect, if not an odious earmark, under the DeMint amendment. It is not workable. It goes too far.
In other instances, the DeMint amendment does not go far enough. To pass this amendment at this time could, down the road, harm the Senate's efforts to achieve real earmark reform.
Many of us on the Appropriations Committee happen to believe that the provisions in tax bills, changes in the Tax Code, can be just as beneficial to an individual or an individual company as any single earmark in an appropriations bill. If we are going to have transparency in earmark appropriations, I believe--and I hope my colleagues share the belief--that should also apply to tax favors, changes in the Tax Code to benefit an individual company or a handful of companies. The DeMint amendment does not go far enough in terms of covering these targeted tax benefits. The language already in the Reid-McConnell bipartisan bill strengthens the earmark provisions passed by the Senate last year by also covering targeted tax and trade benefits. The Reid-McConnell language on targeted tax benefits is superior to the DeMint amendment. The DeMint amendment, in fact, weakens this whole aspect of targeted tax credits and their disclosure.
Reid-McConnell covers ``any revenue provision that has practical effect of providing more favorable tax treatment to a particular taxpayer or a limited group of taxpayers when compared with other similarly situated taxpayers.' That is the language from which we are working. Consider what it says: favorable tax treatment to a particular taxpayer or a limited group of taxpayers compared to others similarly situated. That is a pretty broad definition. It means that if you are setting out to give 5, 10, 15, or 20 companies a break and several hundred don't get the break, that is a targeted tax credit which requires more disclosure, more transparency.
The DeMint amendment covers revenue-losing provisions that provide tax credits, deductions, exclusions, or preferences to 10 or fewer beneficiaries or contains eligibility criteria that are not the same for other potential beneficiaries. The Senate should not be writing a number such as 10 into this law or into the Senate rules, creating an incentive for those who want a tax break to find 11 beneficiaries to escape the DeMint amendment.
The Reid-McConnell amendment establishes a definition with flexibility so that facts and circumstances of the particular tax provision can be considered. There may be instances when a tax benefit that helps 100 or even 1,000 beneficiaries should be considered a limited tax benefit. Our bill provides that. The DeMint amendment weakens it and means that more of these targeted tax credits will escape scrutiny.
Second, in the interest of full disclosure, the Reid-McConnell approach requires that the earmark disclosure information be placed on the Internet 48 hours before consideration of the bills or reports that contain earmarks. The DeMint amendment does not have a similar provision. Why would he want to weaken the reporting requirement? That is, in fact, what he does. Under the DeMint amendment, information about earmarks must be posted 48 hours after it is received by the committee, not 48 hours before consideration of the bill. In the case of a fast-moving bill, it is possible that the information could be made public only after the vote has already been taken. So this provision actually weakens reporting requirements.
Finally, it is important that the House and Senate have language that works for both bodies. Technical changes are probably needed in the current language in both bills, changes that may come about during the course of a conference. Adopting the imperfect House language wholesale, as Senator DeMint suggests, would make it more difficult for us to work out our differences in conference. The better course would be to address the final language in conference and not get locked into any particular words at this moment.
We need strong reforms in the earmarking process. The Reid-McConnell bipartisan amendment does that. Unfortunately, DeMint amendment No. 11 weakens it--first, in exempting more targeted tax credits instead of being more inclusive; second, in weakening reporting requirements already in this amendment; and finally, tying the hands of conferees by adopting House language that has already been enacted by that body.
The Reid-McConnell substitute is an excellent first step. I am afraid the DeMint amendment does not improve on that work product but detracts from it. To adopt this amendment will only take us backward in this process. I urge the Senate to oppose the DeMint amendment No. 11. Let's keep working on this issue together on a bipartisan basis.
AMENDMENT NO. 13
I would also like to discuss DeMint amendment No. 13. This amendment on the surface seems like a harmless amendment. Nobody wants a Government shutdown. But in truth, what amendment No. 13 does is encourage Congress to abdicate its appropriations responsibility and fund the Government on automatic pilot at the lowest levels of the previous year's budget or the House- and Senate-passed levels. That is what we are in the process of doing for this fiscal year. It is painful. But the results could be disastrous if it becomes the policy of our country. Funding the Government by continuing resolutions does not allow Members to adequately work for a consensus to adjust funding for new challenges and changing priorities. The responsibility to appropriate was duly outlined for the legislative branch by our forefathers in our Constitution. It is a duty we should not abandon by handing it over to some automatic process.
The Senator from South Carolina has argued that this amendment is needed so that Congress should not feel the pressure to finish appropriations bills on time. He is plain wrong. If there is anything we need, it is the pressure to finish on time. If we are under that pressure, it is more likely we will respond to it. But if we are going to glide into some automatic pilot CR that absolves us from our responsibility of passing appropriations bills, we will find ourselves in future years facing the same mess we face this year, when many of the most important appropriations bills were not enacted before the last Congress adjourned.
Our constituents look to us to complete our appropriations bills on time, not make it easy to govern by stopgap measures that underfund important priorities such as education, transportation, and health care. Incidentally, the last time Congress completed its appropriations process on time was the 1995 fiscal year. Rather than abdicate our responsibility, we need to focus on fulfilling that duty under the Constitution. I believe this DeMint amendment is not responsible. It signals our willingness to throw in the towel before the fight has even started.
I urge my fellow Senators to oppose this amendment, send a clear message to the American people that we are ready to accept our responsibilities and not avoid them.
I yield the floor.
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Mr. DURBIN. Mr. President, there are two problems, at least, with the amendment. First, we try in the bipartisan Reid-McConnell earmark reform to include not only appropriations earmarks but also tax benefits. It is the same deal. You either send a million dollars to a corporation in an appropriations earmark or in a tax benefit. So we include both. The language of Senator DeMint's amendment, unfortunately, waters that down and weakens it.
Secondly, we have more stringent reporting requirements in the Reid-McConnell amendment than in the DeMint amendment. There is no reason to walk backward here. We are moving forward toward reform of earmarks. I don't know if it was a drafting error or what, but the DeMint amendment makes language on tax earmarks weaker and the reporting requirements weaker as well.
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Mr. DURBIN. Will one of the Senators yield?
Mr. DeMINT. I yield.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I thank the Senator. As I said, this is getting perilously close to debate in the Senate, which hardly ever happens.
Mr. DeMINT. Mr. President, I thank the Senator for being here.
Mr. DURBIN. I am glad to be here with my colleague. The difference is this: I have had a passion for a long time about the fight for global AIDS. I believe we need to appropriate the funds that the President promised and for which I applauded him to fight the global AIDS epidemic.
Every year I try to plus up and increase the amount of money that goes to fight global AIDS. I have been successful. I am proud of it. I think it is something I have done that has made a difference in the world.
That, under the Senator's definition, is an earmark. It is not an earmark as we have traditionally understood it. The money is not going to a private company, individual or private entity. The money is going to a Federal agency.
To add to this earmark reform language, all the money that goes to Federal agencies may give the Senator some satisfaction, but it is just creating voluminous, unnecessary paperwork.
Can we not focus on where the abuses have occurred, where the earmarks have gone to special interest groups, businesses, and individuals? Let's get that right. The rest of it is what an appropriations bill is all about.
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Mr. DURBIN. Mr. President, will the Senator yield for a question?
Mr. DeMINT. Yes.
Mr. DURBIN. Mr. President, I say to the Senator, having served in the House and Senate on Appropriations Committees and having been fortunate to chair a subcommittee in the House and now in the Senate, I would like to make this point which I think the Senator's amendment misses.
We cannot authorize a program with committee report language--we cannot authorize a program with committee report language. I learned long ago that unless we have bill language, actually creating a law, we are not authorizing the creation of a program. The Senator's language says:
The term ``congressional earmark' means a provision or report language authorizing or recommending a specific amount.
It is not legally possible in a committee report to authorize a program.
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Mr. DURBIN. Mr. President, let me say at the outset that committee report language cannot authorize something that is not legal, no matter what we put in committee report language. This has to be put in bill language.
So referring to a committee report--trust me, after more than 20 years serving on appropriations committees, committee report language is akin to sending a note to your sister--it doesn't mean much. But when it comes to the actual expenditure of money, you want bill language and it is there.
Let me, also, say that the money the Senator is talking about is being transferred, I assume--I don't know those particular projects--to other governmental entities. They could be counties, they could be States, they could be cities. These governmental entities are receiving this money.
What we are talking about, the most egregious cases that have led to the greatest embarrassment on Capitol Hill involves the people who represent private interest groups who come here and receive these earmarked funds. Those people are subject to full disclosure under the underlying bill. That is what this is all about.
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Mr. DURBIN. Mr. President, I urge my colleagues to vote for a motion to table. We have a good underlying bipartisan bill that will bring about significant reform in the earmark process. The DeMint amendment would weaken the bill in two specific instances.
When it comes to targeted tax benefits, his definition, regardless of the source, is not as strong as the underlying bill, which means the targeted tax benefits that benefit special interest groups will not receive the same full disclosure under DeMint that they will under the underlying bill.
Second, for reasons I don't understand, he removes the requirement of posting these earmarks on the Internet 48 hours in advance. That is a good safeguard. Why he has removed it I don't know, but it weakens the underlying bill.
I urge my colleagues to vote for the motion to table. I will work with my colleagues from South Carolina and Oklahoma in the hopes that we can find some common ground.
Mr. President, I move to table the DeMint amendment and ask for the yeas and nays.
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