GAO Slot Auction Ruling

Floor Speech

GAO SLOT AUCTION RULING -- (Senate - October 02, 2008)

Mrs. MURRAY. Mr. President, as chairman of the Appropriations Subcommittee on Transportation, Housing and Urban Development, and Related Agencies, I rise with my ranking member, Senator Bond, as well as the bipartisan leadership of the Senate Commerce Committee, to address an important issue pertaining to the Federal Aviation Administration, FAA. That issue is the agency's plans to engage in the practice of auctioning off landing and takeoff slots at slot-controlled airports.

Controversial aviation issues do not always garner immediate agreement on the part of all committee and subcommittee leaders in the Senate. They often trigger disagreements fueled by regional interests or differing views on the appropriate role of the Department of Transportation, DOT, in regulating the market. But in this instance, it should be noted that all four Senators with authorizing and appropriating responsibilities for the FAA are in agreement that the FAA's plans are illegal. We do not come to that conclusion lightly. Just yesterday, the committee received an authoritative legal opinion from the General Counsel of the Government Accountability Office, GAO, that reached that same conclusion.

GAO's legal opinion should not come as a surprise to the FAA. Indeed, the FAA, as recently as 2 years ago, was of the same view as GAO and stated in the Federal Register that it did not have the authority to proceed with such slot auctions. More recently, however, the General Counsel at the DOT concocted what, in my view, is a new far-fetched legal argument for the purpose of evading the clear limitations imposed by the authorizing statute and appropriations law. The GAO reviewed the Department's new interpretations of the law and found that they don't hold water. Indeed, the GAO concluded that, if the FAA were to proceed with these auctions, the agency would be engaging in a blatant violation of the Antideficiency Act. This legal opinion matters not simply because it corroborates our collective bipartisan interpretation of the authorizing and appropriations laws. It matters because the GAO is statutorily charged with making determinations regarding violations of Appropriations law including the Antideficiency Act.

One would think that this opinion would bring an end to this debate. Since we now know, in advance, how the GAO would rule on this question, one would expect the DOT to abandon its interpretation and cancel its planned auctioning of slots. To do otherwise would signal the agency's intention to proceed with a process that will almost certainly be found to be illegal. Unfortunately, we are getting indications that this is precisely what the Department intends to do--proceed with these slot auctions whether they are legal or not. I find the Secretary's plans to be both startling and disappointing. In my view, agency heads should not be launching into actions that are likely to be found to be illegal. And equally important, political appointees should not be forcing nonpolitical officials in their departments to participate in such acts.

So, Mr. President, I, along with my colleagues, am taking the time of the Senate to implore Secretary Peters to review the GAO's findings and abandon the Department's plans. To do otherwise will just subject the taxpayers to the costs both of litigating this matter while holding a losing hand. The taxpayers will also have to foot the bill for financing the operation of this slot auction process. This represents an expense potentially in the millions of dollars. Those funds would be much better spent addressing the long list of critical safety improvements that must be made by the FAA.

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Mrs. MURRAY. Mr. President, I very much want to thank my colleagues for engaging in this discussion today. I ask unanimous consent to have the legal opinion sent to us by the GAO General Counsel printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

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