Surface Transportation Act

Floor Speech

Mr. JOHANNS. Madam President, I rise today to take a few minutes to comment on the bill that the Senate will soon be considering to state why I oppose the bill in its current form. I am speaking of the bill that we oftentimes refer to as the Transportation bill.

I do think this bill does some good things. I supported it coming out of the EPW Committee. It had very sound bipartisan support in that committee.

But there is a serious concern with the bill, a concern for all of us. Specifically, there is a provision in the bill that is what I would call an earmark. However, it is often referred to by our rule as a congressionally directed spending item. Let me again say, purely and simply, it is an earmark. That is why, even though I supported the bill in committee, I did feel very strongly about that provision and I felt compelled to vote against proceeding to the bill and that is why I am here today, filing an amendment.

This provision changes the purpose of an earmark that was included in the previous highway bill. Then the language goes on to do a second thing: It newly directs the money back to the same State where the earmarked project would have occurred, that being the State of Nevada. Let me repeat that. It takes an unspent earmark from a previous highway bill in Nevada and it replaces it with yet another earmark to the State of Nevada. I will go into further detail.

First, the bill identifies any unobligated balances associated with this earmark. The bill reads:

..... any unobligated balances of amounts required to be allocated to a State by section such and such of the SAFETEA LU. .....

In other words, it goes to the unobligated balances, which was an earmark. If you go back to the previous highway bill, this section 1307(d)(1) is an earmark in that previous bill. But it does not stop there. It does not stop by rescinding that earmark. It goes on to say in the text of the bill we are considering that this money ``shall instead be made available to such State .....''--the State of Nevada.

So we have rescinded the earmark, but then we said the money goes back to the same State. In other words, the earmarked money is now directed by law, if this were to pass, back to the State where the project was to be built.

Two wrongs do not make a right. If several million dollars is sitting idly
by in an account and we want to rescind those funds, then that is pretty straightforward. We direct the rescission of those funds and do not earmark it to a specific State. If we are going to start the game, though, of earmarking--which I believe is what this does--obviously there will be a lot of other Senators who believe in earmarks who will say I want my turn also. I do not happen to believe in earmarks, but some of my colleagues would say: Look, if you can do this for one State, you can do it for my State. So if every State can direct specific spending to their own State, then we are right back in the business of earmarking.

I will not necessarily speak to the purposes behind the change in the project, although it is pretty clear from newspaper articles out of Nevada that this money is going to be used for a road project. I will leave the defense of the policy to others. What I will say is that the provision without a shadow of a doubt meets the definition of an earmark under rule XLIV of the Standing Rules of the Senate. The bottom line is that the provision in the bill will direct Federal funds to a single State.

Rule XLIV of our standing rules, the Standing Rules of the Senate, as we all know, defines what is a congressionally directed spending item. I will quote that rule:

..... a provision or report language included primarily at the request of a 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--

It goes on to say:

locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process.

There was a reason why that language is included in that rule and it is what is happening here. If you could simply direct funds to your State, then, as I said previously, we are back in the earmarking business.

Furthermore, the bill before the Senate was written based on the understanding that there would be no earmarks. Everybody is running around saying there are no earmarks in the bill. Everybody has been very public about saying that. That posture was well received. It was commended, in fact. It was commended, in my judgment, in part because many understood that a highway bill that included earmarks simply would not pass. In other words, a ``no earmark'' policy was necessary to get this bill done.

So at the moment I am very concerned that we will have damaged the Senate bill, our legislative process, and hurt the chances of a highway bill getting done. I think the highway bill makes a lot of sense for our country, but we have to solve this kind of problem. I cannot support the bill with an earmark for one State, the State of Nevada.

Even the President of the United States has weighed in on this. He has taken a very strong stand. He said, ``If a bill comes to my desk with an earmark inside, I will veto it.''

This highway bill is far too important for us to jeopardize its passage or to invite a veto by the President, just because the provision is very hard to find and buried at page 463.

I think there is a way to move forward on the highway bill, at least as far as this is concerned. I think our State and local leaders are hoping we pass a highway bill. There are a lot of good things that could happen with it, but this has to come out of the bill. This needs to change, and my hope is the Senate will agree to my amendment to do just that.

I yield the floor and suggest the absence of a quorum.

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