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Dr. Coburn Calls Ethics Bill a Landmark Betrayal

Statement

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Date:
Location: Washington, DC

Disappointed Senate secretly eviscerated earmark reforms

U.S. Senator Tom Coburn, M.D. (R-OK) released the following statement today regarding his vote against the Senate's flawed ethics and lobbying reform bill.

"This bill is a landmark betrayal, not a landmark accomplishment. Congress had a historic opportunity to expose secretive pork-barrel spending but instead created new ways to hide that spending. Anti-incumbent attitudes, which were already at an all-time high, will only grow when the public realizes this bill was a sham," Dr. Coburn said.

"Earmarks have been at the heart of recent scandals that have sent members of Congress to prison and brought others under investigation. It is no coincidence that as the lobbying industry doubled in size since 2000 so did the amount of money Congress spent on earmarks. The problem in Washington is not the lobbyists. The problem is members of Congress who send earmarks to special interests, and even family members, in an effort to stay in office or feather their own nest," Dr. Coburn said.

"I'm disappointed Senate leaders refused to implement, as a simple Senate rule, earmark reforms originally written by House Speaker Nancy Pelosi (D-CA) which passed the Senate 98-0. The effort to get the Senate to accept these reforms was about helping the majority party keep its own promises to the American people. Our concern that Senate leaders would gut these reforms in an unnecessary conference setting was well-founded," Dr. Coburn said.

Key differences between the original Senate-passed Pelosi language and the current bill include the following: (see attached detailed explanation of changes in bill text)

"The new bill makes disclosure voluntary rather than mandatory. The new bill fires the Senate's current referee - the nonpartisan Senate parliamentarian - and makes one team's quarterback - the Majority Leader - the referee. During floor debate, the Senate parliamentarian directly contradicted Senate leaders and bill supporters when he confirmed that the Senate parliamentarian would be powerless to certify whether earmark disclosure requirements had been met. The bill also turns the tables on reformers by allowing earmark abuses to be protected by 41 votes rather than 67 votes," Dr. Coburn said.

"The ethics reform measures that matter most in our system are transparency and accountability, which occurs through frequent elections. I was proud to have worked with my colleague Barack Obama (D-IL) last year on legislation that creates transparency after the fact. Our bill, the Federal Funding Accountability and Transparency Act of 2006, which was signed into law by President Bush, will allow every American to see how every federal dollar is spent through a Google-like search engine," Dr. Coburn said.

"Congress could have created genuine before-the-fact transparency with this bill. Sadly, private citizens, watchdog groups and congressional offices will have to continue to play hide and seek with congressional appropriators. The public is tired of this game and will grow even more frustrated when it sees the same game played out later this year. Taxpayers should not have to wait on search warrants to find out how Congress is spending its money," Dr. Coburn said.

Changes in original and watered-down ethics bill:

1) Prohibits Senators from trading earmarks for votes

INCLUDED IN SENATE-PASSED BILL: YES

INCLUDED IN NEW BILL: NO

Background: The original language included in the Senate-passed bill (and also included in the House rules) prohibited Members from conditioning the inclusion of earmarks on a Member's vote on any given matter. No such prohibition is included in the new bill. Members of the House have already used this rule against Rep. John Murtha (sadly Murtha won the vote) in response to his threat on the House floor to withhold earmarks from another Member.

Original language: "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."

2) Prohibits Senators from promoting earmarks that would financially benefit themselves, their immediate family, their staff, a their staff's immediately family

INCLUDED IN SENATE-PASSED BILL: YES

INCLUDED IN NEW BILL: NO

Background: The original language included in the Senate-passed bill (and also included in the House rules) prohibited Members and their staff from promoting earmarks from which they would financially benefit. The original language was drafted very broadly to ensure that there would be no hint of corruption in the awarding of earmarks. The new language is so narrow as to be meaningless. By using the phrase "to further only his pecuniary interest," the language would only appear to apply to an earmark that went straight to a Senator's bank account.

Original language: "No Member shall use his official position to introduce, request, or otherwise aid the progress or passage of a congressional earmark that will financially benefit or otherwise further the pecuniary interest of such Member, the spouse of such Member, the immediate family member of such Member, any employee on the staff of such Member, the spouse of an employee on the staff of such Member, or immediate family member of an employee on the staff of such Member."

New language: "No Member, officer, or employee of the Senate shall knowingly use his official position to introduce, request, or otherwise aid the progress or passage of congressionally directed spending items, limited tax benefits, or limited tariff benefits a principal purpose of which is to further only his pecuniary interest, only the pecuniary interest of his immediate family, or only the pecuniary interest of a limited class of persons or enterprises, when he or his immediate family, or enterprises controlled by them, are members of the affected class."

3) Allows the Senate parliamentarian to determine compliance with the new earmark disclosure rule

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The language in the Senate-passed bill gave the parliamentarian the ability to determine compliance with the earmark disclosure rule. In contrast, the language in the new bill allows the chairman of the relevant committee or the Majority Leader or his designee to certify compliance with the rule. The result is that the Senate parliamentarian must now defer to the Majority Leader on compliance with the earmark disclosure rule. Even if no earmarks are listed, if the Majority Leader certifies that the bill is in compliance, then the parliamentarian must abide by that ruling. In that event, reformers would need 60 votes to enforce the rule, even though the original language would have required only 34 votes to enforce the rule.

Original language: The original language required earmarks to be publicly available prior to the consideration of any legislation. Because of the way that language was intentionally drafted, the power of determining compliance with the rule was given to the Senate parliamentarian.

New language: "It shall not be in order to vote on a motion to proceed to consider a bill or joint resolution [etc.] reported by any committee unless the chairman of the committee of jurisdiction or the Majority Leader or his or her designee certifies—[that the required information has been made available.]"

4) Prohibits consideration of bills, joint resolutions, and conference reports if earmarks are not disclosed

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The language in the Senate-passed bill prohibited consideration of any legislation prior to the disclosure of all earmarks. In contrast, the language in the new bill only prevents a vote on a motion to proceed to legislation with earmarks. The result is that legislation that is proceeded to by consent, without a vote, will not be subject to the earmark disclosure rules in the new bill.

Original language: "It shall not be in order to consider—a bill or joint resolution [or a conference report until the required information has been made available.]"

New language: "It shall not be in order to vote on a motion to proceed to consider a bill or joint resolution unless the chairman of the committee of jurisdiction or the Majority Leader or his or her designee certifies—[that the required information has been made available]" AND "It shall not be in order to vote on a motion to proceed to consider a bill or joint resolution unless the chairman of the committee of jurisdiction or the Majority Leader or his or her designee certifies—[that the required information has been made available.]"

5) Requires earmarks attached to a conference report to be publicly available on the Internet in a searchable format 48 hours before consideration

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The original language in the Senate-passed bill required information to be disclosed on the Internet in a searchable format. While the new language in the new bill applies searchability requirement to bills and joint resolutions, it does not require earmarks in a conference report to be disclosed in a searchable format. Specifically, the language in the new bill states that searchability is not required if it is not "technically feasible." This is notable because Sen. Durbin claimed that he strengthened the original earmark provision, after initially voting to kill it, by requiring information to be disclosed in a searchable format.

Original language: The original language stated that earmark lists must "be made available on the Internet in a searchable format to the general public for at least 48 hours before consideration" of legislation.

New language: "To the extent technically feasible, information made available on publicly accessible congressional websites under paragraphs 3 and 4 [for conference reports] shall be provided in a searchable format."

6) Requires 67 votes to suspend the earmark disclosure rule

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The original language in the Senate-passed bill allowed the earmark disclosure rule to be suspended only by suspending the Standing Rules of the Senate. Riddick's Senate Procedure notes that "[a]ny rule of the Senate may be suspended at any time after a day's notice in writing by a two-thirds vote." The best case scenario for enforcement of the new rule is that 40 votes, instead of 34, will now be needed to force compliance with the earmark disclosure rules. The worst case scenario, due in part to the new ability of the Majority Leader to unilaterally waive the rules, is that 60 votes, instead of the original 34 votes, may now be needed to enforce the rules.

Original language: The original language provided no waiver process. The result is that the rule could only be suspended by a two-thirds vote.

New language: "Any Senator may move to waive any or all points of order under this paragraph with respect to the pending conference report by an affirmative vote of three-fifths of the Members, duly chosen and sworn. All motions to waive under this paragraph shall be debatable collectively for not to exceed 1 hour equally divided between the Majority Leader and the Minority Leader or their designees. A motion to waive all points of order under this paragraph shall not be amendable."

7) Requires a full day's notice prior to attempting to suspend the earmark disclosure rule

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The original language in the Senate-passed bill allowed the earmark disclosure rule to be suspended only by suspending the Standing Rules of the Senate. Riddick's Senate Procedure notes that "[a]ny rule of the Senate may be suspended at any time after a day's notice in writing by a two-thirds vote." The new waiver language does not require any notice to the Senate prior to an attempt to waive the earmark disclosure rules.

Original language: The original language in the Senate-passed bill provided no process by which the earmark disclosure rule could be waived. The result was that it could be waived only according to the terms provided through Rule V of the Standing Rules of the Senate. Rule V states, in part, "No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing[.]"

New language: "Any Senator may move to waive any or all points of order under this paragraph with respect to the pending conference report by an affirmative vote of three-fifths of the Members, duly chosen and sworn. All motions to waive under this paragraph shall be debatable collectively for not to exceed 1 hour equally divided between the Majority Leader and the Minority Leader or their designees. A motion to waive all points of order under this paragraph shall not be amendable."

8) Requires all earmark certifications from Senators to be posted on the Internet within 48 hours after an earmark is placed into legislation or its accompanying report

INCLUDED IN SENATE-PASSED BILL: YES
INCLUDED IN NEW BILL: NO

Background: The original language in the Senate-passed bill required Member certifications to be made publicly available on the Internet no more than 48 hours after the inclusion of an earmark in legislation or an accompanying report. The new language, however, requires that disclosure to be made "as soon as practicable." The lack of a firm deadline in the new bill increases the likelihood that this information will not be disclosed in time to allow the public to inspect all earmarks prior to consideration of legislation.

Original language: "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."

New language: "With respect to each item included in a Senate bill or joint resolution (or accompanying report) reported by committee or considered by the Senate, or included in a conference report (or joint statement of managers accompanying the conference report) considered by the Senate, each committee of jurisdiction shall make available for public inspection on the Internet the certifications under subparagraph (a)(5) as soon as practicable."


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