HIGHWAY TECHNICAL CORRECTIONS ACT OF 2007 -- (Senate - April 16, 2008)
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Mr. Coburn, the Senator from Oklahoma, has taken great umbrage at this tampering. I can tell you, as the senior Senator from Florida, I am very grateful to him for him being upset and wanting to do something about this. This Senator and my colleague from Florida have signed on to an amendment by Senator Coburn trying to get to the bottom of who did the tampering and how did it occur so this kind of stuff will never happen again.
There is some question about the way Senator Coburn's amendment is drafted, that it would be a direction to the House of Representatives which might meet some constitutional problem, in which case what we are trying to work out is that there would be a future amendment where there would be an investigation by the General Accounting Office and maybe some resolution with regard to the Justice Department saying that this matter ought to be investigated as to a violation of the laws of this country in that you cannot tamper with legislation like this.
Whatever we resolve, I hope we will get it in because we have that separate issue of the tampering that needs to be dealt with, and it needs to be exposed to the light of day so people will understand you just do not take a bill that is duly passed by the Congress of the United States and, while it is en route from Capitol Hill to 1600 Pennsylvania Avenue, change the meaning of the bill.
It is my hope that as we get into all these other issues that seem to have cropped up that have nothing to do with Interstate 75, we can get these other issues resolved so the technical correction can proceed and that we can get this particular technical correction adopted into law.
Mr. President, I yield the floor.
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Mr. COBURN. Madam President, I am on the floor this afternoon because a few years ago something happened in Congress that should never have happened. What happened is a bill passed the House and a bill passed the Senate. A bill that both Houses agreed to was changed before it went to the President. We do not know where it was changed or who changed it. We do not know the details of it. There has been speculation in the press, but we do not have any real knowledge of how this happened. But there is a principle, and the principle is, if we cannot trust what we agree to in both bodies of Congress will be sent to the President, then everything we pass has to be suspect.
This is a hard amendment to offer because there is a lot of angst around looking at ourselves and looking at the problems. But the one thing we do know is the American people expect the process to be one that is open, one that is accurate, and that when the President gets a bill, it truly represents what the Congress intended.
What actually happened? On the highway bill conference report passed by Congress, item 461, there were widening improvements for the I-75 corridor in Collier and Lee Counties in Florida. What actually went to the President was different. This was changed to Lee County only and for an interchange. Somehow that got changed. This money has been rejected three times by the citizens and their elected representatives in that area because they do not want an interchange. What they wanted was to widen I-75 in terms of hurricane evacuations.
As I said, we do not know how this happened. There is press speculation. We don't know if it occurred in the Senate. We don't know if it occurred in the House. What we do know is it did occur, and nobody can dispute the fact. And this bill, thanks to Chairman Boxer, corrects that and puts it back to what the original intent of Congress was, what Congress intended originally.
Some will say: Now that we fixed it, we don't need to do anything about it. But the problem the American public has in terms of confidence in us is that we will do the right thing, and the right thing is to figure out how something such as this happened and make sure it never happens again and put in the safeguards so we know it will not happen again. I believe it is time for Congress to look at this issue and fix it.
Many of my colleagues say we are treading on dangerous water because if this occurred in the House, we are forcing the House to look at something, one body telling the other body to do something. We don't know where it occurred.
The amendment I am offering creates a committee of Members, four from the House, four from the Senate, that will look at this issue and make appropriate recommendations to the appropriate bodies; that is, the House Committee on Official Conduct and the Senate Ethics Committee or any law enforcement officers.
I understand that there will possibly be a second-degree amendment, and this ought to be offered and made, that the Justice Department look at this. That can certainly happen in due time, but there is this little issue of separation of powers. We have the responsibility in Congress to do what is right.
It is very interesting the debates we have had, especially in this Congress, about separation of powers and not wanting the executive branch to take power away from us. However, we are thinking about offering a second-degree amendment that would do that.
I believe in the people in this body. I believe we all do not like that this happened. I believe we all want to see that it never happens again. The best way to do this is to have an investigation, two Members appointed by the Speaker and two Members appointed by the minority leader in the House, two Members appointed by the majority leader in the Senate and two Members appointed by the minority leader in the Senate. So we have eight Members reporting back to us what happened and making recommendations to the appropriate committees, not necessarily to us.
As we all know, Senate ethics investigations, as well as House investigations in terms of official conduct, are not public. We don't know if something is going on regarding this issue now. But what we do know is something happened, and we ought to be about fixing it.
My worry is if we modify this amendment or we do not agree to this amendment, this is going to be the feeling of the American public: Is this political? Can we not control the rules of our own body in terms of enrollment?
It is interesting what Jefferson said when he talked about this in his manual. He described what should and shouldn't be done when a bill has passed both Houses of Congress.
The House last acting on it, notifies its passage to the other and delivers the bill to the Joint Committee on Enrollment, who sees it is truly enrolled in parchment. When the bill is enrolled, it is not to be written in paragraphs but solidly, all in one piece, that the blanks between the paragraphs may not give room for forgery.
That is, in essence, what happened in this case. Now, that is not a case for the Justice Department to investigate at this time. That is a case for us to investigate and look at our own rules. The fact is, something went terribly wrong on the way of a bill going to the President that was different than both Houses of Congress passed.
I understand the angst of someone coming from the Senate and saying this ought to happen, and I understand we don't want to get in a fingerpointing mode. But if the House agrees with this in conference, it will happen; and if they do not agree with this in conference, it won't happen. But what should happen in the Senate should be that we look at this so we can create the confidence that the American people deserve to have in this body to know that when we pass a bill out, that the bill we passed is actually the bill the President signs.
I am thankful to the Transportation Committee and Chairman Boxer and Ranking Member Inhofe for clarifying this and fixing it. It is right that it should be done. It is right that the original intention of it should be done. But that is not good enough. That is not good enough for the American public. I understand the desire of the chairman of the committee to move this out of our hands and into the Justice Department's hands, but I have some problems with that. One is this idea of separation of powers. What other powers are we going to give up when we can't handle a simple investigation into what went wrong during the process of enrollment?
The second thing is, my legal staff tells me we cannot mandate to the executive branch what they will and will not investigate. So should they choose not to investigate this, we will have been no further down the road. But the 100-percent guarantee that it will get investigated is if we have Members of both bodies investigate this and come to a resolution so it does not happen again.
It doesn't matter whose bill it is, and it doesn't matter which party's bill it is. If a bill, no matter whose bill it is, is changed, it affects the whole country, and it affects the confidence in this body. This is an ethical issue for us, if in fact it involved the Senate.
The easy thing would be not to offer this. That is easy; you don't make other Senators uncomfortable with you; you don't have the chance that the House could be upset at what we are suggesting in a conference, if they agree to us jointly in investigating this. We could sweep it under the rug as if it never happened because we corrected it. But it did happen. And by not investigating it, it means it can happen again.
This is not without precedent. I believe in 1982 or 1992, this same thing happened and it didn't get investigated. It just got changed. So here we have it happening again, and only because of some very good work in the press were we made aware of it. Consequently, we ought to be the ones to fix it. We ought to take responsibility for our actions and we ought to correct the problem that happened with this, wherever it may be. If it happened in the House, the House should correct it. If it happened in the Senate, the Senate should correct it. But at least we ought to know the details of how and why, and then, if appropriate, a referral, if in fact that is justified. If it was a simple clerical error, we will know that. If it was more than that, we will know that.
The fact is, by not doing this, what we are saying to the American people is, oops, we had a mistake that is paramount to the quality and the clarity of how this body functions, and we believe it is not a grave error. Well, I happen to disagree. It is an entirely egregious error because it impacts every other piece of legislation.
If I as a Senator can no longer trust that the bills we pass in Congress, after they are enrolled, are exactly what we pass, then I now have to spend the time looking at every bill after it has been enrolled to make sure it matches. None of us has the time to do that. That is what we entrust the Secretary of the Senate and the Clerk of the House for.
So somewhere along the way, something changed. We need to know that. We don't need to play the same political games. We don't need to play a partisan game with it, because nobody knows for sure who did what. What we do need to do is to do the hard work of looking at what went wrong and making the appropriate changes.
I note there are several cosponsors, and the Presiding Officer is one. She has been a great addition to our body because she seeks clarity and transparency in what we do here; also Senator McCain and Senator Obama, as well as Senator Martinez and Senator Nelson of Florida. They are the two Senators where this had the most impact.
I don't come to the floor lightly saying we want to poke at people, but I do think it is important for the integrity of our body that we, along with the House, get to the bottom of it. It was my hope we could work this out without trying to refer it to the Justice Department. If in fact it needs to get there, it will get there after appropriate investigation.
To bypass us and give up our power to correct things that are wrong with our rules--not laws, our rules--seems to me to be the antithesis of what we have debated so many times in this Senate over the past 9 to 15 months about the executive power encroaching on the Senate. Now we are ready to give that power away for something that is duly ours and set a precedent that we are going to ask the Justice Department to investigate us? We ought to be investigating ourselves.
We have the integrity, we have the quality, we have the people, and we have the goodwill of all the Senators of this body and all the Members of the House to do that. Because the institution is more important than any one of us. What we do for the American people has to be more important than any one of us. So it is my hope--I will not take much more time--the Senate will concur.
This is done with all sincerity. I am pointing a finger at no one. But I think if we do not do this, by a second amendment that takes it away, what we will have done is to abrogate our responsibility in terms of the clarity of our purpose and the quality of our work. And if we choose to do that, here is what we will find. We will find another notch down the confidence in Congress by the American people, if we refuse to look under our own bedsheets for our own bedbugs and give that responsibility away.
I appreciate the help of the staff of the committee. They have been very forthright in working with us. As I have said before, I appreciate Senator Boxer's cooperative attitude on this. We disagree on how best to handle this, and I understand her right as the chairman and as a Member of this body, but my hope is we don't give away powers that are ours. The separation of powers is a very important concept in this body, and to abrogate our responsibility and appoint it somewhere else, when we don't have the facts--that can always happen afterwards.
In fact, this amendment states that appropriate referrals will be made to both Ethics Committees of the House and Senate and to law enforcement, if necessary. So my hope would be that we could vote this eventually and look at it. I think it is paramount for the quality of our work.
Madam President, I reserve any time I may have, and I look forward to the comments of the chairman.
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Mr. COBURN. Madam President, first of all, I thank the chair for her words. I stated that this amendment language is based on a very big precedent established in 1992 in this body with a joint committee of Members of Congress to look at the rules in both Houses, to look at the processes in both Houses. There is a precedent. There is not a problem with the debate clause. I think that is not a prudent argument to be against this.
The Justice Department will eventually get this if, in fact, we find out there was a crime. I also make the point that nobody knows right now where this occurred. At least I don't. Nobody knows what the facts are, so the assumption we are making that we would be involved in investigating the House is--we do not know that. At least I certainly do not know it, and I have kind of been looking at this for quite some time. So it is an assumption that we are going to have, necessarily, an investigation of the House. We may be having an investigation of the Senate.
The fact is, we have a good precedent for this. This was a Joint Committee on the Organization of Congress, H. Con. Res. 192, in the 102nd, and it looked at everything. It didn't just look at one specific thing. So there is precedent for it.
More important is the separation of powers issue. What we are saying to the American public is we do not have the power to control our own body and that we have to ask the Justice Department to come in and do it. If there is a criminal violation, they certainly ought to be involved in that, but we do not know that yet.
First of all, these are the rules of the Senate. They are not law. We are asking them to investigate the rules of the Senate, not a law; therefore, we are giving power to the executive branch, we are asking the executive branch to come in. My great worry--there is no question, Senator Boxer's amendment will do this. It will get an investigation, if they will come and do it--there is no way we can force them to come and do it--and we will get to the bottom of it.
But I am worried about the integrity of the body, saying to the American public that we cannot police ourselves; we cannot do it; we do not want to take the heavy lifting it is going to take. And I do not believe a four-by-four panel of two Democratic Senators, two Republican Senators, two Democratic Congressmen, and two Republican Congressmen--and this committee has the right to not do any of this in public if they do not want to. The committee totally gets to do this. Nobody wants a circus. I am even reticent that I am actually here making this point. I think it is a pox on our body that this happened, but I think it needs to be addressed.
My hope is that people will not take a partisan viewpoint on how they vote. My hope is they will think about the institution of Congress, they will think about the separation of powers, they will think about the difference between laws and rules of the Senate and rules of the Congress. Then, if a referral needs to be made to the Justice Department, we would do that, but that would most appropriately come from our Ethics Committees, not from this committee--after a referral from this committee to the Ethics Committee.
The chair of the Ethics Committee cannot say whether they are looking at this right now. They may be. They may not be. We do not know. The Justice Department cannot say whether they are or not. So we do not know what is happening.
The point is, something needs to happen. I worry that when we tell the American public we are not capable of looking into our own dysfunction, that, in fact, what it says is that we give up power to the Justice Department to look at how we enroll bills and whether we violated the rules under how we do it. I have a real concern with that. I have tremendous concern with that, especially since we made such a large issue of separation of powers in this Congress.
I will make one other point, and it is not to demean the Senator from California. If this were important to the committee, why was your amendment not part of the committee mark? If, in fact, the committee was enraged over this, why was this not a part of the original committee mark?
Mrs. BOXER. Is that a question to me?
Mr. COBURN. Why have we not addressed this in the original committee mark or the substitute? We corrected it--and I said, while the Senator was out, I was thankful that the problem was corrected. But the issue of how it got changed is not in the committee mark.
This amendment, this second-degree amendment, comes on the fact that we are trying to offer what I think is a cogent way that has precedent in both the House and Senate for solving this. That is probably just an oversight because I know the Senator cares deeply about this. I know she was upset about it. With everything they had to do to bring this bill to the floor as quickly as they did, that is probably what happened. But the fact is, we are at this point. If the body wants the Justice Department--if we want to give up that power to the Justice Department, the body will vote that, and that is fine.
The last point I will make, and I will not continue on a lot further, is this does not force the House to do anything. Let me tell you why. This bill will go to a conference committee, I believe, of which Chairman Boxer will be the head, and all the House has to say is: We disagree with this; we do not want to do this; we do not want to have a committee look into this. The House has that option, and if it does not agree to it, it will not come out of the conference committee and we will not do anything on it.
The same is true of her amendment in terms of the Department of Justice. But it is important for the American people to know whether something happens on it and whether we do it in a way that emboldens and strengthens the institution of Congress or weakens it.
AMENDMENT NO. 4540 TO AMENDMENT NO. 4539
Before I yield the floor, I have a second-degree amendment at the desk. I ask for its immediate consideration.
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Mr. COBURN. Madam President, I will just make one comment.
First of all, the chair of the EPW Committee is very gracious. I appreciate her words, and I intended no disrespect for her in terms of her effort. I know she supports this effort to get to the bottom of it. But I would make a correction. We only say we should share with three people: the appropriate law authorities and the appropriate ethics committees of both the House and the Senate.
We did not envision a show. I would envision that the people who might be on this committee would take this very seriously; that, in fact, it probably would not be open hearings but, rather, closed, and that, in fact, we would get to the bottom of the problem.
But either way we get to the bottom of the problem, I am happy we are going to get there. I think it is important that we get there. As I outlined, I think the integrity of what we pass, no matter how we get there, as long as we can ensure the integrity, I will be satisfied we have done that. I am not sure we will get that.
The final point I would make is we will be setting a precedent. Let us not forget, we will be setting a precedent that the Congress says the Justice Department should investigate us. That is a big precedent. That is a big precedent. I am not a lawyer. I do not know if it has happened before, but I do not like that precedent. I don't like it at all. Because I think the integrity of this body is far greater than that. I think Members of this body are far above that, that we do not need the Justice Department to investigate us. I think we can investigate ourselves and we need to demonstrate to the American public that we do have the will and courage to do the disciplined thing and do the right thing and to solve the problem.
Then if a referral is needed to the Justice Department, we should give it. But I have great qualms, great worries about ceding to the Justice Department the power to investigate us. My own personal experience is, we do not know where they will go. We do not know that they will stick on us. The point is, this is a big precedent I would worry about setting.
I yield the floor.
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