Jeff Flake

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I yield myself such time as I may consume. This amendment is noncontroversial in nature. Section 7 of the bill would create a new discretionary grant program to assist State education agencies in meeting the regulations established in the bill, collecting and analyzing data, and implementing the schoolwide positive behavior support approach. This grant program is to be funded out of the authorization provided in the bill for such sums as necessary. While State agencies will have to apply for these grants, it is unclear if the grants will be awarded on a competitive basis or a merit-based approach. We have seen in the past, unfortunately, when these grant programs have been established, even if it is stipulated that they should be competitive or merit based, oftentimes later Members of Congress will come in and earmark funds directly, and some of these accounts we have for competitive grant programs, merit-based grant programs are completely earmarked just a few years later, so organizations and individuals, nonprofit agencies or State agencies can't even compete for them because all of that money has been earmarked. We need to look no further than FEMA's National Pre-Disaster Mitigation Program. It was a competitive grant program designed to ``save lives and reduce property damage by providing for hazard mitigation planning, acquisition, and relocation of structures out of the floodplain.'' Again, this was going to be a competitive grant program. The fiscal 2010 Homeland Security appropriation bill appropriated $100 million for this program. Almost $25 million of that was earmarked for projects in Members' home districts, leaving fewer funds available for localities that wished to legitimately apply for the funding. A grant program to establish the Emergency Operation Center established by Congress in the fiscal 2008 Homeland appropriation spending bill, 60 percent of the funds in that grant program were earmarked. Again, these are grant programs that are typically set up to be competitively bid on for the agencies to assess on a merit-based basis, and yet they are earmarked. So this amendment would simply say none of the funds available or authorized by this legislation would be available to be earmarked. I reserve the balance of my time.

Mr. FLAKE. Mr. Speaker, I have an amendment at the desk.

Mr. FLAKE

Mr. FLAKE. I urge adoption of the amendment.

Mr. FLAKE. Mr. Speaker, on that I demand the yeas and nays.

Mr. FLAKE. I thank the gentleman. I guess the gentleman is arguing that it is simply redundant. I would suggest that, if the Governor of the State of Hawaii and the Attorney General of the State of Hawaii both have concerns about it and if the U.S. Commission on Civil Rights recommends against its passage for these very concerns, there is at least some question about whether or not it complies with the 14th Amendment. So why not adopt this amendment? If we are saying straight out that this complies with the 14th Amendment, why not simply adopt this amendment? There is definitely a question out there. If it were unanimous and if everyone were saying, Let's pass this legislation as it is, as there is no constitutional question, that would be one thing, but we certainly don't have that today. Let me just say that something was sent around to Members that was urging opposition to the Flake amendment, saying, ``H.R. 2314 already applies ICRA,'' or the Indian Civil Rights Act, ``to the entity, and requires the Secretary of the Interior to certify that the Native Hawaiian governing entity is in compliance with Federal law and that its governing documents provide for the protection of the civil rights of the citizens of the Native Hawaiian governing authority or entity.'' I would argue that we are talking apples and oranges here. What ICRA stipulates is that civil rights are applied equally to those within the governing authority, and so it simply stipulates that those within the Native Hawaiian governing act will comply with Federal law. In other words, there will be no discrimination among them. It doesn't address the core question here that we are seeking to address. It doesn't address whether or not there is a constitutional question about whether or not individuals outside of the governing entity here might be discriminated against.

Mr. FLAKE. Mr. Speaker, I have an amendment at the desk that has been made in order.

Mr. FLAKE. This amendment, I would hope, would not be controversial. It has nothing to do with earmarks either, I'll let everybody know. But it would simply ensure that the equal protection clause, the 14th Amendment of the Constitution, applies to the Native Hawaiian governing authority established by this legislation. I just want to say how much I admire the gentleman from Hawaii (Mr. Abercrombie). I have worked with him for a number of years on a number of issues and I know that he brings to this debate a lot of hard work and a lot of care. I just want to commend him for that and for all that he does. I think that this amendment simply clarifies, I would hope, that this does not violate any portion of the Constitution. Now, it has been said here many times by the proponents of the legislation that it does not, but there are still a lot of questions out there. As has been noted, the Governor of Hawaii and the Attorney General do not support this substitute amendment to the bill, and they have repeatedly expressed concerns fearing that it would apply different rules to those under their jurisdiction. I think that if there is any question, that we ought to ensure, at least at a minimum, that we are complying with the 14th Amendment. The 14th Amendment states, ``All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'' I should note that on August 28, 2009, the United States Commission on Civil Rights voiced its opposition in a letter to Members of the Congress stating, The Commission recommends against passage of the Native Hawaiian Government Reorganization Act, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups according to varying degrees of privilege. And you can have arguments on either side. Proponents will say that this complies with the Constitution. Some question that it may not. And no less authority than the U.S. Commission on Civil Rights has those worries. So what we are saying here is, why not adopt language that says that it simply complies, or no language in this legislation shall be contrary to the 14th Amendment? With that, I reserve the balance of my time.

Mr. FLAKE

Mr. FLAKE. Madam Chair, I have an amendment at the desk, designated as No. 3 under the rule.

Mr. FLAKE. Madam Chair, this amendment, I hope, is noncontroversial in nature. Section 105 of the bill would authorize appropriations for several National Science Foundation grant programs dealing with cybersecurity. For example, the bill authorizes nearly $400 million through 2014 for computer and network security research grants. In addition, the bill would authorize such sums as necessary to make grants related to computer and network security research centers and capacity building, Scientific and Advanced Technology Act grants, and traineeships and research fellowships. This amendment would simply prohibit any earmarking of the funds made available for these programs under this act. It appears that the grants are already intended to be awarded on a ``merit-reviewed competitive basis.'' But I think we still need this amendment because we've seen in the past, time and time and time and time again, that programs that were set up to be competitive accounts that are supposed to be competitive or merit reviewed are simply earmarked later. So if we have this language in it, it will make it less likely that these accounts are subject to earmarking. It's unfortunate that we have to take this step, I realize, but I think we should. I agree with the President when he said last week that we need to ``continue down the path to earmark reform'' and that ``restoring the public trust demands more.'' This is doing more. I think that we ought to go much further than this, but this is a good start. I wish to yield as much time as he may consume to the ranking minority member for his comments.

Mr. FLAKE. Just to conclude, I appreciate the majority's willingness to accept the amendment. Again, I appreciate the fact that there are no earmarks in this authorization. What we're seeking to do here is that when money is appropriated for these programs that are authorized here, that none of that money can be earmarked like we've seen in many, many, many bills before. With that, I yield back the balance of my time.

Mr. FLAKE. I thank the gentleman. Let me just say, I mentioned that we have had examples in the past. Let me just give one where programs that were supposed to be competitively awarded were, in fact, earmarked. Last year we established a grant program called the Emergency Operation Centers. It was established by Congress in FY 2008, in the Homeland Security bill. Last year in the spending bill, it showed that 60 percent of the funds in this grant program were earmarked. We simply can't allow that to happen here. This is a $400 million authorization for this grant program, and we can't have it earmarked. I reserve the balance of my time.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, approximately 68 years ago, in January of 1941, Sam Rayburn was elected Speaker of the House of Representatives. Just prior to his swearing in, he rose on the House floor and said the following: ``You have elevated me to a position, I must confess, that has been one of the ambitions of my lifetime. The House of Representatives has been my life and my love for this more than a quarter of a century. I love its traditions; I love its precedents; I love its dignity; I glory in the power of the House of Representatives. It is my highest hope and my unswerving aim to preserve, protect, and defend the rights, prerogatives, and the power of the House of Representatives.'' What a beautiful statement. You can't help but hear and feel the words of love that Speaker Rayburn felt for this House. As Speaker, he considered himself a custodian of its traditions, its precedents and, as he put it, its dignity. You might ask why I tell this story, why I raise this point. It is because we are about to consider a bill that endorses and condones a practice that has placed a dark and ominous cloud over this institution. This practice, for lack of a better term, can be called circular fund-raising. It involves the awarding of earmarks, which are essentially no-bid contracts, in close proximity to the receipt of campaign contributions from the earmark recipients. This legislation contains more than 500 earmarks where a private, for-profit company is the intended recipient. Let me repeat that. This legislation we are about to consider contains more than 500 earmarks, or no-bid contracts, directed to private companies. In many cases, the Members of the Congress securing these no-bid contracts have either received, or will soon receive after this legislation is enacted into law, large campaign contributions from the executives of these companies and/or the lobbyists that represent them. By now my colleagues are well aware of the PMA scandal which was largely centered on the practice of circular fund-raising. Since news broke in February 2008 of the FBI's raid of the PMA offices, press reports and editorials from coast to coast have raised questions about the action of that firm and the integrity of this body, sowing public distrust and tarnishing the dignity of the House. Just listen to what is being said off the Hill and beyond the beltway. ABC's news site, The Blotter, noted that PMA's ``operations--millions out to lawmakers, hundreds of millions back in earmarks for clients-- have made it, for many observers, the poster child for tacit `pay-to- play' politics in Washington.'' An editorial in The New York Times entitled, ``Political Animal 101'' referred to ``the relationship between campaign donors and the customized appropriations they are fed by grateful lawmakers'' as ``the ultimate in symbiotic survival'' and ``cynical influence trading.'' An article in The Kansas City Star noted that ``the earmark game gets a bit less baffling'' when taxpayers consider ``the campaign donors that grease political palms.'' The Columbus Dispatch summed it up when they noted, ``Congress has an abysmal public approval rating of 26 percent as of early November, and the smell of quid pro quo certainly doesn't help.'' The embarrassing coverage isn't just limited to domestic press. The Irish Times noted that ``U.S. Congressmen tread a fine line between legitimate political fund-raising and influence-peddling, between friendship with lobbyists and outright corruption.'' They go on, ``Now a leaked confidential report, prepared by the committee (on Ethics) in July and detailed in yesterday's Washington Post, has provided a rare glimpse into the cesspool of Capitol Hill politics.'' Madam Speaker, I have here that article referred to from The Washington Post dated October 30 of this year. It notes that seven Members who sit on the Appropriations Committee, the Subcommittee on Defense, are ``under scrutiny by ethics investigators.'' The article notes that ``Together, the seven legislators have personally steered more than $200 million in earmarks to clients of the PMA Group in the past 2 years, and received more than $6.2 million in campaign contributions from PMA and its clients in the past decade.'' According to The Wall Street Journal, Members who sit on the Defense Subcommittee have this year alone ``received a total of $141,000 in campaign contributions from companies that received earmarks from the lawmakers.'' So here we are today, Madam Speaker, with a backdrop of investigations into the practice of circular fund-raising by the Justice Department and our own Ethics Committee, yet we are poised to pass a Defense appropriations bill that contains more than 500 no-bid contracts for private companies. In mid-January of 2010, we will see a quarterly report from the Office of Congressional Ethics that will shed light into their investigations. Thereafter, it is likely that our own Ethics Committee will have to provide additional notice of their actions related to the PMA scandal. If the future is anything like the past, additional scandals will spring from the earmarks that we approve today. We are surely, as the poet said, ``traipsing down a flower- strewn path unpricked by thorns of reason.'' I should note that circular fund-raising is not a partisan issue; both parties engage in it. The cloud that hangs over this body rains on Republicans and Democrats alike. But it is fair to ask, what about the dignity of this body? Are we appropriately concerned that the words ``pay-to-play,'' ``quid pro quo,'' ``swamp'' and ``cesspool'' are increasingly routine in articles describing the appropriations process? Should we have no standard higher than whether the abuse of the process rises to the level of an indictable offense? One thing is clear: The practice of circular fund-raising will someday end. The question is, who will end it? Will it take us, in our own initiative, to clean our own House, or will we wait for the Justice Department to launch more investigations and take further action? My own hope is that those who find themselves in leadership positions today will summon the dormant custodial spirit of those who have protected and defended this wonderful institution long before we arrived in this Chamber. We owe it to them to correct the process that led to this flawed piece of legislation before us. I reserve the balance of my time.

Mr. FLAKE. Madam Speaker, I raise a point of order against H. Res. 976 because the resolution violates section 426(a) of the Congressional Budget Act. The resolution contains a waiver of all points of order against consideration of the legislation, which includes a waiver of section 425 of the Congressional Budget Act, which causes a violation of section 426(1).

Mr. FLAKE. Madam Speaker, may I inquire as to the time remaining?

Mr. FLAKE. I am accused of using a procedural measure to bring up earmarks again. Let me tell you why I'm doing that. I'm doing that because this year, for the first time in the history of this institution, every appropriations bill that came to the floor-- including this one, including the Defense appropriations bill--came under a structured or closed rule with only certain amendments being offered. That's the first time in the history of this institution where every appropriations bill has come to the floor in that manner. And so individuals like myself and others were only allowed to offer the amendments that the other side wanted us to offer, the ones that they said we could offer rather than the ones that we ourselves would choose. I was fortunate in that I got 10 of the 550-some amendments I offered on this bill. I offered that many because that's how many no- bid contracts for private companies are contained in the bill, and I thought that they deserved some scrutiny. I wish that the Appropriations Committee was vetting these earmarks; given this, it's clear that they're not. This is one of hundreds of articles out there. There is a cloud hanging over this institution because of prior Defense bills, and this is going to end up the same way. We are guaranteeing that there will be scandal that springs from earmarks approved in this bill because they haven't been appropriately vetted, and they haven't been because we weren't allowed an open rule for people to bring to the floor amendments that they wanted to offer. I mentioned that I was fortunate in that I got 10 of them. Some of my colleagues offered multiple amendments on multiple appropriations bills throughout the year and weren't given the opportunity to offer any of them, not one. Here are Members across the country wanting to represent their constituents, and through the entire appropriations process, 12 bills this year, weren't given the opportunity to offer one amendment because we have the equivalent of martial law on appropriations bills. And why? Because we were told we had to get it done so we wouldn't do any omnibus bills at the end of the year. Well, here we are, we just approved a massive omnibus bill last week, and we're here today because the Defense bill was held just so that we could tag on additional items that people who wouldn't want to vote for them anyway would have to because it's a Defense bill. That's just no way to conduct business. This institution deserves better than this. It deserves better than to have a bill that has more than 500 no-bid contracts for private companies of which articles have been written and will be written, making a cloud hang over this body. As I mentioned, this isn't a partisan issue. This isn't where one party is in the right and one party is in the wrong. We are both doing this, and we shouldn't. And it will come back to haunt us as surely as other practices have in the past. Madam Speaker, I yield back the balance of my time.

Mr. FLAKE. I thank the gentleman for explaining my motives. But in truth what I would like to see is no more earmarks in the defense bill because when you have an earmark, you don't have full and open competition. What I'm talking about is I would not like to see no- bid contracts for private companies in the defense bill. When you have that, I don't know how in the world you can say we have full and open competition. Like I say, I don't believe that that language means much at all, but to the extent that you believe it does mean something, then at least you should apply it across the board, not just to earmarks sought by Members of the House solely but those earmarks that are requested by Senate Members as well. How can we say with a straight face that, hey, we're doing things right because we're applying that competition language to us, but all you have to do is to get a Senate Member to request it along with you and then you don't have to subject it to full and open competition. It simply doesn't make sense, Madam Speaker. I thank the gentlewoman for her indulgence and I appreciate this discussion. Announcement by the Speaker Pro Tempore

Mr. FLAKE. I thank the gentlewoman for yielding. I had hoped that the gentleman would rise and explain what he just explained. Now, I will gladly yield to him to explain why this would only apply to earmarks by House Members alone and why the competition requirements don't apply to earmarks that are jointly requested by a House and Senate Member. If we're hanging our hat on language that requires that these earmarks be subject to competition, then surely we would extend it to anything that had our name on it, but we're not. My understanding is that the language only applies to those earmarks that are requested solely by a House Member, and that if you have a Senate Member on your earmark request, then it is not subject to competition. The language just explained does not apply to it. So you can't have it both ways. Now, I will argue that it doesn't matter anyway, because right now if you talk to the Department of Defense, and I have, we've held meetings in my office with the procurement officials, and we've asked them, How does this work when these earmarks come over? Are they subject to competition? They said, Yes, we follow the rules. Yet when you ask them to do a cursory examination or a full-fledged examination of those earmarks that were requested in prior years, you will find an uncanny alignment, as you might expect, between the intended recipient and those who actually got the earmarks in the end. So you can say until you're blue in the face we're going to subject these to full and open competition. The Department of Defense already says that. And these articles that I already talked about, these scandals that are currently underway are under a policy where the Department of Defense already says we subject these to full and open competition. But let me tell you, if an earmark comes over from a Member of Congress, particularly from those on the Appropriations Committee--and I should explain that the majority of these earmarks, a disproportionate number, are from the powerful Members on the Appropriations Committee--believe me, those procurement officials at the Department of Defense take that into account. They know who butters their bread, and they know that they'd better award this contract to the intended recipient or they might not get funded the next year. If that's not the case, why have we seen so much an uncanny alignment between the intended recipient and those who actually got the earmark in the first place? So, first, again let me say if we're hanging our hat on the language that says these are subject to competition, then why wouldn't we apply it to every earmark that is contained in this bill? It doesn't apply to Senate earmarks, nor does it apply to earmarks requested by both Senate and House Members. So are we saying, well, we're going to subject some to competition and that means something, but these others, yes, it's okay if there are no-bid contracts? That simply doesn't work.

Mr. FLAKE. I thank the gentlewoman for her indulgence here. This is important, and I would ask the gentleman and would yield to him to respond, is it your understanding, then, that this language, this new competition language, applies to Senate earmarks as well as earmarks requested by both House and Senate Members?

Mr. FLAKE. I thank the gentleman. Let me simply say if that is the case, that is in conflict with the agreement that we understand to be in effect. The agreement we understand to be in effect and what I was told is that only those earmarks that are requested solely by a House Member has the language that applies to competition. If it is an earmark requested by both a House and a Senate Member, then it does not apply this year, and supposedly it will next year, although obviously there are no guarantees. We can't bind a future session. And that if it is a Senate earmark, they didn't agree to this at all. That's what we understand. If there is some difference there, then please let's have the chairman of the Appropriations Committee explain it. But, again, the question here is if that language is so important, then why wouldn't we apply it across the board? And doesn't it strike everybody a little bit funny that you have an earmark that, when a Member requests it from the Appropriations Committee, they say this earmark of this amount, $500,000, $2 million, $2.5 million, whatever, is to go to this company at this address? It's that specific. It goes to that company at that address. Now, the Appropriations Committee will say we're just providing a look-see, and so the Department of Defense can say, well, we didn't know that that company existed but now we do, and we're doing nothing more than simply giving them a look-see and giving them a chance to see which companies those are. I think that doesn't quite pass the laugh test.

Mr. FLAKE. Yes, I will.

Mr. FLAKE

Mr. FLAKE. I thank the gentleman for yielding. The gentleman from Indiana has mentioned, what do the opponents of this resolution have in mind. If not these sanctions, then what, what do we do? I think you are hard pressed to find anyone who will rationally say that this measure will have any real effect. This is a statement resolution more than anything. And to the extent that it does bite, right now we don't export any refined petroleum products to Iran, but some of our allies do, those allies that we need for real sanctions that may or will bite. If we hope to get them on board, the last thing we want to do is get out in front and take measures where there will be punitive action on our allies that we need for sanctions that actually might have an impact. So the notion that we have to do this or nothing is simply false. We need to address this situation there, but we need to do it in a way where we don't alienate the people of Iran who, when you're on the streets of Iran, people are not virulently anti-American, gratefully. We need to keep it that way. We shouldn't have sanctions that target the people, hoping that they will somehow revolt and then get mad at their leadership rather than the U.S. I think that when you look at the history of sanctions, you're hard pressed to find examples where that kind of action works, where you try to entice some kind of rebellion among the people that you want to help and that somehow they will blame their government rather than those who are imposing the sanctions. Again, multilateral sanctions can work. Multilateral action can work, and it needs to work. But in order to do that, you need to give the administration the flexibility, through a combination of diplomacy and other measures, to work with our allies, to bring measures that will work. I am glad the gentleman has stood up to oppose this. I want people to know that we aren't all in agreement here, that there are other measures that can be taken.

Mr. FLAKE

Mr. FLAKE. I thank the gentleman for yielding. I have to say, the chairman of the Appropriations Committee said a while ago that they had to have what amounts to a legislative form of martial law during the consideration of these appropriation bills because many amendments were being brought forward. He said many were not serious amendments. I can only assume that he was referring to some of mine, because I had a lot of them. But let me tell you, we had more than 500 no-bid contracts going to private companies in the Defense bill alone, and I had many amendments to examine those because, heaven knows, they weren't being examined in the Appropriations Committee sufficiently. We have had story after story and a cloud hanging over this body, investigations going on; the Ethics Committee has seen fit to investigate the relationship between earmarks and campaign contributions. Yet we say that many of these amendments are not serious amendments. Who has to decide that? Why don't we let the body here decide and allow those to come to the floor. Also, the gentleman from Massachusetts mentioned that we have to have this level of funding because of years and years of neglect. I would submit that we would do well to have a little more neglect on the taxpayers' behalf if what we are funding in this bill, and we are, is nearly $200,000 to renovate a building in Massachusetts to attract private capital investment; $700,000 for an arts pavilion in Mississippi. I think the taxpayers would be happy for a little more neglect by the Federal Government in this area.

Mr. FLAKE. Mr. Speaker, I raise this point of order not so much out of a concern for unfunded mandates, but again, it's about the only opportunity we have to stand up and talk about the process by which this conference report is being brought to the floor. We all remember that earlier this year we had something unprecedented happen. We have never in the history of the Republic ever had every appropriation bill come to the floor under a closed rule where Members from both sides of the aisle were denied the ability to offer amendments. Now, until a decade or two ago, appropriation bills typically came to the floor without even going through the Rules Committee at all. It would simply come under an open rule, and amendments would be disposed of on the floor and there would be open debate. A couple of decades ago, we started to go to the Rules Committee, but only to set overall parameters. It was still an open rule, and any Member could offer any amendment to strike funding or move funding around within the bill as long as it was germane. But this year we were told by the majority that we had to rush this legislation through, these appropriation bills. Remember, the main reason Congress is here is because of the power of the purse. It's article 1: to dispose of funding legislation, to fund the agencies of the Federal Government. So that is the important reason we're here. But we were told we had to rush that through and had to do it under what amounts to a form of legislative martial law where every appropriation bill this year, every one, came to the floor under a closed rule. Members were denied the ability to offer the amendments they wanted to offer. They could only offer the amendments that the Rules Committee saw fit for them to offer. Over 1,000 amendments were offered. Just 12 percent of those amendments were actually allowed onto the House floor. Now, I was fortunate to have a number of those amendments allowed. Some of my colleagues came to the floor or came to the Rules Committee over and over again with multiple amendment requests on every bill, and in the entire year, not allowed one, not one amendment. We had several members not allowed one amendment the entire year because we had to rush these bills through for some unknown reason. We were told that we had to do this because we wanted to avoid an omnibus. Well, here we are with an omnibus. This is a bill that spends north of a trillion dollars, one bill brought to the floor under one rule. And in it, let me tell you what's in it. Let me just tell you what is in it. In it is more than 5,000 earmarks.

Mr. FLAKE. I would.

Mr. FLAKE. I thank the gentleman and reserve the balance of my time.