Jeff Flake

Mr. FLAKE

Mr. FLAKE. I thank the gentleman. Again, we're having an argument from somebody who represents a State that's getting a lot more than they kick in, and that's the bottom line. To relate this highway user fee, and it's not a pure user fee because we're kicking money back in from the general fund. But it was meant to be a user fee. To relate that to funding for the arts or whatever is completely an apples and oranges argument. And the notion that because one State receives more in agriculture subsidies than another, some of us don't like those subsidies at all, and we can have that argument on another day. But we're talking about the highway trust fund here. It's a trust fund that is theoretically supposed to give the States roughly what they put in. Now, like I said, I haven't made the argument at all that every State gets 100 percent of what they put in. The gentleman may have made that argument, but I haven't. What I'm saying is right now the minimum guarantee is 92 cents on the dollar. Can't we just get it to 95? Is that unreasonable? If the gentleman says that the whole concept of this Federal union is that States share, I understand that, but does that mean that one State should only get 10 percent of what it kicks in? Of course not. There's a figure at which, a point at which some States, like my own, say, you know, we've been getting 89 cents or 92 cents for decades here. At some point, let's do a little better. And Arizona's not the only State that feels that way. So again, I would ask those of us who are coming to vote on this later on, check with your offices if you aren't aware and say, Are we a donor State or not? Is there a minimum guarantee, 92 cents? Isn't it reasonable that that should be brought up to 95 cents? Is it reasonable for a State, in perpetuity, to be shorted like that? And I don't think it is. I don't think there's any constitutional justification or theoretic justification or anything. It's just an issue of fairness here. That's all we're asking. With that, I reserve the balance of my time, and I am prepared to yield back as soon as the gentleman is.

Mr. FLAKE. It is an amusing discussion what is a side issue or a theoretical issue with no practical application. Sounds just like someone who comes from a State that receives more than a dollar for the dollar they kick in, and that's exactly the case here. It may seem like a side issue or a theoretical issue to somebody else, but it is a very real issue if you come from a donor State. I suppose by the same argument, when I got here, I think the rate of return was 89 cents. We managed to get it up to 92. That hasn't been theoretical. That's very real dollars that come back to a State that put more in than they are getting back. So you can strip away everything you just heard and realize that the argument to keep the disparity going is coming from someone who comes from a donee State, a State that is receiving more than they're putting in. As I mentioned in my opening remarks, because we are backfilling, that line is blurred. Everybody is getting back more than they kicked in because the general fund is kicking it in. That won't always be the case; that better not always be the case. We can't afford for that to always be the case. So when we go back to the highway trust fund used as it was intended to be used, then it's not theoretical at all for a donor State to require--and the gentleman keeps mentioning get a dollar for dollar. We aren't saying a dollar for dollar, we're saying 95 cents on the dollar. Now, the gentleman says what's the purpose of the Federal Government? Many of us have introduced legislation to say that what should be sent to Washington should be what is required to maintain the interstate highway system, the purpose for which the gas tax was put in place to begin with. But 18 cents a gallon doesn't need to be sent back because so much of it is sent simply by formula back to the States. And when it does come back to the States, it's encumbered with things like Davis- Beacon requirements, other set-asides, mandates and stipulations that drive up the cost of construction projects in every State. And so what was a dollar you sent to Washington spends like about 70 cents once it comes back, and you don't even get that dollar you sent to Washington. So the gentleman's point about let's refigure how we do this is well taken. And I've introduced legislation, as have several of my colleagues, to do just that, turn back proposals to ensure that, yes, we still send money to Washington to take care of and to refurbish and to replace and to restructure that which is truly interstate. The interstate highway system is a wonderful thing, but to just send it to Washington to be rewarded with only part of it being sent back, and that part of it that is sent back encumbered with so many stipulations and mandates that it spends a lot less than a dollar isn't right. So the gentleman makes a good point, and I hope that he would join with many of us in the legislation to do just that. In the meantime, let's at least send a signal to the conferees. We all know that these motions to instruct are not binding. All they are is a signal from the House to act in a certain way when you get into conference. What we're saying here, and I think the message should be from the more than 300 Members of this body who represent donor States, is let's be treated a little more fairly here. That's all we're asking. So with that, I reserve the balance of my time.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, under rule XXII, clause 7(c), I hereby announce my intention to offer a motion to instruct on H.R. 4348. The form of the motion is as follows: Mr. Flake moves that the managers on the part of the House at the conference on the disagreeing votes of the two Houses on the Senate amendment to the bill H.R. 4348 be instructed to recede from disagreement with the provision contained in the matter proposed to be inserted as section 104(c)(1)(B) of title 23, United States Code, by section 1105 of the Senate amendment that reads as follows: ``for each State, the amount of combined apportionments for the programs shall not be less than 95 percent of the estimated tax payments attributable to highway users in the State paid into the Highway Trust Fund (other than the Mass Transit Account) in the most recent fiscal year for which data are available''.

Mr. FLAKE

Mr. FLAKE. Reclaiming my time.

Mr. FLAKE. No. There's an important word there, ``mandatory.'' It wouldn't allow the mandatory use. It's back to neutrality.

Mr. FLAKE. Wherever they make sense, that's fine. I just don't want a finger on the scale either way.

Mr. FLAKE. I will yield first to the gentleman from Washington, but only briefly.

Mr. FLAKE. There is. In fact, there was a project in St. Louis, I will mention one specifically, under the stimulus funds, frankly, and that was a shovel-ready project. But then--and a nonunion shop actually offered the low bid, but was refused the contract because the language that the President issued, or the executive order, was taken to mean that they had to look for a PLA, that they should be encouraged to use PLA.

Mr. FLAKE. I move to strike the last word.

Mr. FLAKE. But that's how it has been interpreted. That's why we're saying let's make it clear that we can neither forbid nor deny.

Mr. FLAKE. I thank the gentleman for yielding. I just want to say first that the gentleman mentioned that he thought that this bill had been written by the Associated Builders and Contractors. That's not the case. This issue was first brought to my attention after a meeting my office had with the Army Corps of Engineers. So a government agency brought it to our attention. Second, we are trying to bring back the same neutrality that existed during the Bush administration, which was before this President put the finger on the scale. During the Bush administration, during that 8 years in which we had the neutrality like this amendment of mine returns to, there were contracts awarded with project labor agreements and there were contracts awarded without them. That's what neutrality does. Where it makes sense to use a PLA, it's used. When it doesn't make sense, it isn't. It's neutrality. That's what this bill returns to. That's why this amendment should be rejected.

Mr. FLAKE. Mr. Chairman, I have enjoyed hearing this, and I would say, if the gentleman from New York, if what he were saying were correct, he would be right and I think all of us would vote for this amendment. But he's not. He's not right. The amendment, the language he seeks to strike does not forbid or prohibit the use of PLAs. You don't have to take my word for it. I was the author of the amendment, and we expressly did it so as not to prohibit or allow or anything. It would simply be neutral. And this is what CRS said. So you can say all you want about motives or anything else, but this is what CRS said. They wrote back to us and said: Based on the plain language of the amendment's text, PLAs for military construction projects would not be forbidden. Again, ``would not be forbidden.'' It is expressly--let me read that again so I'll be clear. Based on the plain language of the amendment's text, PLAs for military construction projects would not be forbidden, as it expressly provides that ``[n]one of the funds made available by this act may be used by any government authority . . . to require or prohibit . . . bidders . . . to enter into . . . agreements with one or more labor organizations.'' Here we have it. It's neutral. That's what we're intending to do. The problem is what we sought to correct with the amendment in committee was when the President issued this executive order. The executive order, in itself, does not expressly prohibit nonunion organizations or shops from getting a contract. But what Federal agencies have interpreted it as meaning is that they should favor PLAs. And so certain Federal agencies have written guidance, based on the President's executive order, that actually favor PLAs. And that's wrong. And so all the amendment seeks to do is put it back on neutral ground, to keep the thumb of the President or this body or Republicans or Democrats or anybody off the scale in this regard. That's what this language that the gentleman is seeking to strike does. It brings neutrality that has been missing after the President's executive order. Again, when the President issued his executive order, some Federal agencies took that to mean that they would have to or could require the use of PLAs, and that means that the thumb is placed on the scale in favor of PLAs. So this language was drafted to make it neutral again. That's what it does. If this amendment here is adopted, it will put a thumb back on the scale, and we can't have that. So you can say all you want about motives, what they really want to do, or this is a back door or whatever. But if you look at the amendment, again, from CRS, not from me, says that it doesn't require or prohibit, so it's neutral.

Mr. FLAKE. That's what you just read.

Mr. FLAKE. Nobody can control what they're doing. But this language simply makes it neutral, and that's what I'm trying to correct here. I yield back the balance of my time.

Mr. FLAKE. We don't have to because the agencies have issued guidance that we can look at where they have interpreted the President's executive order as to require the use of PLAs. That's why we offered the amendment.

Mr. FLAKE. No, it doesn't.

Mr. FLAKE. It simply takes the thumb off the scale that's there right now because these agencies have issued guidance. Now, you can say that the agencies may take this as a thumb on the other side of the scale.

Mr. FLAKE. I'm not sure if they know what they're interpreting then. But CRS, which looks at this, says it's neutral, so make no mistake----

Mr. FLAKE. If they spoke to the agency----

Mr. FLAKE. Yes, there is.

Mr. FLAKE. I thank the gentleman for yielding. The reason it's needed, as I mentioned, is because some of the Federal Agencies have taken the President's language in the executive order to mean that they can require or should require PLAs.

Mr. FLAKE. Will the gentleman yield?

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, in 2009, the Pakistan Counterinsurgency Fund was established in order to help Pakistan build its counterinsurgency capabilities. The bill before us reauthorizes the Pakistan Counterinsurgency Fund through the year 2013 and contains a special oversight requirement which conditions the use of more than 10 percent of any money appropriated to the fund until the Secretaries of Defense and State submit an updated report reflecting current conditions in Pakistan to Congress. That report will include details on how much money is to be used, metrics for success, a description of Pakistan's efforts to combat terrorist organizations inside the country, and it will have rigorous oversight provisions. I commend the Committee on Armed Services for continuing to do this important oversight. But the way the law is written, access to 100 percent of the funds appropriated for the Pakistan Counterinsurgency Fund would be granted as soon as that report is submitted, leaving no time for Congress to actually review the report before these funds are obligated. I'm concerned that this report will simply be submitted to Congress, and it will be perfunctory in nature--the report is issued and, boom, the funds are gone before Congress has a chance to actually look at it. This amendment would simply add a requirement that once the Secretaries of Defense and State submit their report, a period of 30 days has to elapse before the money can be fully utilized. The 30-day period will give Congress time to actually review the report and, more importantly, it will give us the option to prevent the expenditure of further funds if necessary. This last year has shown the tumultuous relationship that we have with Pakistan. Particularly, it's been more strained since the killing of Osama bin Laden in Pakistan just over a year ago. Congress needs this flexibility to better manage the flow of U.S. taxpayer dollars to a country whose support of the U.S. has been anything but consistent. This amendment simply gives Congress that flexibility. I urge adoption, and I reserve the balance of my time.

Mr. FLAKE. I urge adoption of the amendment and yield back the balance of my time.

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