Jeff Flake

Mr. FLAKE

Mr. FLAKE. I thank the gentleman. I will talk specifically about the Ag appropriations bill. This bill has hundreds and hundreds of earmarks in it. I think there are maybe half a dozen total earmark limitation amendments that are allowed under this rule. That's simply not sufficient, Mr. Speaker. That's not sufficient. We should be allowing more. I understand the other side wants to hide the fact that 64 percent of the earmarks in this legislation are going to just 25 percent of the body, that the Appropriations Committee, which makes up just under 14 percent of this body, actually comes away with 56 percent of the earmarks. I understand that those who are in charge of this legislation don't want that to be known, but it's still not right to limit the number of amendments that can be offered and to limit the time. So I would plead to not go forward with consideration of this bill under this rule. I yield back the balance of my time.

Mr. FLAKE. May I inquire as to the time remaining.

Mr. FLAKE. I thank the Chair. Mr. Speaker, I raise this point of order not necessarily out of concern for unfunded mandates, although there are likely some in here. I raise a point of order because it's the only vehicle we've got to actually talk about this rule and this bill and how we are being denied the ability to actually offer the amendments that we would like to, to illuminate what's actually in this bill and how this is a break again from the hallmark and tradition of this House, which is to allow open debate on appropriation bills. We've heard a lot about the sweeping reforms, particularly on earmarks, since 2007. Some of these reforms are good. Some of them-- like requiring Members to put their names next to earmarks, requiring them to sign a certification letter that they have no financial interest in the earmark--are good reforms. They are reforms that many of us in this body have wanted for a long time. But we haven't drained the swamp. All we've done is we now know the depth of the mud that we're wading in, and we're simply not able to hold those accountable who should be held accountable. We have the transparency that we need, some of it, most of it; but with that transparency should come accountability. When you're denied the ability to offer amendments on the floor or are restricted in the number that you can offer, then you aren't able to use that transparency to any good effect. In fiscal year 2007 during the appropriations process, I was able to offer 40 earmark limitation amendments. These were bipartisan, including eight to the Agriculture appropriations bill. In fiscal year 2008 I offered nearly 50 bipartisan amendments, including five to the Ag appropriations bill. Now last year only one appropriations bill even moved through the House under regular order, the Military Construction- VA appropriations bill. This bill was jammed together with a so-called mini-bus with the Homeland Security bill and the Defense bill. This came to the House under a closed rule. There were no amendments allowed at all. The remaining bills were jammed into a must-pass omnibus bill earlier this year. Only a handful of those were even reported out of committee. That meant that there were over 7,000 earmarks worth more than $8 billion air-dropped into this bill and not one limitation amendment, not one striking amendment, really not any amendments of any kind were even allowed on that bill. So we went through a whole year basically with virtually no amendments offered at all where these bills, these appropriations bills weren't even vetted. So now we come to this year, and we're told we're going to get back to regular order, we're going to move appropriations bills one at a time and give Members the opportunity to offer limitation amendments. And what do we do? We close them down. The Rules Committee says, Okay, you've offered 12 amendments, maybe you can offer three of those amendments--you choose--on the floor. That's not real accountability. That's not the tradition of this House. That's not an open rule. And when you see things like this--this is in Roll Call today--The Justice Department this week filed criminal charges against a defense contractor who has received millions of dollars worth of earmarks. Today's Roll Call. Today's Hill--Kickback charges against a defense contractor are putting people in this body, organizations here, in a hard position on whether to return campaign contributions back to the contractor charged with accepting kickbacks in return for earmarked dollars. And yet we're going to be considering the Defense appropriation bill later this month that will contain probably more than 1,000 earmarks from this body, most of them earmarks to for-profit companies, most of which will have executives who turn around and make campaign contributions to the Members who secured the earmarks for them. Yet I would submit that the purpose of what we're going through now through these appropriation bills is to basically ready this body for the Defense appropriation bill, where people will be used to not offering amendments. Then where we would be able to illuminate a little bit on the floor at least where these earmarks are going, is it proper for this earmark to go to a for-profit company whose executives turn around and make campaign contributions to the Member who secured that earmark for them? Basically Members getting earmarks for their campaign contributors. Instead of being able to stand up and illuminate that, we'll likely be restricted to one or two amendments, or maybe none. That's what we're going through right now, and that's what it's going to lead to. Now people say that nobody pays attention to process outside of this body or outside of this town. That's largely true. It's tough to score political points saying, The majority party simply won't allow amendments offered on the floor. People typically don't pay attention to bad process. But bad process always begets bad results or bad policy. We learned it on this side. When you hold a vote open for 3 hours--like we did the prescription drug bill vote-- and twist arms, you get a bad result. We added about $11 trillion in unfunded liabilities for future generations. We had several of those, which I think on this side we're probably not proud of. But I can tell you, we always held appropriation bills up, though, and allowed open rules and allowed Members to offer amendments even though it might have been uncomfortable for Members to hear what was being brought to the floor. A departure from that means that we're going to have bad results. We've seen that in the last year or so. When we've restricted the ability of Members to actually offer results, then we have Justice Department investigations because the proper vetting was not done. Now I would wish--I think all of us would wish--that some vetting would be done in the Appropriations Committee, but sadly it hasn't been done. The chairman of the committee has said many times that they simply don't have the time nor the resources to vet all of these earmark requests, and I believe them. But if that is the case, the answer isn't to shut the process down. The answer is, don't bring the bill to the floor with so many earmarks in it. But here instead of doing that, we're saying, ``All right, we can't vet these earmarks, so we're simply going to close our eyes and pretend that these earmarks aren't there and not allow anybody to tell anybody that they're there. Let's not allow anybody to come to the floor and offer them.'' That is a bad process which leads to bad results. Now make no mistake, as I mentioned, what we're going through now--I don't think the majority party or the minority party is so much concerned about how many amendments are offered to the Agriculture bill as they are about setting a precedent for what might come later with the Defense appropriation bill. Remember, that is the important one with regard to earmarks for campaign contributors. If we allow a process to develop here where we shield Members and shield earmarks by not allowing Members to challenge them on the floor, then we will get more headlines like this one in the paper today, headlines that we see over and over and over again which have led to investigations by the Justice Department, which have led finally to our own Ethics Committee, finally, hopefully having launched its own investigation. It is unbelievable to me that we have this going on on the outside, and yet we will still go through a process where we allow Members of Congress here to earmark for their campaign contributors. And instead of allowing Members to come to the floor and actually challenge some of those, we shut down the process so they can't. We close the rule so very few earmark amendments, limitation amendments, are even allowed. With that, I reserve the balance of my time.

Mr. FLAKE. Mr. Speaker, I raise a point of order against H. Res. 609 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 bill, which includes a waiver of section 425 of the Congressional Budget Act, which causes a violation of section 426(a).

Mr. FLAKE

Mr. FLAKE. I thank the gentlelady for yielding. I thank the gentleman from Oregon for clarifying that. All my amendment would do is say that this program should continue to be based on merit rather than be subject to congressional earmarking. I appreciate what the gentleman has said. Unfortunately, we have seen program after program after program that started off as a merit-based program all of a sudden be earmarked later. All this amendment would have done is what we have done in many other bills by voice vote and roll call, to simply stipulate that in future, or for the life of this authorization, those moneys that are meant for merit-based programs are not earmarked by Congress. And so I thank the gentleman for clearing that up. I just wish we would have made this in order. The fact that we didn't worries me because this becomes irresistible to Republicans and Democrats alike to start earmarking these funds.

Mr. FLAKE. Will the gentleman yield?

Mr. FLAKE. There will be well over a thousand, if history proves correct here, over a thousand earmarks in the Defense bill, most of which will be earmarks to private companies, most of which will be in proximity to campaign contributions that will be returned--the circular fundraising that has become a fixture over the past couple of years under Republicans and Democrats in this House. The purpose of narrowing the amendments that can be offered is so we won't have to face those kind of questions on the House floor. Is this money being appropriated for this company? Is this company or their executives contributing back to the Member who secured the earmark? People don't want those questions being asked on this floor. That's why you're seeing amendments that won't be allowed in order here. That's what this is about. And it's a shame. We should do better than that. We owe this institution better than that. With that, I urge opposition to the rule.

Mr. FLAKE. I thank the gentlelady for yielding. I rise in opposition to this rule. I submitted a very noncontroversial amendment to the Rules Committee that would have prevented congressional earmarking to any of the funds appropriated to the Federal agencies while carrying out these programs. My amendment was germane. It would have been in order, had they simply ruled it in order. This same amendment has been added several times both by voice vote and by roll call vote to several other pieces of legislation. So there's no controversy here. But I have to wonder why they wouldn't allow this amendment. And let me just speculate for a minute. Under this program, which continues to grow, according to CRS, the SBIR awarded $45 million for nearly 700 projects in 1983--the year it was established. By the time we reached fiscal year 2006, more than $1.8 billion was awarded to almost 6,000 projects. Now these are projects that are awarded by the SBA based on merit, for the most part, I guess. That's the way the program is set up, as it should be if you're going to have a program like this. I can't pretend to be a fan of this program, but if you are, you allow the projects to be distributed--the money for projects, based on merit. The problem is, as we have discovered here in Congress, one way to ingratiate yourselves to your constituents and to win reelection is to earmark those kind of funds for projects in your home district and to circumvent the process of merit that should go on with the Federal agencies. That's what we have done in program after program after program after program. We were told, for example, when we had the Homeland Security Department established, and we started appropriating money to it, We will never earmark these funds. Don't worry, we're not going to earmark it. Well, guess what? We're already earmarking. The last bill that came to the floor, the Homeland Security Bill, had hundreds of earmarks in it. For example, there's a program called the pre-disaster mitigation program. It's supposed to be for Homeland Security to award grants to help communities prepare for disasters. Well, guess what? Already a quarter of those funds are lopped off the top, earmarked, mostly by appropriators and powerful committee chairs, to their districts. In fact, I think the last figures were 70 percent of the money that was earmarked was earmarked by fewer than 25 percent of this body. So it's a spoils system. Now this, when you're awarding money to 6,000 projects, this is simply irresistible to Members of Congress who seek to earmark. Mark my words, if we don't put protections in here, these funds are going to be earmarked. And so the failure to allow the amendment to stipulate that none of these funds should be earmarked should be taken as notice that we're going to start earmarking these funds. And that is unfortunate. It's part of a pattern, though, that we've seen this year. We are actually bringing appropriation bills to the floor under rules, under a structured or closed rule, where very few amendments are allowed to even be offered. We will be considering the agriculture bill. There are hundreds and hundreds and hundreds of earmarks in that bill. We will have amendments to strike maybe a half dozen. That's not transparency and accountability. What good is transparency if you can't actually challenge a number of these earmarks? The real purpose of all this narrowing down the number of amendments that can be offered, believe me, is that we will be appropriating for the Department of Defense later this month. There will be more than a thousand----

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I rise today in protest of the way we're handling appropriation bills this year. Traditionally, appropriation bills have come to the floor under an open rule, allowing Members to offer as many amendments as they would like as long as they give notice of such amendments. Now we have this year a process of closed rules, where appropriation bills are brought to the floor under structured rules. Members are limited in the number of amendments they can bring forward. And we're told that we need to do this because Members will offer so many amendments that it will slow the process down. But when you have bills come to the floor with literally in some cases more than a thousand earmarks that have not been vetted by anybody, and obviously the Appropriations Committee is not vetting these earmarks, then we should have a process where people on the floor can at least see what's in these bills. We're not allowed to do that. We are bringing a bill to the floor today with just a few amendments that will be allowed to be offered. Mr. Speaker, we cannot continue to do this. We are told that people don't care about process. Perhaps they don't. But bad process leads to bad policy.

Mr. FLAKE

Mr. FLAKE. I thank the gentleman for yielding. Mr. Speaker, I rise in opposition to this rule. This body at this time sits under a cloud. We have investigations from the Justice Department and an investigation by our own Ethics Committee into the intersection between campaign contributions and earmarks. More specifically, earmarks that go to for-profit companies, sole-source contracts, no-bid contracts, that's what earmarks basically are, that are going to, in particular, defense contractors. And then contributions come back from individuals who represent those groups and the lobbyists who represent those groups, so-called ``circular fundraising.'' That's being investigated, as I mentioned, by the Justice Department and our own Ethics Committee. And yet this rule will set in motion a process by which we will approve more than 300 in this bill alone, 300 earmarks, no-bid contracts, for private companies, for-profit companies. Again, in this legislation, if this rule is approved, this legislation will provide more than 600 earmarks, more than half of which, over 300 of which, represent no-bid contracts to private companies. We simply cannot continue to do this, Mr. Speaker. I offered an amendment that would prohibit Members from giving earmarks or no-bid contracts to their campaign contributors. That amendment was not ruled in order. It should have been. We should as a body decide that we cannot continue this practice. We need to remove the cloud that hangs over this body that rains on Republicans and Democrats alike.

Mr. FLAKE

Mr. FLAKE. Madam Chairman, I demand a recorded vote.

Mr. FLAKE. That's right. And I'm also aware that the Department of Homeland Security has a similar program that does similar things, yet we are earmarking over and above on top of that. I simply think that if we don't like the way the Department of Homeland Security is allocating resources, we need to change that or we need to give them guidance; we need to oversee what they do. For example, in my district a couple of years ago, the Department of Homeland Security spent money to synchronize street lights in a small town in my district. That wasn't an appropriate use of funds. But instead of spending time rooting out that kind of waste, we're saying we don't like the way you did that, so we're going to do some of our own. And so it is a duplicative program. And in the end, we end up spending more money and more money; and that's why the budget increases for this agency every year. We simply cannot continue to do this when we have a $2 trillion budget deficit this year alone. At some point we've got to say we've got to save taxpayer money, spend it wisely, and do it in a way that actually addresses risk, not seniority.

Mr. FLAKE. Yes.

Mr. FLAKE. I would urge adoption of the amendment. As I mentioned, when you look at the bill itself, you see again the spoils system that's occurring here: 71 percent of the dollar value of earmarks in this legislation go to just 25 percent of this body; 71 percent goes to 25 percent. That's not an equal distribution. As we know, Mother Nature does not target those districts represented by appropriators or powerful Members, yet we have a system that awards earmarks based on those criteria.

Mr. FLAKE. May I inquire as to the time remaining.

Mr. FLAKE. I feel obligated, since I ran out of time, to explain why simply because the language isn't in the bill itself or the name of the company that that still means that the earmark will likely go to the company listed. In the past few years, the previous President said that he would instruct the agencies not to fund any earmarks that weren't in the bill text. And so as a way to get around it and make sure that those earmarks were funded, the Appropriations Committee actually inserted language saying that language in the report would carry the force of law. And so that's what we've been operating under for the past couple of years to make sure that those earmarks that are simply in a table or in a report still get funded. In this case, we have language that will be in the table, the table that accompanies the bill in the report. The table in the report lists the company, Global Solar, that is to receive the earmark. And there is a certification that the Member filed saying this earmark is to go to this company at this address. And so, notwithstanding the fact that the language isn't in the bill itself, we still have an issue where the earmark will likely go to the intended recipient. This amendment would remove $1 million for funding for the National Institute for Communications Interoperability, a nonprofit organization and a subsidiary of SEARCH, the National Consortium for Justice Information and Statistics. In recent testimony before the House Appropriations Committee, the executive director of SEARCH described the organization as a ``State criminal justice support program with a mission to promote the effective use of information and identification technology by criminal justice agencies nationwide.'' This entity just received a $500,000 earmark in the omnibus bill that Congress approved just a few short months ago. According to the sponsor's office, this particular earmark would support the launch of a nationwide institute to train emergency responders to better command and control emergency resources. The proposed pilot project would provide training, certification and outreach programs to State, regional and local coordinators in the first responder community. Now, this sounds strikingly familiar to a program within the Department of Homeland Security, one that they already administer. The Department of Homeland Security SAFECOM program has developed the Statewide Communications Interoperability Planning Methodology, a comprehensive 10-phase process created to assist States in the creation of their statewide emergency communication plan. Now, why should Federal funds be earmarked for a private organization that seems to duplicate an effort already undertaken by the agency for which we are appropriating now? If the Department of Homeland Security requires services that only SEARCH could provide, the administration could request funds for it. So, Madam Chairman, I don't think that we need to earmark funds here. There is a program within the Department of Homeland Security already that does what this private organization--which has just received an earmark in a bill we did a few months ago--is seeking to do. With that, I reserve the balance of my time.

Mr. FLAKE. Madam Speaker, I have an amendment at the desk as designee of Mr. Campbell.

Mr. FLAKE. Madam Chairman, I demand a recorded vote.

Mr. FLAKE. Yes.

Mr. FLAKE. I understand. As I mentioned before, I have the utmost respect for my colleague from Arizona. He is a straight shooter, and I know that if it were up to him, he would do this. And I think that some things go on their own without sometimes us realizing what we are doing. But in this case, the language stands that this earmark is to go to a specific company despite other language that may be in the legislation to say this is to be competed out. We know, based on experience, that the Department of Defense or the Department of Homeland Security, in this case, the agency, looks to see what the committee wanted and they will award it based on that, and so it really isn't full and open competition. We shouldn't be listing the company here. So I would have to urge adoption of the amendment to strike this earmark unless we can remove the company listed.

Mr. FLAKE. I would ask unanimous consent to modify the amendment to strike the name of the company listed in order that this may be subject to full and open competition.

Mr. FLAKE. Would it be in order to modify the amendment under a unanimous consent?

Mr. FLAKE. Yes, I would yield.

Mr. FLAKE. Madam Chair, we have that language saying that this earmark would be awarded under full and open competition. But if you meet with the Department of Defense, as I have, and you ask them, Currently, do you compete out? Do you subject to competition the earmarks that you see? They will say, Yes; yes, unless we don't, basically. So I asked them--if we look at the 2008 Defense bill, for example, I asked the Department of Defense to actually look and do a random sampling of the earmarks that came that they say are subject to competition to see how many of them actually went to the earmark recipient listed. With uncanny precision, the answer came back all of them that they sampled did go to the earmark recipient listed. If these are to be competed out, why do we have to mention the company at all? I don't know if it is in order to ask for a unanimous consent to simply remove the name of the company. If these are going to be competed out anyway and if there are at least three companies that have this technology, would it not be in order to say----

Mr. FLAKE. Madam Chairman, I hesitate to challenge this earmark. It was secured by my colleague from Arizona, Mr. Pastor, for whom I have great admiration and we have a great friendship, but this amendment would remove $800,000 for the portable solar charging rechargeable battery system, and it would lower the bill by a commensurate amount. According to the earmark table itself, the recipient of this earmark is Global Solar, who, according to the Web site, is a ``privately held company that was incorporated in 1996 that has evolved into a major producer of solar cells.'' The certification letter filed by the earmark's sponsor says the money will be used ``for the acquisition of man-packable, solar- charging, rechargeable battery systems for use by the U.S. Border Patrol.'' My concern is not with the technology nor with the needs of the Border Patrol, nor with this company in particular. My concern lies with why a specific for-profit entity was designated to receive this earmark funding. The President recently referred to earmarks for for-profit entities as the ``single most corrupting element of this practice.'' The PMA scandal that has plagued the House of Representatives for months has largely centered on campaign contributions and earmarks for for-profit entities. We simply cannot move ahead as if nothing is happening outside of this body, or even within this body. We have our own Ethics Committee, and the Justice Department is investigating the relationship between campaign contributions and earmarks, and that is largely the case when you have earmarks that go to for-profit companies, earmarks that are little more than sole-source contracts or no-bid contracts. This is the only one gratefully in this legislation that I have been able to find, an earmark that goes to a for-profit entity, and I would submit, Madam Chair, that we simply shouldn't be earmarking funds for private companies in this legislation. I urge adoption of the amendment. I reserve the balance of my time.