Jeff Flake

Mr. FLAKE

Mr. FLAKE. I thank the gentleman for yielding. I just want to pay tribute at this time to Mr. Rangel, Mr. McCrery and everyone who has put this trade deal together. This is a difficult thing to do. It is always easier to see the shuttered business and to say that's because of trade rather than to look at the opportunities and jobs that are created because of free trade. Free trade lifts our standard of living. It lifts the standard of living for those in other countries that enjoy its benefits as well. This is the best part of Congress, to see on a bipartisan level people coming together to do what is best for people everywhere. I just want to commend those who put this together. This is a good rule. This is a good bill. Let's move forward with this. Let's move forward with the other free trade agreements with Panama, Colombia and Korea.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, people may wonder why we are doing this, combining these two bills, the Veterans bill and also Labor-HHS. It is easy to see when you look at it. There are some 150 pages of earmarks in this conference report, including nine air-dropped earmarks. Now, these are earmarks that weren't considered by either the House or the Senate. They were simply air-dropped into the bill that we have no opportunity to amend out. We have violated our own rules. We are violating our own rules to do this: $1 million for the Thomas Daschle Center for Public Service and Representative Democracy. We are spending $1 million in this bill, air- dropped into the bill, with no opportunity to amend it out, a center for public service and representative democracy at a university somewhere named for a former Member of Congress. This simply isn't right. This isn't right. We shouldn't be doing this. This institution deserves far better than we are giving it.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. FLAKE. Mr. Speaker, I raise a point of order against H. Res. 794 under section 2 of H. Res. 491, because the resolution contains a waiver of all points of order against the conference report and its consideration.

Mr. FLAKE. Mr. Speaker, I yield myself such time as I may consume. H. Res. 491 says that it shall not be in order to consider a conference report unless the joint explanatory statement includes a list of congressional earmarks that were air-dropped into it or that were not committed to the conference committee by either Chamber. Mr. Speaker, it's unfortunate that, on the first general appropriations bill since the adoption of H. Res. 491 and its improvements to the earmarks rules, that the majority has reported a rule that waives all points of order. I object to using veterans spending to grease the skids for a pork- laden Labor-HHS spending bill. A cursory look through the more than 150 pages of earmarks in the conference report reveals such earmarks as $320,000 for the American Jazz Museum in Kansas City, Missouri; $130,000 for the First Ladies Museum in Canton, Ohio; $85,000 for the Los Angeles Craft and Folk Art Museum in Los Angeles, California. But beyond taking exception to the bill, I raise this point of order as the only means available to highlight the alarming trend toward opaqueness rather than transparency. Rather than allow for a full debate on whether this conference report complies with the earmark rule, this rule actually prevents it. Mr. Speaker, I have a little experience challenging earmarks on the floor. It's not been a pleasant experience at times. We don't know much of what are in these bills that get to the conference. And then when you have a conference report that comes with earmarks air-dropped into it after that, and you only get that bill just a few hours before you vote on it, then I think it behooves us to slow down a bit and say what are we doing here. I should note that when I challenged earmarks in the House version of the bill, on one occasion we had an earmark withdrawn before the earmark amendment could be offered because there was a problem with the earmark. In other cases we had the Committee on Appropriations go to the Rules Committee and actually withdraw some of the amendments before they could be challenged. So it is obvious that these earmarks have not been vetted through the process very well, and those are the earmarks that actually went through the House process. We have here at least nine, nine that are identified, nine earmarks that were air-dropped that were not either part of the House or the Senate version. Mr. Speaker, this just is not a good practice. One example of the air-dropped earmarks that we just found out about just hours ago, $1 million for the Thomas Daschle Center for Public Service and Representative Democracy. Now, if we are air-dropping amendments like that into this bill, what else is in the bill? We really haven't had time to go through it. Outside groups are trying to go through this bill and simply haven't had the time. And you are going to have problems; we are going to be learning for weeks or months what's in this bill unless we slow down a bit here. With that, Madam Speaker, I reserve the balance of my time.

Mr. FLAKE. Madam Speaker, I think it begs the question, if there was total transparency here, why did we waive all points of order against this rule? I would have liked to have challenged the conference report itself, but I couldn't because the Rules Committee had decided to waive all points of order. Now, you have to ask why. If everything is transparent and everything is known, why did we waive all points of order? Why am I forced to bring a point of order against the rule itself rather than the conference report? And I would submit that I would like to believe that it is a transparency, but when you have air-dropped earmarks dropped at the last minute, again, if we are working so hard for America's hardworking taxpayers, as was just said, then why are we air-dropping an earmark for $1 million for the Thomas Daschle Center for Public Service? Naming a center after a former Member, why is that so urgent that we have to break all the rules that we have laid out and sneak it into a bill at the last minute, with less than 24 hours, in fact, less than 12 hours to actually review it? That's not proper vetting. I should mention that there have been statements made by the majority, and I have liked what I have heard about what we are going to do this year in terms of earmarks transparency. The Speaker of the House said back in June that Members need to have time to read through these reports and that every earmark should have to be defended. These nine air-dropped earmarks into this bill today don't have to be defended. They are untouchable. We can't even go at them. We can't offer an amendment to strike them out because they are air-dropped into a conference report where you have no ability to strike them. Madam Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Gingrey).

Mr. FLAKE. Madam Speaker, I am not here to defend the Republican record on earmarks. It's abysmal, frankly. I think that's one of the main reasons we are here squarely in the minority today. But I took great heart, as did many of us, at the promises that were made with the new Congress, that we would have real transparency, real accountability. And, unfortunately, what we are seeing today is a move away from that. Let me read a statement that I mentioned. In June of this year, the Speaker of the House, in a press conference, said, ``Before Members vote on a bill, there should be an appropriate time for people to be able to read it, that it should be a matter of public record. And if there's an earmark that can stand the scrutiny, then that transparency will give the opportunity for it to be there.'' When you have nine, at least, that we have been able to find, and when the gentleman says that they are all marked with an asterisk, how do we know? We have 150 pages of earmarks that we were given just this morning. We only got the hard copy of this this morning. We simply don't know. So it behooves us to move a little slower here. If we really believe in transparency, if we really believe that these earmarks need to be there, then let's have a rule that actually allows for a point of order to be lodged against the conference report, not just against the rule. Again, I have to say if there was complete transparency here and we didn't have anything to worry about, I think we would have had a rule that did not waive points of order against the bill. And that's why we are here today. We need to do far better. This is a wonderful institution. There are wonderful people here. It has a great history. We need to do better by it. And I would submit that this legislation before us today with 150 pages of earmarks and nine air-dropped earmarks at the last minute does not do this institution the good that it deserves. Madam Speaker, I yield back the balance of my time.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding. And I want to thank the President for vetoing this bill. We Republicans promised a new era of fiscal responsibility, and I don't think it is very fiscally responsible to add $750 million in earmarks in the conference report alone. The Senate passed a $14 billion WRDA bill. The House passed a $15 billion WRDA bill. And when the conference came back, you would think that they would split the difference, maybe 14.5. But, no, it came back at $23 billion. So $14 billion, $15 billion, you compromise and you get $23 billion. There is something wrong with this picture. So I think we should sustain the President's veto. We need to be fiscally responsible not just with appropriations but with authorizations as well. We simply can't continue to add to the backlog of projects that are already out there. It will simply mean that more will go unfinished and priorities will be diverted off into doing studies that will never be done. So I applaud the President for vetoing this bill, and I urge my colleagues to sustain that veto.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, Democrats wisely seized on earmark reform as an issue during last year's elections. I believe that their promises of reform, coupled with the Republican Party's inability to control earmarks, directly contributed to the Democrats' success in last year's elections. However, the majority party does not appear to be following through with the substantive reforms that were promised. Take the Labor-HHS bill that will soon be considered in conference. It contains more than 1,300 House earmarks, more than 1,000 Senate earmarks. It goes without saying that few of these earmarks have received even a cursory screening, let alone a thorough vetting. We need to remember that we are only halfway through the process and it is in the conference that much of the earmark mischief occurs. Public confidence in our ability as stewards of their taxpayer dollars will further erode. Madam Speaker, while watching the Democrats make the same political miscalculations as we did in the majority may delight us as Republicans, it has to be sorely disappointing to taxpayers. I urge all Members, Republicans and Democrats, to support legislation to impose an earmark moratorium until we can scrutinize all earmarks.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, pursuant to clause 1, rule I, I demand a vote on agreeing to the Speaker's approval of the Journal.

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

Mr. FLAKE

Mr. FLAKE. I thank the gentleman for yielding. I have an amendment that has been made in order which I plan to offer later. When I came on the floor yesterday, I was approached by several Members who pointed out that my amendment was, perhaps, overly broad. I went back to the office and took a look, and I happen to agree, it is. And it might confuse people. Because in my original amendment I said nothing in the action will relieve any sovereign entity within the jurisdiction of the United States, including the Native Hawaiian governing authority, from complying with the equal protection clause of the 14th amendment of the United States Constitution. And so I would like to see if the proponents of the measure would agree to a unanimous consent request to narrow the amendment so that it would simply apply only to the Native Hawaiian governing authority, as opposed to the Native American or any sovereign entity within the United States. I would yield to the gentleman from Hawaii.

Mr. FLAKE. Yes.

Mr. FLAKE. I would.

Mr. FLAKE. I thank the gentleman, and I thank him for providing the text of ICRA yesterday. I did read through it and was convinced and compelled that my original amendment was overly broad, and that's why I sought to restrict it here. Seeing that we cannot restrict it, I will withdraw the amendment. But I will offer the motion to recommit later. And the motion to recommit is pretty much similar to what the amendment would have been, further restricted. I take the gentleman's concerns. We don't know what the implications will be with the amendment, but I would submit that we don't really know what the implications might be without the amendment. And what the motion to recommit will do will simply have three sections. It's just one page here. It will say that what will apply is the U.S. Constitution's Bill of Rights, the Federal civil rights laws, and that no racially defined burdens of immunities, so we will make sure that no persons shall, as a result of the operation of this act, be exempted from any Federal or State law, regulation tax or legal burden that is the basis of the law. I would say that it is true, this needs to go to the Senate and then come back here. And if there are problems in that this is overly broad, the motion to recommit, then that, perhaps, can be fixed as the bill works its way through. But I think that, because we swear an oath to uphold the Constitution, that we should endeavor to make sure that what we pass does not run afoul of, in particular, the 14th amendment. I understand the gentleman's concerns in talking about ICRA of 1968, but I think we can all agree here that the sovereign nature of Native American tribes in the United States is a little different than what we're talking about here. So, I think it would behoove us to be careful here and to make sure that we aren't doing anything that might upset the applecart, that we need to make sure that we're not creating something here that might run afoul of the Constitution. I think that's our obligation. So, that's what the motion to recommit will be. It will be ``forthwith,'' so this will not take any time. It won't have to come back to committee. And I will be glad to give copies across so people can be familiar with it before we're voting on it. But, again, this is not a game of ``gotcha'' at all. I have great respect for those on the other side of the aisle who have worked hard on this legislation. With that, I would yield to the gentleman from Hawaii.

Mr. FLAKE. I appreciate the gentleman's concern about motions to recommit. They are sometimes by their nature political. I don't always vote for the ones offered by my side because of that. However, I am only going to the motion to recommit now because I can't offer my amendment as modified. I would be glad to forgo offering the motion to recommit if I could get a commitment under unanimous consent to restrict my amendment to what I outlined, and I will be glad to read it again. If it is true that the legislation does address this concern, it would be redundant at best, or at worst, but it would at least give us here, and I think, frankly, there is a pretty safe harbor I would think for those of us who are concerned about the constitutionality in saying that this legislation should have the Bill of Rights apply to it, Federal civil rights laws, and there would be no racially defined burdens or immunities. So that is a pretty safe harbor, and I am not seeing it as political. But I would be glad to withdraw that if we could go back and have my amendment accepted as modified.

Mr. FLAKE. Mr. Speaker, as I mentioned before, I originally had an amendment that I would have liked to have offered which would simply say that we would add the following: ``Nothing in this act shall relieve a Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.'' This motion to recommit is very similar to that. As I mentioned before, the U.S. Civil Rights Commission has concerns about the legislation. They said, ``This would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.'' I think there is sufficient concern that we should find the safe harbor here of making sure that the 14th amendment applies. This motion to recommit, I will read the entire thing, it is not long. So I will read all of it. It simply says: ``Page 44, after line 22, insert the following: Applicability of the United States Constitution's Bill of Rights. The Native Hawaiian governing entity shall be subject to United States Constitution's Bill of Rights and other protections in the same manner and to the same extent as a State or local government of the United States. ``Section (i). Applicability of Federal civil rights laws. Shall be subject to civil rights and antidiscrimination laws in the same manner and to the same extent as a State or local government of the United States. Section (j). No racially defined burdens or immunities. No person shall, as a result of the operation of this Act, be exempted from any Federal or State law, regulation, tax, or other legal burden on the basis of that person's race or ancestry or on the basis of any classification that is defined by race or ancestry.'' This is a pretty good default, a default back to the Constitution, and says that nothing in this act has to be compatible, has to fit within the Constitution. That is all that this motion to recommit does. Some will raise the concern that this might apply to Native American groups here on the mainland. It does not. This only applies to this act, to the Native Hawaiian governing entity. Mr. Speaker, this is a very narrowly drafted motion to recommit. It is drafted ``forthwith'' so it will come immediately back so it won't spend any more time in committee. Then, if there are issues unforeseen, when it goes to the Senate and comes back, we can work on them. But in the meantime, I think it is a much better option to actually have this default and to go back to the U.S. Constitution. The gentleman mentioned earlier that the act provides that the Secretary of the Interior has to certify that we are in compliance with the U.S. Constitution. I would just state for the record that we haven't had the best record relying on the Secretary of the Interior to manage trust accounts or other things. We shouldn't delegate that authority here. We shouldn't delegate our responsibility to uphold the Constitution to an official in the executive. That is our purpose here. We make the laws. We should ensure that they are given the guidelines and given the protections here that the Constitution affords. So I would urge adoption of the motion to recommit. As I mentioned, I offered it reluctantly. I would have rather, because motions to recommit sometimes become political, and this is not, so I would have preferred to offer this as a straight amendment narrowed to this specific act, but wasn't afforded that opportunity. Mr. Speaker, I also want to say again that I want to commend those on the other side of the aisle for working so hard on this legislation and for their diligence in working to make sure that this is a good bill. This will improve it. This will simply say that those under this act are afforded the guarantees and the protections of the U.S. Constitution and the Bill of Rights. Mr. Speaker, I yield back the balance of my time.

Mr. FLAKE. I thank the gentleman. I think that we can work with this in the quiet if we simply accept the motion to recommit or preferably the actual amendment that simply says, and let me read it again, ``Nothing in the act shall relieve the Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.'' That's a pretty safe harbor. And I think that if it goes to the Senate and we find there is something in there that needs to be modified or tweaked, we can do that as the bill comes back. But we ought to have at least that, I would submit. And so with the knowledge that we can't modify that, then we will offer the motion to recommit later.

Mr. FLAKE. Mr. Speaker, I have a motion to recommit at the desk.

Mr. FLAKE. In its current form.

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

Mr. FLAKE. That would be fine with me.

Mr. FLAKE. I thank the gentleman. Let me just state what the narrowed one would do: ``Nothing in the act shall relieve the Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.'' I'm not trying to play a game of ``gotcha'' here at all. I have the utmost respect, and that respect has grown over the years, for the gentleman from Hawaii. No Member of Congress works harder for his constituents and is more thoughtful in legislating than Mr. Abercrombie. But for those of us who have some concerns that this goes beyond land disposition or other smaller issues, this is not an idle concern that we have. The U.S. Civil Rights Commission noted recently that this legislation ``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.''

Mr. FLAKE. I would be glad to yield.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, in a couple of weeks, it is likely that we will be addressing the Labor-HHS bill. We have passed the bill in the House. I believe they have passed the bill in the Senate, but conferees have not been named. We will be asked to approve a large bill that I believe is over the President's budget. But, more significantly, this is the first test of actually doing a conference under the new earmark rules. We had new earmark rules passed at the beginning of the year that provide a little more transparency than we have had before, and that is a good thing; but it hasn't done much to cut down the number or dollar value of earmarks, because we haven't gotten through the process now. Some people have said in the House we have fewer earmarks, the dollar value is down, and that is a good thing. Certainly it is a good thing. But we are only halfway through the process. Typically, when you get to the conference process, that is where a lot of the mischief happens, where earmarks are added in the middle of the night and you aren't given a chance to vote on them. You simply vote on the bill, either up or down. Just to give you a flavor of what is in this Labor-HHS bill, the House bill included about 1,342 earmarks. These earmarks were added in the conference report of the bill that came to the House. They were added just days before the bill came to the house. We had very little opportunity to actually look at the earmarks to find out which Member had offered them and to offer amendments to strike those earmarks. A few amendments were offered here on the floor, but that is hardly a process that can pass for due diligence to actually see what is in these earmarks. Now, I hasten to add that this is not a partisan issue. There are both Republican and Democrat earmarks in this bill. When Republicans were in charge of this body, typically Republicans got about 60 percent of the earmarks, the Democrats got about 40 percent. Now that has switched. But, really, I wish it were a partisan issue. I wish, as one of my side of the aisle, that Republicans were right on and Democrats were wrong on. But we haven't seen that. We have seen both parties continue to earmark in this fashion. There are 1,342 earmarks in the House bill. Let me just read through a few to give people a flavor of what is there. I wish we didn't have to do this. I wish there was another way. But as I mentioned, when these bills come to the floor, the committee report will accompany the bill. It will only come a few days before the bill passes, and we aren't given a real opportunity to vet these earmarks and look at them. Let me read a few of them. For example, $300,000 goes to the American Air Power Museum in Farmingdale, New York, for exhibits and educational programs. This may be a great museum, but why the Federal taxpayer should be on the hook to fund it, I don't know. And $200,000 in this bill goes to the American Jazz Museum in Kansas City, Missouri, for exhibits and education programs. It may be a great museum, but why is the Federal taxpayer paying for? $200,000 for the American West Heritage Center in Wellsville, Utah, for a lifelong learning initiative. $125,000 for the Children's Museum in Indianapolis, Indiana, for exhibits and equipment. $200,000 for a Children's Museum in Los Angeles for exhibits and educational programs. $150,000, College Park Aviation Museum in College Park, Maryland. If you are recognizing a theme here, the Federal Government is funding a lot of museums. Why is this the case? Why, when we are running massive deficits, when we have a big debt and other obligations that are crying out to pay down the debt, to lower the deficit, why are we funding programs like this? Why are we on the hook for these programs yet again? You have to remember, whenever you are funding a museum, because we have a deficit, we are borrowing money to do that. $250,000 for the Discovery Center in Idaho. This is in Boise, for a science center. $350,000 for an aerospace museum in McClellan, California, for exhibits. $350,000 for the George and Eleanor McGovern Library in Dakota Wesleyan University in Mitchell, South Dakota. $75,000, Monterey Bay Aquarium in Monterey, California. Here is another theme. We fund a lot of aquariums. There are great aquariums that educate a lot of people, but why we are doing it at the Federal level, I don't know. $350,000 for the Museum of Aviation Foundation in Warner Robins, Georgia, for educational programs. Let's pay attention to the Labor-HHS bill as it comes along.