Jeff Flake

Mr. FLAKE

Mr. FLAKE. Well, I just again thank the gentleman. And just to reiterate again, we have had a bad process. We recognize that. That was the reason for the reforms that we did in the fall of last year. And as I mentioned, I applauded the Democrats for the reforms that they put in place in January. The problem is we're running away from those reforms rather fast. And if we are really serious about bringing in sunlight and transparency, then we have to stop this proposed new rule, or this proposed process I should say, it's not a formal rule, to make sure that these earmarks get the sunlight that they deserve, that every member of this body and every taxpayer across the country has a chance to see what this body is doing. That's what open government is all about. And I, again, thank the gentleman for yielding.

Mr. FLAKE. Most certainly, I think across the country the taxpayers want to know what is going on. I think that they look at the process that we have now where Members will submit requests, earmark requests, but those requests are only made public if their earmark is actually part of a bill that comes to the House. Now, under this new procedure that has been announced by the majority, those earmark letters, which indicate who the earmark is to go to, won't be made public at all until it's too late in the process to actually challenge that earmark. So it means little to go through the process that we have set up if, by the time it has any effect, it's too late in the process to change. So the gentleman is correct, I think. Across the country, that's what I hear when I am out there. People want to know. They want open government. When you think about it, every second that this Chamber is in session is captured on C-SPAN, this conversation and every other conversation, whenever this body is in session. When we are in committee, every word that is said is transcribed and is captured. So we have an open process. Yet when it comes to spending money, we have a very secretive process in terms of earmarks, where, according to the majority this year, we won't know it all until it's too late to actually change it, until we have to just do one up and down, up or down vote on a bill. There are several bills in the past, in fact, one bill, the highway bill a couple of years ago, that had 6,300 earmarks in the bill. You could conceivably have that again. At least, you know, virtually every appropriation bill is up somewhere approaching 1,000 or maybe 2,500. So, think of that, 2,500 earmarks in a single bill. The Members here won't even have the ability to challenge one of those, won't even know that they are there until you have to have to take one up or down vote on that legislation. I think every American knows that that simply is wrong.

Mr. FLAKE. I appreciate you taking the time to bring this important issue to light. I am the first to admit that our party didn't handle this issue very well. We went over about a decade or 12 years, depending on how you count them, from about 1,400 earmarks in all appropriation bills to more than 15,000. So the process exploded with Republicans in charge. That doesn't speak well for us as a party. We should not have let that happen. I think right here near the end we woke up, and we passed some legislation in October of last year. Unfortunately, I think it was near the end of the appropriation process, when it was really too late to do any good. The Democrats, to their credit, when they came into power in January of this year, passed a little stronger legislation than I think we did, and I think I and many of my colleagues gave them credit for that. It was a good thing to add more transparency to the earmark process. The problem, as the gentleman from Georgia has so aptly pointed out, is that the rules that we set are only as good as our willingness to enforce them. So you can have pretty good rules with regard to earmark reform, with regard to transparency, but unless you are willing to enforce them, they are of little worth. As the gentleman pointed out, when you have rules that allow the chairman of the committee to simply make a declaration that there are no earmarks in this bill, when there clearly are, we have no recourse. We have to accept that statement as if it were fact, when it clearly isn't. The gentleman mentioned the war supplemental that came up. We actually had an example where there was a press release of one Member actually claiming credit for an earmark that had been received for that Members' district, put out a press release touting it. Yet, for that same bill, there was a statement in the Record saying there are no earmarks in this bill. So, the gentleman mentioned, it was like a fairy tale. I think it's a lot like Alice in Wonderland, where you say a word has whatever meaning I give to it; and, in this case, you know, an earmark is whatever I pretend to call it. Unfortunately, that doesn't lend itself to transparency. We have the situation now, which is far worse than anything we have heard before, that we won't have any earmarks in the House bills, but, rather, we will wait until the House bill is done, the Senate bill is done. Then the earmarks will be airdropped into the conference report. Now, if that is the case, there is no way for any Member of this body to challenge any of those earmarks that come up. There is no way you can amend, because you can't do that to a conference report. You have to ask yourself, is that more transparency? Is that a better process? The Chairman of the Appropriations Committee stated that more time was needed to actually scrub these earmarks, to make sure that they are proper, and that the committee was undertaking to do that. I think, and I think those who have been watching this process will agree, that the best way to scrub the process is to let sunlight in to allow these earmarks to be made known, to allow the media, the blogging community out there, organizations that follow this and other Members of this body, to actually see these earmarks and to judge them and to determine who is it going to, who is going to benefit from this earmark? If we are really concerned about scrubbing these earmarks, to make sure that they are proper, then let people know about them. Nobody is served well if they are kept secret. So I commend the gentleman again for bringing this important issue to light. I would encourage him to keep up this battle and to make sure that earmarks get the sunlight that they deserve. If we want to really curb this practice that has gotten out of control, we need to ensure that we have more sunlight, not less.

Mr. FLAKE. Over the appropriation process last summer, I believe we brought 39 earmarks in several appropriation bills to the floor; and my effort was, in many cases, simply to see whose earmark this was and to have that Member actually justify the need for that earmark. We simply didn't know who requested it. We saw it in the committee report. When the bill came to the floor, it would generally be a vague description of an earmark to a certain entity or a company. But you wouldn't know who actually sponsored the earmark until you challenged it on the floor. Then, typically, the author of that earmark would come to defend it, but not always. I should mention that many of the earmarks that were challenged on the floor in the last appropriation cycle, the author of the earmark never even came to the floor to defend it. He or she simply knew that, through the process of log rolling, that other Members would know I won't challenge that earmark and the author of that earmark won't challenge mine. So it was a very disheartening process to go through. But at least we could go through that process. At least we knew something about what was in the bill, because we had the reports come to the floor. Under the process that has been announced, we wouldn't even have that ability. These bills would come to the floor, there would be no earmark, there would be no letters attached saying there are this many earmarks. There would be no lists listing the Members who had requested earmarks. Nothing. We would simply have to wait until it was too late in the process to actually challenge until the earmarks were air dropped into the conference report. So it's an important distinction. I think the process has been far too secretive in the past. We would typically only get these lists in the committee reports hours before the bill actually came to the floor. But that's miles better than what is being discussed now because these earmarks would not be made known at all until it's too late. They would be kept secret from the body as a whole, and from the taxpayers across the country. I thank the gentleman for yielding.

Mr. FLAKE

Mr. FLAKE. That is correct. It would have been a very simple amendment simply to get rid of what I call the Abramoff exemption, but that amendment was rejected by the Rules Committee for no reason. Like I said, it wasn't a ``gotcha'' amendment. This was offered to the Democratic leadership earlier this year. They simply don't want to change the rule.

Mr. FLAKE. I yield to the gentleman from California.

Mr. FLAKE. I thank the gentleman for yielding. This bill is referred to as the Honest Leadership and Open Government Act. I am pained to say there is precious little of either of it in this bill. The previous speaker mentioned that the voters were aware of the needs that existed here in Congress, and the majority party paid the price in November. I fully agree with that. I wasn't quiet on that subject in the last Congress. I was overjoyed to see that the Democrats came in in January, and not that they came in in January; but when they did, they actually enacted earmark reform that I felt was a little stronger than what we had done a few months previous. Having said that, then we go to where we are today where we rolled back a lot of those protections that were there or simply ignored them. The rules that you put in place are only as good as your willingness to enforce them. We just heard this past week that the earmark rules simply are going to be ignored. If a bill comes to the floor, and if it is certified to have no earmarks, we have no recourse, even though there might be earmarks, and have been in a few of the bills already this year. Now we have heard that the plan is to take the appropriation bills through the House process and into the conference process without any earmarks, and simply air drop the earmarks during the conference process. This is not more sunlight. This is actually keeping earmarks secret until it's too late to do anything about it. No amendments can be offered during the conference process, so it will be impossible for anybody to challenge any of what will be thousands and thousands and thousands of earmarks in the bill. This is not better. This is far worse than we have had before. Let me just speak specifically to this legislation and some of the failings. I offered an amendment which would get rid of the so-called Abramoff exemption. Few people are probably aware, but public universities, or lobbyists who represent public universities, or State and local governments, are not required under this legislation, are not bound by the same rules that people who lobby for a private institution are. So what, in effect, you are saying, well, let's just take the final four of the basketball tournament that we just had in the NCAA. There was a game between Xavier University and Ohio State. If you were a lobbyist for Xavier University, you couldn't take a Member to the game. But if you were a lobbyist for Ohio State University, you could treat your Member of Congress, your favorite Member or anybody you wanted to, to a $400 ticket. That's the difference. Now, are we to assume that if you are lobbying for a private institution, that you are somehow inherently suspect, but if you are lobbying for a public institution, you are not? That's the dichotomy here. This amendment was not sprung on the majority as some kind of a gotcha amendment. I took this to the Democrat leadership earlier this year and said, please, can we work together and get rid of this loophole? But we didn't. The amendment was offered in good faith, and it was rejected. Why are we doing this? Why do we allow, right now, if Jack Abramoff were still around, he could still, under these current rules that we are going to enact today, Jack Abramoff could treat Members at the Capital Grille to a big steak dinner. We shouldn't be doing this. The Jack Abramoff incident is what precipitated a lot of these reforms. I'm glad it did. But the problem is, Jack Abramoff represented public institutions, State and local government, territories. I believe he collected about $6.7 million from the government of Saipan. With that, he could continue to do what he did before under these rules, and we should put a stop to it.

Mr. FLAKE. That is correct. Let me take the example from right at home where I am. The University of Phoenix can take me to dinner, but they can't buy even a cheeseburger. But Arizona State University right next door can buy me a seven-course meal. They can fly me wherever. There are no gift rule problems there. So private institutions are treated differently than public institutions.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, just a few minutes ago I heard a Member of the Democratic leadership say we have ended meals and gifts from lobbyists. That is true only if you approve this motion to recommit. There is a huge, huge loophole right now in this bill. It doesn't include lobbyists who lobby for State and local governments or for public universities. It is what I call the Jack Abramoff exemption. Under this legislation, unless we pass the motion to instruct, Jack Abramoff could take any Member of this body out to dinner at the Capital Grille tomorrow and pay $300 for your meal because one of his biggest clients was the government of Saipan which is a territorial government. He would not be included; unless we include this motion to recommit, the Jack Abramoff loophole or exemption will still exist. This is not a game of gotcha. This legislation was introduced last year, and it was offered to the Democratic leadership earlier this year. We didn't need to come to this. It should have been part of the bill. There are some very good things in this bill. This would make the bill far better. State and local governments and public universities spent $132 million last year alone lobbying Congress; $132 million last year alone. None of the lobbyists hired by those institutions are covered in this legislation. Lobbyists for State and local governments and public universities have spent $875 million since 1998, none of which would be covered by this legislation unless you include and unless you vote for the motion to recommit.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, one of the hallmarks of this institution is openness. Every minute of debate in this Chamber is captured on C-SPAN cameras. Every minute of debate and dialogue in the committee rooms are transcribed and recorded. This practice is premised on the principle that the public has a right to know what factors go into our decisions here. I don't think the public would be very pleased to learn how much of this decisionmaking process is moving behind closed doors, particularly as it relates to earmarks. Over the past several years it became common practice for appropriators to include earmarks in committee and conference reports, rather than the text of the bills. Frequently, a committee report containing thousands of earmarks would come to the floor only hours before the final vote on the bill. At times the committee report would be made public only after the bill had already passed. The bottom line is that, over several years, earmarks endured very little scrutiny from this body. I think the voters have become very aware of this failing on our part. My party, the Republican Party, allowed the practice of earmarking to get out of hand. Taxpayers have paid the price. This institution has paid the price. Finally, we Republicans paid the price at the polls this November. When the new majority took over in January of this year, they moved to include more transparency in the earmarking process. Members of Congress would, at long last, have to put their names next to the earmarks. We Republicans had done this in the fall, but only after the appropriations season was nearly done. This was a good move by the majority party in January. As I said at the time, they had the guts to do what we hadn't when it mattered, at the beginning of the appropriation process. There is reason now, however, to doubt the sincerity of these moves. House rules are only as good as our willingness to enforce them. And we have, as yet, not been willing to enforce these rules. When a bill comes to the floor now, there must be a list of earmarks with Member names next to them, or a certification that the bill contains no earmarks. When the supplemental came to the floor, there were clearly earmarks in the bill, yet there was a certification that there were no earmarks contained in the bill. The problem is, a point of order can only lie against the bill if there is no certification. So a certification, even though it might be patently wrong, has to be accepted by the Speaker or the Parliamentarians. The intelligence authorization bill came to the floor without a list of earmarks. The list of earmarks only came after the deadline to submit amendments to the Rules Committee; so then, again, there was no opportunity to challenge any of the earmarks in the bill. Then, despite the fact that there were more than 680 earmarks in the defense authorization bill, no amendments related to earmarks were allowed by the Rules Committee, even though some of the earmarks clearly had no relationship to defense. Now, we hear that the Appropriations Committee plans to keep earmarks secret until the appropriation bills this year have passed the House floor. Those earmarks would later be ``air-dropped'' into the conference report where no amendments are possible, where no scrutiny of these amendment or, I'm sorry, of these earmarks is possible. The vaunted sunlight that we said we were going to bring into this process is gone. We closed the drapes. We've snuffed out the candle. Mr. Speaker, this institution deserves better than this. We can do better. We should, on a bipartisan basis, bring this sunlight back. We need to subject earmarks to the scrutiny that they should have. No spending should occur in this body without the Members' knowledge, and that's what happens when earmarks are ``air-dropped'' into a conference report. Mr. Speaker, I'm convinced that in the end, the majority party will pay the political price. I hope that we would move before that time. I hope that we can, on a bipartisan basis, simply move forward and bring sunlight back into the process. That is what I think the citizens of this country deserve. It's what the taxpayers need to have

Mr. FLAKE

Mr. FLAKE. Madam Speaker, I thank the gentleman for yielding. I rise in opposition to the rule. The authorizing committee saw fit to include some 680 earmarks that we got news of just yesterday in the bill. Yet I offered four amendments to debate these earmarks and wasn't allowed any of them. If they can allow 680 earmarks at the last minute in a bill, you would think that the Rules Committee could have seen fit to at least allow debate on a few of them. The earmarks include $5 million for Diminishing Manufacturing Sources for Automation Alley in Troy, Michigan; $2 million for the Physician Order Entry Initiative for Mission Hospitals, which is a private hospital in Asheville, North Carolina, and keep in mind this is a Defense authorization bill here; $10 million for Hunters Point Naval Shipyard, a former naval shipyard being economically revitalized with taxpayer dollars, defense dollars, for the city of San Francisco; and $500,000 for Rapid Identification of Technology Sources for the San Diego East County Economic Development Council. Our role here should be to ensure that our Defense dollars are spent on defense, not economic revitalization, not nondefense private ventures. That is why these amendments were offered. Unfortunately, the only shot we might have at checking these amendments is in the appropriations process. By the time we get there, the Members will say these projects were authorized, implying that there was some sort of scrutiny given when there surely has not been. So, unfortunately, we cannot support this rule. It doesn't allow debate on any of the 680 earmarks in the bill.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, pursuant to clause 9 of rule XVII, I offer a privileged motion.

Mr. FLAKE

Mr. FLAKE. Parliamentary inquiry, Mr. Speaker.

Mr. FLAKE. Mr. Speaker, is it true that, on page H4754, there is a statement that this bill contains no congressional earmarks, tariff benefits or tax benefits?

Mr. FLAKE. I thank the Chair, and I will examine the Record.

Mr. FLAKE. The Congressional Record today makes a statement, ``H.R. 2206, making emergency supplemental appropriations for the fiscal year ending September 30, 2007, and for other purposes, does not contain any congressional earmarks, limited tax benefits or limited tariff benefits as defined in clause 9(d), 9(e) or 9(f) of rule XXI.'' I am just trying to reconcile. I am a bit confused because there is a press release today, and I would ask and would gladly yield time to the chairman if he can explain, there was a press release from a Democrat office today saying so-and-so inserts funds in emergency supplemental appropriations bill for critical flood mitigation projects. It goes on to say so-and-so today announced that $8,665,000 is included in the House emergency supplemental appropriation bill to fund flood mitigation projects in New York necessitated by the recent nor'easter. That seems an awful lot like an earmark to me, if a Member actually does a victory lap afterwards and says that Member actually inserted in the bill. I yield to the chairman to respond or explain.

Mr. FLAKE. I thank you. The problem that we have pointed out over and over is that the earmark rules that have been adopted allow the majority simply to state in the Record that there are no earmarks, regardless of whether that is true or not. In this case, clearly it is not. Yet when the time is right to challenge, when a point of order can be lodged against consideration of the bill, the minority or anybody who wants to challenge in the majority or minority is without recourse. So clearly this needs to be addressed. Clearly this bill does have earmarks. I would appeal to the majority to please tighten up the rules so we can actually have an honest debate.

Mr. FLAKE

Mr. FLAKE. Madam Chairman, I thank Mr. Schiff for yielding, and I appreciate working with him on this important amendment and on this issue for a long time. Madam Chairman, this amendment would reiterate that FISA is the exclusive means by which domestic electronic surveillance can be conducted for the purpose of gathering foreign intelligence information. As has been stated before, we have, on the Judiciary Committee, for years been asking the administration what can we not do within FISA, do we need to change FISA in order to be able to conduct surveillance we need within FISA. We have never been given compelling information or evidence why we can't do what we need to do within FISA. As Mr. Schiff mentioned, if we do need to change FISA to update it again, as it has been changed and updated multiple times, then we should do it. However, we simply can't say FISA is insufficient; so go around it, and we don't want to know what goes on outside of it. Go ahead with the Terrorist Surveillance Program. We will have no congressional oversight. That is simply unacceptable. If we do need to change FISA, if we do need to modernize it, let's modernize it again, again, and again. But let's make sure that Congress maintains its prerogative to regulate the surveillance that goes on to make sure that it is done with civil liberties in mind. That is what this amendment seeks to do, and I am pleased to work with Mr. Schiff on it.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, we have a process here with regard to legislation and how it moves through the Congress. In particular, the rules were changed in January, some very welcome changes to the rules with regard to earmarks. We said that if you are going to have an earmark in a bill, or in a report, that you need to state that you do not have a financial interest in that earmark, and then you need to submit that earmark, or it has to be submitted with the report so that Members can actually see that and see that there is no financial interest, see if it has merit or warrant. This process is not being followed here. We were told initially that there were no earmarks in the bill, and then those of us who went up to view the classified annex did not see a list. There was no list available there. We were told later that it was with the Clerk's Office. Then with the Parliamentarians. It turned out that we finally did get the list, and here it is, 26 earmarks in the bill. But the list was not made public. It was not given to us until 5 hours after the deadline that the Rules Committee had established to submit your amendments. So somebody who wanted to amend the bill or actually challenge or to highlight or to discuss the earmarks that are mentioned here and listed here did not have an opportunity to craft an amendment. Again, this list was received, it was made public 5 hours after the Rules Committee already shut down the amendment process. This rule cannot go forward like this. We cannot continue to do business like this. We all know the problems that we have had with the appropriations process with the earmarking, the scandals that have gone on. The earmarking process is secretive enough, it seems, in the Congress without adding the layer of the Intelligence Committee. Then there are things that you can't even discuss on the floor, that we can't discuss openly; so it makes it even more difficult. Members need not be reminded that Duke Cunningham now sits in prison because of earmarks he largely got in the intelligence process, in the Intelligence Committee. We cannot allow that to happen again. We have to have a process that makes sure that that cannot happen. And that process is not happening right now, when you don't get lists until long after the process, when you can't challenge them on the floor. And then we have the problem here in open session where you can't even challenge the earmark and talk about what the earmark is actually about because you are in open session and you might be talking about classified things. So for that reason I am announcing now that I will offer a motion to move into secret session after these votes are concluded. Let me just remind the Members, if you want a process where you know what is going on, we have to move into secret session. If you vote against the motion to go into secret session, you are, in essence, saying let's just let it go; I don't care what is in there. I would challenge those who want to see what is going on to go up and view the classified annex. You may or may not be able to find out what these earmarks are about. But with this process, the way it is, we will never know, and we can't continue this. I applauded the majority's move to new earmark rules in January. They were, I felt, stronger than what we did when we were in the majority. I think they should have been stronger, but they were better than what we did, and I said so. But we aren't following those rules. We have already highlighted a few times that if the majority submits a list of earmarks, incomplete or complete, or simply states there are no earmarks in a bill, there is no parliamentary recourse for the minority or for anyone on the floor. We have to accept at face value that there are no earmarks or that the list is complete. That is wrong. That is something that has to change. But when we are dealing with the Intelligence Committee on something this important, we can't let this process go forward without adopting some of the reforms that we have said that we are going to adopt. So for that reason I will offer a motion for a secret session at the appropriate time, and I would urge a vote against this rule.

Mr. FLAKE. Mr. Speaker, will the gentleman yield?

Mr. FLAKE. Mr. Speaker, I believe the requirement in the House rules is that the report be filed 72 hours before it is brought up. Actually, those of us who went up to view the classified annex, I asked for the list, if there was a list of earmarks, and I was told there was none.

Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding. Yes, I reviewed and asked during that time if there were. I would say if it is the case that a computer glitch led to no printing of the list, then you would think that the Rules Committee would say, okay, maybe we should move the process back and allow Members to offer amendments on specific earmarks.

Mr. FLAKE. An unspecified opportunity. If the gentleman will continue to yield, Mr. Speaker, I actually offered an amendment that was rejected by the Rules Committee just encompassing all earmarks that might be in the bill because I wasn't given a list. I had no idea if there were any earmarks. And that was rejected. The problem we have here in open session and the reason I will be calling to move into secret session is that in open session it is difficult to actually discuss what the earmark might be about.

Mr. FLAKE. Mr. Speaker, what I was offered about 30 minutes ago was an opportunity to offer perhaps a few amendments with regard to specific earmarks. It was never clear how many amendments I would be allowed to offer or on which of these earmarks. Until that is clarified, there is no reason to move forward. And, also, let me point out again unless you are in secret session, you can't discuss exactly what the earmark might be about; so you might run afoul of any statements that you have signed or any confidentiality agreements that we are under in terms of classified information. And when I actually went up with the list to look at the classified annex again and pointed at certain earmarks, I was told that we are not sure what that was about. That was requested by a Member who is not on the committee. We don't know. And until we can have that Member actually stand up and be able to say what that earmark is about, whether it goes to a private company, whether it goes to an agency, we just don't know.

Mr. FLAKE. Yes.