Alan Grayson

Mr. GRAYSON

Mr. GRAYSON. Madam Chair, the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2015 (H.R. 4660) is an appropriations bill that funds various Federal Government programs and entities, including the Department of Justice and the Federal Bureau of Investigation. My amendment reads as follows, ``None of the funds made available by this Act may be used to compel a journalist or reporter to testify about information or sources that the journalist or reporter states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential.'' For purposes of this amendment, the definition of a ``reporter'' includes: any person, natural person, or entity who releases, reports on, or provides information of a classified or unclassified nature to a public audience or on the internet, does so on a regular basis, and receives compensation for doing so. The term ``reporter'' is a description of a profession. For purposes of this amendment, the definition of a ``journalist'' includes: any person, natural person, or entity who releases, reports on, or provides information of a classified or unclassified nature to a public audience or on the internet, and does so on a regular or an irregular basis. The term ``journalism'' describes an act, not a profession. A person, entity, or natural person is a journalist so long as he or she is engaged in the act of journalism. An act of journalism involves the collection, analysis, description, dissemination, and/or publication of information. James Risen, Julian Assange, Wikileaks, and Glenn Greenwald meet the definitions of reporters and journalists under these definitions. This amendment also prohibits the use of any funds made available by this Act to compel testimony from any individual who is engaged in journalism in any supporting role, such as assisting a journalist with analysis, collection, description, dissemination, and/or publication of information to a public audience. Funds appropriated under this Act may not be used to compel testimony by journalists or reporters to reveal confidential sources. This amendment mirrors the language supplied in other federal statutes defining journalism. For instance, the Freedom of Information Act defines a ``representative of the news media'' as ``any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.'' 5 U.S.C. Sec. 552(4)(A)(ii)(IIII). This amendment also follows the spirit of the United States Supreme Court and Circuit Court precedents, which have widely and historically protected the vital newsgathering function performed by journalists. The patriot pamphleteers had no corporate affiliations, no professional societies, and no journalism degrees. The key test is whether individuals are engaged in news-related activities. Former Chief Justice Warren Burger observed that adopting a narrower definition would be ``reminiscent of the abhorred licensing system of Tudor and Stuart England--a system the First Amendment was intended to ban from this country.'' First National Bank of Boston v. Bellotti, 435 U.S. 765, 801 (1978) (Burger, C.J., concurring). Early Supreme Court jurisprudence recognized a broad definition of journalism, noting that the function of the press is ``performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.'' Branzburg v. Hayes, 408 U.S. 665, 705 (1972) (Powell, J., concurring); see also Lovell v. Griffin, 303 U.S. 444, 452 (1932) (``The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion.'') This amendment is consistent with the holdings of several federal appellate circuits which take a functional view of journalism, defining a reporter as an individual who engages in news-related activities to disseminate information to an audience. For example, the First Circuit Court of Appeals has held that reporters should be protected based on function, rather than credentials or status. Glik v. Cunnille, 655 F.3d 78, 84 (1st Cir. 2011) (``Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.''); see also Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (``The individual claiming the privilege must demonstrate, through competent evidence, the intent to use material--sought, gathered or received--to disseminate information to the public and [] such intent existed at the inception of the newsgathering process.''). The Second Circuit's standard, based on newsgathering function articulated in Von Bulow, was reiterated by the Ninth and D.C. Circuit Courts. See Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993); Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998). A similar bar is set in the Tenth Circuit. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436- 37 (10th Cir. 1977) (concluding that a documentary filmmaker was not precluded from the privilege because his mission was investigative reporting for use in preparing a documentary film, regardless of the fact that he was ``not a salaried newspaper reporter''). Finally, this amendment is consistent with the views of First Amendment scholars, who agree that a functional definition is most appropriate. See generally Sonja R. West, Awakening the Press Clause, 58 UCLA L. Rev. 1025, 1065-66 (2011) (``[The functional] approach avoids some of the pitfalls of the definition-by-affiliation approach.''); see also Linda L. Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Houston L. Rev. 1371, 1407 (2003) (``[N]o patriot printer or colonial pamphleteer had a journalism degree. Certification by a government agency or by a professional group carries the possibility of de-certification based on value judgments or viewpoints.''). This amendment was passed in an environment in which the Department of Justice has increased pressure upon journalists and their sources. Many of the nation's most respected reporters have characterized this as an assault on press freedom that chills investigative reporting and the public's right to know. Recent revelations that the Department of Justice secretly subpoenaed twenty phones lines at the Associated Press, and a legal brief filed by the Justice Department calling a Fox News journalist a ``co- conspirator'' for simply protecting a source, have provoked widespread, bipartisan criticism. Many are concerned that the Department of Justice is actively impeding newsgathering activities protected by the First Amendment. The House of Representatives intends, by passing this amendment, to reject this harassment of journalists by the Department of Justice. Moreover, recently-disclosed digital surveillance activities by the United States government have had an inherent chilling effect on the act of journalism and the exercise of the First Amendment. This amendment is intended to ensure that the rights and newsgathering activities of reporters and journalists are not chilled when uncovering information involving or implicating the United States government or associated institutions. Furthermore, both Congress and the President have recognized the problem of `over-classification' of documents by agencies across the Federal Government. If journalists are prevented from publishing classified information, and the government classifies enormous quantities of information that should rightfully be in the public domain, the public is prohibited from knowing the workings of its government. Using Federal Government resources to undermine legitimate news-related activities or chill journalism, particularly when those activities aim to disclose the workings of government because that information is classified, constitutes a threat to the self-government of the American public. Federal government attempts to undermine legitimate news-related activities and/or chill journalism, are prohibited by this amendment. Finally, the act of journalism has been transformed by the internet. New methods for uncovering and publishing newsworthy information, and for financing such newsgathering and dissemination, are now available. This amendment protects the ability for those who may not have traditionally been considered journalists to engage in journalism. It is further intended to allow for experimentation in publication and dissemination of news without the threat of the Department of Justice using its resources to compel the revelation of journalistic sources through legal coercion. This amendment is to be construed liberally and broadly, to effectuate its purpose of protecting journalists and their sources from any coercive action taken by the government and the legal system. Its spirit applies to other government agencies, and to litigation between private parties. The terms ``information or sources'' and ``confidential'' are to be given the widest possible construction. The limitation applies not only to the quashing of subpoenas, but also to every form of discovery, civil and criminal contempt, arrest and imprisonment, and any form of coercion within the legal system.

Mr. GRAYSON

Mr. GRAYSON. Mr. Chairman, I yield myself such time as I may consume. I rise today in support of House Resolution 600, to extend my gratitude to Chairman Royce, and to urge my colleagues' support as well. This Saturday, the people of Afghanistan will travel to the polls to elect a new President in a runoff election. The victorious candidate will replace Hamid Karzai, who has led Afghanistan since 2001. House Resolution 600 recognizes this important moment in history and urges the Government of Afghanistan to pursue a transparent, credible, and inclusive runoff Presidential election while ensuring the safety of voters, candidates, poll workers, and election observers. So far, the U.S. Government has contributed more than $100 million toward the 2014 Afghanistan election, and numerous United States and coalition soldiers have sacrificed their lives in efforts to secure Afghanistan and prepare it for this crucial moment of peaceful transition of power. I think that it is important to recognize these facts, and that is part of what House Resolution 600 seeks to do. On April 5, the Government of Afghanistan held the first round of a Presidential election, in which almost 60 percent of eligible voters participated. Now, according to the Afghan Constitution, because no single candidate claimed more than 50 percent of the vote, a runoff election between the top two candidates will be held. The first round of elections were promising in terms of increased voter turnout, no civilian deaths in attacks on election day, and a quick certification of results in order to set the stage for a runoff election, but more work remains to be done. Votes from 331 polling stations were invalidated and removed from the final tabulations. Reports of voter and election monitor intimidation persist. Reports of attempts to bribe election monitors have occurred. Reports of SMS and texting capabilities being suspended on election day exist. Concerns remain about the lack of transparency and activities of the Afghan Independent Election Commission and the Electoral Complaints Commission. Seventeen members of the Afghan National Security Forces were killed in attacks on election day. And female voter participation and protection remains at a level below what Afghan males enjoy. In light of these issues, House Resolution 600 commends the Government of Afghanistan for holding the first round of elections and scheduling a second; expresses support for a credible, inclusive, and transparent runoff election; supports the mandate of Afghan electoral bodies to prevent voter fraud and misconduct; encourages the Government of Afghanistan to implement measures that will increase voter participation, particularly among Afghan females; and urges the security force to continue to provide protection to vulnerable areas of the country during the election period, as well as recognizing the sacrifices of those forces that have contributed and will continue to contribute to the security and stability of Afghanistan. This is an exciting time for Afghanistan, Mr. Speaker, and this election is an important one. American forces have been in Afghanistan now for a decade, and most of them are now coming home. This election will be crucial in proving to the world that Afghanistan is ready again to chart its own course and to provide its own security. I wish the Afghan people well in this endeavor, and I reserve the balance of my time.

Mr. GRAYSON. I have no further speakers, and I yield back the balance of my time.

Mr. GRAYSON

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

Mr. GRAYSON. Mr. Chairman, this amendment seeks to raise by 50 percent the cap on funding for the Limited English Proficiency initiative under the Fair Housing and Equal Opportunity section of this bill, an amount more in keeping with the historical levels on spending for this initiative. This amendment passed by voice vote last year, and it is my hope that it will do so again this year. The Limited English Proficiency initiative within HUD is vital for ensuring that individuals who are not proficient in English are aware of their rights, are able to understand the terms of leases and other housing-related documents, and are able to receive important announcements that affect the health and safety of their households. Additionally, this initiative educates HUD-assisted housing providers about their responsibilities under Federal law and HUD regulations to ensure that housing programs and activities are fully accessible to all, regardless of national origin or English proficiency. Historically, the Limited English Proficiency initiative within HUD has been funded at $500,000. In the first year of its existence, 2008, it received $380,000. After that, from 2009 through 2011, it received $500,000. Then, with the change in leadership in this House, funding has slipped to $300,000 in recent years. Last year, however, this House--both Democrats and Republicans--did the right thing. It voted to raise the cap for this initiative, an initiative that translates documents outlining how to become a first- time homeowner and how to avoid loan fraud and foreclosure, as well as fair housing information for disaster housing providers and survivors. I ask that we do so again here today. I want to point out that we are not taking away from any other programs. We are simply slightly lifting the cap on this particular initiative. We do have to realize that there are over 40 million Americans who do not speak English as their first language. This tiny program demonstrates to the American people that we have equal protection under the law, regardless of whether people are English-speaking, Spanish- speaking, or speak some other language. Given the tiny amount of money that is involved here, this program has been extraordinarily effective. In the last year for which we have statistics, almost 30,000 people benefited for a program that cost the Federal Government only $300,000. I ask the majority and my friends across the aisle to consider the value of this program to every community across America, and I urge them to accept this amendment, as they did last year. I yield back the balance of my time.

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

Mr. GRAYSON. Mr. Chair, this amendment is identical to other amendments that have been inserted by voice vote into every appropriations bill that has been considered under an open rule in this Congress. My amendment would expand the list of parties with whom the Federal Government is prohibited from contracting because of serious misconduct on the part of those contractors. It is my hope that this amendment will remain noncontroversial as it has always been, and again passed unanimously by the House. I yield back the balance of my time.

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

Mr. GRAYSON. Mr. Chairman, this is a simple good government provision. It says that when a contractor goes over budget or is behind schedule the contractor should not be rewarded for that. None of the funds made available in this act may be used to pay for bonus awards to contractors who work on projects that are behind schedule or over budget. The provision that we are talking about here appears in the Senate Transportation, Housing Appropriations bill that was reported out of the committee in the Senate last week. It should appear in our bill and it should be signed into law. Nothing in this amendment places a blanket ban on bonuses to contractors. What this amendment does, however, is to demonstrate that Congress expects Federal projects to be delivered on time and on budget. We have heard so many words over the years in this Chamber about waste, fraud, and abuse. This simple amendment accurately cracks down on those examples of waste, fraud, and abuse that arise and prevents taxpayer money from being squandered. If projects are not delivered on time and on budget, this amendment simply ensures that bad contractors are not rewarded extra for that poor performance. With regard to the terms that are used, the term ``bonus award'' refers to the Federal acquisition regulation, title 48 of the Code of Federal Regulations, subpart 16.4, having to do with incentive contracts. That term is defined in that provision. With regard to the term ``work on projects,'' that simply refers to the contractor's contract. With regard to the term ``behind schedule,'' that refers to the time of delivery. That is a provision that is in every contract in FAR 52.211-8 or FAR 52.211-9. The regulations specifically provide for time of delivery with a delivery schedule, and that is the term that is used in the regulation, and also in the contract itself. Those provisions are proscribed in the Federal Acquisition Regulations in 48 C.F.R., subpart 11.4, specifically FAR 11.404. The term ``over budget'' is very simply a reference to the contract award itself. The Federal Acquisition Regulations proscribes a specific form for that purpose in 48 C.F.R. 53, and that is Standard Form 33. In Box 22 of Standard Form 33 is the contract award amount. If the contractor goes over budget, the contract has exceeded the amount that appears in FAR 52.3 of 33 in the award amount box, in Box 20. The provision refers to cost reimbursement awards and it refers to time and material awards. If the goes over budget on a firm fixed price award, the contractor bears that expense. If the contractor goes over budget on a time and materials award or a cost reimbursement award and then seeks a bonus on top of that from the government, then that is what we are prohibiting here. These are terms that are well recognized in the world of Federal contracting. This provision accurately targets overpayment to contractors, extra payment to contractors, bonus payment to contractors, when they have gone behind schedule or they are over budget. I submit that the Senate was wise to include this in its bill. We should do the same. I ask my colleagues respectfully for their support. I yield back the balance of my time. Point of Order

Mr. GRAYSON. Mr. Chairman, I wish to be heard on the point of order.

Mr. GRAYSON. Mr. Chairman, it is simply not the case that this is legislating. It is simply not the case this imposes any additional duties. As I indicated a few moments ago, the terms that are in this provision are terms that are ascertainable from every single government contract that is awarded. Every single government contract that is awarded by the Federal Government is done so through Standard Form 33. That lists the amount of the contract award. Every single government contract that is awarded that has a delivery schedule--and not every one does--but every one that has a delivery schedule has a delivery schedule in the form of a provision in FAR 52.211-8 or 52.211-9. All the government would have to do is simply observe the terms of its own contract and be able to ascertain these facts. When the government is looking at the terms of its own contract, that is something the government does every day; therefore, there is no additional legislating that is involved here. I respectfully submit that this is not legislating. This is not asking the government to do anything in addition to what the government already is required to do. It is simply prohibiting a waste of expenditure, a waste of funds, and that is exactly a primary purpose of these appropriation bills.

Mr. GRAYSON. Mr. Chairman, I wish to be heard to respond to the last comment.

Mr. GRAYSON. Mr. Chairman, responding to the last point, respectfully, again, these are contract terms that are defined in the contract itself. The gentleman has a point that the term ``project'' is one that could be taken to refer to something other than a contract if we were not talking about Federal contracting. Here we are talking about Federal contracts only, so the term ``project'' refers to what the contractor is working on. There is no ambiguity here. Either the contract is on schedule or it is off schedule. Either the contract is over budget or it is on budget or it is under budget. There is simply no ambiguity involved here. If we were legislating, then I would see the gentleman's point, but in this particular case we are not. Therefore, I respectfully request that the point of order be overruled and we be allowed to proceed to a vote.

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

Mr. GRAYSON. Mr. Chairman, this amendment would prohibit any funds appropriated by this bill from being used for the purpose of establishing a toll on any existing free lane of Interstate 4 in the State of Florida. I-4, as we call it back home, is the most traveled road in the central Florida region. Thousands of my constituents, each day, commute to and from work using the road. To use their hard-earned tax dollars to implement a new fee on our commutes just seems wrong to me, and that is why I am offering this amendment. I don't think Floridians should be treated any differently in this bill than, frankly, Texans are on pages 31 and 32 of this bill. My constituents would like to keep their freeway free, and I don't blame them, particularly when ground has been broken on new toll lanes that will run right down the middle of I-4. Local authorities are free to build new lanes and expressways, as is the Federal Government, and provide for construction as they see fit, but I am here to make sure that the existing free lanes on I-4 remain untolled. I urge support for this amendment. After all, a toll is very much like a tax, as my colleagues on the other side of the aisle should recognize. I yield back the balance of my time.

Mr. GRAYSON. Mr. Chair, this amendment was originally drafted to apply to both new and existing lanes. This amendment was redrawn and redrafted to specifically limit it to existing free lanes. All of the contract work that is being done in central Florida, and in fact around the country at this point, would not be affected by this amendment because it applies to only existing free lanes. My question to the gentleman from Iowa is, Did the gentleman realize that the amendment had been modified before the gentleman opposed the amendment?

Mr. GRAYSON. I thank the gentleman for the clarification.

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

Mr. GRAYSON. Mr. Chairman, the Essential Air Service program, or EAS, is an expensive government handout. It is, in effect, welfare for airplanes. Page 9 of this bill states that, under the EAS, the per-passenger subsidy for flights that would otherwise not exist to rural communities, excluding Hawaii and Alaska, is capped at $500 per passenger. That is simply too high. I don't see any reason why we should be paying people $500 to fly from communities like Muscles Shoals, not when this Congress is cutting food aid programs and development block grants to communities. I think this is a very poor use of taxpayer funds. It is an example of the waste, fraud, and abuse that we constantly decry. My amendment would reduce the $500 per passenger subsidy allowed under the EAS to a still very high $250 because $500 per passenger is simply outrageous. If passengers don't want to fly those aviation routes, then those subsidies shouldn't exist, and in fact, the routes should exist. For $500 per passenger, we could rent a limousine for every single person that boards these EAS flights and drive them to the nearest commercial airport. I understand the need for rural services for necessary aspects of life like Postal Service, telephones, and even the Internet, but I cannot understand the need to subsidize regular airline flights that would otherwise not exist to the tune of $500 per passenger. Many of these flights fly empty. Many have only one or two or three passengers on them on a large airplane. They exist only because the government is paying the bill. We are taxing people to subsidize other people's airfare. The bill before us today would cut funding for transit starts by 13 percent, TIGER grants by 80 percent, public housing modernization by 5 percent, and the home program for 30 percent, among other things. Under these circumstances, I cannot stand here in good conscience and allow a subsidy like this to continue. I offer this amendment today because it is more important to put a roof over the heads of the poor in this housing bill and to make sure that people have a means to gets to work and to get to their families and their loved ones in this transportation bill, than it is to hand out corporate welfare to United Airlines. I yield back the balance of my time. Point of Order

Mr. GRAYSON. Mr. Chair, this very same bill limits this subsidy to $500 per passenger. Earlier on in this bill, that is a determination that this bill requires to be made. I am simply changing that figure from $500 to $250. It is, shall I say, unwarranted. To say that that is expecting any new law, enacting anything new, it is simply modifying another provision in this specific act.

Mr. GRAYSON

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

Mr. GRAYSON. Mr. Chairman, this amendment would increase from $3 million to $6 million the amount of funds appropriated for competitive grants to distribute firearm safety materials and gun locks under the Edward Byrne Memorial Justice Assistance Grant program. The Edward Byrne program is funded at $376 million total, as recently amended up to $380 in this appropriations bill. The $3 million increase that I am seeking is less than 1 percent of the total allocation of the program and has received a budget-neutral score from the Congressional Budget Office. I think that increasing the level of gun safety in America is a priority, and I hope that my colleagues would agree. Nothing in this amendment would restrict any American citizen's Second Amendment rights. The only thing that this amendment seeks to do is to achieve greater gun literacy, safety, and avoid accidents. This amendment makes good sense, it will save lives, and I urge my colleagues to vote in favor of it. I yield back the balance of my time.

Mr. GRAYSON. Madam Chair, I have an amendment at the desk.

Mr. GRAYSON. Madam Chair, I would like to state at the outset of offering this particular perfecting amendment that I really wish that this section 202 of this bill located on page 54 didn't appear in it. It reads as follows: None of the funds appropriated by this title shall be available to pay for an abortion, except where the life of the mother would be endangered if the fetus were carried to term, or in the case of rape. Again, I disagree with this section of the bill and its limiting principle, but I feel that we should, at the very least, perfect it in the manner that also includes the words ``or incest.'' In short, there is an allowance here for abortions in the case of endangering the mother, and there is an allowance in the case of rape, but somehow or other this bill forbids abortions in the case of incest. Throughout the U.S. Code, whether it be in 10 U.S.C. 1093 pertaining to abortions for armed services personnel, 42 U.S.C. 1397ee or jj, dealing with exceptions to abortion limitations within the State Children's Health Insurance Program, known as SCHIP, or 42 U.S.C. 18023, a section containing provisions of the Affordable Care Act, Federal law is clear: abortion exceptions consistently include protections to the life of the mother in cases of rape and cases of incest. Were one to examine comprehensively the statutes and regulations of this Nation, there are numerous similar occasions referred to colloquially as the Hyde Amendment. I think that this amendment itself is explanatory. I believe it is perfecting in nature. I think it is quite possible that the drafters inadvertently omitted ``incest'' from this bill, and I think that it carries the protection necessary for all American women, whether incarcerated or not. I don't think that the purpose of this bill was inadvertently or through silence to narrow the protections that are afforded to women under our Constitution. I urge my colleagues to support this amendment. I recognize that there may be a point of order to be raised here. I would specifically urge my colleague to think twice before raising that point of order. We are talking here about incest, a vile crime. Even if there is a point of order to be raised here, it is optional. I would hope that my colleagues would recognize that it is optional and that a higher important principle is involved here. Madam Chairman, I yield back the balance of my time. Point of Order

Mr. GRAYSON. I would like to be heard on the point of order.