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Experts Question Legality, Ethics Of Young's Earmark
There are earmarks, and then there are earmarks.
Rep. Don Young (R-AK) has taken the political art form to an ethically questionable level that even some experts in the trenches have never seen. In 2005, Young waited until after the House and Senate passed a transportation bill, but before the president signed it into law, to rewrite a passage that would have granted $10 million for an interstate in Florida. His new wording targeted the money to a much smaller, more specific project to connect Coconut Road to that interstate. It's an unpopular project in the area, but a boon for real estate developer Daniel Aronoff, who held a $40,000 fundraiser for Young in Florida just before the earmark appeared.
Young has refused multiple requests for comment from different publications on these, and related allegations. Once he made an obscene gesture at a New York Times reporter who approached him about the earmark. His spokeswoman did not get back to us today.
I asked a few experts today for historical and ethical perspective on Young's move.
Former staff director of the House Appropriations Committee, Scott Lilly, said this is a very atypical procedure. Once the bill has been voted on by the House and Senate, only some very technical changes can be made by the clerk. Then it goes to the President.
"The committee chair really doesn't have any control over the bill at that point," Lilly said. "There are some really arcane things that you can do, but you would have to pass a resolution directing the enrolling clerk to make the change, but that would have to pass both Houses. There is very little the enrollment clerk can do. I don't know that they can change spelling mistakes."
The changes made by Young are far more substantive than spelling errors.
"To say it's unusual isn't enough," said Keith Ashdown of Taxpayers for Common Sense. "It is an anomaly that we have never seen before."
Normally, members of Congress who want to clarify how an earmark is to be spent, outline the details in an accompanying report. These reports are only advisory, but are often followed to avoid falling out of favor for the next time an appropriation rolls around. Ashdown pointed out that the 2005 legislation was Young's last chance to oversee a transportation bill, which only come up every six years, as a committee chair. Advice from a sitting duck committee chair wouldn't carry the same heft as language in the law.
"[Young] knew that because this was a controversial project in the area, the only way to make sure his benefactor got the money was if he wrote it in the statute," Ashdown said.
So what can be done now that the change carries the force of law?
The executive director of Citizens for Responsibility and Ethics in Washington said she thinks there's virtually no chance of the famously inactive House ethics committee pursuing the issue.
"I think that this is a highly unlikely thing for the ethics committee do anything about," Melanie Sloan said.
Sill, theoretically, another member of Congress could file a complaint against Young. Craig Holman, the campaign finance lobbyist for Public Citizen, said this issue could be taken up by the courts, by either a private citizen or another member of Congress.
"If anyone can just change the language of a bill carrying it to the President, then why even have a Congress?" Holman said.
Comments (35)
Sojourner wrote on August 10, 2007 5:18 PM:So, how is this any different than the language that got inserted about recess appointments late last year by Arlen Specter's staffer? Obviously, something is getting changed that shouldn't be -- and the Repubs are circumventing the rules.
P J Evans wrote on August 10, 2007 6:03 PM:Sojourner, I think that Arlen's staffer inserted that language before it was voted on. This is after both houses passed it - they really aren't supposed to change it at that point!
Sojourner wrote on August 10, 2007 6:09 PM:OK -- I remember now that the staffer inserted it into the conference bill. Thanks...
NitPicker1 wrote on August 10, 2007 6:11 PM:I'm pretty sure thr change about recess appointments was made *before* the final bill was passed. Sneaky, but it was in the text being voted on and there to see if anyone had the time/ took the trouble to look for it before voting on the final bill.
The issue here is that the final text of the bill that was passed by Congress was *not* the same text that was sent to and signed by the President. I don't see how that could possibly pass Constitutional muster.
I was surprised to hear that even spelling mistakes could be corrected at that point; sounds like Scott Lilly who surely would know didn't think that was possible either.
Anonymous wrote on August 10, 2007 7:48 PM:Bill Moyers' Journal had a piece on earmarks incl Young's coconut rd earmark.
Bill W wrote on August 10, 2007 7:49 PM:http://www.youtube.com/watch?v=x7VUvdhgXsY
Bill Moyers' Journal had a good piece on earmarks incl Young's coconut rd earmark.
aklocal wrote on August 10, 2007 9:50 PM:http://www.youtube.com/watch?v=x7VUvdhgXsY
Getting pissed here in Alaska. Dirty Don doggone Young. What a pig.
deRougemont wrote on August 10, 2007 10:36 PM:If Bush signs the bill, with the obstensibly unconstitutional change inserted, what version of the bill (that from the House and Senate or that which appears on his desk) applies? Or is law?
carwinrpc wrote on August 11, 2007 8:34 AM:Since Bush has made alot of mis"prioritization" of transportation bills, this would be a fine time for him, if he's made aware of the change, to send it back for correction......if he really believes in legislation at all.
I don't understand how this can generate so much doubt--the piece of paper that the president signed was never passed by congress. It's that simple. Whether or not the REST of the act, the part actually voted upon is still in force might be a subject for discussion, but unless congress passed legislation with boilerplate language saying that "in addition to the sorts of corrections we allow the clerk to make before sending the bill to the white house we also want crooked congressmen and women to be able to add corrupt pork for the benefit of their fat-cat pals", I don't see how this should take more than 2 seconds to figure out. Yeah, I know, knucklehead signed it--big deal. The constitution also says that all legislation originates with the Congress. If this didn't originate with congress, it's no law.
How would this be any different than a congressman getting every copy of a bill printed by the Gov. Printing Office and pasting in a corrigenda saying--"oh, and give my pal carwinrpc a gazillion dollars?"
Anonymous wrote on August 11, 2007 10:40 AM:There have been several similar cases. Eugene Volokh wrote on this topic with respect to a lawsuit alleging that a controversial change was made to the medicare bill in 2004, and Hastert signed the document saying that it had passed the house of representatives knowing that the document he signed did not match what was voted on by the house.
The general rule is from Field v. Clark, 143 US 649 (1892). "The version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it."
The quoted sentence is discussing rules of evidence, so it is not clear (to me) what a court would do if the fact is indisputable.
Morris Pearl
Morris Pearl wrote on August 11, 2007 10:50 AM:This is different from the president signing something that has not been passed, because this bill was presented to him signed by the presiding officers of both houses as being passed by their houses (which is the standard procedure for bills being passed). The speaker of the house and the presiding officer of the senate each sign the bill. Eugene volokh wrote a piece some time ago concerning a similar case in 2004, where the house and senate passed different versions of the medicare bill. Apparently someone on the house side changed "13 months" to "36 months" in a controversial section (or maybe vice versa, I don't remember) and Hastert signed the bill knowing that it was different from the bill as passed by the house of representatives. Someone sued. There have apparently been several cases like this before, and the controlling supreme court opinion seems to be from Field v. Clark, 143 US 649 (1892), which says that "...the version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it." Although that sentence is talking about a rule of evidence. It is not clear what would be the ruling if there were no facts in dispute.
Morris Pearl
sickinalaska wrote on August 11, 2007 11:26 AM:(Sorry if this is posted twice, I am still figuring out the comment system.)
Don young makes me sick. Sooo many up here love the pork he produces and are willing to put up with the proclivities he seems to produce. To me though, he is the epitome of whats wrong with this country. Pols working for corps with lots of cash and slinging largess in all the rich directions. 12 billion a month for a war of agression, young has no problem with it. 10 million for a friends unwanted freeway interchange, no problemo. Toilets for esikimos? never, by god they can work for it. lazy natives. Yeahhhh don young the great. Ugly fucker.
BG124C41 wrote on August 11, 2007 2:12 PM:1. Aha! At last an opportunity for a signing letter, refusing to implement that earmark, that will show just how "justified" and "necessary" signing letters really are.
2. Who comes up with these things? Who came up with this particular one? Are there lobbyists who actually compete to figure out ways around the constitution on behalf of of these relatively minor projects? (I say relatively because it would seem like a tool like that is wasted unless it can be used to outlaw some huge special interest's bogeyman?
Security code "parcel," which makes this what kind of post?
Northwest Gypsy wrote on August 12, 2007 12:43 AM:"Advice from a sitting duck committee chair wouldn't carry the same heft as language in the law."
Shouldn't that be LAME duck?
JEP wrote on August 12, 2007 10:00 AM:Surreptitious wording is the new way to put the pork in their pockets, considering how they used it in the DOJ recess appointments.
Surely there needs to be a law, or a freshening of the existing law, that de-certifies any such subterfuge.
And severe penalties, at the felony level, for those who so casually re-direct our tax money towards their personal circle of benefisiaries.
JEP wrote on August 12, 2007 10:15 AM:"So what can be done now that the change carries the force of law?"
Does it? Shouldn't this type of theft already be covered somewhere in the myriad laws we have on the books?
Seriously, is there no law that prohibits profitable rewording on the part of special-interest, surely there's something 'midst the myriad regs that already covers this?
Jared D wrote on August 12, 2007 12:54 PM:I think there are still many unanswered questions involving this "post-passage/pre-signing" earmark.
1. Did the money get spent on the road? If so, issues of legality and consititutionality SHOULD kick in.
2. Also, a KEY issue -- how long has this practice been going on? As Morris Pearl suggest above, this Florida earmark may be just the first time people NOTICED. So much more needs to be followed up here to determine what exactly has been going on both in Florida and more generally. When combined with the partisan circus that was house-senate conference reports under Republicans with Bush's signing statements, one should legitimately wonder what projects actually get set in motion with recent appropriation bills. I'm wondering if someone (perhaps in the blogisphere) needs to go back and look.
Jared D
bwindrip wrote on August 15, 2007 8:46 AM:I read somewhere that the Florida Highway Commission is going to attempt to use the appropriation in its originally-designated manner, applied to the larger portion of highway, and not just the Coconut Rd. interchange.
Piss on Don Young.
nobody wrote on August 15, 2007 4:54 PM:There is a word for this:
FRAUD!!
Rafael Safazor wrote on August 15, 2007 7:20 PM:When the bill was being drafted he forgot to include it and not unreasonably in my view when he remembered it he decided to add it at a later stage in the process.
Have you guys never forgotten something? You go out the door and suddenly realize you have forgotten your gun, so you go back and get it. What's the big deal.
roadsquish wrote on August 15, 2007 8:47 PM:Rafael, he added it AFTER both the house and senate reviewed and signed it. That's like you signing a document agreeing to sell your car to me at which point I add in afterwards that you transferred your house also.
Andy Fekete wrote on August 15, 2007 9:37 PM:Is there any question about the ethics of rewriting a bill AFTER both the House and Senate reviewed and signed it?
Is there any question that this man is is not only subverting the rule of law, but also the will of the people?
Why do we tolerate such naked abuses of power? What kind of people have we become?
Bruce wrote on August 15, 2007 10:41 PM:Let me try and understand this - American democracy is so weak and easily subverted that _anyone_ could bring about a new holocaust by covertly jotting down 'We hereby resolve that the gassing of the jews shall begin immediately.' on the bottom of a bill thats already been approved by the house? That the whole VOTING process can be set aside and ignored by anyone at any time?
Surely Rep. Don Young should be under arrest for treason?
Sick of this wrote on August 16, 2007 12:35 AM:I don't know much about this but it seems to me that Don Young intentionally subverted the Constitutional process of law-making to further his own or his constituants ends. I think tresaon is not too strong a word for this, fraud at the very least; both of which are felonies in this country. I can't really believe this is the first time this has happened and that our country has no law or penalty to cover this kind of shit.
Sean wrote on August 16, 2007 4:18 AM:Somebody needs to string the man up by his yarbles. We, the taxpayers should not have to stand for this kind of abuse.
Can someone explain exactly what an earmark is and how it works? This makes no sense to me how he could get away with this. No one cares?!? Someone has to be on the short end of the stick wanting to have his head. I am of course talking about the non-principled people that didn't get money for "their" project.
Frzn Patriot wrote on August 17, 2007 2:15 AM:Don Young is presently being investigated by the FBI in Anchorage, AK. He is the recipient of a large amount of cash from VECO's Bill Allen who has pleaded guilty to bribing Alaska State House and one State Senator by the name of Ben Stevens, that's right the son of ol' (83) Ted Stevens who is also being investigated by the FBI. We Dem's cam't wait for the elections in 08' both Don and Ted are up for re-election.
L Nettles wrote on August 20, 2007 2:31 PM:The would be called forgery in the real world. Just like kiting a check.
Tom Thomas wrote on August 30, 2007 12:06 AM:Well, it looks like Bush got his line item veto power after all...
Seriously though, we must all insist on a thorough investigation to find all those who were complicit in this crime so they can be held accountable, whether it be impeachment, censure, or prison. I don't know that this qualifies as treason as others have suggested, but it certainly subverts the Constitution, and anyone involved is an enemy of our democracy. I am writing my Congressman to find out what he is doing to bring these people to justice and I encourage everyone else to do the same.
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Thank you FBI for helping us at a time when many of us had begun to lose hope.
James wrote on September 15, 2007 12:43 PM:Our country's founding fathers risked their lives for the principles of democracy, only to have Don Young sell out for a few thousand bucks.
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