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"Laws are like sausages: It is better not to see them being made"

By Jack M. Balkin

Otto von Bismarck, meet Representative Don Young (R-Alaska) (a/k/a Rep. "Bridge to Nowhere").

The Washington Post reports that "[t]he Senate moved yesterday toward asking the Justice Department for a criminal investigation of a $10 million legislative earmark whose provisions were mysteriously altered after Congress gave final approval to a huge 2005 highway funding bill."

Huh?

The alleged crime is the alteration of a bill after the House and Senate have voted? How would one go about doing such a thing?

On July 29, 2005, both Houses of Congress voted for a bill, memorably titled the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users -- or "SAFETEA?LU," for short. In fact, what the Houses voted on was the House Conference Report containing the final language of the agreed-upon legislation.

In that bill (see page 372, Item No. 461 of section 1934(c)), ten million dollars was designated to be spent on "Widening and Improvements for I-75 in Collier and Lee County" in Florida.

By the time the voted-upon bill was enrolled and sent to the President for his signature, however, the earmark in question had mysteriously been changed to ten million dollars for a much more specific function: "Coconut Rd. Interchange/Lee County." (See page 366, Item No. 462 of section 1934(c) of the Act.)

How did this "change" in the law come to pass in between the bicameralism and presentment that Article I of the Constitution prescribes? Well, for many months, Rep. Young would not comment on the mystery, as Paul Kiel explains. But now he comes clean:

Young's staff acknowledged yesterday that aides "corrected" the earmark just before it went to the White House for President Bush's signature, specifying that the money would go to a proposed highway interchange project on Interstate 75 near Naples, Fla. Young says the project was entirely worthy of an earmark and he welcomes any inquiry, a spokeswoman said.

Meredith Kenny, Rep. Young's spokeswoman, explained further that "the lawmaker always intended for the earmark to designate money to the interchange project, not generic highway improvements. So committee aides altered the bill to reflect that after the House and Senate had approved it. 'There was an error in the bill and so it was corrected,' she said."

"There was an error in the bill" -- the error being that the earmark reflected Congress's presumed intent rather than Rep. Young's -- "and so it was corrected."

Priceless.

(Local planning officials in Florida had no desire to build the interchange, and "were outraged to learn after the highway bill became law that they were required to spend $10 million on a project they did not want." It appears the only one who did want the interchange was developer Daniel Aronoff, whose land would increase substantially in value by virtue of the I-75 interchange. Coincidentally, Aronoff hosted a fundraiser in 2005 that garnered about $40,000 for Rep. Young's re-election campaign.)

I don't think I truly want to know the answer to this question, but here goes: How is it, exactly, that an aide to a congressman can, quite literally and physically, "correct" a bill in between the time it is approved by the House and the Senate and the time it is enrolled and sent to the President? Can anyone just walk right into whatever congressional office it is that handles the bill, ask for the official copy of the text, take out a red pen, and start "correcting"? (Imagine David Addington with such an opportunity! Who needs signing statements?)

Sorry I missed this at the time, but Josh Marshall has quite appropriately lamented that this episode calls into serious question the classic Schoolhouse Rock dittie that taught us all how a bill becomes a Law.

Now, some Senators want a congressional investigation. Barbara Boxer and Harry Reid, on the other hand, "have suggested that constitutional separation-of-powers issues would make it difficult for a Senate investigation of an action in the House. Instead, they have pushed for a resolution asking the Justice Department to investigate."

I don't quite get this. What would be the "separation of powers" problem with a joint Senate-House investigation? And what would the Justice Department investigate, anyway? Is there any criminal law that prohibits a member of the House tampering with a voted-upon bill?

One other thing: What's the law? If Congress does not enact any correction of Rep. Young's shenanigans, must the ten million dollars be spent on the Coconut Road interchange? Thoughts on that question here. But cf. this opinion.

Full post as published by Balkinization on April 17, 2008 (boomark / email).