[Congressional Record Volume 153, Number 156 (Tuesday, October 16, 2007)]
[House]
[Pages H11563-H11567]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 2102, FREE FLOW OF INFORMATION ACT
OF 2007
Ms. SLAUGHTER. Madam Speaker, by direction of the Committee on Rules,
I call up House Resolution 742 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 742
Resolved, That upon the adoption of this resolution it
shall be in order to consider in the House the bill (H.R.
2102) to maintain the free flow of information to the public
by providing conditions for the federally compelled
disclosure of information by certain persons connected with
the news media. All points of order against consideration of
the bill are waived except those arising under clause 9 or 10
of rule XXI. The amendment in the nature of a substitute
recommended by the Committee on the Judiciary now printed in
the bill shall be considered as adopted. The bill, as
amended, shall be considered as read. All points of order
against provisions of the bill, as amended, are waived. The
previous question shall be considered as ordered on the bill,
as amended, to final passage without intervening motion
except: (1) one hour of debate equally divided and controlled
by the chairman and ranking minority member of the Committee
on the Judiciary; (2) the amendment printed in the report of
the Committee on Rules, if offered by Representative Boucher
of Virginia or his designee, which shall be in order without
intervention of any point of order (except those arising
under clause 9 or 10 of rule XXI) or demand for division of
the question, shall be considered as read, and shall be
separately debatable for ten minutes equally divided and
controlled by the proponent and an opponent; and (3) one
motion to recommit with or without instructions.
Sec. 2. During consideration of H.R. 2102 pursuant to this
resolution, notwithstanding the operation of the previous
question, the Chair may postpone further consideration of the
bill to such time as may be designated by the Speaker.
{time} 1130
The SPEAKER pro tempore. The gentlewoman from New York is recognized
for 1 hour.
Ms. SLAUGHTER. Madam Speaker, for the purpose of debate only, I yield
the customary 30 minutes to the gentleman from Florida (Mr. Diaz-
Balart). All time yielded during consideration of the rule is for
debate only.
General Leave
Ms. SLAUGHTER. Madam Speaker, I ask unanimous consent that all
Members have 5 legislative days within which to revise and extend their
remarks and insert extraneous materials into the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from New York?
There was no objection.
Ms. SLAUGHTER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, H. Res. 742 provides for consideration of H.R. 2102,
the Free Flow of Information Act, under a structured rule. The rule
provides 1 hour of debate equally divided and controlled by the
chairman and ranking minority member of the Committee on the Judiciary.
I rise to speak today on one of the most critical issues that faces
our democracy, the freedom of the press and the sacred historic
protection afforded to journalists allowing them not to reveal their
sources.
Understanding this, in 1799, one of our Founding Fathers, Thomas
Jefferson, said, ``Our citizens may be deceived for a while, and have
been deceived; but as long as the presses can be protected, we may
trust to them for light.''
Madam Speaker, with the birth of this new Nation came a government
that was designed to be open and transparent to its people and held
accountable for its actions. America's Founding Fathers established and
implemented a system of checks and balances to ensure that one branch
of government could not unilaterally impose its will on the others,
aggressively overstep its authority, or greedily infringe upon the
rights of its citizens.
Beyond the checks and balances of government is an often overlooked,
but equally important, element of our system: the freedom of the press.
Embodied in the first amendment, this right grants active citizens and
vocal journalists the power to expose corruption and misbehavior
committed by those elected and appointed to office. They serve as
protectors of our democracy and work to make up for our system's
failings where they exist.
Ensuring the free flow of information and providing protection for
whistleblowers is vital to a free society. The Watergate scandal
epitomized the value of the free press and, with it, the need to
protect the relationship between journalists and their confidential
sources.
For a moment, I would like my colleagues to consider a reality in
which journalists could routinely be forced to reveal the names of
their informants, and where sources could undoubtedly become reluctant
to share important information that is unknown to the public.
Think of the scandals that journalists have revealed just in the last
few years: The Central Intelligence Agency's clandestine prisons across
Eastern Europe; Jack Abramoff's trading expensive troops for political
favor from lawmakers; our veterans returning home from Iraq and
Afghanistan to dilapidated, unsafe, unsanitary facilities at Walter
Reed Medical Center. Make no mistake, confidential sources made these
reports possible.
And I would be remiss if I did not ask my colleagues, would we rather
be unaware of these incidents because shield laws don't exist and our
reporters are too afraid of prosecution when doing their jobs?
The past 6 years have produced one disturbing reminder after another
that the legitimacy of our government and the integrity of our
democracy are dependent on the ability of journalists to protect their
sources. From uncovering the horrifying incidents of detainee abuse at
Abu Ghraib to revealing the administration's covert domestic spying
program, the press managed to expose illegal actions by the executive
branch when Congress refused to do so.
The public has long valued this relationship as critical to the
functioning of an open and free media. Unfortunately, the court record
has been more mixed.
In December of 1972, the Supreme Court ruled that the journalist-
source relationship is not protected under the Constitution. That
ruling has allowed journalists to be forced to testify before grand
juries about their sources. In response, individual States across the
country enacted their own journalist shield laws to guarantee that a
member of the press can continue to maintain their anonymous sources
without fear of prosecution.
In fact, 49 States and the District of Columbia all provide some form
of shield law. But there is still no Federal statute providing
uniformity. Now, recent Federal court cases are, again,
[[Page H11564]]
challenging the critically important relationship between journalists
and their sources, arguing that State interests supersede those of a
free press.
And according to The Washington Post, in recent years, more than 40
reporters have been questioned about their sources, notes and stories
in civil and criminal cases.
The Free Flow of Information Act before us today would, for the first
time on the Federal level, explicitly protect journalists and their
sources from the kind of vengeful legal actions that threaten to keep
all those necessary whistles unblown.
Unless Congress passes a comprehensive shield law that will guarantee
the rights of journalists to speak with anonymous sources and ensure
their confidentiality, the freedom of the press will be undermined
along with the public good it has the power to defend. Any such bill
must, of course, take into account the legitimate needs of our
government, and this bill does that.
Madam Speaker, should we in any way compromise the freedom of the
press, we will deny our citizens their right to be informed about their
government and retreat from the true nature of the political system
that made our government unique. Our forefathers saw fit to enshrine
this belief in the very first sentences of our Bill of Rights, and this
Congress must continue to guarantee those rights.
And today, Madam Speaker, as we debate extending these protections to
the press, we must pause to remind the press of their obligation to the
public.
I regret to say that, for much of the recent past, some of the press,
which was intended to be the watchdog of our government, quickly
transformed into nothing more than a mouthpiece, exemplified in its
coverage and lack of questions on the Iraq war.
Madam Speaker, we saw time and time again the tough questions
expected by the American people before and after the invasion in Iraq
replaced with nothing more than patriotic propaganda and White House
talking points.
Embedded journalists were fed information and painted rosy scenarios
of our invasion and occupation. Those who were skeptical and challenged
this spoon-fed information were discredited and sometimes even fired
for so much as questioning the actions of the war and this government.
Thomas Jefferson said, again, and I quote, ``The press is impotent
when it abandons itself to falsehood.''
With all the wonderful protections of the first amendment of the
Constitution of the United States, the press must not only be vigilant,
but it must be courageous.
And we all remember that it is the prime directive of the press to
inform the people. It is their duty to ask the tough questions when the
American people are unable to do so. It is their responsibility to
shine light on government actions, secret or mundane, and to hold it
accountable.
And let me finish by asking this simple question. Will the press pay
as much attention to Blackwater as they did to Whitewater? I certainly
hope so.
Madam Speaker, I reserve the balance of my time.
Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, I would like to
thank the distinguished Chair of the Rules Committee (Ms. Slaughter)
for the time, and I yield myself such time as I may consume.
One of the Founding Fathers of the Nation, whose likeness is above
your chair, Madam Speaker, George Mason, said that ``the freedom of the
press is a great bulwark of liberty.''
It does act as a bulwark of liberty by often checking governmental
power. In order to gather and publish news stories, journalists often
find it necessary to protect their sources. So if a journalist is
forced to reveal his or her sources through legal proceedings, that has
a chilling effect on other sources. And such a chilling effect
ultimately may harm the public interest.
Under current law, Madam Speaker, courts have the power to force
testimony from individuals unless they can cite a specific ground, such
as the lawyer-client or the physician-patient privilege. It is in the
public interest to have such privileges, and I think it should be
possible to provide journalists, that's what this legislation is trying
to do, and their sources with some reasonable protections, because
currently there is no privilege for journalists to refuse to appear and
testify in legal proceedings.
As the distinguished Chair of the Rules Committee stated, 49 States
and the District of Columbia have various statutes or follow judicial
decisions that have the effect of protecting reporters from being
compelled to testify or disclose their sources. The underlying
legislation would set a national standard similar to those that are in
effect in the various States.
In determining whether to require testimony by a member of the news
media, it is appropriate to strike a balance between the public's
interest in the free dissemination of information and the public's
interest in effective law enforcement and the fair administration of
justice.
So the underlying legislation attempts to strike this balance by
providing a privilege to journalists that prevents them from being
forced to testify or disclose sources in legal proceedings. But,
however, the privilege is not absolute. It contains exceptions where it
is necessary to reveal a source to prevent an act of terrorism or other
significant and specified harm to national security or imminent death
or significant bodily harm.
I think it's appropriate, and I want to emphasize my gratitude to
Representative Pence for his hard work and dedication on this important
issue. He has been not only studying it, but working on this critical
issue, really, a critical issue related to our freedom for years, and
so as I thank him, I urge Members to support the legislation that he's
been working on so diligently for so long.
The rule we are debating now, Madam Speaker, only allows for a
manager's amendment, which, as you know, is an amendment for the
majority to make final changes in a bill. So the rule is essentially a
closed rule. Only one other amendment was submitted to the Rules
Committee, but the majority decided, on a party-line vote, to exclude
the amendment and not make possible the debate of that amendment on the
floor.
I understand that the authors of the bill feel that that amendment,
which was submitted by the distinguished ranking member of the
Judiciary Committee (Mr. Smith), the authors of the bill believe that
that amendment would go counter, would be counter to much of the
essence of the bill. But, in my view, that doesn't mean that we should
preclude or prevent consideration of the amendment.
{time} 1145
Even Mr. Pence, the author and champion of the underlying
legislation, who opposes the Smith amendment, testified at the Rules
Committee that the amendment should definitely have an opportunity to
be considered by the House.
The amendment includes many of the concerns that the Justice
Department has had throughout the long period of time with parts of the
underlying legislation. It is a serious amendment, and it certainly
deserves to be debated on the floor.
So I think it is unfortunate, and as we bring this important
legislation once again, it is an example of bringing important
legislation to the floor excluding, making impossible, serious debate
of ideas that differ by Members of this House. So that's unfortunate,
and that is why I oppose the rule that is bringing forth this important
legislation. I certainly support the underlying legislation, but I
think that it is unfortunate that we once again have an overly
restrictive process for bringing forth this legislation.
Madam Speaker, I reserve the balance of my time.
Ms. SLAUGHTER. Madam Speaker, I yield 2 minutes to the gentleman from
Vermont (Mr. Welch).
Mr. WELCH of Vermont. I thank the distinguished Chair and the good
work of my friend from Florida.
Madam Speaker, I rise today in support of Resolution 742, the rule
providing for the consideration of H.R. 2102, the Free Flow of
Information Act.
This important legislation protects the public's right to know while
at the same time honoring the public interest in having reporters
testify in certain circumstances. While news organizations prefer to
have their sources on the record whenever that is possible,
[[Page H11565]]
we all know there are times when sources will simply not come forward
without the promise of confidentiality, and that's in the public
interest to get the information those sources have. Consider
groundbreaking stories such as conditions at Walter Reed, Abu Ghraib,
the Enron scandal, steroid abuse in the Major Leagues would not have
been known to the public or the Congress without confidential sources.
And over the past few years, more than 40 reporters and media
organizations have been subpoenaed or questioned about their
confidential sources, their notes, and their work product in criminal
and civil cases in Federal court.
The need for this legislation was underscored when on August 13 a
Federal judge ordered five more reporters from major news organizations
to reveal their confidential sources in the privacy lawsuit filed by
Dr. Steven Hatfill against the Federal Government.
If sources, including public and private sector whistleblowers, are
uncertain whether reporters have adequate protection, they won't come
forward in the public dialogue and important issues will diminish.
The shield is qualified, as it must be. If the information possessed
by the journalist is necessary to prevent an act of terrorism, imminent
death or significant bodily injury, or harm to national security,
disclosure can be compelled.
While 49 States and the District of Columbia recognize a reporter's
privilege through statute or common law, no uniform Federal standard
exists to govern when testimony can be sought from reporters.
Journalists should be the last resort, not the first stop, for civil
litigants and prosecutors attempting to obtain the identity of
confidential sources.
I urge my colleagues to vote ``yes'' on H. Res. 742 and ``yes'' on
the underlying bill.
Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, it is my privilege
at this time to yield 3 minutes to a great leader in this House, our
colleague from Florida (Mr. Keller).
Mr. KELLER of Florida. I thank the gentleman for yielding.
Madam Speaker, I rise in strong support of the Free Flow of
Information Act.
This media shield legislation is important because ``off the record''
confidential sources are needed to help journalists get to the truth,
and I don't want reporters thrown in jail for doing their jobs.
Our history is full of examples of confidential sources exposing
corruption, fraud, and misconduct. For example, the Watergate scandal
was blown wide open by Deep Throat, a confidential source we now know
to be Mark Felt, the number two person at the FBI. Confidential sources
also exposed the cooked books at Enron and the unacceptable treatment
of soldiers recovering at Walter Reed.
Whistleblowers, with inside knowledge of corruption, might be
discouraged from talking to reporters if they fear their identities
might be disclosed and their jobs placed at risk. That's why protecting
the public's right to know is needed for a healthy democracy. That is
also why a majority of the States already have media shield laws on the
books and why we need this law on the Federal level.
The media shield privilege under this bill is not absolute.
Exceptions are carved out where it is necessary to reveal a source in
order to prevent imminent death or bodily harm, terrorist attacks, or
other specific threats to national security. The bill also includes the
language I drafted, which provides an exception for civil defamation
claims. This language, found in section 2(C) of the bill, is modeled
after language found in various State media shield laws such as those
in Tennessee and Oklahoma dealing with this issue.
Finally, I want to thank my colleagues, especially Mr. Pence and Mr.
Boucher, for their impressive bipartisan leadership and hard work on
this important bill. It was my honor to work closely with them on the
drafting of this legislation during the Judiciary Committee process.
Madam Speaker, the bottom line is that a free and independent press
is critical to ensure government accountability. I urge my colleagues
to protect the public's right to know and vote ``yes'' on H.R. 2102.
Ms. SLAUGHTER. Madam Speaker, I reserve the balance of my time.
Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, it is my privilege
to yield 8 minutes to someone who has been working long and hard on
this important issue and deserves much commendation, my dear friend Mr.
Pence of Indiana.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. I thank the gentleman for yielding.
Madam Speaker, 3 years ago this month, I read a newspaper editorial
decrying a growing trend of cases where reporters were being subpoenaed
and threatened with jail time to reveal confidential sources. The
article also lamented how Republicans in Congress would never support
such a statute to shield reporters in those cases.
The next day I asked my congressional staff two questions: First, I
asked, what's a Federal media shield statute? And next I asked, tell me
what I will never do. And it was in that moment of challenge and
inquiry that the Free Flow of Information Act was born.
Shortly thereafter I partnered with the gentleman from Virginia,
Congressman Rick Boucher, the lead sponsor of this legislation today.
And the legislation that we will bring to the floor of the House of
Representatives this afternoon is a direct result of a bipartisan
partnership that has been a singular personal and professional pleasure
for me. It is indeed humbling for me to work with Mr. Boucher, Chairman
Conyers, and colleagues on both sides of the aisle to truly put a
stitch in what I believe is a tear in the fabric of the Bill of Rights.
When the Free Flow of Information Act passed out of the Judiciary
Committee on August 1, 2007, Mr. Speaker, I was informed that in the
past 30-odd years approximately 100 Federal media shield statutes had
been introduced in Congress. But the Free Flow of Information Act is
the first of those to be passed out of the committee, and it will be
the first Federal media shield bill to ever be considered by the House.
It is arguable, in fact, that the Free Flow of Information Act is the
first Federal legislation regarding the freedom of the press since the
words ``Congress shall make no law abridging the freedom of speech or
of the press'' were added to the Constitution. As such, and I say
humbly, passage of this legislation today would be both momentous and
historic.
So what's a conservative like me doing passing a bill that helps
reporters? I have been asked that question many times.
It would be Colonel Robert McCormick, the grandson of the founder of
the Chicago Tribune, who once said: ``The newspaper is an institution
developed by modern civilization to present the news of the day and to
furnish that check upon government which no Constitution has ever been
able to provide.''
As a conservative who believes in limited government, I believe the
only check on government power in real-time is a free and independent
press. The Free Flow of Information Act is not about protecting
reporters. It is about protecting the public's right to know.
Thomas Jefferson warned that ``our liberty cannot be guarded but by
the freedom of the press, nor that limited without danger of losing
it.'' Today, the Congress has the opportunity to heed President
Jefferson's words and take this important step towards strengthening
our first amendment, a free and independent press.
Not long ago a reporter's assurance of confidentiality was
unquestionable. That assurance led to sources who provided information
to journalists who brought forward news of great consequence to the
Nation, like Watergate, where government corruption and misdeeds were
brought to light by the dogged persistence of Woodward and Bernstein.
However, the press cannot currently make the same assurance of
confidentiality to sources today, and we face a real danger that there
may never be another Deep Throat. In recent years, reporters like
Judith Miller have been jailed, James Taricani placed on house arrest,
Mark Fainaru-Wada and Lance Williams threatened with jail. The
protections provided by the Free Flow of
[[Page H11566]]
Information Act, I submit, are necessary so that members of the media
can bring forward information to the public without fear of retribution
or prosecution and, more importantly, so that sources will continue to
come forward.
Compelling reporters to testify, and in particular compelling them to
reveal the identity of confidential sources, is a detriment to the
public interest. Without the promise of confidentiality, many important
conduits of information about our government will be shut down. The
dissemination of information by the media to the public on matters
ranging from the operation of our government to events in our local
communities is invaluable to the operation of democracy. Without the
free flow of information from sources to reporters, the public will be
ill prepared to make informed choices.
Which is not to say the press is always without fault, as the
chairman of the Rules Committee said just moments ago, or always gets
the story right. In fact, President James Madison wrote: ``To the press
alone checkered as it is with abuses, the world is indebted for all the
triumphs that have been gained by reason and humanity over error and
oppression.''
As a conservative, I believe that concentrations of power should be
subject to great scrutiny. Integrity in government is not a Democrat or
Republican issue, and corruption cannot be laid at the feet of one
party. But when scandal hits either party, any branch of government, or
any institution, our society is wounded.
The longer I serve in Congress, the more firmly I believe in the
wisdom of our Founders, especially as it pertains to the accountability
that comes in a free and independent press.
And it is important to note this legislation is not a radical step.
Thirty-two States and the District of Columbia have various statutes to
protect reporters from being compelled to testify and disclose
confidential sources. And the Free Flow of Information Act, I would say
to all of my colleagues, has been carefully drafted after reviewing
internal Department of Justice guidelines, State shield laws, and
gathering input from many talented members on the Judiciary Committee
and throughout the Congress. It puts forward only a qualified privilege
for journalists to protect sources and strikes an appropriate balance
between the public's need for information and the fair administration
of justice.
In most instances under our legislation, a reporter will be able to
use the shield provided in the bill to refrain from testifying or
providing documents. But testimony or documents can be forced under
certain circumstances if all reasonable alternatives have been
exhausted and the document or testimony is critical to criminal
prosecutions. A reporter may also be asked to reveal the identity of a
confidential source in very specific and exceptional cases. And the
manager's amendment we will consider today will add even additional
exceptions.
Lastly, Mr. Speaker, let my say how humbling it is for me to have
played a small role in moving this legislation forward. From my youth I
have enjoyed a fascination with freedom and with the American
Constitution. I learned early on that freedom's work is never finished,
that it falls on each generation of Americans to preserve, protect, and
defend our freedom as those who have bequeathed it to us did in their
time.
The banner of the Indianapolis Star, the newspaper of record in my
home State, quotes a verse from the Bible that reads: ``Where the
spirit of the Lord is, there is freedom.'' As I opened my Bible this
morning for devotions, it was that verse that just happened to be in my
daily readings.
{time} 1200
It reminded me that when we do freedom's work, like putting this
stitch in a tear in the fabric of the Bill of Rights, His work has
truly become our own.
I ask all of my colleagues in both parties to join us today in
freedom's unfinished work. Say ``yes'' to a free and independent press.
Vote ``yes'' on the Free Flow of Information Act.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I will be asking for
a ``no'' vote on the previous question so that we can amend this rule
and allow the House to consider a change to the rules of the House to
restore accountability and enforceability to the earmark rule.
Under the current rule, so long as the chairman of the Committee of
Jurisdiction includes either a list of earmarks contained in the bill
or report or a statement that there are no earmarks, no point of order
lies against the bill. This is the same as the rule in the last
Congress. However, under the rule as it functioned under the Republican
majority in the 109th Congress, even if the point of order was not
available on the bill, it was always available on the rule as a
question of consideration. But because the new Rules Committee majority
specifically exempts earmarks from the waiver of all points of order,
they deprive Members of the ability to raise the question of earmarks
on the rule or on the bill.
I would like to direct all Members to a letter that House
Parliamentarian John Sullivan recently sent to the distinguished Chair
of the Rules Committee, Ms. Slaughter, which confirms what we have been
saying since January, that the Democratic earmark rule contains
loopholes.
In his letter to the distinguished chairman, the Parliamentarian
states that the Democratic earmark rule ``does not comprehensively
apply to all legislative propositions at all stages of the legislative
process.''
I will insert this letter from the House Parliamentarian, John
Sullivan, into the Record.
House of Representatives,
Office of the Parliamentarian,
Washington, DC, October 2, 2007.
Hon. Louise McIntosh Slaughter,
Committee on Rules, House of Representatives,Washington, DC.
Dear Chairwoman Slaughter: Thank you for your letter of
October 2, 2007, asking for an elucidation of our advice on
how best to word a special rule. As you also know, we have
advised the committee that language waiving all points of
order ``except those arising under clause 9 of rule XXI''
should not be adopted as boilerplate for all special rules,
notwithstanding that the committee may be resolved not to
recommend that the House waive the earmark-disclosure
requirements of clause 9.
In rule XXI, clause 9(a) establishes a point of order
against undisclosed earmarks in certain measures and clause
9(b) establishes a point of order against a special rule that
waives the application of clause 9(a). As illuminated in the
rulings of September 25 and 27, 2007, clause 9(a) of rule XXI
does not comprehensively apply to all legislative
propositions at all stages of the legislative process.
Clause 9(a) addresses the disclosure of earmarks in a bill
or joint resolution, in a conference report on a bill or
joint resolution, or in a so-called ``manager's amendment''
to a bill or joint resolution. Other forms of amendment--
whether they be floor amendments during initial House
consideration or later amendments between the Houses--are not
covered. (One might surmise that those who developed the rule
felt that proposals to amend are naturally subject to
immediate peer review, though they harbored reservations
about the so-called ``manager's amendment,'' i.e., one
offered at the outset of consideration for amendment by a
member of a committee of initial referral under the terms of
a special rule.)
The. question of order on September 25 involved a special
rule providing for a motion to dispose of an amendment
between the Houses. As such, clause 9(a) was inapposite. It
had no application to the motion in the first instance.
Accordingly, Speaker pro tempore Holden held that the special
rule had no tendency to waive any application of clause 9(a).
The question of order on September 27 involved a special rule
providing (in pertinent part) that an amendment be considered
as adopted. Speaker pro tempore Blumenauer employed the same
rationale to hold that, because clause 9(a) had no
application to the amendment in the first instance, the
special rule had no tendency to waive any application of
clause 9(a).
The same would be true in the more common case of a
committee amendment in the nature of a substitute made in
order as original text for the purpose of further amendment.
Clause 9(a) of rule XXI is inapposite to such an amendment.
In none of these scenarios would a ruling by a presiding
officer hold that earmarks are or are not included in a
particular measure or proposition Under clause 9(b) of rule
XXI, the threshold question for the Chair--the cognizability
of a point of order--turns on whether the earmark-disclosure
requirements of clause 9(a) of rule XXI apply to the object
of the special rule in the first place. Embedded in the
question whether a special rule waives the application of
clause 9(a) is the question whether clause 9(a) has any
application.
In these cases to which clause 9 of rule XXI has no
application in the first instance, stating a waiver of all
points of order except those arising under that rule--when
none can so arise--would be, at best, gratuitous. Its
negative implication would be that such a point of order
might lie. That would be as
[[Page H11567]]
confusing as a waiver of all points of order against
provisions of an authorization bill except those that can
only arise in the case of a general appropriation bill (e.g.,
clause 2 of rule XXI). Both in this area and as a general
principle, we try hard not to use language that yields a
misleading implication.
I appreciate your consideration and trust that this
response is to be shared among all members of the committee.
Our office will share it with all inquiring parties.
Sincerely,
John V. Sullivan,
Parliamentarian.
This amendment, Mr. Speaker, will restore the accountability and the
enforceability of the earmark rule to where it was at the end of the
109th Congress, to provide Members with an opportunity to bring the
question of earmarks before the House for a vote.
I urge my colleagues to close this loophole by opposing the previous
question.
Mr. Speaker, I ask unanimous consent to insert the text of the
amendment and extraneous materials immediately prior to the vote on the
previous question.
The SPEAKER pro tempore (Mr. Capuano). Is there objection to the
request of the gentleman from Florida?
There was no objection.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I yield back the
balance of my time.
Ms. SLAUGHTER. Mr. Speaker, I think this is a momentous day for the
House. We have before us today a resolution that has been approved by
both sides of the aisle, worked on with great consideration as concerns
the Constitution. We are very happy to present it today. We think its
importance is certainly easily explained and necessary.
I urge a ``yes'' vote on the previous question and on the rule.
The material previously referred to by Mr. Lincoln Diaz-Balart of
Florida is as follows:
Amendment to H. Res. 742 Offered by Mr. Lincoln Diaz-Balart of Florida
At the end of the resolution, add the following:
Sec. 3. That immediately upon the adoption of this
resolution the House shall, without intervention of any point
of order, consider the resolution (H. Res. 479) to amend the
Rules of the House of Representatives to provide for
enforcement of clause 9 of rule XXI of the Rules of the House
of Representatives. The resolution shall be considered as
read. The previous question shall be considered as ordered on
the resolution to final adoption without intervening motion
or demand for division of the question except: (1) one hour
of debate equally divided and controlled by the chairman and
ranking minority member of the Committee on Rules; and (2)
one motion to recommit.
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
109th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Democratic majority agenda and a vote to allow
the opposition, at least for the moment, to offer an
alternative plan. It is a vote about what the House should be
debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives, (VI, 308-311) describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution ..... [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress (page
56). Here's how the Rules Committee described the rule using
information from Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Ms. SLAUGHTER. Mr. Speaker, I yield back the balance of my time, and
I move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the
yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
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