[Congressional Record Volume 154, Number 124 (Saturday, July 26, 2008)]
[Senate]
[Pages S7509-S7511]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         ADVANCING AMERICA'S PRIORITIES ACT--MOTION TO PROCEED


                             Cloture Motion

  Mr. REID. Mr. President, I move to proceed to Calendar No. 894, S. 
3297. With that, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 894, S. 3297, the Advancing America's 
     Priorities Act.
         Harry Reid, Jon Tester, Carl Levin, Christopher J. Dodd, 
           Maria Cantwell, Benjamin L. Cardin, Daniel K. Inouye, 
           Hillary Rodham Clinton, Kent Conrad, Bernard Sanders, 
           Patty Murray, Debbie Stabenow, Ron Wyden, Patrick J. 
           Leahy, Max Baucus, Dianne Feinstein, Richard Durbin, 
           Robert Menendez, Sherrod Brown.

  Mr. REID. Mr. President, pursuant to rule XLIV of the Standing Rules 
of the Senate, I hereby certify that, to the best of my knowledge and 
belief based upon information provided to me by the committees of 
jurisdiction, S. 3297 does not contain any congressionally directed 
spending item, limited tax benefit, or limited tariff benefit, as those 
terms are defined in rule XLIV.
  There are no tax or tariff provisions in the bill whatsoever. Nor do 
I believe the bill contains any ``congressionally directed spending 
items'' which rule XLIV defines as ``a provision or report language 
included primarily at the request of a Senator providing, authorizing, 
or recommending a specific amount of discretionary budget authority, 
credit authority, or other spending authority for a contract, loan, 
loan guarantee, grant, loan authority, or other expenditure with or to 
an entity, or targeted to a specific State, locality or Congressional 
district, other than through a statutory or administrative formula-
driven or competitive award process.''
  To clear up any misconceptions, the bill provides only 
authorizations--enactment of the bills would have no effect on the 
Federal budget deficit or debt. As the nonpartisan CBO stated in a 
letter regarding S. 3297, ``By themselves--that is, in the absence of 
subsequent legislation--those authorizations [in S. 3297] do not cause 
changes in Federal spending or revenues.'' I wish to ask that a copy of 
this and a related CBO letter be printed in the Record.
  As a formal matter, no provision of S. 3297 could qualify as a 
congressionally directed spending item under rule XLIV because no 
provision was added ``primarily at the request of a Senator.'' S. 3297 
is a compilation of bills identified by my staff as meeting the 
following criteria: No. 1. the other Chamber has approved companion 
legislation; No. 2. the Senate committee of jurisdiction supports the 
bill, e.g., by approving it in Committee, by assenting to a 
``hotline,'' et cetera; No. 3. the bill has broad bipartisan support, 
and No. 4, to the best of our knowledge the only impediment to enacting 
the bill was the obstruction of a single Member of the Senate. Bills 
were included in the package because they met these criteria, not 
``primarily at the request of a Senator.'' That is, with one exception 
noted below, if a bill satisfied these criteria, it was included in the 
package regardless of whether a Senator requested its inclusion, and if 
it did not satisfy these criteria, it was not included regardless of 
whether a Senator requested its inclusion.
  The only item in the package that does not meet all of these criteria 
is the Prenatally and Postnatally Diagnosed Conditions Awareness Act, 
S. 1810, introduced by Senator Brownback and cosponsored by Senator 
Kennedy, because it has not yet been passed by the House. Senator 
Brownback requested inclusion of the provision in the package, Senator 
Kennedy supported the bill, and it apparently has broad bipartisan 
support. No provision of that act could be considered a congressionally 
directed spending item, limited tax benefit, or limited tariff benefit.
  But because the spirit of transparency underlying rule XLIV is not 
served by such a formal approach, my staff asked the committees of 
jurisdiction to identify any item that might be considered a 
congressionally directed spending item in the respective bills as 
considered by committee. Each committee indicated that it did not 
believe any item included in S. 3297 within its respective jurisdiction 
meets the definition of a congressionally directed spending item.
  The Advancing America's Priorities Act includes many important bills, 
including the following: a bill to promote research into and better 
care for those suffering from Lou Gehrig's disease; a bill to promote 
research into and better care for Americans suffering paralysis, a 
healthcare problem all too prevalent among our brave veterans; a bill 
to promote research into and better care for individuals who suffer 
strokes; a bill to promote research into and awareness of postpartum 
depression; several bills to protect children from exploitation and to 
crack down on child pornography; several bills to reauthorize 
successful U.S. foreign policy programs; a bill to promote the safety 
of families enjoying America's beaches; a bill to help increase the 
availability of broadband throughout the United States; several bills 
to improve our understanding of the oceans; and a bill to promote 
investments in mitigating risks before a disaster strikes, saving the 
Federal and State governments money in the long run.
  To avoid specious arguments that distract from the substance of these 
important bills, and in the interest of the broadest possible 
transparency, I provide here information about each of the items that 
even might be alleged to be a congressionally directed spending item.
  One subtitle in the bill, title VI, subtitle A, authorizes $1.5 
billion in funding for capital investments and preventive maintenance 
projects for the Washington Metropolitan Area Transit Authority, an 
authority established pursuant to a compact provided for under Federal 
law. Over 40 percent of the Washington Metro ridership consists of 
Federal employees. The Government relies upon Metro for transporting 
the millions of tourists who visit the Nation's Capital each year, for 
special events, and for evacuation planning. Since the Metro was first 
built, the Federal Government has made capital investments in the Metro 
on three separate occasions: 1969, 1980, and 1990. Apparently, a 
Republican Senator is claiming this subtitle constitutes an 
``earmark.'' Assuming that the term ``earmark'' is intended to be 
synonymous with ``congressionally directed spending item,'' this claim 
appears to be inaccurate. Under this theory of what constitutes a 
``congressionally directed spending item,'' nearly every authorization 
or appropriation relating to an entity within the government of 
Washington, DC, would be considered an earmark. The House did not 
consider the legislation to contain an earmark under equivalent House 
rules. Senators Mikulski, Warner, Cardin, and Webb sent a letter 
supporting inclusion of this provision in the package. It was included 
because it satisfied the criteria noted above.
  Another item in the bill, title VII, authorizes $12 million for the 
Smithsonian Institution to construct a greenhouse facility at its 
museum support facility in Suitland, MD. The lease on the greenhouse 
currently used by the Smithsonian Institution expires next May. If the 
Smithsonian Institution does not obtain a new greenhouse facility, it 
will have to find a way to dispose of the scientifically important 
National Orchid Collection, over 11,000 orchids, many of which are 
extinct or threatened in the wild. Further, the greenhouse is important 
to the historic gardens surrounding the Smithsonian Museums. The 
provision would not appear to meet the definition of a congressionally 
directed spending item in any event because it is a House-originated 
item, the House committee noted that the legislation was requested by 
the Smithsonian Institution--the authorization is directed to a Federal 
trust instrumentality, and money appropriated under the provision would 
be spent under a competitive bidding process. The House committee of 
jurisdiction stated that it was unclear whether the provision met the 
definition of a ``congressional earmark''

[[Page S7510]]

under equivalent House rules. Senators Dodd and Leahy expressed their 
support for including the provision in the package. It was included 
because it satisfied the criteria noted above.
  One bill in the package--title V, subtitle B, part II, subpart B--
authorizes funding for the National Oceanic and Atmospheric 
Administration, NOAA, to advance undersea technology through the 
National Institute for Undersea Science and Technology. This technology 
supports NOAA's Undersea Research Program's, NURP's, regional centers. 
The National Institute for Undersea Science and Technology was 
established in 2002 at the University of Mississippi--Oxford, MS--and 
the University of Southern Mississippi--Stennis Space Center, MS--in 
partnership with NURP's. The National Technology Institute and undersea 
regional centers undergo periodic external review. According to the 
best information available to me, funds under the provision would be 
administered through a competitive award process, and therefore this 
provision would not appear to constitute a congressionally directed 
spending item. A similar provision in a House companion bill was not 
treated as an earmark under equivalent House rules. According to the 
best information available to me, Senator Cochran requested inclusion 
of the provision in the original committee-passed bill. The part of the 
bill in which the provision is located was not included in the package 
at the request of a Senator; it was included because it satisfied the 
criteria noted above.
  Finally, another item in the bill authorizes $5 million in funding 
for the Museum of the History of Polish Jews, Title IV, subtitle F. 
This provision would not appear to meet the Rule XLIV definition of 
``congressionally directed spending item'' as it is a House-originated 
item, there is no indication that the House treated it as containing an 
earmark under equivalent House rules, and it is clear that support for 
the provision is based on widespread agreement with the policy 
underlying it, not parochial interests--the House bill passed the House 
of Representatives by a vote of 407 to 13. The provision was not 
included at the request of a Senator; it was included because it 
satisfied the criteria noted above.
  Mr. President, I ask unanimous consent to have the two letters to 
which I referred printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                                  Congressional Budget Office,

                                    Washington, DC, July 25, 2008.
     Hon. Harry Reid,
     Majority Leader,
     U.S. Senate, Washington, DC.
       Dear Mr. Leader: The Congressional Budget Office has 
     reviewed S. 3297, a bill to advance America's priorities, as 
     introduced on July 22, 2008. The bill includes numerous 
     provisions that would affect health care, criminal statutes, 
     laws to protect wildlife and the environment, international 
     aid programs, efforts to promote commerce, ocean research, 
     and other government programs.
       Most of the bill's provisions would specifically or 
     implicitly authorize increased appropriations for purposes 
     specified in the bill. By themselves--that is, in the absence 
     of subsequent legislation--those authorizations do not cause 
     changes in federal spending or revenues.
       Although CBO has not completed a comprehensive review of S. 
     3297, we have previously prepared cost estimates for numerous 
     pieces of legislation that are similar or identical to most 
     of the major provisions in this bill. Based on those previous 
     estimates and on a preliminary review of S. 3297, CBO 
     estimates that, in total, the bill would authorize the 
     appropriation of approximately $10 billion over the 2009-2013 
     period. CBO estimates that, if those sums are appropriated in 
     future legislation, implementing the bill would cost about $8 
     billion over the 2009-2013 period.
       Some provisions of S. 3297 would establish new federal 
     crimes. Because those prosecuted and convicted under S. 3297 
     could be subject to criminal fines, the federal government 
     might collect additional fines if the legislation is enacted. 
     Criminal fines are recorded as revenues, then deposited in 
     the Crime Victims Fund, and later spent. CBO expects that any 
     additional revenues and direct spending would not be 
     significant because of the relatively small number of cases 
     affected.
       S. 3297 contains no intergovernmental mandates as defined 
     in the Unfunded Mandates Reform Act (UMRA). The bill would 
     impose a private-sector mandate on certain entities that 
     handle nonhuman primates, but CBO expects that the cost of 
     the mandate would fall well below the annual threshold 
     established in UMRA for private-sector mandates ($136 million 
     in 2008, adjusted for inflation).
       If you wish any further details, we will be pleased to 
     provide them. The CBO staff contact is Kim Cawley.
           Sincerely,
                                                  Peter R. Orszag,
     Director.
                                  ____



                                  Congressional Budget Office,

                                    Washington, DC, July 25, 2008.
     Hon. Kent Conrad,
     Chairman, Committee on the Budget,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: This letter responds to the questions 
     you posed on July 17, 2008, about the impact on the federal 
     budget from enacting legislation that authorizes future 
     appropriations but does not affect direct spending or 
     revenues. Consequently, this letter does not address 
     legislation that would permit agencies to incur obligations 
     in advance of appropriations (for example, legislation 
     providing new contract authority).
       Question #1: Does an authorization of future appropriations 
     provide the authority for federal programs or agencies to 
     incur obligations and make payments from the Treasury?
       Answer: No. A simple authorization of appropriations does 
     not provide an agency with the authority to incur obligations 
     or make payments from the Treasury.
       Question #2: Can an agency or program spend money without 
     the authority from Congress to incur obligations and make 
     payments from the Treasury?
       Answer: No. An agency is not allowed to spend money without 
     the proper authority from Congress to incur obligations. (See 
     31 U.S.C. Sec. 1341, which outlines limitations on expending 
     and obligating funds by officers and employees of the United 
     States Government.)
       Question #3: Even if legislation authorizes appropriations 
     for a program, isn't it the case that a subsequent act of 
     Congress is required before an agency can spend money 
     pursuant to the authorization?
       Answer: Yes. For discretionary programs created through an 
     authorization, the authority to incur obligations is usually 
     provided in a subsequent appropriations act. An agency must 
     have such an appropriation before it can incur obligations. 
     (Legislation other than appropriation acts that provides such 
     authority is shown as increasing direct spending.)
       Question #4: If no new spending can occur under the 
     authorizing legislation, does it have the effect of 
     increasing the federal deficit and/or reducing the federal 
     surplus?
       Answer: No. An authorization of appropriations, by itself, 
     does not increase federal deficits or decrease surpluses. 
     However, any subsequent appropriation to fund the authorized 
     activity would affect the federal budget.
       Question #5: Would CBO's projection of federal debt change 
     as a result of enacting legislation that only authorizes 
     future appropriations? Is it not correct that the agency's 
     projection of future debt would be identical both before and 
     after the enactment of such legislation?
       Answer: Enacting legislation that only authorizes future 
     appropriations would not result in an increase in CBO's 
     projection of federal debt under its baseline assumptions.
       I hope this information is useful to you.
           Sincerely,
                                                  Peter R. Orszag,
                                                         Director.

  Mr. WEBB. Mr. President, I do not believe that the provisions of 
title VI, subtitle A of S. 3297 corresponding to the National Capital 
Transportation Amendments Act constitute a ``congressionally directed 
spending item.'' However, out of an abundance of caution and after 
discussions with the Senate Select Committee on Ethics, and pursuant to 
my best of understanding of Senate rule XLIV, I certify that neither I 
nor my immediate family has a pecuniary interest in the provisions of 
title VI, subtitle A of S. 3297, consistent with the requirements of 
paragraph 9 of rule XLIV of the Standing Rules of the Senate.
  Mr. CARDIN. Mr. President, I do not believe that the provisions of 
title VI, subtitle A of S. 3297, corresponding to the National Capital 
Transportation Amendments Act of 2007, constitute a ``congressionally 
directed spending item,'' but out of an abundance of caution, I certify 
that neither I nor my immediate family has a pecuniary interest in the 
provisions of title VI, subtitle A of S. 3297, consistent with the 
requirements of paragraph 9 of rule XLIV of the Standing Rules of the 
Senate.
  Ms. MIKULSKI. Mr. President, I rise in strong support of the 
Advancing America's Priorities Act. I do not believe that the 
provisions of title VI, subtitle A of this bill, corresponding to the 
National Capital Transportation Amendments Act, constitute a 
``congressionally directed spending item,'' but out of an abundance of 
caution, I certify that neither I nor my immediate family has a 
pecuniary interest

[[Page S7511]]

in the provisions of title VI, subtitle A of this bill, consistent with 
the requirements of paragraph 9 of rule XLIV of the Standing Rules of 
the Senate.
  Mr. LEAHY. Mr. President, I do not believe that the provisions of 
title VII of the Advancing America's Priorities Act, S. 3297, 
constitute a ``congressionally directed spending item,'' as defined by 
Public Law 110-81, but out of an abundance of caution I certify that 
neither I nor my immediate family has a pecuniary interest in the 
provisions of title VII of S. 3297, consistent with the requirements of 
paragraph 9 of Rule XLIV of the Standing Rules of the Senate.
  Mr. DODD. Mr. President, I rise today to thank the majority leader, 
Senator Reid, for including in S. 3297, the Advancing America's 
Priorities Act, an important initiative to support the horticulture 
operations of the Smithsonian Institution. Without this needed support, 
the Smithsonian Institution would not be able to maintain or continue 
the same level of horticulture services it currently provides.
  I additionally want to thank Senator Feinstein, chair of the Senate 
Committee on Rules and Administration, for her support of this 
important initiative. I would also like to note the support for this 
effort of Senators Leahy and Cochran and thank them for their work to 
preserve the Smithsonian's many valuable contributions.
  I do not believe that the provisions of title VII of S. 3297 
constitute a ``congressionally directed spending item,'' but out of an 
abundance of caution I certify that neither I nor my immediate family 
has a pecuniary interest in the provisions of title VII of S. 3297, 
consistent with the requirements of paragraph 9 of rule XLIV of the 
Standing Rules of the Senate.
  Mr. President, I urge my colleagues to support this important and 
needed initiative to support the horticulture operations of the 
Smithsonian Institution.

                          ____________________