[Congressional Record Volume 154, Number 147 (Tuesday, September 16, 2008)]
[House]
[Pages H8152-H8157]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 6899, COMPREHENSIVE AMERICAN ENERGY 
                  SECURITY AND CONSUMER PROTECTION ACT

  Ms. SLAUGHTER. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 1433 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 1433

       Resolved, That upon the adoption of this resolution it 
     shall be in order to consider in the House the bill (H.R. 
     6899) to advance the national security interests of the 
     United States by reducing its dependency on oil through 
     renewable and clean, alternative fuel technologies while 
     building a bridge to the future through expanded access to 
     Federal oil and natural gas resources, revising the 
     relationship between the oil and gas industry and the 
     consumers who own those resources and deserve a fair return 
     from the development of publicly owned oil and gas, ending 
     tax subsidies for large oil and gas companies, and 
     facilitating energy efficiencies in the building, housing, 
     and transportation sectors, and for other purposes. All 
     points of order against consideration of the bill are waived 
     except those arising under clause 9 or 10 of rule XXI. The 
     bill shall be considered as read. All points of order against 
     provisions of the bill are waived. The previous question 
     shall be considered as ordered on the bill to final passage 
     without intervening motion except: (1) three hours of debate 
     equally divided and controlled by the chairman and ranking 
     minority member of the Committee on Natural Resources; and 
     (2) one motion to recommit.
       Sec. 2.  During consideration of H.R. 6899 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.

                             Point of Order

  Mr. CANTOR. Mr. Speaker, I make a point of order against 
consideration of the resolution because it is in violation of section 
426(a) of the Congressional Budget Act. The resolution provides that 
all points of order against consideration of the bill are waived except 
those arising under clause 9 and 10 of rule XXI. This waiver of all 
points of order includes a waiver of section 425 of the Congressional 
Budget Act, which causes the resolution to be in violation of section 
426(a).
  The SPEAKER pro tempore. The gentleman from Virginia makes a point of 
order that the resolution violates section 426(a) of the Congressional 
Budget Act of 1974.
  The gentleman has met the threshold burden to identify the specific 
language in the resolution on which the point of order is predicated. 
Such a point of order is disposed of by the question of consideration.
  The gentleman from Virginia (Mr. Cantor) and the gentlewoman from New 
York (Ms. Slaughter) each will control 10 minutes of debate on the 
question of consideration.
  After that debate, the Chair will put the question of consideration, 
to wit: Will the House now consider the resolution?
  The Chair recognizes the gentleman from Virginia.
  Mr. CANTOR. Mr. Speaker, last night, the Committee on Ways and Means 
certified that the underlying legislation contained no earmarks, and 
under the rules there is no other way to challenge that certification, 
which is one of the reasons why I stand before you today.
  Provisions in H.R. 6899 calling for the restructuring of the New York 
Liberty Bonds is clearly an earmark. This earmark is worth $1.2 billion 
and stands to benefit one entity, which is New York City.
  I have a letter, Mr. Speaker, dated October 30, 2007, from the chief 
of staff of the Joint Committee on Taxation in which he determines that 
the New York Liberty Zone tax incentives is a limited tax benefit and 
therefore an earmark. Furthermore, Mr. Speaker, according to House rule 
XXI, clause 9, and the Honest Leadership and Open Government Act of 
2007, this earmark should have been disclosed along with the Member 
that requested the same.
  From all reports, Mr. Speaker, instead of going through the proper 
procedure, disclosing that this was going to be included in the bill, 
this provision was air-dropped into the bill over the weekend at the 
last minute without any ability for any of the Members to know that 
this was in the bill.
  Reports say that it is the chairman of the Ways and Means Committee, 
Representative Rangel, that has requested this earmark. Yet how are we 
to know whether Chairman Rangel is the sponsor of this earmark, since 
there has been no transparency and no notification as required under 
the rule?
  Furthermore, Mr. Speaker, this earmark produces no energy for 
American families, and the way that the majority plans to pay for this 
earmark is by raising taxes on job creation as well as energy 
production.
  Mr. Speaker, we are going to hear a lot today during the debate about 
revenue sharing and the fact that many coastal States, including my 
State of Virginia, will not be able to share in any of the revenues 
resulting from energy exploration off our coast. In light of this, in 
light of the fact that there is no incentive whatsoever to produce 
energy in this bill, in light of that, when we see that the majority is 
channeling $1.2 billion to New York City for an earmark for a project 
that only benefits that locality, I think that we understand now what 
the intent of the majority is in bringing the bill to the floor in this 
form.
  There is zero relationship between increasing American energy 
production and this earmark, Mr. Speaker, which again underlies my 
objection and is one of the reasons why I raise this point of order.
  Mr. Speaker, I reserve the balance of my time.
  Ms. SLAUGHTER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, the point of order is about whether to consider the rule 
and ultimately the Comprehensive American Energy Security and Consumer 
Protection Act. In fact, I would say this is simply an effort to kill 
the bill.
  In the midst of the energy crisis, the bill takes important steps 
towards increasing domestic energy production, encouraging the 
development of alternative fuels and cutting down on the corruption 
between the Bush administration regulators and the oil industry.
  By expanding access to offshore oil reserves, the bill encourages oil 
exploration and could lead to increased domestic energy production.
  By releasing oil from the Strategic Petroleum Reserve, the bill will 
lead quickly to reducing prices at the pump.
  In light of an Inspector General report showing that Minerals 
Management Service employees were accepting gifts from the oil 
companies they regulate, engaging in unethical sexual and drug conduct, 
this bill would subject the MMS employees to higher ethical standards 
and make it a Federal offense for oil companies to provide gifts for 
MMS employees.

                              {time}  1230

  By promoting energy efficiency and conservation in buildings, through 
updated building codes and incentives for energy-efficient 
construction, this bill will lead to reduced energy use and lower 
utility bills. At the same time, by providing more funding for home 
heating assistance, we ensure that seniors and other vulnerable 
populations will not have to choose between food and heating oil.

[[Page H8153]]

  By providing incentives and support for development and deployment of 
domestic alternative energy technologies, the bill will promote energy 
security for the United States. Under this bill, power companies would 
be required to generate 15 percent of their electricity from renewable 
sources by 2020, reducing air pollution from power plants and helping 
to address the threat of climate change.
  As Americans use more public transportation in the face of high gas 
prices, this bill will help transit agencies deal with added costs and 
increased ridership by providing $1.7 billion in grants. At a time of 
record-breaking oil company profits, the bill will require the oil 
companies to pay their fair share by repealing tax subsidies that they 
certainly don't need, and by closing a royalty loophole in lease 
agreements from 1998 and 1999.
  In short, the bill is a much-needed compromise approach to a 
widespread crisis facing our country. This is simply a case today 
whether we support, with our votes, the oil companies or the consumers 
and the citizens of the United States.
  I urge my colleagues to vote ``yes'' to consider the rule and reserve 
the balance of my time.
  Mr. CANTOR. Mr. Speaker, I would say in all respect to my colleague 
from New York, I still don't understand how the insertion of this 
earmark, this insertion of $1.2 billion, has anything whatsoever to do 
with this bill, has anything whatsoever to do with increasing American 
energy production, which is the purpose of this bill, which is the 
majority's stated purpose, that we want to increase American energy 
production.
  But, instead, what the gentlelady talks about, again, is not at all 
responsive to what it was that I was raising. We don't have to have a 
vote on this issue if the gentlelady would accept unanimous consent to 
remove the earmark from the bill to go forward.
  Again, why are we having this earmark, this $1.2 billion earmark? 
This is exactly what the American public is so upset with Congress 
about, the fact that we have a bill that is designed to increase 
American energy production to help us try and wean off of the 
incredible reliance that we have on foreign oil. Why? The public has to 
be asking why in the world would we be inserting $1.2 billion in 
directed funds to one locality. Why in the world would we be doing 
that?
  It does not make any sense. The fact that the Ways and Means 
Committee has certified that this is not an earmark, to me, flies in 
the face of the open and honest way that the majority has said they 
would run this House.
  Again, I have a letter from the chief of staff from the Committee on 
Joint Tax which says that the New York City Liberty Bonds and the 
provisions calling for their restructuring is an earmark. Again, I say 
to the majority, if we are going to be straightforward in our desire to 
solve the problem of American energy production, this earmark has no 
place in the bill.
  Mr. Speaker, I reserve the balance of my time.
  Ms. SLAUGHTER. Mr. Speaker, may I inquire how much time I have left?
  The SPEAKER pro tempore. The gentlewoman has 7 minutes.
  Ms. SLAUGHTER. Mr. Speaker, I would like to yield 3 minutes to the 
gentleman from New York (Mr. Crowley).
  Mr. CROWLEY. I thank the gentlelady from New York for yielding me 
this time.
  Mr. Speaker, I have often wondered what the capacity for remembering 
my colleagues on the other side of the aisle have. Apparently, it 
extends no further than 7 years and 5 days. Seven years and 5 days ago, 
my city, the City of New York, was attacked on 9/11. Have you forgotten 
that?
  For the purposes of your point of order in opposition to this bill 
coming to the floor, it's the lack of someone taking responsibility for 
the $1.2 billion that you call an earmark. It's Crowley, C-r-o-w-l-e-y. 
It's the U.S. Congress that did this 7 years ago, after our country was 
attacked on 9/11, 7 years and 5 days ago.
  I, 5 days ago, stood out on the steps of the Capitol and sang ``God 
Bless America'' with both my colleagues from the Republican side of the 
aisle and this side of the aisle. What we are doing today is simply 
fulfilling a promise, a promise.
  This is not an earmark. This is already law. We are adapting it, we 
are changing it so New York can use the money. But I need to remind my 
colleagues on this side of the aisle, there is still a 16\1/2\ or 17-
acre hole in lower Manhattan. We need to do all we can to help rebuild 
that, rebuild the economy of New York.
  I daresay my colleagues from New York on the other side of the aisle, 
they are opposed to this point of order. They will oppose your position 
on this point of order, because they know this is not an earmark.
  They know this is going to help rebuild New York. It's a promise that 
was made by the administration. The President does not call it an 
earmark. It is in the President's budget.
  I would also object to what my friend, the colleague from Virginia, 
said about the chief of staff on the Joint Tax Committee. Ed Kleinbard, 
on May 15 of this year, stated that on the issue of limited tax 
benefits, the answer is that this is a matter wholly within the 
prerogative of the chairman. He alone decides this issue.
  Mr. Rangel does not call it an earmark; I don't call it an earmark. I 
daresay, many of your colleagues on your side of the aisle do not call 
it an earmark. This is not an earmark. This is to help New York City 
rebuild after 9/11.
  With all that's going on, as we read in the papers today about the 
markets, New York City is under tremendous duress. Don't add to that. 
Don't add to that today by bringing up this type of tactic to limit the 
ability of New York City to rebuild itself.
  Mr. CANTOR. Mr. Speaker, I would like to insert the letter I quoted 
from in the Record.


                               MEMORANDUM

     To: Bill Dauster, Deputy Chief of Staff, Senate Finance 
         Committee.
     From: Ed Kleinbard.
     Date: October 30, 2007.
     Subject: ApplicationV Senate Rule XLIV (relating to limited 
         tax benefits) to sec. 301 of the American Infrastructure 
         Investment Improvement Act of 2007 (as passed by the 
         Senate Finance Committee on September 21, 2007).
     Request
       You have requested that the staff of the Joint Committee on 
     Taxation analyze the application of Senate Rule XLIV's 
     limited tax benefit provision to section 301 of the American 
     Infrastructure Investment and Improvement Act of 2007 
     (``Section 301''), as passed by the Senate Finance Committee 
     (relating to the restructuring of New York Liberty Zone tax 
     incentives). I offer this analysis at your request to assist 
     Chairman Baucus in making his determination of this issue, as 
     contemplated by Rule XLIV.
     Senate Rule XLIV
       Section 521 of the Honest Leadership and Open Government 
     Act of 2007 (the ``HLOGA'') provides for ``earmark'' reform. 
     Specifically, HLOGA adds a new Rule XLIV to the Standing 
     Rules of the Senate. Under this rule, ``it shall not be in 
     order to vote on a motion to proceed to consider a bill or 
     joint resolution reported by any committee unless the 
     chairman of the committee of jurisdiction, or majority leader 
     or his or her designee certifies: (1) that each 
     congressionally directed spending item, limited tax benefit, 
     and limited tariff benefit, if any, in the bill or joint 
     resolution, or the committee report accompanying the bill or 
     joint resolution, has been identified through lists, charts, 
     or other similar means including the name of each senator who 
     submitted the request to the committee; and (2) that the 
     information in clause (1) has been available on a publicly 
     accessible congressional website in a searchable format at 
     least 48 hours before such vote''. Failure to satisfy this 
     requirement makes a bill or joint resolution subject to a 
     point of order until these requirements are satisfied under 
     the rule.
       For purposes of the rule, the following definitions apply.
       A congressionally directed spending item ``means 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.''
       A limited tax benefit ``means any revenue provision that 
     (A) provides a Federal tax deduction, credit, exclusion, or 
     preference to a particular beneficiary or limited group of 
     beneficiaries under the Internal Revenue Code of 1986; and 
     (B) contains eligibility criteria that are not uniform in 
     application with respect to potential beneficiaries of such 
     provision.''
       A limited tariff benefit ``means a provision modifying the 
     Harmonized Tariff Schedule of

[[Page H8154]]

     the United States in a manner that benefits 10 or fewer 
     entities.''
     Senate Floor Statement
       A colloquy between Senators Baucus, Durbin, and Grassley 
     provides some guidance regarding how the new rule will be 
     applied in the case of limited tax benefits. In relevant part 
     the colloquy states:
       For more guidance, we also recommend the interpretative 
     guidelines developed by the staff of the Joint Committee on 
     Taxation in response to the prior-law line item veto. These 
     guidelines may also be applicable to the interpretation of 
     the proposed earmark disclosure rules for limited tax 
     benefits in this bill. The Joint Committee on Taxation 
     documents are called, first, the ``Draft Analysis of 
     Issues and Procedures for Implementation of Provisions 
     Contained in the Line Item Veto Act, Public Law 104-130, 
     relating to Limited Tax Benefits,'' that's Joint Committee 
     on Taxation document number JCX-48-96, and second, the 
     ``Analysis of Provisions Contained in the Line Item Veto 
     Act, Public Law 104-130, relating to Limited Tax 
     Benefits,'' that's Joint Committee on Taxation document 
     number JCS-1-97.
       The proposed rule in this bill would require the disclosure 
     of limited tax benefits. It would define a limited tax 
     benefit to mean any revenue provision that, first, provides a 
     Federal tax deduction, credit exclusion, or preference to a 
     particular beneficiary or limited group of beneficiaries 
     under the Internal Revenue Code of 1986; and second, contains 
     eligibility criteria that are not uniform in application with 
     respect to potential beneficiaries of such provision.
       The proposed rule would apply in most cases where the 
     number of beneficiaries is 10 or fewer for a particular tax 
     benefit. But the Finance Committee will not be bound by an 
     arbitrary numerical limit such as ``10 or fewer.'' Rather, we 
     will apply the standard appropriately within the unique 
     circumstances of each proposal. For example, if a proposal 
     gave a tax benefit directed only to each of the 11 head 
     football coaches in the Big Ten Conference, we may conclude 
     that the rule would nonetheless require disclosure of this 
     benefit, even though the number of beneficiaries would be 
     more than 10.
       We will not limit the application of the proposed rule to 
     proposals that result in a reduction in Federal receipts 
     relative to the applicable present-law baseline. We believe 
     that the proposed rule would have application to limited tax 
     benefits that provide a tax cut relative to present law for 
     certain beneficiaries, like, for example, a tax rate 
     reduction for certain beneficiaries. But we also believe that 
     the rule would apply to limited tax benefits that provide a 
     temporary or permanent tax benefit relative to a tax increase 
     provided in the proposal, like, for example, exempting a 
     limited group of beneficiaries from an otherwise applicable 
     across-the-board tax rate increase.
       For example, a new tax credit for any National Basketball 
     Association players who scored 100 points or more in a single 
     game would be covered by the rule. And the rule would also 
     cover a new income tax surtax on players in the National 
     Hockey League that exempted from the new income surtax any 
     players who were exempted from the league's requirement that 
     players wear helmets when on the ice.
       The rule defines a beneficiary as a taxpayer; that is, a 
     person liable for the payment of tax, who is entitled to the 
     deduction, credit, exclusion, or preference. Beneficiaries 
     include  entities that are liable for payroll tax, excise 
     tax, and the tax on unrelated business income on certain 
     activities.
       The rule does not define a beneficiary as the person 
     bearing the economic incidence of the tax. For example, in 
     some instances, a taxpayer may pass the economic incidence of 
     a tax liability or tax benefit to that taxpayer's customers 
     or shareholders. The proposed rule would look to the number 
     of taxpayers. That number is easier to identify than the 
     number of persons who might bear the incidence of the tax.
       In determining the number of beneficiaries of a tax 
     benefit, we will use rules similar to those used in the 
     prior-law line item veto legislation. For example, we will 
     treat a related group of corporations as one beneficiary for 
     these purposes. Without such a rule, a parent corporation 
     could avoid application of the disclosure rule by simply 
     creating a sufficient number of subsidiary corporations to 
     avoid classification as a limited tax benefit under the 
     proposed rule.
       For example, if a related group of corporations--like 
     parent-subsidiary corporations or brother-sister 
     corporations--owns a football team, then the related group 
     will be considered one beneficiary. That treatment is 
     analogous to the team being one entity, not separate 
     entities, like the coaching staff, offensive unit, defensive 
     unit, specialty unit, and practice squad.
       The time period that we will use for measuring the 
     existence of a limited tax benefit will be the same time 
     period that is used for Budget Act purposes. That is the 
     current fiscal year and 10 succeeding fiscal years. Those are 
     also all the fiscal years for which the Joint Committee on 
     Taxation staff regularly provide a revenue estimate.
       For purposes of determining whether eligibility criteria 
     are uniform in application with respect to potential 
     beneficiaries of such a proposal, we will need to determine 
     the class of potential beneficiaries. In the case of a closed 
     class of beneficiaries--for example, all individuals who hit 
     at least 755 career home-runs before July 2007--that class is 
     not subject to interpretation, since only Henry Aaron 
     satisfies this criteria. If, instead, the defined class of 
     beneficiaries is all individuals who hit at least 755 career 
     home-runs, then we will determine the class of potential 
     beneficiaries by assessing the likelihood that others will 
     join that class over the time period for measuring the 
     existence of a limited tax benefit.
       Whether the eligibility criteria are not uniform in 
     application with respect to potential beneficiaries will be a 
     factual determination. To continue with the previous 
     hypothetical, a proposal that provides a tax benefit to all 
     individuals who hit at least 755 career home-runs may still 
     not require disclosure if it is uniform in application. If 
     the same proposal is altered so as to exclude otherwise 
     eligible career home-run hitters who played for the 
     Pittsburgh Pirates at some point in their career, then that 
     kind of a limited  tax benefit would require disclosure under 
     the proposed rule.
       Some of the guidelines in the Joint Taxation Committee's 
     reports numbered JCX-48-96 and JCS-1-97 would not be directly 
     applicable, but may be helpful in determining the class of 
     potential beneficiaries. For example, the same industry, same 
     activity, and same property rules might provide useful 
     analysis.
     Provision to restructure the New York Liberty Zone tax 
         incentives
       In addition to repealing certain depreciation and expensing 
     provisions previously available in the New York Liberty Zone 
     (the ``NYLZ''), Section 301 provides a Federal credit against 
     the tax imposed for any payroll period by Code section 3402 
     (related to withholding for wages paid) for which a NYLZ 
     governmental unit is liable under Code section 3403. NYLZ 
     governmental units are defined as the State of New York, the 
     City of New York, or any agency or instrumentality of the 
     first two.
       The credit may be claimed during the 12-year period 
     beginning on January 1, 2008 and is equal to certain amounts 
     expended by the governmental units on a qualifying project. A 
     qualifying project is any transportation infrastructure 
     project in or connecting with the NYLZ that is designated by 
     the Governor of the State of New York and the Mayor of the 
     City of New York as a qualifying project. The Governor of the 
     State of New York and the Mayor of the City of New York are 
     to allocate to the New York Liberty Zone governmental units 
     their portion of the qualifying expenditure amount for 
     purposes of claiming the credit. The provision is effective 
     on the date of enactment.
       Congressionally Directed Spending Item or Limited Tax 
           Benefit
       The threshold question is whether Section 301 should be 
     analyzed as a ``congressionally directed spending item'' or 
     as a ``limited tax benefit,'' because Rule XLIV treats the 
     two somewhat differently. It can be argued that Section 301 
     essentially constitutes a ``congressionally directed spending 
     item,'' and therefore that the limited tax benefit analysis 
     is irrelevant. The reasoning supporting this reading is that 
     in the ordinary course, Federal withholdings on employee 
     wages are effectively assets of the U.S. Treasury, and the 
     tax credit made available by Section 301 may be claimed (and 
     withholdings on wages therefore retained rather than being 
     transmitted to the U.S. Treasury) only to the extent that the 
     employer/governmental unit in question incurs expenditures 
     for specifically identified projects.
       Section 301 unquestionably has the economic effect of an 
     appropriation: money otherwise due the U.S. Treasury will, by 
     virtue of this provision, effectively fund (in light of the 
     fungibility of money) a specific expenditure. Nonetheless, 
     this memorandum proceeds upon the assumption that Section 301 
     is a ``tax benefit'' and not a ``spending item.'' We believe 
     that this is an area where legal form, not economic 
     substance, controls. Accordingly, we are of the view that an 
     amendment to the Internal Revenue Code that has an outlay 
     effect is not by virtue of that fact alone a spending item. 
     For example, we believe that the refundable portions of the 
     child tax credit and earned income credit should be 
     considered tax benefits for these purposes, 
     notwithstanding the fact that these provisions have 
     substantial outlay effects.
       Our mode of analysis is dictated by practical necessity: 
     virtually every ``tax expenditure'' could equally well have 
     been implemented by Congress as an appropriation. We take 
     comfort as well in the observation made in the colloquy 
     quoted above that, for purposes of Rule XLIV, the 
     ``beneficiary'' of a limited tax benefit is determined by 
     looking to the formal imposition of tax liability (i.e., by 
     determining who is the relevant ``taxpayer''), not to the 
     party bearing the economic incidence of the tax. The colloquy 
     makes clear that the reason for doing so is one solely of 
     administrative convenience (``The proposed rule would look to 
     the number of taxpayers. That number is easier to identify 
     than the number of persons who might bear the [economic] 
     incidence of the tax.'')
       In this case, Section 301 is structured as a tax credit 
     made available under the Internal Revenue Code to certain 
     employers against their otherwise-existing obligation to 
     remit employee withholdings to the U.S. Treasury. In light of 
     our traditional analysis summarized above, we therefore think 
     it appropriate to proceed on the basis that Section 301 
     should be analyzed under the ``limited tax benefit'' leg of 
     Rule XLIV.

[[Page H8155]]

       Limited Group of Current Beneficiaries
       A second issue is whether Section 301 currently benefits a 
     limited group of beneficiaries. Applying by analogy the 
     colloquy's reference to treating a related group of 
     corporations as one taxpayer, we believe that the agencies 
     and instrumentalities of New York State and City should be 
     treated as at most two taxpayers for purposes of whether a 
     limited group of beneficiaries is affected by the provision. 
     Accordingly, we believe that the statutory incidence of the 
     provision falls on fewer than 10 beneficiaries (i.e., the 
     State of New York, the City of New York and agencies or 
     instrumentalities of the State or City). The economic 
     incidence of the provision is not determinative for these 
     purposes.
       Uniform Application to Potential Beneficiaries
       Under Rule XLIV, a tax provision that in practice applies 
     only to a limited number of current beneficiaries nonetheless 
     is not a ``limited tax benefit'' unless in addition that 
     provision's ``eligibility criteria are not uniform in 
     application with respect to the potential beneficiaries of 
     the provision.'' (Emphasis supplied.) The only direct 
     indication of what constitutes the ``uniform application'' of 
     a taxing statute to potential beneficiaries is the colloquy 
     described above. In this regard, the colloquy indicates that 
     a tax benefit that applies equally to current and potential 
     future beneficiaries will not constitute a limited tax 
     benefit, just because the number of identifiable 
     beneficiaries today is fewer than 10.
       We suggest that the most logical way to read Rule XLIV that 
     is consistent with its obvious intended scope and with the 
     colloquy is to conclude that Rule XLIV applies a two-step 
     analysis towards ``potential'' beneficiaries. First, a 
     sponsor of a Bill that has a limited number of current 
     beneficiaries can rely on the existence of a sufficiently 
     large class of reasonably-likely potential beneficiaries 
     to demonstrate that the Bill applies to more than a 
     limited number of taxpayers. In that case, however, Rule 
     XLIV goes on to provide that the statute must be applied 
     uniformly to them and to currently-known beneficiaries. 
     This reading finds direct support in the fact that Rule 
     XLIV's ``uniform application'' clause applies only with 
     respect to ``potential beneficiaries'' of a statute.
       In other words, a Bill that has a large number of current 
     beneficiaries is not a limited tax benefit provision, because 
     by definition it does not apply to a limited number of 
     taxpayers, without regard to whether future (``potential'') 
     taxpayers are treated differently from current ones. If, 
     however, a Bill today applies only to a limited number of 
     beneficiaries, then the Bill's sponsor cannot rely on a 
     sufficient number of ``potential'' beneficiaries emerging in 
     the future to avoid the application of the limited tax 
     benefit rule unless the statute would treat all current and 
     potential beneficiaries equally.
       Under this reading, a statute that has no possible future 
     (``potential'') beneficiaries and that applies today to a 
     limited number of current beneficiaries must be a limited tax 
     benefit. It cannot be the case, for example, that a rule 
     identifying a class of taxpayers comprising only Hank Aaron 
     nonetheless is not a limited tax benefit, on the theory that 
     all those taxpayers (a single individual) are treated 
     equally.
       Following this mode of analysis, the most important 
     analytical step in applying Rule XLIV to a case (like this) 
     where a statute's current beneficiaries are limited in number 
     is to determine the relevant class of potential (i.e., 
     future) beneficiaries. The colloquy concludes that a 
     statute's class of potential beneficiaries is to be 
     determined ``by assessing the likelihood'' that beneficiaries 
     beyond those to whom the benefit applies today may appear at 
     a later date.
       Thus, to continue with the colloquy's baseball analogy, a 
     permanent tax benefit made available on a uniform basis to 
     all individuals who hit a least 755 major league career home-
     runs is probably not a limited tax benefit (because the 
     number of individuals who could qualify in the future is 
     unlimited), but a comparable temporary provision expiring 
     December 31, 2008, probably does constitute a limited tax 
     benefit, because the class of individuals who could 
     reasonably be expected to satisfy that test would come down 
     to two identifiable individuals.
       Having identified the class of potential beneficiaries, and 
     having determined that they are sufficiently numerous as to 
     overcome the ``limited'' nature of the tax benefit in 
     question, the final step in the analysis is to ensure that 
     the statute will apply uniformly to all potential and current 
     beneficiaries. In most cases, this determination will be 
     straightforward.
       In sum, we acknowledge that the ``uniform application'' 
     test is both vague and difficult to apply. The ``uniform 
     application'' leg of the analysis should not be read, 
     however, to undercut the entire purpose of Rule XLIV. If the 
     only taxpayers that can reasonably be expected to satisfy a 
     bill's definition of the class of beneficiaries of a tax 
     benefit are both few in number and known to the Senator 
     proposing the Bill at the time that the legislation is 
     considered, then in our view that Bill must give rise to a 
     Rule XLIV issue. Any other reading would vitiate the Rule of 
     any meaning.
       This mode of analysis leads to a straightforward resolution 
     of the present case. In practice, only New York State and New 
     York City (and political subdivisions thereof) can be 
     expected to qualify for the benefits of Section 301. The fact 
     that these two identifiable beneficiaries are treated equally 
     is not enough, in our view, to avoid the reach of Rule XLIV.
       Conclusion
       While we recognize that colorable arguments can be made in 
     support of the contrary conclusion, we believe that Rule 
     XLIV's disclosure requirement for limited tax benefits is 
     applicable to Section 301.
       I would be pleased to discuss this issue further with you, 
     should you wish. In any event, I hope that this memorandum is 
     helpful to the Chairman's decision-making process.

  Mr. Speaker, I would also remind my good friend from New York that 
Virginia, too, was attacked on 9/11. So it is not that any of us forget 
9/11, but we all, in this House, still mourn the loss of the lives in 
New York, Pennsylvania and Virginia.
  I would say to the gentleman, that's not the issue here. The issue 
here is about an air-dropped earmark that benefits one entity, one 
locality, New York City, that is reported to be requested by one 
Member, and that is Chairman Rangel.
  Again, I say to the gentleman, no one, no one denies the fact that 
this country is struggling, still struggling post 9/11. Yes, we saw the 
news in the markets yesterday.
  Yes, I understand the gentleman represents New York City, the 
financial capital of the world, and is very concerned about its well-
being, as we all are. But, again, I would make the point that this is 
not the subject of my objection.
  Mr. CROWLEY. Will the gentleman yield?
  Mr. CANTOR. I yield to the gentleman from New York.
  Mr. CROWLEY. Thank you. Would the gentleman agree that the President 
has included this in his budget for this fiscal year?
  Mr. CANTOR. If the gentleman says so.
  But, again, reclaiming my time, I am not opining and standing up on 
the substance of what is behind the request for the Liberty Bonds.
  What I am objecting to is the fact that this, the insertion of this 
item, is so far beyond the jurisdiction of a bill designed to promote 
American energy production that it just doesn't even pass the straight-
faced test.
  Mr. Speaker, I reserve the balance of my time.
  Ms. SLAUGHTER. Mr. Speaker, I am pleased to yield 3\1/2\ minutes to 
the gentleman from Massachusetts, the chairman of the Select Committee 
on Energy, Independence and Global Warming, Mr. Markey.
  Mr. MARKEY. I thank the gentle lady.
  Mr. Speaker, this is all part of an ongoing effort by the Republicans 
to change the subject, to have a drilling distraction, anything to get 
away from what their true agenda is.
  This is something that should be opposed. What the Republicans are 
trying to do here should be opposed, because what this is really all 
about, and what they are trying to do now, is to avoid the real debate 
on the fact that this is a comprehensive energy plan that has been 
brought to the House floor, that this bill deals with renewables. It 
deals with conservation. It deals with all of these issues that we need 
to deal with.
  We will see if they mean it when they say they want a comprehensive 
energy plan, because that's what we are going to be debating today, or 
have they been simply playing politics, which is what this motion is 
all about. It's intended to avoid the real debate.
  We are going to see a lot of crocodile tears here, shed on the 
Republican side here, after 12 years of controlling the energy 
committees, after 8 years of having George Bush and Dick Cheney in the 
White House, after the Department of Energy under Republican control, 
the crocodile tears are flowing with regard to all of their concern 
about our energy dependence.
  That's what this point of order is all about. It's just another 
distraction, another attempt to get away from the fact that on 
renewable, on conservation, on efficiency they did almost nothing. It's 
almost 12 years that they controlled the United States Congress, until 
last year, in conjunction with the Bush-Cheney secret energy plan.
  The Republicans say they want all of the above, but have they here 
produced a bill which is truly comprehensive?
  No, they have not.
  Because their plan is not all of the above. The Republican 
leadership, the White House, and Big Oil is really concerned with all 
that's below, not all of

[[Page H8156]]

the above, all that's below. Our beaches, 3 miles offshore, all of the 
oil that's below our national parks, all the oil that's below our most 
pristine wilderness areas, that's what they are in favor of.
  Not all of the above, all that's below. They had 12 years controlling 
this institution to do something about all of the above, wind, solar, 
geothermal, efficiency. They did nothing.
  All of this is just another attempt to get off the point, to have a 
distraction, which is why we should reject this point of order. America 
needs an oil change.
  All right, we will permit some more drilling, but you also have to 
have a strategy for the future. They keep saying on the Republican 
side, drill, baby, drill.
  What we are saying is change, baby, change. They can't change. They 
are still out here with the Big Oil agenda. They are still out here 
saying no to wind, no to solar, no to efficiency, no to geothermal, no 
to the future.
  Innovate, baby, innovate. Change, baby, change. That's what this 
debate is all about, and that's what they are trying to do. They are 
trying to change the subject. They are trying to distract from the fact 
that they are interested in more drilling, but not a comprehensive 
energy plan for our country.
  That's why it's great that we are having this debate. Because we see, 
once again, what they did for 12 years, distract the American public, 
allow ourselves to become more dependent on imported oil and then come 
out and try to wash their hands of their responsibilities. Vote 
``aye.'' Vote for change.
  Mr. CANTOR. Mr. Speaker, I yield 1 minute to the gentleman from 
Arizona (Mr. Flake).
  Mr. FLAKE. I thank the gentleman for yielding.
  Mr. Speaker, I guess that some on the majority side think that they 
can cover up just by yelling or by raising the volume here of debate.
  The bottom line here is, and the reason for this point of order, is 
that the majority party thought that, all right, we can have a bill 
here, or we can sneak something in. Let's sneak a limited tax benefit 
for New York.
  You can call it an earmark, that's the proper definition when you 
have a limited tax benefit. You can call it a banana. You can call it 
anything you want to. The bottom line is the majority tried to sneak 
something into a broader bill that's supposed to be about energy, and 
that's what this is about.
  So nobody is trying to distract anybody, other than those who are 
trying to slip a provision in that doesn't have to do with any 
comprehensive energy plan. It has to do with New York.
  You can raise your voice, and you can yell all you want. The bottom 
line is somebody tried to sneak a limited tax benefit into this 
legislation. That's why I support the point of order.
  Ms. SLAUGHTER. Mr. Speaker, may I inquire how many more speakers my 
colleague has?
  Mr. CANTOR. Mr. Speaker, I am the last speaker. I have no additional 
speakers.
  Ms. SLAUGHTER. All right. Then I shall wait to close.
  Mr. CANTOR. Mr. Speaker, may I ask, does the gentlelady have an 
additional speaker, or is she ready to close?
  Ms. SLAUGHTER. I have one more, but I only have about half a minute 
left, so it is going to be very brief.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CANTOR. Mr. Speaker, all I would say is the histrionics that we 
have already seen on the majority side of the aisle indicate the 
sensitivity of the matter of earmarks.
  We, I think, all have noticed that the public has an increasing 
awareness of the way that this body operates, and they have a great 
dissatisfaction aimed towards this process. That's why we raise this 
issue. It is just completely unfair. It smacks of a smoke-filled room, 
behind-closed-doors dealings that is not befitting of this institution.
  Frankly, it is not what the American people want, nor what they 
deserve.

                              {time}  1245

  That is the reason for raising this question surrounding the $1.2 
billion that has been requested by what reports have said was Chairman 
Rangel of the Ways and Means Committee.
  Again, on their own, liberty bonds should stand a test of this House; 
but it should not be a provision inserted in a bill that is meant to 
increase American energy production so that we can bring down gas 
prices.
  Mr. Speaker, with that I yield back the balance of my time.
  Ms. SLAUGHTER. Mr. Speaker, I yield the remainder of my time to the 
gentleman from New York (Mr. Crowley).
  Mr. CROWLEY. Mr. Speaker, let me just remind my colleague regarding 
accusations as to who is responsible for this particular piece of 
legislation being added to this bill. Initially this was air-dropped 
into the overall bill to help New York recover after 9/11 by Chairman 
Thomas. So I guess to some degree Chairman Thomas is responsible for 
this particular provision being here today, without consultation with 
not only the ranking member, Charlie Rangel at the time, or Mike 
McNulty from New York State. Even his own colleague from the Republican 
side of the aisle, Amo Houghton at the time who was a Member, was not 
consulted about the addition of this into the legislation.
  The SPEAKER pro tempore. All time for debate has expired.
  The question is, Will the House now consider the resolution?
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Ms. SLAUGHTER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The vote was taken by electronic device, and there were--yeas 230, 
nays 180, not voting 23, as follows:

                             [Roll No. 593]

                               YEAS--230

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castor
     Cazayoux
     Chandler
     Childers
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Doggett
     Donnelly
     Doyle
     Edwards (MD)
     Edwards (TX)
     Ellison
     Ellsworth
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Fossella
     Foster
     Frank (MA)
     Giffords
     Gillibrand
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth Sandlin
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hodes
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jefferson
     Johnson (GA)
     Johnson, E. B.
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     King (NY)
     Klein (FL)
     Kucinich
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Miller (NC)
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Richardson
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Space
     Speier
     Stark
     Stupak
     Sutton
     Tanner
     Tauscher
     Taylor
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Tsongas
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wilson (OH)
     Woolsey
     Wu
     Yarmuth

                               NAYS--180

     Akin
     Alexander
     Bachmann
     Bachus
     Bartlett (MD)
     Barton (TX)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono Mack
     Boozman
     Boustany
     Broun (GA)
     Brown (SC)
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Davis (KY)
     Davis, David
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Duncan
     Emerson
     English (PA)
     Everett

[[Page H8157]]


     Fallin
     Feeney
     Ferguson
     Flake
     Forbes
     Fortenberry
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gilchrest
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Hall (TX)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hulshof
     Inglis (SC)
     Issa
     Johnson (IL)
     Jones (NC)
     Jordan
     Keller
     King (IA)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     LaHood
     Lamborn
     Latham
     LaTourette
     Latta
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Michaud
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy, Tim
     Musgrave
     Myrick
     Nunes
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Platts
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Saxton
     Scalise
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shays
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Tancredo
     Terry
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh (NY)
     Wamp
     Weldon (FL)
     Weller
     Whitfield (KY)
     Wilson (NM)
     Wilson (SC)
     Wittman (VA)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--23

     Aderholt
     Barrett (SC)
     Brady (TX)
     Brown-Waite, Ginny
     Cubin
     Culberson
     Davis, Tom
     Dingell
     Dreier
     Ehlers
     Hunter
     Jackson-Lee (TX)
     Johnson, Sam
     Lampson
     McCaul (TX)
     Neugebauer
     Paul
     Pitts
     Poe
     Spratt
     Udall (CO)
     Walberg
     Westmoreland


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). Two minutes remain in this 
vote.

                              {time}  1311

  Mrs. MYRICK and Messrs. BURGESS and McKEON changed their vote from 
``yea'' to ``nay.''
  Ms. ROYBAL-ALLARD, Ms. LEE and Messrs. ALTMIRE, CONYERS, HINOJOSA and 
KUCINICH changed their vote from ``nay'' to ``yea.''
  So the question of consideration was decided in the affirmative.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________