[Congressional Record Volume 156, Number 149 (Tuesday, November 16, 2010)]
[Extensions of Remarks]
[Page E1909]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                STATE ETHICS LAW PROTECTION ACT OF 2010

                                 ______
                                 

                               speech of

                           HON. MIKE QUIGLEY

                              of illinois

                    in the house of representatives

                      Tuesday, September 28, 2010

  Mr. QUIGLEY. Mr. Speaker, I am pleased that we are considering this 
legislation to clarify the language of Section 112 of title 23, United 
States Code to reaffirm the intent of Congress that Section 112 does 
not bar enforcement of State and local ordinances and contracting 
policies, in connection with Federal-aid highway projects, that 
disadvantage or disqualify classes of contractors. The Secretary 
properly enjoys discretion to approve contract requirements, consistent 
with the Federal-Aid Highway Act, 23 U.S.C. Sec. 101, et seq.
  Possible ambiguity in Section 112 has come to the Congress's 
attention in light of recent State and local efforts to combat 
corruption and favoritism in contracting. States, local jurisdictions, 
and the Securities and Exchange Commission have enacted ``pay-to-play'' 
restrictions that disqualify contractors who make campaign 
contributions to officials responsible for government contracts. 
Concerns have been raised that application of Section 112 may limit the 
discretion of FHWA to approve Federal-aid highway projects subject to 
State pay-to-play policies. Accordingly, the FHWA temporarily withheld 
federal highway funds from the States of New Jersey and Illinois.
  The soundness of these concerns has been called into question by the 
United States Court of Appeals for the Sixth Circuit in City of 
Cleveland v. State of Ohio, 508 F.3d 827 (6th Cir. 2007), and, in any 
event, these concerns misunderstand Congress's long-standing intent 
regarding the operation of the current laws governing Federal-aid 
highway projects. Section 17 of the Federal-Aid Highway Act of 1954, 
which is codified at Section 112 of title 23, United States Code, 
imposes a requirement on FHWA to ensure that government contractors are 
selected through a competitive bidding process. This competitive 
bidding requirement was ``designed to prohibit collusion or action in 
restraint of free competitive bidding in connection with the 
contract.'' S. Rep. 83-1093 (1954) at 14. The enactment of Section 112, 
however, was not intended to ``add to or otherwise affect the powers of 
the Secretary [of Transportation] . . . with respect to the selection 
of projects.'' Id. Subsequent amendments have not altered that purpose.
  The language of this legislation simply makes clear that it has 
always been Congress's intent that the Secretary may concur in the 
award of a Federal-aid highway contract despite a State or local 
requirement, imposed by law or through contract, disqualifying 
contractors on the basis of the amount of money contributed to a 
political campaign. To be clear, the enactment of this legislation 
would not be construed to mean that existing law would have foreclosed 
the application of State pay-to-play restrictions, or similarly 
situated provisions, to highway projects supported by Federal funds.
  This bill will dispel any misunderstandings about the application of 
State pay-to-play restrictions and similar policies to Federal-aid 
highway projects. It will have an immediate, positive effect for local 
and State governments determined to implement pay-to-play restrictions 
to combat corruption and favoritism.
  I urge my colleagues to join me in supporting H.R. 3427.

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