[Congressional Record Volume 158, Number 25 (Wednesday, February 15, 2012)]
[Senate]
[Pages S671-S672]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       SURFACE TRANSPORTATION ACT

  Mr. JOHANNS. Madam President, I rise today to take a few minutes to 
comment on the bill that the Senate will soon be considering to state 
why I oppose the bill in its current form. I am speaking of the bill 
that we oftentimes refer to as the Transportation bill.
  I do think this bill does some good things. I supported it coming out 
of the EPW Committee. It had very sound bipartisan support in that 
committee.
  But there is a serious concern with the bill, a concern for all of 
us. Specifically, there is a provision in the bill that is what I would 
call an earmark. However, it is often referred to by our rule as a 
congressionally directed spending item. Let me again say, purely and 
simply, it is an earmark. That is why, even though I supported the bill 
in committee, I did feel very strongly about that provision and I felt 
compelled to vote against proceeding to the bill and that is why I am 
here today, filing an amendment.
  This provision changes the purpose of an earmark that was included in 
the previous highway bill. Then the language goes on to do a second 
thing: It newly directs the money back to the same State where the 
earmarked project would have occurred, that being the State of Nevada. 
Let me repeat that. It takes an unspent earmark from a previous highway 
bill in Nevada and it replaces it with yet another earmark to the State 
of Nevada. I will go into further detail.
  First, the bill identifies any unobligated balances associated with 
this earmark. The bill reads:

       . . . any unobligated balances of amounts required to be 
     allocated to a State by section such and such of the SAFETEA 
     LU. . . .

  In other words, it goes to the unobligated balances, which was an 
earmark. If you go back to the previous highway bill, this section 
1307(d)(1) is an earmark in that previous bill. But it does not stop 
there. It does not stop by rescinding that earmark. It goes on to say 
in the text of the bill we are considering that this money ``shall 
instead be made available to such State . . .''--the State of Nevada.
  So we have rescinded the earmark, but then we said the money goes 
back to the same State. In other words, the earmarked money is now 
directed by law, if this were to pass, back to the State where the 
project was to be built.
  Two wrongs do not make a right. If several million dollars is sitting 
idly

[[Page S672]]

by in an account and we want to rescind those funds, then that is 
pretty straightforward. We direct the rescission of those funds and do 
not earmark it to a specific State. If we are going to start the game, 
though, of earmarking--which I believe is what this does--obviously 
there will be a lot of other Senators who believe in earmarks who will 
say I want my turn also. I do not happen to believe in earmarks, but 
some of my colleagues would say: Look, if you can do this for one 
State, you can do it for my State. So if every State can direct 
specific spending to their own State, then we are right back in the 
business of earmarking.
  I will not necessarily speak to the purposes behind the change in the 
project, although it is pretty clear from newspaper articles out of 
Nevada that this money is going to be used for a road project. I will 
leave the defense of the policy to others. What I will say is that the 
provision without a shadow of a doubt meets the definition of an 
earmark under rule XLIV of the Standing Rules of the Senate. The bottom 
line is that the provision in the bill will direct Federal funds to a 
single State.
  Rule XLIV of our standing rules, the Standing Rules of the Senate, as 
we all know, defines what is a congressionally directed spending item. 
I will quote that rule:

       . . . 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--

  It goes on to say:

       locality or Congressional district, other than through a 
     statutory or administrative formula-driven or competitive 
     award process.

  There was a reason why that language is included in that rule and it 
is what is happening here. If you could simply direct funds to your 
State, then, as I said previously, we are back in the earmarking 
business.
  Furthermore, the bill before the Senate was written based on the 
understanding that there would be no earmarks. Everybody is running 
around saying there are no earmarks in the bill. Everybody has been 
very public about saying that. That posture was well received. It was 
commended, in fact. It was commended, in my judgment, in part because 
many understood that a highway bill that included earmarks simply would 
not pass. In other words, a ``no earmark'' policy was necessary to get 
this bill done.
  So at the moment I am very concerned that we will have damaged the 
Senate bill, our legislative process, and hurt the chances of a highway 
bill getting done. I think the highway bill makes a lot of sense for 
our country, but we have to solve this kind of problem. I cannot 
support the bill with an earmark for one State, the State of Nevada.
  Even the President of the United States has weighed in on this. He 
has taken a very strong stand. He said, ``If a bill comes to my desk 
with an earmark inside, I will veto it.''
  This highway bill is far too important for us to jeopardize its 
passage or to invite a veto by the President, just because the 
provision is very hard to find and buried at page 463.
  I think there is a way to move forward on the highway bill, at least 
as far as this is concerned. I think our State and local leaders are 
hoping we pass a highway bill. There are a lot of good things that 
could happen with it, but this has to come out of the bill. This needs 
to change, and my hope is the Senate will agree to my amendment to do 
just that.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEAHY. Madam President, I ask unanimous consent to speak for up 
to 5 minutes as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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