[Congressional Record (Bound Edition), Volume 151 (2005), Part 7]
[Senate]
[Pages 9243-9253]
[From the U.S. Government Publishing Office, www.gpo.gov]




             TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.R. 3, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 3) to authorize funds for Federal-aid 
     highways, highway safety programs, and transit programs, and 
     for other purposes.

  Pending:

       Inhofe amendment No. 605, to provide a complete Substitute.

  The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
  Mr. GREGG. Mr. President, the highway bill which is presently before 
us comes to us pursuant to a budget agreement that was passed last 
Friday morning. In fact, I guess it was passed about 1 a.m. Friday 
morning. That budget agreement had in it language that said there would 
be $284 billion spent on highways under this highway agreement. It also 
had language in it referencing something which is called a reserve fund 
which essentially says if legitimate offsets could be found, and if 
they were determined to be legitimate by the chairman of the Budget 
Committee, then that number could be increased by the amount of those 
legitimate offsets.
  Initially, when the bill was brought forward it was brought forward 
at $284 billion. It was brought out of committee at $284 billion. On 
Monday during the wrapup session, by unanimous consent, that bill, 
which had already been subject to a substitute, was hit with another 
substitute that had 1,300 pages in it. Within those 1,300 pages--and 
they are not absolutely sure of this number yet--somewhere in the 
vicinity of $11.5 billion of new spending out of the highway trust 
fund. That in and of itself was inconsistent with the budget resolution 
that had been passed last Friday in that it was $11.5 billion over that 
resolution and was therefore out of kilter relative to the allocation 
given to the committee, the Public Works Committee.
  In addition, within those 1,300 pages which were submitted by 
substitute, by unanimous consent, on Monday night, one legislative day 
after the budget had been passed, were representations that the offsets 
had been placed in to pay for the $11.5 billion. There was no referral 
of those offsets to the Budget Committee as was required under the law 
that had just been passed on the prior legislative day in the reserve 
fund of that law. In fact, the offsets as represented first were 
offsets which would apply to the general fund, not to the highway fund, 
and therefore created a violation of the Budget Act. But second were 
offsets which do not pass what we might refer to as the ``straight 
face'' test. In other words, they were not legitimate offsets. In fact, 
one of the offsets which was referred to has been used 14 times in the 
last 2\1/2\ years--14 times. Yet it was referred to with a straight 
face, although I am sure there was a smile behind it, as a legitimate 
offset.
  It would be humorous were it not for the fact that it adds a $11.5 
billion burden to the taxpayers, which on the prior Friday we had said 
we were not going to do to the taxpayers. So the bill as presently 
pending under the substitute, as put forward on Monday night, the 1,300 
pages which are so extensive that CBO, which is the scorekeeper around 
here, has even had trouble figuring out what is in it, that bill is 
presently in violation, or that substitute is in violation of the 
Budget Act. It is quite simply unequivocally, unquestionably a budget 
buster.
  One must ask the very obvious question that when the Senate passes a 
budget on Friday of the legislative week, if on the Monday of the next 
week, which amounts to the next legislative day, if that next Monday 
you are going to by unanimous consent, late in the afternoon, during 
wrapup, put forward a substitute which includes in it a budget-busting 
expansion of spending with a euphemistic and illusory statement of 
offsets--self-serving, also, by the way--if we are at all serious as a 
Congress about disciplining ourselves when it comes to protecting the 
American taxpayer relative to the rate of growth of the Federal 
Government and Government expenditures. It would appear that if this 
substitute is allowed to survive in its present form, with this 
additional money being spent, which exceeds significantly what was 
agreed to in a budget that was passed the day before, the answer to 
that question would have to be, regrettably, no, we are not.
  In addition to that problem, there is the issue of the President. 
Now, rolling the Budget Committee around here is sort of good 
entertainment, and it happens, unfortunately, too regularly. But 
rolling the President of the United States, and especially when the 
party of the President of the United States decides to roll the 
President of the United States, is something a little more significant. 
The President has said 284 is the number, the President has said even 
if there are offsets, 284 is the number and we are not going above that 
number. Yet a bill is reported to the floor that met that number with 
the clear, obvious understanding now that it was going to be gamed, 
that 284 number was going to be ignored. And now we have a bill that is 
probably 295, 296, maybe 300. We are just not sure. We are talking 
billions, folks, just to put it in context. That is not $296. That is 
$296 billion, which is a lot of money.
  So the President has made it very clear--he has made it clear in his 
press conference, his administration has made it clear, the director of 
OMB has made it clear, and in an agreement with the House leadership 
there was a clear understanding the highway bill would spend $284 
billion, not $296 billion, whether it was offset or not. Yet that 
position of the President is being--well, it is being more than 
ignored. It is being run over by a bulldozer or maybe a cement mixer or 
maybe a paver. But in any event it is being run over. And that seems a 
little bit inappropriate, slightly inappropriate to me. Since the 
President has decided to try to exercise some fiscal discipline, it 
would seem that we as a party that allegedly is a party of fiscal 
discipline would follow his lead rather than try to run him over.
  So you have two problems. You have the problem of a Republican Senate

[[Page 9244]]

running over a Republican President because we want to spend more 
money--or at least some Members of the Senate do--and then you have the 
Republican Senate running over the Republican budget because some 
members want to spend more money. Then you have this gamesmanship, I 
guess would be the best term for it, which occurred on Monday night 
when you take 1,300 pages and throw it in under unanimous consent and 
put in it language which raises spending by $11.5 billion and has these 
proposed offsets which do not pass the straight face test.
  So you wonder about that and you have to ask yourself where are we 
really going if we can't even discipline ourselves on something like 
this. You have to remember this bill did not start out at 284. It 
started out 2 years ago at, I think it was 219, maybe it was 220, maybe 
it was 230. It was in that range. Then last year, through another 
sleight of hand dealing with the funding mechanism, we shifted--we 
didn't but some did--$15 billion or $18 billion--I do not recall 
exactly--out of the general account over to the highway account 
claiming that there was no revenue impact, that this was an offset, of 
course, putting an $18 billion hole in the general fund in exchange for 
covering up with the extra spending in the highway fund. Then that, 
with a couple other manipulations, got us up to this 284 number which 
means that we are already in the hole on this bill relative to the 
budget approximately $18 billion before this next exercise of adding 
$11.5 billion on top of it.
  It is my obligation, obviously--I end up drawing the short straw 
around here by some degree by being Budget chairman, but it is an 
obligation I take on because somebody has to do it and it should be 
done--to be sort of the person who comes to the floor and says: What 
the heck are we doing? We pass a budget on Friday which says we are 
going to control spending, says we are going to limit highway spending 
to $284 billion, and then on Monday in wrapup, with 1,300 pages of 
obfuscation, there is thrown in $11.5 billion of new spending, and 
thrown in are a lot of illusory and baseless offsets. What the heck are 
we doing?
  Well, in the context of what the heck are we doing, I have at least 
the right to make us vote on this, at least the right to say to my 
fellow colleagues, if you want to do it, do it in the open a little 
bit. The way we should have done it, of course, was the way it was 
originally structured. There should have been a straight up-or-down 
issue of whether, A, this additional $11.5 billion was a good idea to 
spend over the budget; or, B, properly offset. That is not now possible 
to do. I admit the folks who thought this out were creative and they 
structured it so that is no longer possible to do. It was possible to 
do on Monday until there was wrapup but not possible to do now.
  That is the way it got structured, so I am left with very few 
options.
  Mr. President, I reserve the right to retain the floor for the 
purposes of discussing with the leader of the bill the timing on this 
next vote. Is it the leader's position that he would want to vote at 
11:15?
  Mr. INHOFE. Mr. President, in response to the distinguished chairman, 
yes, anytime after 11:15 and before 12 o'clock.
  Mr. GREGG. Well, I will make the motion now and then ask we be in a 
quorum call until 11:15.
  Mr. INHOFE. I would rather not do it because I will make a motion to 
waive after the Senator makes the point of order. That is debatable and 
I would like to make it.
  Mr. GREGG. We can just set the vote at 11:15 and you can debate it.
  Mr. INHOFE. Sure. That is fine.
  Mr. GREGG. Mr. President, I ask unanimous consent that upon my making 
the point of order, should the chairman make a motion to waive that 
point of order, that vote be at 11:15 with the yeas and nays being 
considered as being ordered.
  Mr. LAUTENBERG. Reserving the right to object, will the Senator 
repeat the unanimous consent request?
  Mr. GREGG. I am asking that we move to this vote at 11:15, but if the 
Senator needs 5 minutes, we can make it 11:20.
  Mr. LAUTENBERG. Make it 11:30. Then I would have no problem with it, 
and we will try to use time as quickly as we can.
  Mr. GREGG. I would ask that the time be evenly divided.
  Mr. LAUTENBERG. Yes. No objection.
  Mr. INHOFE. Reserving the right to object.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. INHOFE. For clarification purposes, are we now talking about a 
vote at 11:30; is that correct?
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I believe I reserved the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire does have the 
floor. The Senator from New Hampshire is recognized.
  Is there an objection to the vote occurring at 11:30 with the time 
equally divided? Is there any objection to that restated request?
  Without objection, it is so ordered.
  The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I make a point of order that the pending 
substitute increases spending in excess of the allocation to the 
Committees on Environment and Public Works, Banking and Commerce. 
Therefore, I raise a point of order against the amendment pursuant to 
section 302(f) of the Budget Act.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. I move to waive any relevant provisions of the Budget Act 
for the substitute and the bill.
  Mr. GREGG. The yeas and nays have been ordered, as I understand it.
  The PRESIDING OFFICER. The yeas and nays have not been ordered.
  Mr. GREGG. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, there can be honest differences of 
opinion. The way this has worked historically, and I have had the 
experience on this type of legislation for 19 years now, is that we 
come up with a bill. The bill we came up with is based on a formula. It 
is not a pork bill. It is a spending bill because it is a spending bill 
on infrastructure for America.
  My job, and the job of the ranking leader, Senator Jeffords, is to 
come up with a bill that meets the infrastructure needs of America. 
Then we look to the Finance Committee to help us to find the funds to 
finance it. I am not about to pass judgment, as others appear to be 
readily willing to do, to cast disparaging remarks on the nature of the 
offsets or the nature of the product of the Finance Committee. I know 
we came up with a good bill. It is one that is not nearly as high, in 
terms of the amount of money that would be spent, as the needs. In 
fact, it has been looked at and evaluated that if we are to pass a 
bill, even at the $295 billion over the 6-year period, of which 5 years 
are remaining, that it would not even maintain what we have today.
  I also want to correct something else because the very distinguished 
chairman of the Budget Committee is certainly knowledgeable in all of 
these areas. He talks about being conservative and talks about doing 
these things in a proper and appropriate way. Well, I would challenge 
anyone to match my conservative performance and credentials, and yet I 
have always said that when one comes to this body there are two areas 
where conservatives are big spenders. One is in national defense and 
one is in infrastructure. That is what we are supposed to be doing. We 
are supposed to be building the infrastructure and improving the 
infrastructure.
  This bill is not just any type of bill that is coming along. This is 
a bill that is a matter of life and death. We put together a formula to 
determine how the distribution between the States should take place. In 
that formula, one of the elements is the mortality rate on the highways 
on a per capita basis. Now, if no one is concerned about the number of 
lives that are lost, quite frankly my

[[Page 9245]]

State of Oklahoma has more lives lost on the highway than the average 
State. Consequently, that is one of many determining factors in a 
formula. The formulas have factors for the donee States and the donor 
States, the number of miles and, I might even add to my friend from New 
Hampshire, even covered bridges.
  This bill probably could be considered by most people as the most 
important bill we will have this entire year. It is probably the second 
largest bill we will have this entire year. It is one that lets us 
rebuild the infrastructure of America. We all have heard the 
statistics. There is no sense going over and plowing those fields 
again, but it is one also that is a huge jobs bill.
  I am not one to say that WPA--actually the WPA looks pretty good now 
after a few years, but I do not look at Government as the ultimate 
employer. But when they talk about for each billion of new construction 
it provides 47,000 jobs, it is a huge jobs bill. It is very 
significant.
  Many people are supporting this bill. There are Democrats, 
Republicans, liberals, conservatives. As a conservative Republican, I 
wholeheartedly support it. I support it at the higher level because I 
think that is what we are supposed to be doing.
  I am sure there will be those who want to talk a little bit about the 
product of the Finance Committee. I know the ranking member of my 
committee, Senator Jeffords, wants to make a statement or two. We have 
between now and the next 25 minutes to discuss this. I just want to 
assure my friend, the chairman of the Budget Committee, I am very 
sincere, and I think we are doing the right thing. While I do not 
always agree wholeheartedly with the President, I do 99 percent of the 
time. In this case, I disagreed last year. Last year, when we came up 
with $318 billion, we should have passed that. I believe the Finance 
Committee was sincere when they said we had this covered, and it was 
something that I supported at that time. The President did not support 
it.
  There are a lot of things we pass that I would like to debate and not 
pay for. This is not one of them. I feel very strongly that we should 
go ahead. Quite frankly, I do not think the number is high enough, but 
if this is all we can cover, then I am happy with that. The most 
important thing is we have to have a highway bill. We are on our sixth 
extension right now. The States are wondering what we are doing. They 
have no way of planning in advance. They cannot plan for the next 5 
years. All they can do is say: We have another 6-month extension. What 
will we do for the next 6 months? Then we all miss the construction 
season. In States such as that of my friend from Vermont, a northern 
State, and the State of New Hampshire, we have already missed the 
majority of the construction season. So it is very important that we 
not continue with extensions and that we get this bill passed. To do 
this, we already have a cloture motion in effect. We need to get by 
this motion, and I think we will be doing that.
  I yield to the ranking minority member.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I rise today in support of manager's 
package for the highway bill.
  This package, which combines all four titles of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act, increases 
funding for our highways and transit systems by $11.2 billion.
  I commend Senators Grassley and Baucus for putting together a package 
that not only increase the resources for our States but does not add to 
the Federal deficit.
  One cannot drive this highway bill on empty. Funding is its fuel, and 
we need to make sure this bill has a full tank when it leaves the 
Senate and heads to conference.
  The White House argues that the financing of the manager's package is 
based on gimmicks.
  To that I say nonsense.
  If Senator Grassley and Senator Baucus tell me it is paid for, then I 
believe them.
  Frankly, compared to the funding levels in last year's highway bill, 
today's package is modest.
  The President should be claiming victory and applauding our actions 
rather than threatening a veto.
  This additional funding will mean we can make more roads safer, make 
sure more Americans face less traffic, and create more jobs.
  This additional funding benefits every State, every city, every 
country and every town. This additional funding makes all the world of 
difference.
  I would yield the floor at this time and offer the Senator from 
Arkansas such time as he desires to discuss the transportation bill.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, we do want to hear from the Senator from 
Arkansas, but in fairness, we should go back and forth. The chairman of 
the subcommittee, Senator Bond, wants to be heard first. Does the 
Senator from Vermont have an objection to that?
  Mr. JEFFORDS. That is fine.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Missouri.
  Mr. BOND. How much time do we have remaining?
  The PRESIDING OFFICER. Six minutes for the proponents of the motion.
  Mr. BOND. I ask that I be given 4 minutes of that, allowing 2 minutes 
for my colleague on the other side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Mr. President, we are once again asking for the support of 
our colleagues to raise the contract authority or budget authority in 
the highway bill. We said we were going to do this when we brought it 
to the floor. Eighty of our Members voted in the Budget Act to allow 
the Finance Committee to come in with additional resources, which they 
have done. There has been discussion about the legitimacy of the 
offsets and the Finance Committee actions. The Joint Tax Committee has 
scored it. That is the authoritative view. It does not add to the 
budget. The comments about this being a budget buster are absolutely 
wrong. These funds are paying for the money we add.
  I will explain a little bit of complicated budgetary process. There 
are two things called the obligation limit, which is the amount that 
can be spent, the guaranteed amount. Traditionally, we have put a 
higher number into the bill for what we call budget authority, or what 
is called contract authority. That is because the highway departments 
cannot spend all of the money that they contract, and to enable them to 
spend the $283.9 billion guaranteed spending proposed by the President 
we have to have a higher contract or budget authority number.
  This measure, which was added by the Finance Committee and which is 
now subject to the point of order, was designed to raise, with a fully 
offset amount, the spending so that we could provide additional funds 
for badly needed State roads.
  Let me be clear. This amount that was added will enable us to bring 
all donor States up to 92 cents on the dollar by the end of the period. 
It will also guarantee those States which are at the bottom of the list 
in terms of increases to get at least a 15-percent increase. It is 
imperative that those who joined with us in the 80-vote majority to add 
the provision allowing the Finance Committee now reaffirm that they 
believe this money is necessary.
  The additional money, contract or budget authority, will not be 
spent, the obligation limit will increase slightly, but we cannot spend 
the money the President said we should spend, the $283.9 billion, 
unless we increase the contract authority. Obviously, that's lots of 
confusion but that is where we are.
  I urge my colleagues who understand, as the chairman and ranking 
member of the committee and my colleague Senator Baucus on the 
committee understand, we have to have this money for safety, for 
economic development, for continued growth and the health of our 
economy.
  I yield the floor and reserve the remainder of our time for use by my 
colleague.

[[Page 9246]]

  The PRESIDING OFFICER. Who yields time? The Senator from Arkansas.
  Mr. PRYOR. Mr. President, I rise to offer my support for the motion 
to waive the budget point of order and also to support the efforts of 
the Senator from Oklahoma and urge my colleagues to also support those 
efforts. This legislation is 2 years overdue. I am very pleased we are 
finally making some headway on getting this done. Forcing our States to 
operate under the uncertainty caused by short-term extensions is no way 
to govern. We are now in the sixth extension, and it is my hope that we 
are able to complete our work in the Senate and complete the conference 
before the current extension expires at the end of the month.
  I also thank Senator Inhofe, Senator Bond, Senator Jeffords, and 
Senator Baucus for their very hard work on this bill and all the time 
they have spent and their efforts in working in such a bipartisan way. 
I also thank Senator Shelby and Senator Sarbanes on the hours they have 
put in on the transit portion, and I thank Senators Lott and Inouye, as 
chairman and cochair of the Commerce Committee Subcommittee on Surface 
Transportation and Merchant Marine for their work on the safety 
portions of this bill.
  Economic development is a very important part of any infrastructure 
development--we talked about that a little bit this morning already--
but not at the expense of the safety of families. This bill enhances 
the safety of our roadways.
  As a member of the Commerce Committee, I was very happy to have the 
opportunity to play a role in developing the safety titles. It is good 
legislation that will increase the safety of our highways for all 
Americans, and it is bipartisan legislation, developed with the input 
of safety groups, industry, the administration, as well as State and 
local officials.
  Every great nation in the history of the world has flourished because 
of improvements to its infrastructure. If you look at the great periods 
of development and invention in the world, almost all of them have 
coincided with advances in transportation options, whether it is safely 
moving people, expanding trade, or increasing contact between cultures. 
My constituents remind me all the time about the importance of roads 
and relieving congestion and creating economic growth--virtually every 
time I go to Arkansas. Last week when I was there, people were asking 
me, when in the world are you going to get the highway bill done?
  Our constituents are very smart. As I travel the State I hear the 
same four things over and over, and I believe they are right. They tell 
me the four things we must accomplish in this highway bill are, No. 1, 
we must produce a highway bill that addresses critical infrastructure 
needs that are not currently being met; No. 2, we must produce a 
highway bill to spur economic development and the creation of jobs.
  How is my time doing, Mr. President?
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. PRYOR. I ask unanimous consent for 2 more minutes.
  Mr. GREGG. Mr. President, I yield the Senator 2 minutes off of my 
time, even though he doesn't appear to be agreeing with me.
  Mr. PRYOR. I will make it quick. I thank the Senator for yielding the 
time.
  No. 3, we must produce a highway bill to increase the safety of our 
transportation system for American families and, No. 4, we must produce 
a highway bill that anticipates future needs.
  I could go on and on about how important it is for job creation, 
which we talked about a few moments ago; about how much more congested 
our highways are today as opposed to 10 years ago, and how congested 
they will be in 20 years from now.
  I offer my support and encourage my colleagues to support the efforts 
of Senator Inhofe and others as we go through this very important 
legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I want to take this opportunity to 
respond to the points raised to justify the budget point of order. The 
reason I want to do that now is because there are some things that are 
not clear about this legislation. I tried to make them clear in my 
remarks yesterday, but it is obvious that if they had been clear, there 
would not have been a budget point of order.
  One of the points made by the chairman of the Budget Committee and 
other Members of the Senate is that the Senate highway bill is larger 
than the President's request. It was alleged that Senate authorizers 
``snuck in'' a change in their substitute, without a separate vote, to 
increase the bill's level of funding above $284 billion. Senate budget 
staff is correct that the amendment on the Floor that is pending is 
larger in size than the bill requested by the President. Senate 
leadership, all authorizing committees, and the Finance Committee were 
well aware of this fact and made a determination to offer a substitute 
amendment in excess of the President's request. This makes perfect 
sense and, of course, is in keeping with separation of powers and the 
fact that the President, under our Constitution, proposes and the 
Congress, under the Constitution, disposes.
  A majority of the Senate wishes to provide more infrastructure 
resources than the executive branch. The substitute bill, with 
increased funding, is completely offset or revenue-neutral. As a matter 
of fact, the bill contributes positively and substantially towards 
deficit reduction. As indicated in my statement yesterday, the 
administration and the budgeteers should focus on deficit reduction 
rather than on the top-line spending number. The Senate continues to 
offset legislation and, by so doing, exercises fiscal restraint, a fact 
being continuously ignored by some in this body.
  Another point made is that provisions passed in the JOBS bill last 
October--sometimes referred to as FSC/ETI bill--signed by the President 
in October, that somehow the provisions we had in that bill relating to 
fuel fraud did not increase general fund receipts or even things 
dealing with other tax provisions did not increase general fund 
receipts. I speak of acronyms that we used last fall that may not be 
familiar to people now that we are by that legislation. But we 
constantly talked about the ethanol provisions with the acronym, VEETC, 
volumetric ethanol excise tax credit, and fuel fraud provisions that 
were enacted in the JOBS bill which other Members of this body have 
alleged, and I quote here, ``have made the highway trust fund healthier 
by $2 to $3 billion annually only by definition, since merely moving 
around deck chairs has not changed the Federal Government's bottom 
line.''
  That is a serious accusation considering how careful we were over a 
period of months last year not only to work on the VEETC provisions to 
bring in money to the Federal Government that was fraudulently not 
being paid but also to make sure that we did it in a fiscally sound 
way.
  This is my answer to that accusation. Last year the JOBS bill enacted 
ethanol and fuel fraud provisions that increased projected receipts to 
the highway trust fund by $17 billion during the period of the highway 
bill reauthorization, 2005 to 2009. These provisions were also included 
in last year's transportation bill but had to be enacted instead in the 
JOBS bill after it became clear that we would not get a conference 
agreement on the highway bill.
  That is an unfair accusation that somehow all this work that we went 
through is just moving around deck chairs but has not changed the 
Federal Government's bottom line. Seventeen billion dollars coming in 
during that period of time, $17 billion, some of which was being 
fraudulently avoided.
  Congress had good reasons to enact the ethanol changes in the JOBS 
bill. These changes helped to pay for a large bipartisan tax bill to 
provide tax relief to domestic American manufacturing. And these 
ethanol changes accompanied other energy incentives in that bill that 
had overwhelming support of both Chambers and both parties. Because of 
those ethanol changes, fuel excise tax receipts are now going into the

[[Page 9247]]

highway trust fund. That means the Federal highway program now has more 
dollars available to it. It is just common sense. That is how trust 
fund accounting works.
  It seems that some would now allow us to ignore those accounting 
rules. Some would like us to pretend that those new fuel tax dollars 
are not in the trust fund. You can't change what are just plain facts 
of life. These funds are in the highway trust fund.
  This Congress should not pretend that a law enacted by a previous 
Congress did not happen. We are not using fuzzy arithmetic or fuzzy 
accounting. We are not just moving deck chairs around and not affecting 
the Government's bottom line. We are, in a very real way, affecting the 
Government's bottom line. And we are going to have, not only people who 
were avoiding paying taxes paying those taxes, but we are going to be 
able to have better transportation infrastructure, better highways by 
what we are doing. We should not ignore standard fund accounting rules 
because a minority of this Senate disagrees that taxes paid on a gallon 
of ethanol should not go into the highway trust fund.
  The administration did not object to these provisions as part of the 
JOBS bill last October. The President signed that bill and now the 
administration's own transportation proposals rely on these new trust 
fund receipts that were developed in a bipartisan way by the Senate 
Finance Committee. The changes that we made in the JOBS Act made good 
sense, common sense, but that comes out also as good policy. They 
raised money for the highway trust fund.
  We have every right--indeed, we have every obligation to the people 
who pay money into the road fund--to use those funds to improve 
America's highways.
  If you don't use trust fund money for highways or for other 
transportation reasons, you should not be taxing it in the first place. 
But once it is taxed, those people who are fraudulently not paying that 
tax are guilty and should pay that tax. Our provisions do that.
  Another claim by the Budget Committee is that the Finance Committee 
has not provided real offsets for increased burdens to the general 
fund. My colleague from New Hampshire, chairman of the Budget 
Committee, suggests that our bill offsets, including economic 
substance, are illusory. He is concerned that these offsets, which were 
also passed during the last Congress, will be dropped in conference.
  Now, the Joint Committee on Taxation, as we all know--maybe some of 
us forget--is the official scorekeeper on tax matters in the Congress, 
not the Congressional Budget Office. The Finance Committee has provided 
tax law changes that have been scored by the Joint Committee on 
Taxation as fully offsetting any increased burden to the general fund. 
The Joint Committee on Taxation is the official scorekeeper for revenue 
provisions under the Congressional Budget Act. It is not the Senate 
Budget Committee that is the scorekeeper; it is the Joint Committee on 
Taxation. Section 201(g) of the Budget Act restricts the Congressional 
Budget Office in a manner in which it carries out its responsibilities 
related to revenue legislation. Section 201(g) provides, in pertinent 
part:

       For the purposes of revenue legislation, which is income, 
     estate and gift, excise, and payroll taxes, considered or 
     enacted in any session of Congress, the Congressional Budget 
     Office shall use exclusively during that session of Congress 
     revenue estimates provided to it by the Joint Committee on 
     Taxation. During that session of Congress, such revenue 
     estimates shall be transmitted by the Congressional Budget 
     Office to any committee of the House of Representatives or 
     the Senate requesting such estimates, and shall be used by 
     such committees in determining such estimates.

  This, then, should put to rest this debate about whether these 
offsets that are in my amendment and in Senator Baucus's amendment--
that is a bipartisan amendment--are real. They have been scored by the 
Joint Committee on Taxation, the official scorekeeper under the 
Congressional Budget Act for revenue purposes.
  I kind of think that maybe the Budget Committee is living in an ivory 
tower. It is particularly troubling that this nonsense attack--that the 
offsets are not real--comes from a committee that doesn't have to do 
any of the heavy lifting to find real offsets and real savings. But 
instead just find reasons to complain about some other committee's 
work. It must be nice to be able to just pick numbers out of thin air 
and try to claim the numbers are real or, in this instance, somehow not 
real, even though the Joint Committee on Taxation scores it as revenue-
neutral, or better than revenue-neutral, as reducing the deficit. But 
it is the Finance Committee, not the Budget Committee, that actually 
has to do the hard work of finding, negotiating, and drafting the 
policies that can pass the Senate and create these real offsets.
  Yesterday, I said 40 percent of the new funding is hard trust fund 
money. Of course, the Finance Committee gets no credit for that effort, 
no credit at all. It is a ridiculous charge. It is so easy to throw 
rocks around here. How about dealing with constructing policy instead 
of throwing rocks? I would like to see some of that.
  The complaints we are hearing are from a committee that has no 
responsibility to find real numbers, real offsets, or real savings. It 
reminds me of an agricultural economist telling a farmer how to farm. I 
suggest that those who are sitting on the fence giving this farmer--and 
I am an Iowa farmer--stewardship advice about how to farm should get 
off the fence and get some dirt under their fingernails, and I will be 
happy to show them how to start the tractor. And I say this as a person 
who has been very loyal in my membership on the Budget Committee, as 
well as being chairman of the Finance Committee, because out of 48 
amendments that were offered to destroy the budget that came out of the 
Budget Committee, I supported the chairman on 47 of the 48 amendments.
  Now, the suggestion was also made that we have used these revenue 
raisers in the previous Congress. None of the offsets included in the 
highway substitute have passed the Senate this year as part of any 
other legislation. Even if that were the case, those additional 
anticipated revenues are available until they are passed by both Houses 
and enacted into law.
  There seems to be an additional concern that the offsets used in this 
bill would not survive a conference with the House. As a person who 
worked for 8 years and 3 days--from when I first introduced the 
bankruptcy reform bill to when the President signed the bill a month 
ago--if I would have ever stopped because a bill passed the Senate but 
somehow didn't get to the President, we would never have a bankruptcy 
reform bill. But we passed that bill seven or eight different times--
the conference report, plus original legislation through the Senate. 
How you get things done in the Senate is by sticking with it--just 
don't give up.
  And we are doing that here. We continue to close corporate tax 
loopholes the same way. People on the Budget Committee are finding 
fault that we might pass the Senate and not get out of conference. That 
somehow means we are using a smokescreen. Let me suggest that on the 
JOBS bill last year, which I have already referred to several times in 
my remarks today, we passed through the Senate $39 billion of corporate 
tax loophole closers, and we ended up out of conference with $24 
billion of that $39 billion. I don't think that is such a bad track 
record. If it had not been for the Senate and the bipartisan approach 
of the Finance Committee, we would not even have those $24 billion of 
loophole closers--money coming into the Federal Treasury. So you cannot 
just stop. Because these offsets, whether they be fraudulent use of tax 
dollars, nonpayment in a fraudulent way of gas tax money or other 
loophole closers--in all of these cases we have people finding ways to 
avoid paying their share of taxes that ought to be paid.
  One has to keep at it. There is a constant game around here of 
lawyers, accountants, and investment bankers that like to game our Tax 
Code. It is pretty hard to keep ahead of them, but I am determined, and 
Senator Baucus is determined, to keep ahead of them. So I am not going 
to have anybody tell

[[Page 9248]]

me we are not legitimate when we pass things through the Senate that 
maybe cannot survive conference because eventually they do survive 
conference, and eventually they are signed by the President.
  The Senate cannot be subjected to the expectation of passage in the 
House as a standard for this body. The Senate has to focus on what is 
possible in the Senate, and differences will be resolved and reconciled 
with the other legislative body during the conference process.
  As an additional point, I note it was Ways and Means Chairman Bill 
Thomas, not the Senate Finance Committee, who first proposed 
codification of the economic substance doctrine, which is the largest 
revenue provision added in the substitute bill. I would also like to 
recite a little of the history of this matter so we will not presume 
that something maybe will not get through conference because maybe it 
did not get through conference last October, particularly when the 
chairman of the House Ways and Means Committee first brought up this 
issue.
  The Senate Finance Committee began its work on tax shelter 
legislation in 1999. During the years 2000 and 2001, the Finance 
Committee released three discussion drafts to stimulate public comment 
on the closing of corporate tax shelters. None of these drafts contains 
codification of the economic substance doctrine that we are using in 
this amendment before the Senate right now as an offset. In May 2002, 
the Finance Committee reported out the Tax Shelter Transparency Act of 
2002, which formed the basis for the tax shelter disclosure rules 
enacted in last fall's tax bill. The Tax Shelter Transparency Act did 
not contain codification of the economic substance doctrine.
  In July of 2002, a mere 2 months after the Finance Committee reported 
out its bill, Chairman Thomas laid down H.R. 5095, the American 
Competitiveness and Corporate Accountability Act of 2002. This bill 
would have repealed the FSC/ETI regime and used the proceeds for 
corporate international tax reform. It was also the first time the Ways 
and Means Committee dipped its toe into the waters of tax shelter 
closing legislation.
  H.R. 5095 parroted the disclosure provisions of the bipartisan Senate 
Finance Committee-reported bill, but it went one step further--it 
called for codification of the economic substance doctrine. So where 
did folks get the idea around here that somehow economic substance 
doctrine codification is blue smoke, intended to mislead the Senate 
into believing that something is revenue-neutral when it is not because 
this bill is revenue-neutral as scored by the Joint Committee on 
Taxation.
  As an aside, I remind my colleagues that this additional money comes 
out of the hide of tax shelter promoters and tax shelter participants, 
not out of the pockets of the honest middle-class working men and women 
of America. This is not phony money, as maybe we were led to believe. 
This is good tax policy.
  In emphasizing that the Senate highway bill is bigger than that 
provided in the budget resolution, the following quote was used: ``[i]t 
appears the Finance Committee floor amendments include provisions quite 
similar to those general fund transfers that were included in last 
year's Senate-passed bill. Such general fund transfers do nothing to 
offset the deficit effect of the increased spending in that 
amendment.'' I want to say why that is hogwash. The Members of this 
body have indicated, and will vote their intent on this issue in just a 
few moments, to spend more than was included in the Senate budget 
resolution. No procedural games, gimmicks, or end runs will be needed 
to prove this point. As the distinguished chairman of the Senate Budget 
Committee indicated repeatedly during the budget process, if there are 
60 votes for something, then so be it, and clearly more than 60 members 
of the Senate are in agreement about this budget point of order.
  But we do take issue with the fact that we were accused of sending an 
amendment to this Floor for consideration by 100 Members of the Senate 
that did nothing to offset the deficit effect of increased spending. 
The accusation is purely false and purposely misleading. Our substitute 
amendment replaced trust fund and general fund receipts and contributed 
substantially to the deficit reduction by more than $10 billion.
  Finally, to those critics of the Senate Finance Committee title, I 
reissue the challenge I put to them yesterday, that obviously was not 
listened to. It is the same challenge from last year. If they do not 
like our Finance Committee title, come forward and tell us they do not 
want any new money for their State from this highway bill. 
Alternatively, if they want to keep their State's extra money, find 
another way to get there that will yield 60 votes. I issued the 
challenge last year, I issued the challenge yesterday, and I reissue 
that challenge this very hour.
  Now, I did not get any takers last year, I did not get any takers 
yesterday, and I do not expect to get any takers today. So once again, 
it is easy to complain, but we are here to do the people's business and 
this amendment that came out of my committee is the people's business--
it is financially responsible, doing things to close corporate tax 
loopholes, to be fair to middle-class working men and women, to get the 
job done basically of improving our highway and transportation 
infrastructure.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, I say to the Senator from Iowa, the 
distinguished chairman of the Finance Committee, what a great job they 
have done. We imposed upon them the obligation or the duty of coming 
forth and coming up with a way to pay for a more robust bill. As I have 
said several times before, there are still other things we need to be 
doing, and even with the action that has been taken, it is not enough, 
but I understand he does now have it in a position where we are not 
increasing the deficit; that this is properly offset and I would almost 
believe those who oppose what he is doing are people who do not want 
the bill to start with.
  We have been inviting people to come down with their amendments. I 
see the Senator from New Jersey is in the Chamber. I am anxious to get 
as many people down as possible and would encourage those Members who 
have amendments, keep in mind, the deadline for filing amendments is 
now behind us and we are operating under cloture right now. We need to 
have them get down and not wait until the last minute.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. What is the status of the time?
  The PRESIDING OFFICER. The Senator has 13\1/2\ minutes.
  Mr. GREGG. And the opposition?
  The PRESIDING OFFICER. No time.
  Mr. GREGG. Mr. President, to respond in part--and in whole, 
hopefully--to some of the points that have been made here, let me begin 
by saying I have an immense amount of respect for the chairman of the 
committee and for the Senator from Missouri, for the ranking Democrat 
on the committee, the Senator from Vermont, a neighbor who is retiring 
and who has done great service for our country and has decided to relax 
and go back to a beautiful State. Of course, he is going to go to New 
Hampshire to buy his goods because we don't have a sales tax, by the 
way. The chairman does exemplary work. He has been a tireless advocate, 
obviously, of trying to get this highway bill across the floor.
  Honestly, I thought the Budget Committee had done its job when we 
went to the $284 billion number, which was a lot higher than where the 
President had started. I thought the President had done his job when he 
went to the $284 billion number as a compromise which was a lot higher 
than he started out. I think he was at $250 billion when he began this 
process. I thought we had reached agreement. Then Friday morning at 1 
a.m., when we passed the budget, I was pretty sure we reached an 
agreement. The agreement was $284 billion.
  Unfortunately, the amendment which showed up Monday night put a 
pretty

[[Page 9249]]

big hole in that budget--$11.5 billion. As I have said earlier, we have 
to ask ourselves, why did we pass the budget on Friday to have the 
effect on the next legislative day--the next legislative day--to break 
the budget by $11.5 billion.
  The Senator from Missouri says it is not a budget buster. I have to 
point out to the Senator from Missouri that yes, it is. That is what we 
are voting on. If it were not a budget buster, the Chair would not rule 
in my favor that it breaks the budget. That is what the motion is. The 
motion is this violates the Budget Act.
  It violates the Budget Act on 2 counts. I am not taking the first 
count because that is a procedural battle. I am taking the second 
count, which is the substantive battle, which is that this amendment 
violates the Budget Act because it exceeds the allocation to the 
committee by $11.5 billion. So it is a budget buster. If it were not a 
budget buster, you would not have to waive the rule, you know, so let's 
not throw that straw dog out there.
  And the offsets? I agreed with the chairman of the Finance Committee 
when he came to the floor last night and said, and I will quote:

       I also understand and agree with the House position that we 
     should not mix general fund offsets and trust fund resources 
     to that end.

  I agree with that. But, yet, this amendment, this substitute, does 
exactly that. It takes money out of the general fund, moves it over to 
the trust fund, and then claims that the trust fund spending is offset 
by very illusory alleged revenue increases in the general fund, as I 
pointed out in my earlier statement. One of these revenue increases, 
the biggest one, has been used 14 times in the last 2\1/2\ years--14 
times. How many times can you use a revenue increase?
  We all know it is not a real revenue offset. We all know it is going 
to be dropped at conference. It has been dropped at conference every 
time it gets used; it gets used. It gets dropped, but the spending goes 
on. So as a practical matter the offsets, from the standpoint of the 
Budget Committee, do not plug the hole that is put in the budget, first 
because they do not apply to the trust fund which creates spending 
beyond the committee's allocation, and second because they exceed the 
general fund--they will not occur. I guess that's the best way to say 
it. They are not going to happen. The offsets are not going to happen.
  Excuse me, I don't want to be excessive here: $700 million of the 
alleged $11.5 billion we deem to be legitimate offsets. They will 
occur.
  But, independent of that, independent of whether this offset issue is 
real or not, and it is not real, by the way, the President--he is a 
Republican, he was just elected--reached an agreement with the House. 
He said, ``I am going to let you spend $30 billion more than I really 
want to spend in this area,'' but he has said--having made that 
concession to our colleagues because he got pressure--we are going to 
hold the line at $284 billion. That is it. No more.
  We all know that highways are important. We all know infrastructure 
is important. But we reached a consensus, first between the President 
and the House leadership. I agree, Senator Inhofe did not sign on to 
that idea, other than to bring a bill out at that number, but I agree, 
he is very forthright. He has always been committed to getting a higher 
number. But at least within the context of the greater party, the 
Republican Party, there was an agreement at $284 billion with the 
President of the United States. And then we confirmed that agreement 
last Friday with the budget for which 52 Republicans voted.
  I am not expecting any votes on this issue from the other side of the 
aisle. During the budget process they proposed amendments which added 
$260 billion to the budget, so clearly the issue of controlling 
spending is not that high on their testing, on their schedule of agenda 
items. But it should be on ours. We have a President of our party say 
$284 billion is the number, and when that has been agreed to by a large 
membership of our party including, I believe, the majority leader in 
the Senate and the Speaker of the House, and when we confirm that 
agreement by passing a budget that says that is the number, we should 
stay with that number. It is what I would call common sense and 
probably appropriate action. That is why it is important, I believe, 
that we hold this number.
  I respond to one other sidebar representation here--because it needs 
to be responded to but not because it is the essence of the debate--the 
question of the amendment that passed when we were marking up the 
budget, which had 80 votes, relative to how the additional highway 
spending would occur should additional highway spending be approved and 
be within the budget, called a trust fund. That trust fund had, as part 
of its structure, that if there was to be additional spending over $284 
billion, it would have to be offset and it would have to come back to 
the Budget Committee so the Budget Committee could review it to 
determine whether the offsets were legitimate. That did not happen. The 
substitute occurred Monday night. We never saw it. It took us a long 
time to find it. It was 1,300 pages. People have been looking for a 
long time to find out exactly what it means. Even CBO is having a lot 
of trouble shaking it out. But we know we were never consulted on that 
number or how it was offset, which would have been the requirement 
under that reserve fund. Therefore, the representation that a vote on 
this waiver issue should be tied into your vote on that amendment issue 
is very hard to connect. In fact, the two pass in the night. There is 
no relationship between the vote that occurred in the budget debate and 
the vote on this waiver issue.
  This waiver issue is very simple. The chairman of the committee has 
moved to waive a budget point of order because the bill as it is 
presently structured spends more than the budget that we passed on 
Friday night by $11.5 billion. It spends that much more than the budget 
passed.
  The offsets, we believe, are illusory. I presume the Finance 
Committee will argue that they are not. But they have used them 14 
times before, so I will leave it to the body to decide whether they 
are.
  But independent of that issue, the offset issue, the simple fact is 
this amendment puts an $11.5 billion hole in what was an agreed-to 
number relative to the allocation, relative to what was going to be 
spent, relative to what the President thought was the understanding, 
and relative to what we had in our budget.
  I see the majority leader is here. I yield the remainder of my time 
to the majority leader.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I know we will be voting here in a couple 
of minutes, but I did want to rise in support of the Budget Act point 
of order against the pending substitute to the highway bill. I do 
commend the chairman of the Budget Committee, Senator Gregg, for 
raising it.
  We do need to exercise fiscal discipline in the Senate. This bill is 
a good example. We all want to pass a strong highway bill. It will 
benefit our economy and will create millions of jobs across the 
country. As I have said on the floor many times, it will contribute to 
safety on our highways. It is long overdue. The previous bill, TEA-21, 
expired in September of 2003 and on six occasions we have had to pass 
extensions. The current extension expires at the end of this month and 
we need to get this bill to conference as soon as possible, in my mind, 
so we can resolve what differences exist between the House and the 
Senate bill and so the President can sign it as soon as possible.
  It should be clear to all of my colleagues the path to getting a bill 
signed into law will be smooth only if Congress stays within the 
spending parameters that have been laid out by the budget resolution we 
passed last month and by the President of the United States who must 
ultimately sign this bill.
  The budget resolution, as Chairman Gregg has noted, allowed for 
transportation spending over a 6-year period of $283.9 billion. We 
passed that budget

[[Page 9250]]

resolution here in the Senate a couple of weeks ago, on April 28.
  In addition, the President of the United States has made it clear he 
will not sign a bill into law that spends more than the amount provided 
for in the budget resolution--$283.9 billion over 6 years. He made it 
clear publicly, privately, and in the statement of administration 
policy on this bill, which clearly states:

       Should the obligation or net authorization levels that will 
     result from the final bill exceed these limits the 
     President's senior advisers would recommend that he veto the 
     bill.

  Finally, I want to make clear that sustaining this budget point of 
order will not kill the highway bill. Another substitute would be 
offered that stays within the spending limits set forth in the budget 
resolution and by the President, just as the various titles reported 
out by the different committees of jurisdiction did.
  I am convinced we can pass a good bill that addresses America's 
infrastructure needs, creates millions of new jobs, and can be signed 
into law by the President. We should move forward to do just that.
  I yield the floor.
  The PRESIDING OFFICER. All time is expired.
  The yeas and nays have previously been ordered. The question is on 
agreeing to the motion. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL, The following Senator was necessarily absent: the 
Senator from Minnesota (Mr. Coleman).
  Further, if present and voting, the Senator from Minnesota (Mr. 
Coleman) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Minnesota (Mr. Dayton), 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 76, nays 22, as follows:

                      [Rollcall Vote No. 118 Leg.]

                                YEAS--76

     Akaka
     Alexander
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Crapo
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Feinstein
     Grassley
     Harkin
     Hatch
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Talent
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--22

     Allard
     Brownback
     Chambliss
     Coburn
     Cornyn
     Craig
     DeMint
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Gregg
     Hagel
     Hutchison
     Isakson
     Kyl
     McCain
     McConnell
     Sessions
     Sununu
     Thomas

                             NOT VOTING--2

     Coleman
     Dayton
       
  The PRESIDING OFFICER. On this vote, the yeas are 76, the nays are 
22. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to, and the point of order fails.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Mr. INHOFE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Oklahoma.
  Mr. INHOFE. Madam President, the vote that just took place is 
significant. We all realize that the Finance Committee has done their 
job. The Joint Tax Committee has verified that their work is good. They 
have found legitimate offsets. It is easy to say there are not, but 
there are. While it is very much a concern to everyone in terms of the 
budget and deficits, I am always ranked, certainly, as in the top five 
most conservative Members of this body. I can tell my colleagues, I 
would not vote for something that is going to increase the deficit. 
This is not increasing the deficit.
  When we stop to think about what we are supposed to be doing in 
Washington, we talk about a lot of silly programs, but the two most 
important things on which you might say I am a big spender are, No. 1, 
defense and, No. 2, infrastructure. There is nothing more important 
that we will be voting on this year than this bill. We all know the 
reality that we need to get this to conference, and it was necessary to 
pass what we just agreed to in order to get it to conference.
  I understand Senators Corzine and Lautenberg are ready to offer an 
amendment.
  I yield the floor.
  Mr. GREGG. Madam President, unfortunately, I rise because I feel it 
is necessary to respond to the statements of the chairman of the 
Finance Committee which were made on this floor, both personal to me as 
chairman of the Budget Committee and to the staff of the Budget 
Committee, which I thought was an unfortunate decision.
  Earlier we had a vote on waiving a point of order relative to whether 
this substitute, which is pending, was consistent with or is consistent 
with the budget we passed last Friday. Now, by definition that point of 
order would not have to have been waived if it was not well made. And 
by well made, I mean that the Chair would have ruled that this 
amendment, this substitute, did and does violate the budget resolution. 
The reason it violates the budget resolution, and I made this point 
earlier when I spoke, and I think I was accurate--in fact, I believe my 
comments this morning were entirely accurate, although they were 
represented to be inaccurate, regrettably--let me reiterate them. This 
budget resolution point of order lay because we went from a number of 
$284 billion--and this is the essence of the issue here--which was the 
agreed number, $284 billion--that is the number we agreed would be 
spent on the highway bill--we went from that number, under the 
substitute, to a number of $295 billion-plus. We don't know the final 
number because, quite honestly, there are so many pages in the 
amendment even CBO can't catch up with it, but we know it is at least 
$11.5 billion over the budget number, which was $284 billion.
  This number, $284 billion, was not only a number which had been 
agreed to under the budget last week, it was a number that the 
President had said he wanted and on which the President had reached an 
agreement with the congressional leaders, the Speaker of the House and 
the majority leader. So it was not a number pulled out of thin air, nor 
was it a number that was not reached after a significant amount of 
consultation. It was, rather, a number which was reached after having 
considered what we could afford, what was coming into the trust fund, 
what was going out of the trust fund, and what could be afforded in 
this area of highway construction.
  I think the representation was made, unfortunately, by the chairman 
of the Finance Committee, that the Budget Committee was acting 
irresponsibly, essentially--and that is my characterization; the words 
actually were a little stronger than that--when we raised the point of 
order, saying: Hey, listen, we passed a number at the number $284 
billion, the President agreed with the majority leader and Speaker of 
the House that $284 was the number, and therefore we should stick to 
284.
  That is our job as a Budget Committee. I understand, certainly, the 
chairman of the Finance Committee chairs the most powerful committee in 
the Senate by far. The Appropriations Committee is competitive, but our 
jurisdiction, unfortunately, with the shift toward entitlement 
spending, has been lessened. It used to be the Appropriations Committee 
had about 60 percent of the Federal spending. Now it is about 30 
percent. Finance has about 50 percent of the Federal spending because 
it has all the major entitlement accounts.
  But we recognize--I certainly do as chairman of the Budget 
Committee--that the Finance Committee is one of

[[Page 9251]]

the two most powerful committees in the Senate, of which the other one 
is not the Budget Committee. Certainly the Finance chairman has every 
right to come to the Senate floor and remind us of that, as he did. But 
it really isn't appropriate for him to come to the floor and suggest 
that we should not still do our job simply because we are not as 
powerful a committee as his; that our job should be basically we should 
stand out of the way and just be nice little folks who stand in the 
corner, and when the budget is getting run over by a powerful 
committee, just say: Hey, no, we don't get involved in that because we 
are not a powerful committee. The Budget Committee was not structured 
that way. The Budget Committee was actually structured to be sort of a 
conscience around here, a fiscal conscience of, What the heck are we 
doing?
  Yes, we only got 22 votes, which shows maybe our conscience isn't all 
that strong. But, in any event, we have an obligation to raise the 
issues. So when we raise those issues, I think for the chairman of the 
Finance Committee to come down here and say, in terms which were most 
aggressive and most intense, that the Budget Committee was acting 
inappropriately and its staff was acting inappropriately, I just think 
that is misdirected. It does understand, but it doesn't acknowledge the 
fact that the Budget Committee exists. He is on the Budget Committee; I 
guess he knows it exists--as he mentioned. He has been a good supporter 
of the Budget Committee. I have never denied that. I have always said 
he was a good supporter of the Budget Committee. I respect him. I think 
he is one of the best chairman around here, as I think this chairman, 
the chairman of the Public Works Committee, is. I am constantly 
impressed by what the Senator from Oklahoma is able to do here. He is 
good, and I admire that, as is the chairman of the Finance Committee, 
and the chairman of the Finance Committee is not only very good but he 
works very hard, as the Senator from Oklahoma, to be bipartisan, which 
I think is important, too. I tried to do that when I chaired an 
authorizing committee. But still that doesn't mean that we should 
ignore the importance of this issue.
  To get into the substance, to respond again to some of the points 
that have to be responded to--I am sorry they have to be responded to, 
but I do think they have to be responded to because the intensity of 
the argument that we were not accurate in raising this point of order 
is such that to let it just sit would be wrong. Again, I regret that I 
have to do this.
  The point, to go back to the essence of the issue, was that the 
budget set at $284 billion the level of allocation for the highway 
bill. Under this amendment, that spending goes up to $295 billion-plus. 
That was the point of order.
  As an ancillary to that discussion, we did get into the issue of just 
what has happened in the history of this highway bill. Yes, last year 
through the JOBS bill there was a finessing of the way money flows from 
account to account around here, so that the highway fund was given a 
lot more money at the expense of the general fund. I made reference to 
that.
  I didn't mention ethanol, although the response spent a lot of time 
on ethanol. In fact, I specifically didn't mention ethanol because I 
know that tends to incite some Members around here. I just simply said 
last year about $15 billion ended up being moved out of general fund 
activity, or being laid off on the general fund, in exchange for giving 
the highway fund an extra $15 billion. And no matter how you account 
for it, we end up $15 billion short. That is just the way it is. The 
money gets spent on the highway proposal, and so we are $15 billion 
short.
  The way it worked, to get specific, was that the subsidy to ethanol 
gasoline, which is about 5 cents a gallon which had been borne by the 
highway trust fund, was shifted over to the general fund, so the 
general fund ended up with about a $13 billion hit. The highway fund 
ended up with a $13 billion windfall, arguably.
  Then there was about $2.5 billion which historically had gone, since 
1993, from the gas tax into the general fund, because under the 1993 
agreement there had been an agreement that the gas tax would be 
raised--I think by 5 cents--and it was agreed at that time that half of 
that would go to the highway fund to build roads and the other half 
would go to deficit reduction, and historically those moneys have 
stayed there for deficit reduction or in the general fund. So that 
money was taken out of the general fund and moved back to the highway 
fund. It was probably a legitimate decision, but it did cost us $2.5 
billion or thereabouts. So that is where the number came from. I think 
it was an accurate statement. We were basically putting about a $13 
billion hole in the general fund in order to get this bill up to the 
$284 billion level.
  To go from the $284 billion level to the $295 billion level, which 
again created the point of order because that exceeded the allocation, 
the Finance Committee reported a bill which represented that they had 
offsets to pay for that difference. They said Joint Tax had scored it 
that way.
  First off, I said the offsets were illusory. I believe they are 
illusory. But I also made the point that even if they are not illusory, 
it didn't matter because it still created the problem for the budget, 
which is that you exceeded the $284 billion. But I think it is hard to 
argue--and again I use the term it didn't pass the ``straight face 
test''--to argue that an offset that has been used 14 times and failed 
14 times is an offset that has much likelihood of success.
  The chairman makes the point, and it is a legitimate point, that he 
is a stick-to-it guy and he is going to get this someday no matter 
what, and he is going to stick to it no matter what. I admire that. He 
is a stick-to-it guy. His work on the bankruptcy bill has been 
extraordinary. His work on a lot of bills around here has been 
extraordinary, and that is probably because he is dogged on some of 
this stuff. When he bites ahold of something, he stays with it, and 
that is impressive.
  But I do think when folks are sitting back in the office, thinking 
about how to pay for this thing, and they came up with putting in the 
enterprise tax again after 14 attempts at using this item, that they 
knew the likelihood of that happening was very slim. So I think it was 
reasonable to say that number was illusory. But equally important, the 
representation that the Joint Tax Committee is the final arbiter of 
that question is something I believe has to be clarified, because that 
was the chairman's position.
  So I think I would like to know the clarification of this. As 
chairman of the Budget Committee, I believe I have the right to know 
whether Joint Tax or the Budget Committee is the final arbiter of that 
because, as I understand it, under section 201(f), which was cited by 
the chairman of the Finance Committee, but not entirely:

       The Budget Committee of the Senate and the House shall 
     determine all estimates with respect to scoring points of 
     order and with respect to execution of purposes of this act. 
     I ask a parliamentary inquiry of the Chair:

  Who is the proper scorer of points of order relative to revenues and 
expenses?
  The PRESIDING OFFICER. The Senator is entitled to an answer. Under 
the Congressional Budget Act of 1974, termination of points of order 
section 312, the Budget Committee determination for purposes of this 
title and title IV, the levels of measuring budget authority outlays, 
direct spending, new entitlement authority, and revenues for fiscal 
year shall be determined on the basis of estimates made by the 
Committee on the Budget of the House of Representatives or the Senate, 
as applicable.
  Mr. GREGG. I thank the Chair for that ruling. I hope that clarifies 
that point and responds, I believe, adequately to the points of the 
chairman of the Finance Committee that might not be the case.
  Let me summarize. We made a point of order, a motion to waive was 
brought forward, the chairman of the Finance Committee, and the 
chairman of the Transportation and Public Works Committee were 
successful by an overwhelming vote and we lost.
  I do not think that should lead to the chairman of the Committee on 
Finance coming to the Senate and suggesting the role of the Committee 
on the Budget in making these points is in some

[[Page 9252]]

way inappropriate or irrelevant, that we should not take this effort to 
try to enforce a budget--especially when we passed the budget last 
week.
  I admire, as I said, the Finance Committee chairman a great deal. I 
am sorry this misunderstanding has occurred. But I do believe I have an 
obligation as chairman of the Committee on the Budget to at least speak 
up on behalf of my staff, who has done an extraordinary job under 
fairly difficult circumstances.
  In that context, for a more historical perspective on the highway 
bill, since this was cited by the chairman of the Committee on Finance, 
I ask unanimous consent to have printed in the Record the Informed 
Budgeteer statement which is a budget statement summarizing the history 
of the highway bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Informed Budgeteer

       As the May 31 expiration date of the latest extension of 
     federal surface transportation programs rapidly approaches, 
     the pressure is on the Senate to pass a reauthorization bill 
     by the end of this month. The House passed its version of the 
     bill (H.R. 3) last month.
       The Senate bill is being considered on the floor, as the 
     four committees with jurisdiction--Environment and Public 
     Works (EPW), Banking, Commerce, and Finance--have each marked 
     up their respective titles of the bill. The Banking, 
     Commerce, and Finance titles are added on the floor to the 
     bill reported by EPW.
       There are several different metrics that participants in 
     the legislative process are using to evaluate this bill 
     besides ``how much does each state get?''--is it more than 
     the President's request, is there enough ``money'' in the 
     highway trust fund, and does the budget resolution allow it?
       Bigger than the President's Request?
       The Senate-reported and House-passed bills are, in total, 
     both consistent with the President's FY 2006 Budget request 
     of $284 billion for transportation programs for FY 2004-2009, 
     reflecting the informal conference agreement reached, but not 
     enacted, last year.
       End of story, right? . . . given this apparent coalescence 
     around a $284 billion bill? Because the Administration drew a 
     line in the sand most recently with a SAP threatening to veto 
     anything above $284 billion (as well as anything creating a 
     new federal borrowing mechanism), the Senate leadership 
     insisted that the bill brought to the floor not breech that 
     level. The authorizers' action, however, has only lived up to 
     the letter, but not the spirit, of that admonition. Senate 
     authorizers snuck in a change to their substitute, without a 
     separate vote, to increase the bill's funding level above 
     $284 billion. So the bill before the Senate currently exceeds 
     the prescribed level by $10-$15 billion.
       Affordable from the Highway Trust Fund? The latest CBO 
     estimates indicate that revenue now credited to the highway 
     trust fund is sufficient to support a $284 billion bill, 
     mainly due to provisions in the American Jobs Creation Act 
     (AJCA) of 2004 (P.L. 108-357), enacted in the closing days of 
     the 108th Congress. But last summer the highway trust fund 
     could not have supported a $284 billion bill. How can the 
     highway trust fund all of a sudden have sufficient resources?
       Last summer, the Senate faced the exact same pickle it does 
     now. The Senate's highway spending appetite ($319 billion) 
     was greater than the level of related federal revenues 
     dedicated to highways and transit at that time. The Finance 
     Committee had intended to pay for the additional spending 
     through a combination of (1) brand new revenues from those 
     who had been avoiding gasoline taxes (fuel fraud) and (2) 
     shifting the incidence of revenues the government was already 
     collecting (2.5 cents gas tax), or already not collecting 
     (ethanol subsidy), between the general fund and the highway 
     trust fund (general fund transfers).
       To the extent that some proposed increases in highway trust 
     fund spending were being justified on the concept of general 
     fund transfers (which do not constitute new revenue to the 
     federal government), that spending would have been a pure 
     increase in the federal deficit. Because of bipartisan 
     concern about such a deficit increase on the part of some of 
     its members, the Finance Committee committed to offsetting 
     some of the general fund transfers with unrelated (to 
     highways) revenue raisers.
       Such unrelated-but-real new revenues could have mitigated 
     the deficit increase that would have otherwise resulted from 
     the component of higher trust fund spending rationalized by 
     magically ``augmented'' trust-fund balances. However, when 
     the highway bill failed to emerge from conference last year, 
     the fuel fraud and general fund transfer provisions were 
     lifted out of S. 1072 and enacted separately in AJCA, without 
     the accompanying additional offsets that had been promised by 
     the Finance Committee.
       It is true that the enacted fuel fraud provisions are now 
     bringing a welcome $1 billion or so per year (that was not 
     being collected before) to the federal government and the 
     highway trust fund. But the enacted general fund transfers 
     have made the highway trust fund ``healthier'' by about $2-3 
     billion annually only by definition, since merely moving 
     around deck chairs has not changed the federal government's 
     bottom line.
       Nonetheless, because there is a new CBO baseline and a new 
     Congress, highway spending proponents in the Senate only seem 
     to notice that the highway trust fund will now support a 
     higher level of spending than it did six months ago (even 
     though gasoline consumption has not increased, and has 
     probably decreased because of higher prices). They seem to 
     forget that some of the spending that will be done on the 
     strength of these general fund transfers was supposed to have 
     been offset by real revenue increases.
       Bigger than the Budget Resolution? The ``reported'' Senate 
     transportation bill already exceeded the levels of contract 
     authority allocated for 2006 (for the Banking Committee) and 
     for the 2006-2010 period (for all three committees) by the FY 
     2006 budget resolution just adopted.
       How can that be if the 2006 budget resolution assumes the 
     $284-billion level? The oversimplified answer is that the 
     budget resolution assumed the stream of contract authority 
     associated with the H.R. 3 as passed by the House (because 
     the House had completed its action, while the Senate had not 
     finished reporting as the conference report on the budget 
     resolution was being finalized). But the spread of the $284 
     billion across the years and over the different types of 
     transportation spending (highways, transit, and safety) is 
     different in the ``reported'' Senate bill, which means that 
     the Senate bill does not fit an allocation based on the House 
     bill. Therefore, a 60-vote point of order (under section 
     302(f)) applied against the ``reported'' bill.
       Now that the bill has been increased by $10-$15 billion, a 
     point of order applies against the $295-$300 billion bill. 
     (Last year, a 302(f) point of order was raised against S. 
     1072 the Senate highway bill in the 108th Congress, but the 
     Senate waived it by a vote of 72-24.)
       Authorizers potentially could avoid a 302(f) point of order 
     by employing the mechanism established in section 301 of the 
     2006 budget resolution, which anticipated that transportation 
     spending demands would exceed the levels allocated by the 
     resolution.
       Section 301 says that if the Senate EPW, Banking, or 
     Commerce Committee (Transportation and Infrastructure 
     Committee in the House) reports a bill (or amendment thereto 
     is offered) that provides new budget authority in excess of 
     the budget resolution levels, the Budget Committee Chairman, 
     may increase the allocation to the relevant committee ``to 
     the extent such excess is offset by . . . an increase in 
     receipts'' to the highway trust fund. Such legislation 
     increasing receipts must be reported by the Finance 
     Committee.
       The Finance Committee once again has pledged to provide 
     additional receipts to the highway trust fund to support 
     higher spending on transportation programs, but the title of 
     the bill reported by the Finance Committee does not include 
     any offsets.
       It appears that the Finance Committee's floor amendment 
     includes provisions quite similar to those general-fund 
     transfers that were included in last year's Senate-passed 
     bill. Such general-fund transfers do nothing to offset the 
     deficit effect of the increased spending in that amendment.
       This year's Senate floor debate on the highway bill seems 
     all too familiar, with proponents of higher spending on 
     highway and transit programs potentially considering options 
     that would partially ``pay for'' a larger bill by rearranging 
     paper entries on the government's books rather than 
     increasing resources collected by the federal government--the 
     same as last year's debate. Now the Senate must decide 
     whether to allow history to be repeated, a mere two weeks 
     after it adopted a conference report on a budget resolution 
     to enforce fiscal discipline at agreed-upon levels.


      An Emergency, a Supplemental, or an Emergency Supplemental?

       While the Senate debated the Iraq supplemental two weeks 
     ago, there was some confusion about the effect of emergency 
     designations and the difference between regular and 
     supplemental appropriations. Over the last four years, 
     Congress has repeatedly approved funding outside the regular 
     appropriations process in response to the wars in Afghanistan 
     and Iraq and the war on terror. The funding has most often 
     been in an emergency supplemental appropriation. Though 
     emergency designations and supplementals are often discussed 
     as if they are interchangeable terms, they are distinct 
     concepts.
       Supplemental appropriations. A supplemental appropriation 
     is simply an appropriations bill other than the regular 
     appropriations bills that the Congress must consider each 
     fiscal year (most recently there were 13 such regular bills; 
     for 2006 there are 12 in the Senate and 11 in the House). 
     Neither a supplemental bill nor all items in it are 
     necessarily designated as an emergency or even intended for 
     purposes alleged to be emergencies. Simply providing funding 
     through a supplemental appropriation does not trigger the 
     ``do not count'' (for budgetary enforcement) treatment that 
     an emergency designation provides. Each item in a 
     supplemental

[[Page 9253]]

     must include an explicit emergency designation to receive 
     ``do not count'' status.
       Supplemental appropriations are required when, after the 
     regular appropriations are enacted for the year, new events 
     or information requires adjustments to the previously 
     appropriated amounts. Supplementals are also useful for 
     purposes that are known to be temporary because a 
     supplemental provides a discrete and therefore optically 
     severable amount of money that could discourage those amounts 
     from becoming part of and enlarging regular appropriations in 
     future years.
       Emergency designations. Emergency designations are attached 
     to individual accounts (and may even be attached to tax 
     provisions or direct spending items in authorization bills), 
     and can be used in any appropriations bill, either regular or 
     supplemental. When a provision is designated as an emergency, 
     the Budget Committee does not count the spending in that line 
     item against the enforceable levels in the budget resolution. 
     Contrary to popular misconception, the emergency spending 
     still counts toward total federal spending and the deficit; 
     it is only not counted for Congressional enforcement 
     purposes.
       The appropriate use of an emergency designation in the 
     Senate is most recently articulated in section 402(b) of the 
     Conference Report on the 2006 Budget Resolution, which is the 
     source of the authority to not count emergencies for purposes 
     of budgetary enforcement. Section 402 (and its predecessors 
     in the 2004 and 2005 budget resolutions) have required that 
     the report accompanying any bill with emergency spending to 
     explain the manner in which the spending is sudden, urgent, 
     pressing, a compelling need requiring immediate action, 
     unforeseen, unpredictable, unanticipated and temporary. To 
     date, this requirement has been ignored.
       However, whether the emergency point of order applies does 
     not depend on whether this reporting requirement has been 
     fulfilled or on any evaluation of whether the emergency item 
     actually meets the criteria. Instead, the emergency point of 
     order automatically applies to any non-defense spending item 
     that has an emergency designation. Defense emergencies are 
     exempt from the point of order. The existence of the point of 
     order allows any Senator to use the ``eye-of-the-beholder'' 
     test to confront the rest of the Senate with the issue of 
     whether a non-defense item meets the emergency criteria and 
     warrants an emergency designation so that it does not count 
     for enforcement.
       If the point of order is raised against a non-defense 
     emergency designation in either a pending bill or amendment, 
     supporters of the spending can move to waive the point of 
     order, which requires 60 votes. If the point of order is 
     sustained, the emergency designation is struck and the 
     spending in the bill or amendment is then counted against the 
     302(a) allocation and other appropriate levels. If the 
     committee is already at or above its allocation (this is the 
     case for fiscal year 2005), the amendment or bill then faces 
     a 60-vote 302(f) point of order.
       Baseline treatment. While the concepts are not 
     interchangeable, a commonality between emergency spending and 
     supplemental appropriations is their treatment in the CEO 
     baseline. Whether in a regular or supplemental appropriation 
     (and regardless of the presence of an emergency designation), 
     every discretionary spending item appropriated for the 
     current fiscal year is assumed by CBO to continue on, 
     adjusted for inflation, in the subsequent fiscal years for 
     baseline purposes. Statutory rules for constructing the 
     baseline mandate this treatment, and CBO has no discretion to 
     pick and choose which discretionary items may be recurring 
     versus a one-time only expenditure.
       The Budget Committees are not required to use the CBO 
     baseline as the basis for constructing the budget resolution. 
     But in practice, the Budget Committees use their discretion 
     to adopt an alternate baseline in only limited circumstances. 
     Removing what the Committees view as temporary spending from 
     the baseline is an instance where the Committees occasionally 
     make adjustments to the CBO baseline. However, CBO's 2006 
     baseline (issued in March 2005) did not include 
     appropriations for Iraq and Afghanistan because a 2005 
     supplemental has not been enacted, so no baseline adjustment 
     was necessary in this year's budget resolution.

                              TRANSPORTATION BILL COMPARISONS TOTALS FOR 2004-2009
                                                 [$ IN BILLIONS]
----------------------------------------------------------------------------------------------------------------
                                                                              House        Senate       Senate
                                                               Pres. FY06     passed      reported      passed
                                                                 budget      (109th)      (109th)      (108th)
----------------------------------------------------------------------------------------------------------------
EPW--Highways...............................................          227          225          226          256
Banking--Transit............................................           40           42           43           47
Commerce--Safety............................................            6            6            6            7
                                                             ---------------------------------------------------
    Subtotal, Contract Auth.................................          273          273          275          310
                                                             ===================================================
Authorized Discretionary Transit BA.........................            9           11            9           10
Highway Emerg. Relief Supplemental..........................            2          n/a          n/a          n/a
                                                             ---------------------------------------------------
    Advertised Bill Total...................................          284          284          284          319
                                                             ===================================================
----------------------------------------------------------------------------------------------------------------
In FY 2005, $2 billion was appropriated from the highway trust fund for the Federal-aid highway emergency relief
  program to provide funds to repair damage from the 2004 hurricanes and to clear the backlog of emergency
  relief program requests. The Administration includes this funding in its revised reauthorization proposal, but
  the House and Senate proposals do not.
NOTE: Totals may not add due to rounding.

  Mr. GREGG. Those points having been made, I acknowledge defeat on 
this point. I admire, as I said, the chairman of the committee for 
being a successful chairman who knows how to get things done around 
here. We may disagree on occasion, but my admiration for him certainly 
does not abate in any way because of those disagreements. In fact, my 
respect grows. But do not expect we will disappear. We were not wilting 
violets around here on the Committee on the Budget. We will continue to 
try to make points on the points of order we think are appropriate.
  Mr. INHOFE. Madam President, before the chairman of the Committee on 
the Budget leaves, there are some areas where an honest disagreement 
can take place. One is on the idea that if we try to establish a policy 
in this country that addresses something that is an emotional need or 
desire of any of these Members and it has nothing to do with 
transportation, that should not be borne on the backs of the highway 
trust fund.
  We talk about the ethanol provision which I opposed, but nonetheless 
we had that, the Senator is right, and the cost of that. If they want 
to pay for it, let them pay for it out of the general fund. Why should 
the highway trust fund be paying for policies?
  And the same is true on the deficit reduction. I stood in the Senate 
at that time that took place saying I was for deficit reduction but not 
on the backs of the highway trust fund. The reason I say that is 
because I have considered this to be somewhat of a moral issue. People 
go to the pump and they pay tax for gasoline. There is an assumption, 
as wrong as it is, that money should go to repairing roads and highways 
and bridges. I do disagree in that respect.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. CORZINE. Madam President, I ask unanimous consent that the 
pending amendment be set aside so the Senate may consider amendment No. 
606.
  The PRESIDING OFFICER. There is no amendment pending.

                          ____________________