[Congressional Record (Bound Edition), Volume 153 (2007), Part 19]
[House]
[Pages 27273-27278]
[From the U.S. Government Publishing Office, www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 2102, FREE FLOW OF INFORMATION ACT 
                                OF 2007

  Ms. SLAUGHTER. Madam Speaker, by direction of the Committee on Rules, 
I call up House Resolution 742 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 742

       Resolved, That upon the adoption of this resolution it 
     shall be in order to consider in the House the bill (H.R. 
     2102) to maintain the free flow of information to the public 
     by providing conditions for the federally compelled 
     disclosure of information by certain persons connected with 
     the news media. All points of order against consideration of 
     the bill are waived except those arising under clause 9 or 10 
     of rule XXI. The amendment in the nature of a substitute 
     recommended by the Committee on the Judiciary now printed in 
     the bill shall be considered as adopted. The bill, as 
     amended, shall be considered as read. All points of order 
     against provisions of the bill, as amended, are waived. The 
     previous question shall be considered as ordered on the bill, 
     as amended, to final passage without intervening motion 
     except: (1) one hour of debate equally divided and controlled 
     by the chairman and ranking minority member of the Committee 
     on the Judiciary; (2) the amendment printed in the report of 
     the Committee on Rules, if offered by Representative Boucher 
     of Virginia or his designee, which shall be in order without 
     intervention of any point of order (except those arising 
     under clause 9 or 10 of rule XXI) or demand for division of 
     the question, shall be considered as read, and shall be 
     separately debatable for ten minutes equally divided and 
     controlled by the proponent and an opponent; and (3) one 
     motion to recommit with or without instructions.
       Sec. 2.  During consideration of H.R. 2102 pursuant to this 
     resolution, notwithstanding the operation of the previous 
     question, the Chair may postpone further consideration of the 
     bill to such time as may be designated by the Speaker.

                              {time}  1130

  The SPEAKER pro tempore. The gentlewoman from New York is recognized 
for 1 hour.
  Ms. SLAUGHTER. Madam Speaker, for the purpose of debate only, I yield 
the customary 30 minutes to the gentleman from Florida (Mr. Diaz-
Balart). All time yielded during consideration of the rule is for 
debate only.


                             General Leave

  Ms. SLAUGHTER. Madam Speaker, I ask unanimous consent that all 
Members have 5 legislative days within which to revise and extend their 
remarks and insert extraneous materials into the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from New York?
  There was no objection.
  Ms. SLAUGHTER. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, H. Res. 742 provides for consideration of H.R. 2102, 
the Free Flow of Information Act, under a structured rule. The rule 
provides 1 hour of debate equally divided and controlled by the 
chairman and ranking minority member of the Committee on the Judiciary.
  I rise to speak today on one of the most critical issues that faces 
our democracy, the freedom of the press and the sacred historic 
protection afforded to journalists allowing them not to reveal their 
sources.
  Understanding this, in 1799, one of our Founding Fathers, Thomas 
Jefferson, said, ``Our citizens may be deceived for a while, and have 
been deceived; but as long as the presses can be protected, we may 
trust to them for light.''
  Madam Speaker, with the birth of this new Nation came a government 
that was designed to be open and transparent to its people and held 
accountable for its actions. America's Founding Fathers established and 
implemented a system of checks and balances to ensure that one branch 
of government could not unilaterally impose its will on the others, 
aggressively overstep its authority, or greedily infringe upon the 
rights of its citizens.
  Beyond the checks and balances of government is an often overlooked, 
but equally important, element of our system: the freedom of the press. 
Embodied in the first amendment, this right grants active citizens and 
vocal journalists the power to expose corruption and misbehavior 
committed by those elected and appointed to office. They serve as 
protectors of our democracy and work to make up for our system's 
failings where they exist.
  Ensuring the free flow of information and providing protection for 
whistleblowers is vital to a free society. The Watergate scandal 
epitomized the value of the free press and, with it, the need to 
protect the relationship between journalists and their confidential 
sources.
  For a moment, I would like my colleagues to consider a reality in 
which journalists could routinely be forced to reveal the names of 
their informants, and where sources could undoubtedly become reluctant 
to share important

[[Page 27274]]

information that is unknown to the public.
  Think of the scandals that journalists have revealed just in the last 
few years: The Central Intelligence Agency's clandestine prisons across 
Eastern Europe; Jack Abramoff's trading expensive troops for political 
favor from lawmakers; our veterans returning home from Iraq and 
Afghanistan to dilapidated, unsafe, unsanitary facilities at Walter 
Reed Medical Center. Make no mistake, confidential sources made these 
reports possible.
  And I would be remiss if I did not ask my colleagues, would we rather 
be unaware of these incidents because shield laws don't exist and our 
reporters are too afraid of prosecution when doing their jobs?
  The past 6 years have produced one disturbing reminder after another 
that the legitimacy of our government and the integrity of our 
democracy are dependent on the ability of journalists to protect their 
sources. From uncovering the horrifying incidents of detainee abuse at 
Abu Ghraib to revealing the administration's covert domestic spying 
program, the press managed to expose illegal actions by the executive 
branch when Congress refused to do so.
  The public has long valued this relationship as critical to the 
functioning of an open and free media. Unfortunately, the court record 
has been more mixed.
  In December of 1972, the Supreme Court ruled that the journalist-
source relationship is not protected under the Constitution. That 
ruling has allowed journalists to be forced to testify before grand 
juries about their sources. In response, individual States across the 
country enacted their own journalist shield laws to guarantee that a 
member of the press can continue to maintain their anonymous sources 
without fear of prosecution.
  In fact, 49 States and the District of Columbia all provide some form 
of shield law. But there is still no Federal statute providing 
uniformity. Now, recent Federal court cases are, again, challenging the 
critically important relationship between journalists and their 
sources, arguing that State interests supersede those of a free press.
  And according to The Washington Post, in recent years, more than 40 
reporters have been questioned about their sources, notes and stories 
in civil and criminal cases.
  The Free Flow of Information Act before us today would, for the first 
time on the Federal level, explicitly protect journalists and their 
sources from the kind of vengeful legal actions that threaten to keep 
all those necessary whistles unblown.
  Unless Congress passes a comprehensive shield law that will guarantee 
the rights of journalists to speak with anonymous sources and ensure 
their confidentiality, the freedom of the press will be undermined 
along with the public good it has the power to defend. Any such bill 
must, of course, take into account the legitimate needs of our 
government, and this bill does that.
  Madam Speaker, should we in any way compromise the freedom of the 
press, we will deny our citizens their right to be informed about their 
government and retreat from the true nature of the political system 
that made our government unique. Our forefathers saw fit to enshrine 
this belief in the very first sentences of our Bill of Rights, and this 
Congress must continue to guarantee those rights.
  And today, Madam Speaker, as we debate extending these protections to 
the press, we must pause to remind the press of their obligation to the 
public.
  I regret to say that, for much of the recent past, some of the press, 
which was intended to be the watchdog of our government, quickly 
transformed into nothing more than a mouthpiece, exemplified in its 
coverage and lack of questions on the Iraq war.
  Madam Speaker, we saw time and time again the tough questions 
expected by the American people before and after the invasion in Iraq 
replaced with nothing more than patriotic propaganda and White House 
talking points.
  Embedded journalists were fed information and painted rosy scenarios 
of our invasion and occupation. Those who were skeptical and challenged 
this spoon-fed information were discredited and sometimes even fired 
for so much as questioning the actions of the war and this government.
  Thomas Jefferson said, again, and I quote, ``The press is impotent 
when it abandons itself to falsehood.''
  With all the wonderful protections of the first amendment of the 
Constitution of the United States, the press must not only be vigilant, 
but it must be courageous.
  And we all remember that it is the prime directive of the press to 
inform the people. It is their duty to ask the tough questions when the 
American people are unable to do so. It is their responsibility to 
shine light on government actions, secret or mundane, and to hold it 
accountable.
  And let me finish by asking this simple question. Will the press pay 
as much attention to Blackwater as they did to Whitewater? I certainly 
hope so.
  Madam Speaker, I reserve the balance of my time.
  Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, I would like to 
thank the distinguished Chair of the Rules Committee (Ms. Slaughter) 
for the time, and I yield myself such time as I may consume.
  One of the Founding Fathers of the Nation, whose likeness is above 
your chair, Madam Speaker, George Mason, said that ``the freedom of the 
press is a great bulwark of liberty.''
  It does act as a bulwark of liberty by often checking governmental 
power. In order to gather and publish news stories, journalists often 
find it necessary to protect their sources. So if a journalist is 
forced to reveal his or her sources through legal proceedings, that has 
a chilling effect on other sources. And such a chilling effect 
ultimately may harm the public interest.
  Under current law, Madam Speaker, courts have the power to force 
testimony from individuals unless they can cite a specific ground, such 
as the lawyer-client or the physician-patient privilege. It is in the 
public interest to have such privileges, and I think it should be 
possible to provide journalists, that's what this legislation is trying 
to do, and their sources with some reasonable protections, because 
currently there is no privilege for journalists to refuse to appear and 
testify in legal proceedings.
  As the distinguished Chair of the Rules Committee stated, 49 States 
and the District of Columbia have various statutes or follow judicial 
decisions that have the effect of protecting reporters from being 
compelled to testify or disclose their sources. The underlying 
legislation would set a national standard similar to those that are in 
effect in the various States.
  In determining whether to require testimony by a member of the news 
media, it is appropriate to strike a balance between the public's 
interest in the free dissemination of information and the public's 
interest in effective law enforcement and the fair administration of 
justice.
  So the underlying legislation attempts to strike this balance by 
providing a privilege to journalists that prevents them from being 
forced to testify or disclose sources in legal proceedings. But, 
however, the privilege is not absolute. It contains exceptions where it 
is necessary to reveal a source to prevent an act of terrorism or other 
significant and specified harm to national security or imminent death 
or significant bodily harm.
  I think it's appropriate, and I want to emphasize my gratitude to 
Representative Pence for his hard work and dedication on this important 
issue. He has been not only studying it, but working on this critical 
issue, really, a critical issue related to our freedom for years, and 
so as I thank him, I urge Members to support the legislation that he's 
been working on so diligently for so long.
  The rule we are debating now, Madam Speaker, only allows for a 
manager's amendment, which, as you know, is an amendment for the 
majority to make final changes in a bill. So the rule is essentially a 
closed rule. Only one other amendment was submitted to the Rules 
Committee, but the majority decided, on a party-line vote, to exclude 
the amendment and

[[Page 27275]]

not make possible the debate of that amendment on the floor.
  I understand that the authors of the bill feel that that amendment, 
which was submitted by the distinguished ranking member of the 
Judiciary Committee (Mr. Smith), the authors of the bill believe that 
that amendment would go counter, would be counter to much of the 
essence of the bill. But, in my view, that doesn't mean that we should 
preclude or prevent consideration of the amendment.

                              {time}  1145

  Even Mr. Pence, the author and champion of the underlying 
legislation, who opposes the Smith amendment, testified at the Rules 
Committee that the amendment should definitely have an opportunity to 
be considered by the House.
  The amendment includes many of the concerns that the Justice 
Department has had throughout the long period of time with parts of the 
underlying legislation. It is a serious amendment, and it certainly 
deserves to be debated on the floor.
  So I think it is unfortunate, and as we bring this important 
legislation once again, it is an example of bringing important 
legislation to the floor excluding, making impossible, serious debate 
of ideas that differ by Members of this House. So that's unfortunate, 
and that is why I oppose the rule that is bringing forth this important 
legislation. I certainly support the underlying legislation, but I 
think that it is unfortunate that we once again have an overly 
restrictive process for bringing forth this legislation.
  Madam Speaker, I reserve the balance of my time.
  Ms. SLAUGHTER. Madam Speaker, I yield 2 minutes to the gentleman from 
Vermont (Mr. Welch).
  Mr. WELCH of Vermont. I thank the distinguished Chair and the good 
work of my friend from Florida.
  Madam Speaker, I rise today in support of Resolution 742, the rule 
providing for the consideration of H.R. 2102, the Free Flow of 
Information Act.
  This important legislation protects the public's right to know while 
at the same time honoring the public interest in having reporters 
testify in certain circumstances. While news organizations prefer to 
have their sources on the record whenever that is possible, we all know 
there are times when sources will simply not come forward without the 
promise of confidentiality, and that's in the public interest to get 
the information those sources have. Consider groundbreaking stories 
such as conditions at Walter Reed, Abu Ghraib, the Enron scandal, 
steroid abuse in the Major Leagues would not have been known to the 
public or the Congress without confidential sources. And over the past 
few years, more than 40 reporters and media organizations have been 
subpoenaed or questioned about their confidential sources, their notes, 
and their work product in criminal and civil cases in Federal court.
  The need for this legislation was underscored when on August 13 a 
Federal judge ordered five more reporters from major news organizations 
to reveal their confidential sources in the privacy lawsuit filed by 
Dr. Steven Hatfill against the Federal Government.
  If sources, including public and private sector whistleblowers, are 
uncertain whether reporters have adequate protection, they won't come 
forward in the public dialogue and important issues will diminish.
  The shield is qualified, as it must be. If the information possessed 
by the journalist is necessary to prevent an act of terrorism, imminent 
death or significant bodily injury, or harm to national security, 
disclosure can be compelled.
  While 49 States and the District of Columbia recognize a reporter's 
privilege through statute or common law, no uniform Federal standard 
exists to govern when testimony can be sought from reporters. 
Journalists should be the last resort, not the first stop, for civil 
litigants and prosecutors attempting to obtain the identity of 
confidential sources.
  I urge my colleagues to vote ``yes'' on H. Res. 742 and ``yes'' on 
the underlying bill.
  Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, it is my privilege 
at this time to yield 3 minutes to a great leader in this House, our 
colleague from Florida (Mr. Keller).
  Mr. KELLER of Florida. I thank the gentleman for yielding.
  Madam Speaker, I rise in strong support of the Free Flow of 
Information Act.
  This media shield legislation is important because ``off the record'' 
confidential sources are needed to help journalists get to the truth, 
and I don't want reporters thrown in jail for doing their jobs.
  Our history is full of examples of confidential sources exposing 
corruption, fraud, and misconduct. For example, the Watergate scandal 
was blown wide open by Deep Throat, a confidential source we now know 
to be Mark Felt, the number two person at the FBI. Confidential sources 
also exposed the cooked books at Enron and the unacceptable treatment 
of soldiers recovering at Walter Reed.
  Whistleblowers, with inside knowledge of corruption, might be 
discouraged from talking to reporters if they fear their identities 
might be disclosed and their jobs placed at risk. That's why protecting 
the public's right to know is needed for a healthy democracy. That is 
also why a majority of the States already have media shield laws on the 
books and why we need this law on the Federal level.
  The media shield privilege under this bill is not absolute. 
Exceptions are carved out where it is necessary to reveal a source in 
order to prevent imminent death or bodily harm, terrorist attacks, or 
other specific threats to national security. The bill also includes the 
language I drafted, which provides an exception for civil defamation 
claims. This language, found in section 2(C) of the bill, is modeled 
after language found in various State media shield laws such as those 
in Tennessee and Oklahoma dealing with this issue.
  Finally, I want to thank my colleagues, especially Mr. Pence and Mr. 
Boucher, for their impressive bipartisan leadership and hard work on 
this important bill. It was my honor to work closely with them on the 
drafting of this legislation during the Judiciary Committee process.
  Madam Speaker, the bottom line is that a free and independent press 
is critical to ensure government accountability. I urge my colleagues 
to protect the public's right to know and vote ``yes'' on H.R. 2102.
  Ms. SLAUGHTER. Madam Speaker, I reserve the balance of my time.
  Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, it is my privilege 
to yield 8 minutes to someone who has been working long and hard on 
this important issue and deserves much commendation, my dear friend Mr. 
Pence of Indiana.
  Mr. PENCE. I thank the gentleman for yielding.
  Madam Speaker, 3 years ago this month, I read a newspaper editorial 
decrying a growing trend of cases where reporters were being subpoenaed 
and threatened with jail time to reveal confidential sources. The 
article also lamented how Republicans in Congress would never support 
such a statute to shield reporters in those cases.
  The next day I asked my congressional staff two questions: First, I 
asked, what's a Federal media shield statute? And next I asked, tell me 
what I will never do. And it was in that moment of challenge and 
inquiry that the Free Flow of Information Act was born.
  Shortly thereafter I partnered with the gentleman from Virginia, 
Congressman Rick Boucher, the lead sponsor of this legislation today. 
And the legislation that we will bring to the floor of the House of 
Representatives this afternoon is a direct result of a bipartisan 
partnership that has been a singular personal and professional pleasure 
for me. It is indeed humbling for me to work with Mr. Boucher, Chairman 
Conyers, and colleagues on both sides of the aisle to truly put a 
stitch in what I believe is a tear in the fabric of the Bill of Rights.
  When the Free Flow of Information Act passed out of the Judiciary 
Committee on August 1, 2007, Mr. Speaker, I was informed that in the 
past 30-odd

[[Page 27276]]

years approximately 100 Federal media shield statutes had been 
introduced in Congress. But the Free Flow of Information Act is the 
first of those to be passed out of the committee, and it will be the 
first Federal media shield bill to ever be considered by the House. It 
is arguable, in fact, that the Free Flow of Information Act is the 
first Federal legislation regarding the freedom of the press since the 
words ``Congress shall make no law abridging the freedom of speech or 
of the press'' were added to the Constitution. As such, and I say 
humbly, passage of this legislation today would be both momentous and 
historic.
  So what's a conservative like me doing passing a bill that helps 
reporters? I have been asked that question many times.
  It would be Colonel Robert McCormick, the grandson of the founder of 
the Chicago Tribune, who once said: ``The newspaper is an institution 
developed by modern civilization to present the news of the day and to 
furnish that check upon government which no Constitution has ever been 
able to provide.''
  As a conservative who believes in limited government, I believe the 
only check on government power in real-time is a free and independent 
press. The Free Flow of Information Act is not about protecting 
reporters. It is about protecting the public's right to know.
  Thomas Jefferson warned that ``our liberty cannot be guarded but by 
the freedom of the press, nor that limited without danger of losing 
it.'' Today, the Congress has the opportunity to heed President 
Jefferson's words and take this important step towards strengthening 
our first amendment, a free and independent press.
  Not long ago a reporter's assurance of confidentiality was 
unquestionable. That assurance led to sources who provided information 
to journalists who brought forward news of great consequence to the 
Nation, like Watergate, where government corruption and misdeeds were 
brought to light by the dogged persistence of Woodward and Bernstein.
  However, the press cannot currently make the same assurance of 
confidentiality to sources today, and we face a real danger that there 
may never be another Deep Throat. In recent years, reporters like 
Judith Miller have been jailed, James Taricani placed on house arrest, 
Mark Fainaru-Wada and Lance Williams threatened with jail. The 
protections provided by the Free Flow of Information Act, I submit, are 
necessary so that members of the media can bring forward information to 
the public without fear of retribution or prosecution and, more 
importantly, so that sources will continue to come forward.
  Compelling reporters to testify, and in particular compelling them to 
reveal the identity of confidential sources, is a detriment to the 
public interest. Without the promise of confidentiality, many important 
conduits of information about our government will be shut down. The 
dissemination of information by the media to the public on matters 
ranging from the operation of our government to events in our local 
communities is invaluable to the operation of democracy. Without the 
free flow of information from sources to reporters, the public will be 
ill prepared to make informed choices.
  Which is not to say the press is always without fault, as the 
chairman of the Rules Committee said just moments ago, or always gets 
the story right. In fact, President James Madison wrote: ``To the press 
alone checkered as it is with abuses, the world is indebted for all the 
triumphs that have been gained by reason and humanity over error and 
oppression.''
  As a conservative, I believe that concentrations of power should be 
subject to great scrutiny. Integrity in government is not a Democrat or 
Republican issue, and corruption cannot be laid at the feet of one 
party. But when scandal hits either party, any branch of government, or 
any institution, our society is wounded.
  The longer I serve in Congress, the more firmly I believe in the 
wisdom of our Founders, especially as it pertains to the accountability 
that comes in a free and independent press.
  And it is important to note this legislation is not a radical step. 
Thirty-two States and the District of Columbia have various statutes to 
protect reporters from being compelled to testify and disclose 
confidential sources. And the Free Flow of Information Act, I would say 
to all of my colleagues, has been carefully drafted after reviewing 
internal Department of Justice guidelines, State shield laws, and 
gathering input from many talented members on the Judiciary Committee 
and throughout the Congress. It puts forward only a qualified privilege 
for journalists to protect sources and strikes an appropriate balance 
between the public's need for information and the fair administration 
of justice.
  In most instances under our legislation, a reporter will be able to 
use the shield provided in the bill to refrain from testifying or 
providing documents. But testimony or documents can be forced under 
certain circumstances if all reasonable alternatives have been 
exhausted and the document or testimony is critical to criminal 
prosecutions. A reporter may also be asked to reveal the identity of a 
confidential source in very specific and exceptional cases. And the 
manager's amendment we will consider today will add even additional 
exceptions.
  Lastly, Mr. Speaker, let my say how humbling it is for me to have 
played a small role in moving this legislation forward. From my youth I 
have enjoyed a fascination with freedom and with the American 
Constitution. I learned early on that freedom's work is never finished, 
that it falls on each generation of Americans to preserve, protect, and 
defend our freedom as those who have bequeathed it to us did in their 
time.
  The banner of the Indianapolis Star, the newspaper of record in my 
home State, quotes a verse from the Bible that reads: ``Where the 
spirit of the Lord is, there is freedom.'' As I opened my Bible this 
morning for devotions, it was that verse that just happened to be in my 
daily readings.

                              {time}  1200

  It reminded me that when we do freedom's work, like putting this 
stitch in a tear in the fabric of the Bill of Rights, His work has 
truly become our own.
  I ask all of my colleagues in both parties to join us today in 
freedom's unfinished work. Say ``yes'' to a free and independent press. 
Vote ``yes'' on the Free Flow of Information Act.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I will be asking for 
a ``no'' vote on the previous question so that we can amend this rule 
and allow the House to consider a change to the rules of the House to 
restore accountability and enforceability to the earmark rule.
  Under the current rule, so long as the chairman of the Committee of 
Jurisdiction includes either a list of earmarks contained in the bill 
or report or a statement that there are no earmarks, no point of order 
lies against the bill. This is the same as the rule in the last 
Congress. However, under the rule as it functioned under the Republican 
majority in the 109th Congress, even if the point of order was not 
available on the bill, it was always available on the rule as a 
question of consideration. But because the new Rules Committee majority 
specifically exempts earmarks from the waiver of all points of order, 
they deprive Members of the ability to raise the question of earmarks 
on the rule or on the bill.
  I would like to direct all Members to a letter that House 
Parliamentarian John Sullivan recently sent to the distinguished Chair 
of the Rules Committee, Ms. Slaughter, which confirms what we have been 
saying since January, that the Democratic earmark rule contains 
loopholes.
  In his letter to the distinguished chairman, the Parliamentarian 
states that the Democratic earmark rule ``does not comprehensively 
apply to all legislative propositions at all stages of the legislative 
process.''
  I will insert this letter from the House Parliamentarian, John 
Sullivan, into the Record.


[[Page 27277]]


                                         House of Representatives,


                                Office of the Parliamentarian,

                                  Washington, DC, October 2, 2007.
     Hon. Louise McIntosh Slaughter,
     Committee on Rules, House of Representatives,Washington, DC.
       Dear Chairwoman Slaughter: Thank you for your letter of 
     October 2, 2007, asking for an elucidation of our advice on 
     how best to word a special rule. As you also know, we have 
     advised the committee that language waiving all points of 
     order ``except those arising under clause 9 of rule XXI'' 
     should not be adopted as boilerplate for all special rules, 
     notwithstanding that the committee may be resolved not to 
     recommend that the House waive the earmark-disclosure 
     requirements of clause 9.
       In rule XXI, clause 9(a) establishes a point of order 
     against undisclosed earmarks in certain measures and clause 
     9(b) establishes a point of order against a special rule that 
     waives the application of clause 9(a). As illuminated in the 
     rulings of September 25 and 27, 2007, clause 9(a) of rule XXI 
     does not comprehensively apply to all legislative 
     propositions at all stages of the legislative process.
       Clause 9(a) addresses the disclosure of earmarks in a bill 
     or joint resolution, in a conference report on a bill or 
     joint resolution, or in a so-called ``manager's amendment'' 
     to a bill or joint resolution. Other forms of amendment--
     whether they be floor amendments during initial House 
     consideration or later amendments between the Houses--are not 
     covered. (One might surmise that those who developed the rule 
     felt that proposals to amend are naturally subject to 
     immediate peer review, though they harbored reservations 
     about the so-called ``manager's amendment,'' i.e., one 
     offered at the outset of consideration for amendment by a 
     member of a committee of initial referral under the terms of 
     a special rule.)
       The. question of order on September 25 involved a special 
     rule providing for a motion to dispose of an amendment 
     between the Houses. As such, clause 9(a) was inapposite. It 
     had no application to the motion in the first instance. 
     Accordingly, Speaker pro tempore Holden held that the special 
     rule had no tendency to waive any application of clause 9(a). 
     The question of order on September 27 involved a special rule 
     providing (in pertinent part) that an amendment be considered 
     as adopted. Speaker pro tempore Blumenauer employed the same 
     rationale to hold that, because clause 9(a) had no 
     application to the amendment in the first instance, the 
     special rule had no tendency to waive any application of 
     clause 9(a).
       The same would be true in the more common case of a 
     committee amendment in the nature of a substitute made in 
     order as original text for the purpose of further amendment. 
     Clause 9(a) of rule XXI is inapposite to such an amendment.
       In none of these scenarios would a ruling by a presiding 
     officer hold that earmarks are or are not included in a 
     particular measure or proposition Under clause 9(b) of rule 
     XXI, the threshold question for the Chair--the cognizability 
     of a point of order--turns on whether the earmark-disclosure 
     requirements of clause 9(a) of rule XXI apply to the object 
     of the special rule in the first place. Embedded in the 
     question whether a special rule waives the application of 
     clause 9(a) is the question whether clause 9(a) has any 
     application.
       In these cases to which clause 9 of rule XXI has no 
     application in the first instance, stating a waiver of all 
     points of order except those arising under that rule--when 
     none can so arise--would be, at best, gratuitous. Its 
     negative implication would be that such a point of order 
     might lie. That would be as confusing as a waiver of all 
     points of order against provisions of an authorization bill 
     except those that can only arise in the case of a general 
     appropriation bill (e.g., clause 2 of rule XXI). Both in this 
     area and as a general principle, we try hard not to use 
     language that yields a misleading implication.
       I appreciate your consideration and trust that this 
     response is to be shared among all members of the committee. 
     Our office will share it with all inquiring parties.
           Sincerely,
                                                 John V. Sullivan,
                                                  Parliamentarian.

  This amendment, Mr. Speaker, will restore the accountability and the 
enforceability of the earmark rule to where it was at the end of the 
109th Congress, to provide Members with an opportunity to bring the 
question of earmarks before the House for a vote.
  I urge my colleagues to close this loophole by opposing the previous 
question.
  Mr. Speaker, I ask unanimous consent to insert the text of the 
amendment and extraneous materials immediately prior to the vote on the 
previous question.
  The SPEAKER pro tempore (Mr. Capuano). Is there objection to the 
request of the gentleman from Florida?
  There was no objection.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I yield back the 
balance of my time.
  Ms. SLAUGHTER. Mr. Speaker, I think this is a momentous day for the 
House. We have before us today a resolution that has been approved by 
both sides of the aisle, worked on with great consideration as concerns 
the Constitution. We are very happy to present it today. We think its 
importance is certainly easily explained and necessary.
  I urge a ``yes'' vote on the previous question and on the rule.
  The material previously referred to by Mr. Lincoln Diaz-Balart of 
Florida is as follows:

 Amendment to H. Res. 742 Offered by Mr. Lincoln Diaz-Balart of Florida

       At the end of the resolution, add the following:
       Sec. 3. That immediately upon the adoption of this 
     resolution the House shall, without intervention of any point 
     of order, consider the resolution (H. Res. 479) to amend the 
     Rules of the House of Representatives to provide for 
     enforcement of clause 9 of rule XXI of the Rules of the House 
     of Representatives. The resolution shall be considered as 
     read. The previous question shall be considered as ordered on 
     the resolution to final adoption without intervening motion 
     or demand for division of the question except: (1) one hour 
     of debate equally divided and controlled by the chairman and 
     ranking minority member of the Committee on Rules; and (2) 
     one motion to recommit.
       (The information contained herein was provided by 
     Democratic Minority on multiple occasions throughout the 
     109th Congress.)

        The Vote on the Previous Question: What It Really Means

       This vote, the vote on whether to order the previous 
     question on a special rule, is not merely a procedural vote. 
     A vote against ordering the previous question is a vote 
     against the Democratic majority agenda and a vote to allow 
     the opposition, at least for the moment, to offer an 
     alternative plan. It is a vote about what the House should be 
     debating.
       Mr. Clarence Cannon's Precedents of the House of 
     Representatives, (VI, 308-311) describes the vote on the 
     previous question on the rule as ``a motion to direct or 
     control the consideration of the subject before the House 
     being made by the Member in charge.'' To defeat the previous 
     question is to give the opposition a chance to decide the 
     subject before the House. Cannon cites the Speaker's ruling 
     of January 13, 1920, to the effect that ``the refusal of the 
     House to sustain the demand for the previous question passes 
     the control of the resolution to the opposition'' in order to 
     offer an amendment. On March 15, 1909, a member of the 
     majority party offered a rule resolution. The House defeated 
     the previous question and a member of the opposition rose to 
     a parliamentary inquiry, asking who was entitled to 
     recognition. Speaker Joseph G. Cannon (R-Illinois) said: 
     ``The previous question having been refused, the gentleman 
     from New York, Mr. Fitzgerald who had asked the gentleman to 
     yield to him for an amendment, is entitled to the first 
     recognition.''
       Because the vote today may look bad for the Democratic 
     majority they will say ``the vote on the previous question is 
     simply a vote on whether to proceed to an immediate vote on 
     adopting the resolution ..... [and] has no substantive 
     legislative or policy implications whatsoever.'' But that is 
     not what they have always said. Listen to the definition of 
     the previous question used in the Floor Procedures Manual 
     published by the Rules Committee in the 109th Congress (page 
     56). Here's how the Rules Committee described the rule using 
     information from Congressional Quarterly's ``American 
     Congressional Dictionary'': ``If the previous question is 
     defeated, control of debate shifts to the leading opposition 
     member (usually the minority Floor Manager) who then manages 
     an hour of debate and may offer a germane amendment to the 
     pending business.''
       Deschler's Procedure in the U.S. House of Representatives, 
     the subchapter titled ``Amending Special Rules'' states: ``a 
     refusal to order the previous question on such a rule [a 
     special rule reported from the Committee on Rules] opens the 
     resolution to amendment and further debate.'' (Chapter 21, 
     section 21.2) Section 21.3 continues: Upon rejection of the 
     motion for the previous question on a resolution reported 
     from the Committee on Rules, control shifts to the Member 
     leading the opposition to the previous question, who may 
     offer a proper amendment or motion and who controls the time 
     for debate thereon.''
       Clearly, the vote on the previous question on a rule does 
     have substantive policy implications. It is one of the only 
     available tools for those who oppose the Democratic 
     majority's agenda and allows those with alternative views the 
     opportunity to offer an alternative plan.

  Ms. SLAUGHTER. Mr. Speaker, I yield back the balance of my time, and 
I move the previous question on the resolution.
  The SPEAKER pro tempore. The question is on ordering the previous 
question.

[[Page 27278]]

  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the 
yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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