Lawyers, watchdog groups scrutinize change to earmark, linked to Young, after bill’s passage

2 Oct 2007 // A change made to an earmark to the 2005 transportation bill after it passed the House and Senate is attracting the attention of lawyers and watchdog organizations, some of whom are criticizing Rep. Don Young’s (R-Alaska) alleged involvement.

After the $286.4 billion transportation bill passed Congress, the enrollment clerk changed the language of a $10 million provision for Florida’s Lee County. The altered language designated the money for a “Coconut Road Interchange” on Interstate 75; the original language authorized the money for “widening and improvements” for I-75.

Watchdog groups argue that Young, who chaired the Transportation Committee at the time, had an interest in the change due to his relationship with businessman David Aronoff, who has raised $40,000 for Young and wanted the interchange. Authorities in Lee County long had said they didn’t want to spend the money on the I-75 Coconut Road Interchange, preferring to use it for a more general widening project.

Young’s office did not respond to a request for comment by press time.

The Lee County Metropolitan Planning Organization last week voted for a second time to send the money back to Congress in the hopes that it would be reallocated for the road-widening project.

The last-minute change to the bill has prompted comparisons to last year’s partisan uproar over a budget typo added to the Deficit Reduction Act after it passed the Senate but before it reached the president’s desk for signature.

The Senate clerk inserted the wrong numbers into an obscure provision of the measure, a budget-reconciliation bill that trimmed $39 billion in federal spending on health, education and other programs. As a result of the typo, the House voted on a different version of the bill than had passed the Senate. The bill signed by Bush included the correct Senate language, which is what House members thought they were voting on.

Democrats, then in the minority, cried foul, proposed ethics investigations and sued President Bush, charging that passage and enactment of the act was unconstitutional.

The watchdog group Public Citizen, as well as Rep. John Conyers Jr. (D-Mich.) and 10 other senior Democratic House members, filed two separate suits. A federal judge in Michigan dismissed Conyers’s case in November, and last summer a U.S. District Court in D.C. ruled against Public Citizen and upheld the law as modified by the clerk. Public Citizen is appealing the decision to the U.S. Supreme Court, which has wide discretion over which cases it considers.

Craig Holman of Public Citizen said he disagreed with the court’s decision, and he argued that changes to the 2005 transportation earmark are stark and far more serious.

“This is a very obvious change,” Holman said. “This is not a typo. This is actually dealing with $10 million for such an unpopular project that the Florida County doesn’t even want it.”

Taxpayers for Common Sense sent a letter to the House Ethics Committee and asked for an investigation.

Depending on what happens with the ethics complaint, Holman said, Public Citizen may file a lawsuit similar to the one it filed last year, arguing that substantially changing a bill after it passes the House and Senate is unconstitutional.

“Whoever did make the change would have to be in the clerk’s office, and that’s a violation of legislative procedures,” Holman said. “[The clerk] should have refused to do so and at the very least should have notified the ethics committee.”

Meredith McGehee of the Campaign Legal Center agreed.

“It’s a serious problem,” she said. “When you’re changing bills after they passed Congress, that’s a violation of [the] legislative process.”

McGehee argued that it may be a matter for the ethics committee to settle rather than the courts.

In issuing its decision in Public Citizen’s case, the court referred to the 1892 case Marshall Field & Co. vs. Clark, which holds that if the Speaker and president pro tempore of the Senate sign the bill before sending it to the president, it satisfies the constitution even if the bill is not the same as the version that passed the House and the Senate.

Before Lee County’s Metropolitan Planning Organization (MPO) voted last week on whether to return the $10 million to Congress, Joe Mazurkiewicz, a proponent of the Coconut Road project, e-mailed MPO members a memo from a Washington attorney hired to defend the project.

In the memo, Jack Schenendorf, an attorney with Covington and Burling, cited Public Citizen’s case, referring to it as a failed legal challenge to another instance when an enrolling clerk has corrected provisions in bills during the enrollment process.

He also argued that the Coconut Road provision is “valid as drafted and signed by the president.”

“In my experience on Capitol Hill, it is not surprising that the enrolled version of the [transportation bill] contains some variation in its provisions from the text of the printed conference report,” he argued.

“It appears that the enrolling clerk corrected a provision related to the Coconut Road Provision,” he acknowledged.

“Again, based on my experience, the enrolling clerk would only have made this correction if convinced that an error had been made, that fixing the error was necessary to reflect accurately the intent of the House and Senate, and that fixing the error had bipartisan, bicameral support,” he wrote.

Schenendorf served on the House Transportation Committee for 25 years. As TPMuckraker.com reported last week, Agripartners, a company owned by Aronoff, hired him to write the memo.