Thursday, April 17, 2008

"Laws are like sausages: It is better not to see them being made"

Marty Lederman

Otto von Bismarck, meet Representative Don Young (R-Alaska) (a/k/a Rep. "Bridge to Nowhere").

The Washington Post reports that "[t]he Senate moved yesterday toward asking the Justice Department for a criminal investigation of a $10 million legislative earmark whose provisions were mysteriously altered after Congress gave final approval to a huge 2005 highway funding bill."


The alleged crime is the alteration of a bill after the House and Senate have voted? How would one go about doing such a thing?

On July 29, 2005, both Houses of Congress voted for a bill, memorably titled the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users -- or "SAFETEA–LU," for short. In fact, what the Houses voted on was the House Conference Report containing the final language of the agreed-upon legislation.

In that bill (see page 372, Item No. 461 of section 1934(c)), ten million dollars was designated to be spent on "Widening and Improvements for I-75 in Collier and Lee County" in Florida.

By the time the voted-upon bill was enrolled and sent to the President for his signature, however, the earmark in question had mysteriously been changed to ten million dollars for a much more specific function: "Coconut Rd. Interchange/Lee County." (See page 366, Item No. 462 of section 1934(c) of the Act.)

How did this "change" in the law come to pass in between the bicameralism and presentment that Article I of the Constitution prescribes? Well, for many months, Rep. Young would not comment on the mystery, as Paul Kiel explains. But now he comes clean:
Young's staff acknowledged yesterday that aides "corrected" the earmark just before it went to the White House for President Bush's signature, specifying that the money would go to a proposed highway interchange project on Interstate 75 near Naples, Fla. Young says the project was entirely worthy of an earmark and he welcomes any inquiry, a spokeswoman said.
Meredith Kenny, Rep. Young's spokeswoman, explained further that "the lawmaker always intended for the earmark to designate money to the interchange project, not generic highway improvements. So committee aides altered the bill to reflect that after the House and Senate had approved it. 'There was an error in the bill and so it was corrected,' she said."

"There was an error in the bill" -- the error being that the earmark reflected Congress's presumed intent rather than Rep. Young's -- "and so it was corrected."


(Local planning officials in Florida had no desire to build the interchange, and "were outraged to learn after the highway bill became law that they were required to spend $10 million on a project they did not want." It appears the only one who did want the interchange was developer Daniel Aronoff, whose land would increase substantially in value by virtue of the I-75 interchange. Coincidentally, Aronoff hosted a fundraiser in 2005 that garnered about $40,000 for Rep. Young's re-election campaign.)

I don't think I truly want to know the answer to this question, but here goes: How is it, exactly, that an aide to a congressman can, quite literally and physically, "correct" a bill in between the time it is approved by the House and the Senate and the time it is enrolled and sent to the President? Can anyone just walk right into whatever congressional office it is that handles the bill, ask for the official copy of the text, take out a red pen, and start "correcting"? (Imagine David Addington with such an opportunity! Who needs signing statements?)

Sorry I missed this at the time, but Josh Marshall has quite appropriately lamented that this episode calls into serious question the classic Schoolhouse Rock dittie that taught us all how a bill becomes a Law.

Now, some Senators want a congressional investigation. Barbara Boxer and Harry Reid, on the other hand, "have suggested that constitutional separation-of-powers issues would make it difficult for a Senate investigation of an action in the House. Instead, they have pushed for a resolution asking the Justice Department to investigate."

I don't quite get this. What would be the "separation of powers" problem with a joint Senate-House investigation? And what would the Justice Department investigate, anyway? Is there any criminal law that prohibits a member of the House tampering with a voted-upon bill?

One other thing: What's the law? If Congress does not enact any correction of Rep. Young's shenanigans, must the ten million dollars be spent on the Coconut Road interchange? Thoughts on that question here. But cf. this opinion.


There's no separation of powers problem, but they have to come up with SOME excuse for not making the matter a big deal, or public outrage might result in them, the leadership, losing an important tool: The power to alter bills after they've been voted on.

It's all about the power of the leadership, the Constitution be damned.

Bills enacted by Congress going to the President should contain:


And how could Young be prosecuted? Whatever he did (let's call it "helping to create legislation") sounds pretty clearly within the sphere of "legislative activity."

I think it's quite clear that, in the absence of an actual statute, he can't be prosecuted. He could, however, and should, be censured and expelled. He won't be. The leadership won't set a precident which would apply far too often to their own activities.

Yes, this falls within the ambit of "legislative activity"; In much the same sense as embezzlment falls under "banking activity". What he did wasn't remotely legitimate, but is comitted all the time by the legislative leaders, usually without detection because the text of the bills isn't distributed until after the vote, making it easy to insert language which wasn't present at the time of the vote.

The real crime, as usual, is what's legal.

My question is how did anyone notice the change given that no one in Congress reads these things before they vote on the omnibus spending bills?


Is there any criminal law that prohibits a member of the House tampering with a voted-upon bill?

How about 18 USC 2071 (b):

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

Could changing the words of a bill after the fact constitute falsification, even if the change was intended to clarify the intent of the words?

Is a bill a "record" under the law?

I would think that conspiracy to defraud the United States might be a better route.

"Is a bill a "record" under the law?"

Is the Congressional Record a record under the law?

And are laws actually laws under George Bush?

As someone who has been a reader of Balkinization for quite some time, I have what may be a rhetorical question:

Why does Bart De Palma persist in his infliction of ignorance upon a blog that he so obviously despises? Does he not have anything better to do with his miserable time?

Aside from any potential crimes that may have been committed, the simple fact is that the President did not sign the law that Congress passed. He signed the edited one. One would be led to believe that the bill is unconstitutional as signed.

Is a bill a "record" under the law?

If a bill isn't a "record" under the law, can we agree it's an "other thing"? :)

Funny/Sad/Outrageous. Is there an end to it?

When the Detainee Treatment Act (DTA)was passed in December 05 the republicans decided to beef up the congressional testimony by adding a few things after the fact... and then the DOJ in briefs before the supreme court (regarding whether or not the DTA was retroactive even though the statute didn't say it was retroactive) tried to rely on the testimony that was added after the fact...
By the way congressional testimony is the official "record" of the congressional debates....
I think Don Young's best hope is to say he was relying on past practices of the republican majority... and who knows maybe he will get someone like Bybee as his judge...

If the Senate is hesitant to investigate a house action due to separation of powers, isn't there a bigger separation of powers issue if the executive branch (i.e. the DOJ) investigates the same thing?

The idea of DOJ investigating this makes no sense because (a) the alteration of the bill may have violated no law, (b) even if it did violate a law, the Speech or Debate privilege would make it impossible to prosecute, and (c) the Speech or Debate privilege would also likely prevent DOJ from being able to investigate it properly.

On the other hand, there are both constitutional and traditional limitations on the ability of the House or Senate to investigate the other body. The Constitution gives each House authority over its own rules and discipline. Traditionally, one body cannot subpoena a Member of the other, but can only request the Member's attendance.

In this case, though, the Senate was directly impacted by the alleged misconduct. It would seem to have a legitimate interest in finding out what happened because, for example, it might want to amend its own rules and practices to prevent this from happening again. If the House were acting to conduct its own internal investigation, prudence would no doubt counsel that the Senate wait until the results of that investigation were complete. If the House refuses to act on its own, however, the option of a joint investigation seems like the best alternative. The House and Senate have conducted a number of joint investigations in the past, such as the Joint Inquiry on 9-11(I am not sure whether there has ever been a joint inquiry focused on internal congressional misconduct), and there is no obvious constitutional barrier to conducting such an investigation here, so long as it is limited to gathering information.

Law Offices:

I am not a fan of altering the legislative history either, but it's not the same as altering the text. It is the text that has to be agreed on by the house and senate under the presentment clause.

The issue which I would like to understand better is, "under the US Constitution, relevant laws, and House and Senate rules, was the altered bill which Bush signed a duely, legally constituted law?

Dr. Edward D. Rockstein

Even if the speech and debate clause immunizes Young from prosecution, couldn't the "aides" who actually altered the bill be prosecuted?

Even if the speech and debate clause immunizes Young from prosecution, couldn't the "aides" who actually altered the bill be prosecuted?


EOP, and the transmitting agent from congress when the law is first sent to EOP, need to run a concordance feature as is present in most advanced software, to find any alterations; it was in WP5.0.

Else, the new wikiLaw feature becomes the paradigm. If you are registered on the wikiLaw website, you can change it; and it lasts until oppo research registers there and revises the wikiLaw yet again. Open source law, the new dynamic living sausage. Now, unfunded federal mandates for state programs would be an interesting lens with which to examine this particular sausage factory concept.


This reminds me of the endless arguments my boss used to have with the jurists/linguists during my time in Brussels. (And since.)
In the EU institutions, the jurists/linguists are lawyers with language training or translators with legal training who are responsible for translating the english text that was agreed into all the other official languages, each of which is equally authoritative once they've been published in the official journal. In doing this translating, they sometimes "correct" some of the ugly language that was put in for the express purpose of securing an agreement, thus causing all sorts of mishaps.

Brett: they have to come up with SOME excuse for not making the matter a big deal, or public outrage might result in them, the leadership, losing an important tool: The power to alter bills after they've been voted on.

That's nonsense. The Democratic leadership has never even attempted to alter bills after they've been voted on; indeed, no previous leadership of either chamber, Democratic or Republican, had ever done this before. I doubt seriously that it had ever been considered before, and the Democratic leadership has no desire to repeat the incident, much less make it a procedural tool.

No, it took the current crop of Republican "leaders" -- corrupt, hyperpartisan, and without even a shred of respect for rules and law -- to attempt something so unprecedented.

There are certainly respects in which politicians of both parties come to resemble each other; power corrupts. But this is case is not an example.

LOL! Never happens, eh, Neil. Man, are YOU ever living in a fantasy land. The leadership routinely forces votes on bills before distributing their text, how would you ever know if they altered the text after the vote?

And I bet you think that they never hold voice votes without a quorum present, too...

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