CRS memo feeds into Rep. Young’s transportation earmark controversy

The Congressional Research Service has issued a memo outlining the constitutional violations that occur when lawmakers, staff or enrolling clerks make substantive changes to bills after they pass the House and Senate.

Lawmakers must pass a concurrent resolution if they want to codify a substantive change to a bill that was made after its initial passage in either chamber, according to the Oct. 4 memo, which was obtained by The Hill.

{mosads}An anonymous congressional office requested the memo, in an apparent attempt to gain insight into the growing debate over Rep. Don Young’s (R-Alaska) alleged involvement in changing earmark language in the 2005 highway bill after both chambers passed it.

The memo states that if an error or change appears in a bill that was not included in the original version, and it does not “reflect congressional action on a measure,” “both chambers must agree to a concurrent resolution that directs the appropriate official to re-enroll the bill with specified changes.”

If the measure has already been presented to the president, “the concurrent resolution must also request the President to return the bill to the chamber of origin.”

Such a resolution can only be agreed to by unanimous consent.

The memo also addresses cases when “irregularities in enrollment resulted in the enactment of a measure not in the form agreed to by both chambers.”

“If Congress does not address the problem with a subsequent new enactment, the constitutionality of the measure may be challenged in federal court,” states the memo.

The memo refers to a legal challenge to a budget typo added to the 2006 Deficit Reduction Act after it passed the Senate but before it reached the president’s desk for signature.

The Office of the House Clerk, which has been caught in the controversy, has issued a statement to assure lawmakers it is taking the “appropriate steps.”

But the office has not openly stated whether the enrolling clerk knew about the language change and whether the office approved it — which has raised more questions.

Young, who is under FBI investigation, refuses to comment about his role in changing the language of a $10 million provision for Florida’s Lee County between the time that both chambers passed the 2005 transportation bill and the president signed it. The altered language designated the money for a “Coconut Road Interchange” on Interstate 75, while the original language authorized the money only for “widening and improvements” for I-75.

Watchdog groups accuse Young, who chaired the House transportation panel at the time, of making the change to benefit Florida developers who want the Coconut Road interchange, including David Aronoff, who helped him raise $40,000 at a February 2005 fundraiser.

Lee County planning officials, who do not want an interchange at Coconut Road, have twice voted to send the money back to Congress in the hopes that it can be reallocated to the interstate widening project. Taxpayers for Common Sense wrote a letter to the ethics committee asking for an investigation into the matter, and other watchdogs have added pressure.

Recent questions from the media, and as well as from local transit officials in Florida affected by the earmark change, have GOP staffers who worked for the Transportation Committee in 2005 pointing fingers at one another. Some are also implicating the clerk’s office, whose duties include making changes to bills during the engrossing and enrolling processes to ensure that the actions of the chamber are accurately reflected.

House Transportation Chairman Jim Oberstar (D-Minn.) and the panel’s Democratic staff, who were in the minority at the time of the bill’s passage, would have had to agree to any change to the bill, and the enrolling clerk would have had to sign off on it, the GOP aides argued.

But the same staffers have not said who initiated the change. Instead, they claim that they learned of the altered language and the ensuing controversy only through press reports long after the president had signed the bill into law.

The 2005 change occurred under then-Speaker Dennis Hastert’s (R-Ill.) chief clerk, Jeff Trandahl. Speaker Nancy Pelosi (D-Calif.) appointed a new clerk, Lorraine Miller, this past February.

Adam Holmes, the manager of operations for the House clerk’s office, said enrolling clerks do not take interviews from the press. He also noted that because the events occurred under a different clerk and a different Congress, “our ability to comment is extremely limited.”

But Holmes provided a written statement explaining that Congress can make substantive changes to bills after they pass the House and Senate only through the joint passage of a concurrent resolution. 

A number of lawsuits, including one filed by Public Citizen, a liberal watchdog organization, challenged the constitutionality of the 2006 bill, but to date no court has invalidated the law or any portion of it.

Instead, courts have relied on an 1892 Supreme Court ruling that 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’s requirements — even if the bill is not the same as the version that passed the House and the Senate.

Public Citizen has appealed its case to the Supreme Court, which has until Dec. 10 to decide whether to take up the case.

According to the CRS memo, courts can diverge from the 1892 decision if they believe the “constitutional requirements for enactment were not fulfilled.” In those cases, “the court could invalidate the entire text or alternatively, strike down only the portion of the law that is alleged to have been incorrectly or improperly enrolled.”

One GOP source familiar with the transportation bill and the bill enrollment process said that the enrolling clerk goes through a rigorous vetting process to determine whether a change is substantial or technical in nature. In this case, the source added, the clerk must have determined it was a technical change that did not require a concurrent resolution.

“If the enrolling clerks made a change that people don’t like, then we need to go back and change the enrolling process,” the GOP source said.