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A Call to Probe Young Earmark

A nonpartisan ethics watchdog has called on the House Committee on Standards of Official Conduct to launch an investigation into how a controversial Florida highway earmark tied to Rep. Don Young (R-Alaska) made it into legislation that had already passed the House and Senate.

But thanks to restrictive House rules that bar the committee from considering complaints from outside groups — and the recent federal court ruling limiting the ability of the Department of Justice to investigate Congress — it is unclear whether any investigation will occur.

The complaint highlights the relatively insulated position Members of the House have constructed for themselves and the difficulty citizens have in participating in the ethics process.

In a letter to Chairwoman Stephanie Tubbs Jones (D-Ohio), Taxpayers for Common Sense President Ryan Alexander urged the committee to launch an investigation into how and when a $10 million earmark for a road project in Florida was inserted into a 2005 bill intended to make technical “corrections” to the transportation authorization bill.

The language was not included in the version of the bill passed either by the House or the Senate, nor was it in the conference report approved by both chambers following negotiations between the two houses of Congress.

Rather, the funding was inserted sometime after the July 29 passage of the report and before President Bush signed it on Aug. 10.

“The public deserves to know how a bill that was already passed by both the House and Senate was changed before arriving on the President’s desk. A thorough, transparent accounting of the details of what happened … is essential to restore the public’s trust into the legislative process,” Alexander argues in the letter.

“In the absence of an accounting and explanation, the public is left to assume the worst, further degrading the already low public regard for Congress,” the letter continues.

Former Transportation and Infrastructure Chairman Don Young (R-Alaska), the author of the provision, has denied any wrongdoing in including the provision and has said it was done at the request of local officials and Rep. Connie Mack IV (R-Fla.).

Mack, however, has denied requesting the funding. The project — which now is being opposed by local officials — would be a boon to a Florida land developer who hosted a fundraiser for Young in February 2005.

Florida developers donated more than $40,000 to Young’s campaign following the event.

In her letter, Alexander points to recent media reports indicating that the changes to the bill were made by the House Enrolling Clerk at the request of transportation committee staff, and argues that the incident could violate the Constitution because neither the House nor the Senate ever voted on the spending.

In an interview, Alexander explained that TCS — which has never filed an ethics complaint with either the House or the Senate — took the unusual step of contacting the committee in part because it believes the Justice Department no longer has the ability to take up citizen complaints.

The Aug. 3 decision by the U.S. Court of Appeals throwing out evidence from a federal search of Rep. William Jefferson’s (D-La.) office imposed conditions on the executive branch, Ryan said, that will make future searches by the Justice Department extremely difficult.

The court found that while the FBI can conduct searches of Members’ offices, investigators overstepped their authority by seizing documents from Jefferson’s office without first allowing him to determine which were covered by the search warrant and which were privileged legislative work products, which could not be viewed by the executive branch.

That ruling, Alexander and other ethics observers warned, marks a major setback for DOJ’s ability to investigate potential wrongdoing in Congress and leaves the Committee on Standards of Official Conduct as the one body with the authority to investigate complaints.

The committee is “the one body that clearly has the jurisdiction and power to investigate this” issue because of the constraints the Jefferson decision has put on DOJ, Alexander said.

The committee declined to comment on the request.

Unlike the Senate, House rules do not provide a mechanism for citizens to formally petition the committee to investigate Members for corruption, although other Members of the chamber can file a formal complaint.

However, the committee does have the authority to launch its own investigations — as it did in the Jefferson case and in its investigation last year into allegations of inappropriate conduct with pages against former Rep. Mark Foley (R-Fla.).

But ethics watchdogs point out that those cases are rare. Additionally, they point to the fact that, with a few high-profile exceptions, the two parties have stuck to a years-old informal deal to forgo complaints against each other’s members.

Lawmakers in both parties have long argued that these restrictive rules are needed to keep the ethics investigatory process free from politics.

While Alexander also said she understands the need to shield the committee from frivolous or politically motivated complaints, the current system is deeply flawed.

“I certainly understand on a practical level why the ethics committee would be leery about taking citizen complaints … but it’s not a better solution to have what we’ve had over the last several years, which is basically a truce,” she argued.

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