Mr. President, the very first bill debated on the floor of the Senate after the 2006 elections was S. 1, the Honest Leadership and Open Government Act of 2007, HLOGA. About 9 months later, President…
Mr. President, the very first bill debated on the floor of the Senate after the 2006 elections was S. 1, the Honest Leadership and Open Government Act of 2007, HLOGA. About 9 months later, President Bush signed that bill into law as Public Law Number 110-81. It was the most sweeping ethics reform legislation since Watergate, and it passed both houses of Congress by a wide margin--the final votes were 411-8 in the House and 83-14 in the Senate.
The new law contained, among many other provisions, significant reforms to the lobbying disclosure laws, a tough new prohibition on gifts from lobbyists, improvements to the revolving door rules, and new restrictions on privately funded fact-finding trips. It also contained new rules on personal, official, and campaign travel on non-commercial aircraft, often known as ``corporate jets.'' Prior to HLOGA, members who flew on corporate jets, often accompanied by corporate lobbyists, were required to reimburse the owner of the aircraft only the amount that they would have paid to fly first class between the origin and destination of the flight. HLOGA provided that Senators and presidential candidates would have to reimburse such travel at the charter rate. House members were prohibited from flying on non- commercial aircraft altogether.
Because Senators travel in different capacities, HLOGA addressed the issue in separate sections. Section 544(c) of the bill amended the Senate Rules XXXV and XXXVIII to address official and personal travel by Senators. The House had already amended its rules at the very beginning of the year. Section 601 dealt with campaign travel for both House and Senate candidates by amending the Federal Election Campaign Act, ``FECA''.
Both the House and the Senate have been living under these new rules for over two years. No House member has flown on a corporate jet, as far as we know. Senators, whether they were traveling in personal, official, or campaign capacity, and regardless of who was paying for the trip, have flown on them only if they were prepared to pay the charter rate for these trips. Presidential candidates in the last campaign abided by the new rules as well.
Because HLOGA made amendments to the FECA on this issue, the FEC started a rulemaking shortly after its enactment to implement the new provision. But at the end of 2007, just as the agency was poised to put new regulations in place, the terms of several recess-appointed Commissioners expired. A stalemate ensued that left the agency without a quorum to do business until the summer of 2008. Once a full slate of Commissioners was in place, the agency deadlocked on issuing final regulations. The three new Republican commissioners refused to sign off on the rules that the Commission had been prepared to adopt in December 2007. The deadlock was resolved only a few weeks ago, when a Democratic Commissioner reluctantly agreed to go along with modifications that the Republicans proposed. See Statement of Chairman Steven T. Walther, Campaign Travel Regulations, Nov. 19, 2009. The new rule was published in the Federal Register on December 7, 2009. Federal Election Commission, Notice 2009-27, Campaign Travel, 74 Fed. Reg. 63951, Dec. 7, 2009.
I will put this as simply as I can. The new FEC rule relating to travel on non-commercial aircraft is an outrage. Rather than respecting the intent of Congress in HLOGA to address all travel on corporate jets by members of Congress and presidential candidates, the FEC has carved a loophole in the statute for travel by candidates on behalf of someone other than their own campaigns. No one in the House or the Senate contemplated this exception when the bill was passed. No one discussed it. No one considered it. The FEC just made it up. Now we in Congress have no choice but to take action to correct it if the FEC refuses to do so.
We cannot let a lawless agency undermine our effort to police ourselves, to end a practice that exposed Congress to public criticism and even ridicule. Some Senators and House members may have agreed to kick the corporate jet habit reluctantly, but they have learned to live with it. There is no need for the loophole the FEC has opened. It is contrary to the statutory language and to the legislative history. It must be closed.
So today, I will introduce, along with my colleagues from Arizona, Connecticut, and New York, Senators McCain, Lieberman, and Schumer, all of whom played a key role in the enactment of HLOGA, a resolution of disapproval under the Congressional Review Act. This resolution, if passed by the House and signed by the President, will send the FEC back to the drawing board. After a rebuke of this kind, one can only hope that the Commission will craft a regulation that does not so completely ignore the letter and spirit of the provision we passed in HLOGA.
Let me take a minute to explain what the FEC has done and what it must do to correct its error. The new regulation takes the position that the key fact in determining what rate must be paid for a corporate jet flight is not who is flying, but who is paying for the flight. The explanation and justification, ``E&J'', adopted by the commission states:
[W]hen a presidential, vice-presidential, or Senate
candidate, or a representative of the candidate, is traveling
on behalf of another
political committee (such as a political party committee or
Senate leadership PAC, rather than on behalf of the
candidate's own authorized committee, the reimbursement for
that travel is the responsibility of the political committee
on whose behalf the travel occurs. If the political committee
is other than an authorized committee or House candidate's
leadership PAC, then the appropriate reimbursement rate for
that political committee is set forth in new 11 CFR
100.93(c)(3), discussed below. In such cases, the
presidential, vice-presidential, or Senate candidate or
candidate's representative, is treated the same as any other
person traveling on behalf of the political committee.
74 Fed. Reg. at 63955. That rate for such a trip, under an FEC regulation promulgated in 2003, is the first class rate unless regularly scheduled commercial air service is not available between the origin and the destination of the flight. The E&J also reiterates that leadership PACs of Senators and Presidential candidates can continue to pay the first class rate, even for the candidates themselves.
In addition, although House leadership PACs are prohibited from taking advantage of this loophole, the E&J makes clear that House candidates can do so if they are traveling on behalf of a political party committee or a Senate or presidential candidate, even though they are otherwise completely prohibited from traveling on a corporate jet. The loophole seems to apply to House members even if they are traveling on behalf of a corporate PAC.
In a recent article in the Capitol Hill newspaper Roll Call, FEC Commissioner Matthew Peterson attempted to explain the FEC's decision. He argues that the loophole is compelled by the statutory language, which is structured to prohibit an expenditure for any flight by a Senate candidate or the candidate's authorized committee unless the charter rate is paid for that flight. This interpretation ignores specific language in section 601 that requires payment of the charter rate by ``the candidate, the authorized committee, or other political committee'' and the lack of any language in the statute or the legislative history suggesting that Congress meant to leave open a way for Senators to travel on corporate jets without paying the charter rate.
Moreover, it ignores the clear intent of the two provisions of HLOGA concerning travel on private aircraft--to prohibit all corporate jet flights by Senators unless the charter rate is paid. There are literally more than a dozen statements by supporters of the bill that make this intent clear. The FEC chose to ignore the clear purpose of the bill in favor of a strained interpretation of the statutory language that flies in the face of that purpose. That is unacceptable. The FEC's duty is to implement the statute as Congress intended it. Its job is to give guidance to candidates and others who want to follow the law, not to provide a roadmap for evading it.
For the convenience of my colleagues, my staff has collected statements from the floor debate on HLOGA that show beyond any doubt that the corporate jet provisions were intended to apply to all travel on corporate jets by Senators without regard to who is reimbursing the jet owner. One Senator said the following:
I understand that for many Members, these jets are an issue
of convenience. They allow us to get home to our
constituents, to our families, and to the events that are
often necessary for our jobs. But in November, the American
people told us very clearly they are tired of the influence
special interest wields over the legislative process. The
vast majority of Americans can't afford to buy cheap rides on
corporate jets. They don't get to sit with us on 3-hour
flights and talk about the heating bills they can't pay, or
the health care costs that keep rising, or the taxes they
can't afford, or their concerns about college tuition. They
can't buy our attention, and they shouldn't have to. And the
corporation lobbyists shouldn't be able to either. That is
why we need to end this corporate jet perk if we are to pass
real, meaningful ethics reform.
Cong. Rec. at S263, Jan. 9, 2007. The speaker of those words, which make plain that the intent of the provision was to completely eliminate subsidized travel on corporate jets, was then-Senator Barack Obama. This strongly suggests that the President of the United States will sign the resolution of disapproval once we pass it.
Notwithstanding my strong feelings about the part of the FEC rule I have just discussed, significant portions of the rule are unexceptional. The intent of this resolution of disapproval under the Congressional Review Act is solely to reverse the FEC's decision to open a loophole in the requirements for corporate jet travel by members of Congress and their staffs. So we do not intend to disable the FEC from putting out a new regulation, only from including a gaping loophole in it.
I note this because the Congressional Review Act only allows Congress to disapprove, and therefore make ineffective, an entire regulation. It states that the agency may not promulgate a rule that is ``substantially the same'' as the old one without new congressional authorization. I want to be clear that the loophole created by the FEC's recent rule is so significant that a rule that is otherwise identical to the entire campaign travel regulation, but that does not contain the loophole that this resolution is designed to disapprove, should not be considered to be ``substantially the same'' as the previous rule, even though other portions of that rule may be re- promulgated unchanged.
The Congressional Review Act has only once been successfully used to overturn an agency regulation. Thus, there is little experience to fall back on to determine the consequences for future agency action of a successful disapproval resolution. Morton Rosenberg, a long time analyst at the Congressional Research Service, includes the following useful analysis in his 2008 assessment of the CRA:
A review of the CRA's statutory scheme and structure, the
contemporaneous congressional explanation of the legislative
intent with respect to the provisions in question, the
lessons learned from the experience of the March 2001
disapproval of the OSHA ergonomics rule, and the application
of pertinent case law and statutory construction principles
suggests that (1) It is doubtful that Congress intended that
all disapproved rules would require statutory reauthorization
before further agency action could take place. For example,
it appears that Congress anticipated further rulemaking,
without new authorization, where the statute in question
established a deadline for promulgating implementing rules in
a particular area. In such instances, the CRA extends the
deadline for promulgation for one year from the date of
disapproval. (2) A close reading of the statute, together
with its contemporaneous congressional explication, arguably
provides workable standards for agencies to reform
disapproved regulations that are likely to be taken into
account by reviewing courts. Those standards would require a
reviewing court to assess both the nature of the rulemaking
authority vested in the agency that promulgated the
disapproved rule and the specificity with which the Congress
identified the objectionable portions of a rule during the
floor debates on disapproval. An important factor in a
judicial assessment may be the CRA's recognition of the
continued efficacy of statutory deadlines for promulgating
specified rules by extending such deadlines for one year
after disapproval.
Congressional Research Service, Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional Review Act after a Decade, RL30116, May 8, 2008, at 30. Rosenberg notes that the fact that Congress specifically provided in the CRA for a one year extension of any statutory deadline for a rule that has been overturned by the CRA shows that Congress did not intend to disable an agency from issuing regulations on the same topic. Indeed, a Joint Explanatory Statement by the principal sponsors of the CRA in the House and Senate states the following:
The authors intend the debate on any resolution of
disapproval to focus on the law that authorized the rule and
make the congressional intent clear regarding the agency's
options or lack thereof after enactment of a joint resolution
of disapproval. It will be the agency's responsibility in the
first instance when promulgating the rule to determine the
range of discretion afforded under the original law and
whether the law authorizes the agency to issue a
substantially different rule. Then, the agency must give
effect to the resolution of disapproval.
Joint Explanatory Statement of House and Senate Sponsors, 142 Cong. Rec. E 571, at E 577, daily ed. April 19, 1996; 142 Cong. Rec. S 3683, at S 3686 daily ed. April 18, 1996. It is the intent of this resolution of disapproval to invalidate the loophole that the FEC created in the E&J, but not to disable the FEC from issuing a new rule that properly implements Congress's intent in passing HLOGA.
My displeasure with the actions of the FEC over the past 7 years is well known. The agency has repeatedly failed to properly implement provisions of the Bipartisan Campaign Reform Act, BCRA, leading to its regulations being overturned by the courts numerous times. Indeed, because of the
agency's dismal record in the courts, some important BCRA regulations are still not in place 7\1/2\ years after BCRA's enactment. But the FEC's recent action on corporate jets may be its worst yet. Congress passed HLOGA with wide bipartisan support and clear intent. Because of the FEC's failure to issue rules promptly, members of Congress have been living under the terms of the statute alone with no misunderstanding of what it means. And yet, over two years after its enactment, the FEC has now created an unnecessary and wholly unjustified loophole in the statute. Congress must act to correct this egregious mistake.
I urge my colleagues to support this resolution of disapproval.
Mr. President, I ask unanimous consent that a collection of quotations concerning corporate jet provisions of HLOGA be printed in the Record.