An Extra Ordinary Earmark — Even for Don Young

Posted April 23, 2008 at 6:20pm

Last week, the Senate took an unprecedented step in asking the Justice Department to investigate the possible criminal conduct of a House Member.

The subject of this ignoble moment is Rep. Don Young (R-Alaska). For many, it was a well-earned distinction for Young, who is often cited as the face of earmark corruption. However, this is different. Young is accused of effectively stealing millions of dollars for a campaign contributor by changing the words of an appropriations bill after it was passed by his colleagues.

The resulting investigation raises some challenging constitutional and criminal questions. Indeed, Young may have relied on such political and constitutional protections — and may discover that he crossed those limits when he crossed out the language of a duly enacted law.

The Young allegations involve a curious form of crime: fraud by white-out. At issue are $10 million and a highway earmark in Florida.

Originally, this was a simple road-widening project in southwest Florida’s Interstate 75 — a pittance in the engorged, pork-filled $286.4 billion highway bill. However, one of Young’s donors, Florida developer Daniel Aronoff, happens to own environmentally sensitive land near Coconut Road that would benefit greatly from a nearby highway.

As the former Republican chairman of the House Transportation and Infrastructure Committee, Young was the guy to see, a Member who had long filled his campaign coffers with money from business interests seeking earmarks.

With his equally controversial colleague, Sen. Ted Stevens (R-Alaska), he pushed an appropriation for $223 million to build the infamous “Bridge to Nowhere” in Alaska.

Of course, it is meaningless in Congress that the officials in Florida did not ask for and did not want the study. Indeed, the Lee County Metropolitan Planning Organization rejected it three times and expressed confusion as to why they had been given money for a project they did not want.

If they reviewed Young’s list of campaign donors, their confusion would have been instantly lifted.

After Young went to Florida to examine the area (and hold a signature campaign fundraising event), he quickly received more than $40,000 in contributions from Aronoff and associates, including Rick Alcalde, who worked on behalf of Aronoff’s real estate firm.

There was only one problem. The bill had already come out of conference and been passed by both chambers. That is when Young went too far, even for this Congress.

His staff apparently instructed the enrollment clerk (who was cleaning up the bill for the president’s signature) to erase the reference to “I-75” and replace it with the words “Coconut Road.” In doing so, Young had taken $10 million from a federal project and used it to benefit a favored donor.

As a matter of criminal law, the controversy can be boiled down to simple fraud and related crimes. Investigators would likely focus on crimes ranging from conspiracy to fraud to false statements to obstruction of justice.

While 28 Senators voted against the investigation — including Alaska’s two Republican Senators, Stevens and Lisa Murkowski — Young’s best hope may be the Constitution, by ironically wrapping himself in the very institution that he has discredited.

Any prosecution is likely to turn on the interpretation of the Speech or Debate Clause contained in Article I, Section 6 of the Constitution, providing that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.”

This is the same barrier faced in the search of Rep. William Jefferson’s (D-La.) office. As one of the witnesses who testified that the raid was unconstitutional and unnecessary, I believe that there are some salient distinctions between the cases.

It was always clear that Jefferson was not protected from the investigation itself — only the brutish means chosen by the Bush administration.

The fact that this vote originated in the Senate rather than the House is an embarrassment for the latter institution. While Speaker Nancy Pelosi (D-Calif.) has indicated that she will favor the Senate provision, the House could refuse to turn over certain documents or evidence.

The House general counsel’s office has traditionally taken a bright-line approach to subpoenas for legislative material from aides or Members, as it recently did in the investigation of Jefferson and Rep. Jerry Lewis (R-Calif.). There could be a problem when staffers are asked to disclose information about prior conversations related to Young’s earmarks as well as instructions given by Young or his staff.

Since the 1881 decision in Kilbourn v. Thompson, the Speech or Debate Clause was first given a broad interpretation. Of particular interest to Young will be the 1966 decision in United States v. Johnson where the court held that the testimonial privilege under the clause was absolute and that it barred investigation of the motivation of Members in taking legislative actions.

Yet, what Young allegedly did was manifestly outside of the legislative process since he changed the language of a finalized bill. By definition, it is not a part of what the Supreme Court called “the due functioning of the legislative process.” It was the very antithesis of a due functioning legislature.

In United States v. Brewster, the Supreme Court held that “while [i]t is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process,” the act of taking a bribe “is, obviously, no part of the legislative process or function.”

Any prosecution would present a court with the challenging circumstance of a Member who acted outside of the legislative process, but the evidence would cover protected discussions leading up to the finalization of the bill. Of course, some evidence such as Young’s fundraising efforts in Florida and communications with people like Aronoff would not present a serious barrier for the Justice Department.

The question will be whether Congress wants to waive these protections and wait to fight this issue on a better day — and in a better case. In the past, Congress has allowed staffers to be interviewed on alleged crimes, such as the leaking of intelligence information despite the connection to legislative functions.

In the end, what is at stake is more serious than a simple $10 million — a tiny appropriation that few Members noticed, let alone cared about.

In the Madisonian system, the legislative branch plays a vital role in stabilizing the country. Through bicameralism and legislative procedures, Congress is the institution that forges majoritarian compromise out of often sharp factional disputes. You can wheel and deal. You can even waste and deceive. What you cannot do is go outside the rules.

Indicting Young would not end earmark abuses, but it might signal that there remain a few incidental rules that should be followed — if only for appearances.

Jonathan Turley is the Shapiro professor of public interest law at The George Washington University Law School.