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Senate Passes Ethics Overhaul

Congressional Quarterly

January 22, 2007

The Senate passed a broad overhaul of ethics, lobbying and earmark regulations last week after new Majority Leader Harry Reid negotiated his way past several obstacles that threatened to stall the measure.

It was the first major piece of legislation to be passed by the Senate since the Democrats took control earlier this month. It would change Senate rules as well as laws governing the relationship between lobbyists and lawmakers.


The House, which already has changed its own ethics-related rules, is expected to go along with most if not all of the Senate bill (S 1). The bill must be enacted before any of it, including the Senate rules changes, can go into effect. If that happens, the Democratic majority in both chambers will have accomplished something Republicans were unable to do last year: change ethics rules and laws in response to the Jack Abramoff lobbying scandal that rocked Congress and sent at least one former member, Republican Bob Ney of Ohio, to prison.

Moreover, the two-week debate that culminated in the Senate’s 96-2 vote to pass the measure gave Reid a chance to exhibit his ability to lead.

The Nevada Democrat had built a reputation as a feisty, strong-willed opponent when he was minority leader the past two years. But now, running a chamber with the slimmest majority possible, he seemed to realize that stubborn perseverance was not always productive.

Reid lost three votes during debate on the ethics bill — including one on a seemingly innocuous procedural motion and one on a more vital motion to invoke cloture. Each time, though, after passionately and publicly making a case for his side, he relented and cut deals in which he gave a little to win a bigger vote on a critical bill.

In the case of the lost cloture vote — the Republican minority’s first filibuster of the 110th Congress — Reid turned the tables on his GOP colleagues and used the same weapon his predecessor Bill Frist, R-Tenn., had tried on him many times. Reid threatened political retribution, warning Republicans that he could use the filibuster of an ethics bill against them when they sought re-election in 2008.

Line-Item Rescissions

At the center of the filibuster was an amendment by Judd Gregg, R-N.H., that would have allowed the president to propose the rescission of some previously enacted spending or tax provisions and would have given those recommendations expedited consideration by Congress. Gregg wanted to attach the proposal to the ethics bill, but he backed down when Reid agreed to allow a vote on his amendment during debate this week on a minimum wage increase.

“We will restore the confidence of our citizenry in the United States government,” Reid said in announcing the deal on the Senate floor late in the night on Jan. 18.

The measure was the product of an agreement between Reid and Minority Leader Mitch McConnell, R-Ky. It would ban senators and their staff from accepting meals; gifts and trips from lobbyists; require senators to reveal when they negotiate for private-sector jobs while still in office; create a point of order against bills that do not identify the sponsors of earmarks; establish a database of lobbyists’ contacts and activities; and force lobbyists to certify that they have complied with the gift ban.

“This is a classic example of bipartisanship here in the Senate at its very best,” McConnell said.

Two Republicans, Tom Coburn of Oklahoma and Orrin G. Hatch of Utah, cast the lone votes against the bill. Coburn predicted that some of the most stringent provisions in the measure would not pass muster in the House. “They’re going to be discarded once we get to conference,” he said.

Accord With DeMint

Reid suffered his first setback on the bill on Jan. 11, when he tried but failed to table an amendment by Jim DeMint, R-S.C., that would expand the definition of earmarks that would be subject to disclosure rules. The language in DeMint’s amendment was nearly identical to that written by Speaker Nancy Pelosi, D-Calif., in the rules package adopted by the House earlier this month (H Res 6).

After initially struggling over how to deal with the amendment when the Senate refused to kill it, Reid struck a compromise with DeMint. He allowed the amendment with some minor modifications. On Jan. 16, the Senate voted, 98-0, to adopt the amendment.

Later in the week, Gregg offered his line-item rescission amendment, sending debate on the bill into a two-day impasse. Republicans steadfastly backed Gregg’s demand for a vote on his amendment and the filibuster began.

Reid tried to invoke cloture, and thus limit debate, on Jan. 17. Because the bill includes changes to Senate rules, Reid needed two-thirds of those present and voting — 65 in this case— to invoke cloture.

The motion was rejected, 51-46.

Two Republicans — Norm Coleman of Minnesota and Gordon H. Smith of Oregon — sided with Democrats in voting to shut off debate. Reid voted against his own motion at the end, to preserve his right to press for reconsideration.

Gregg was opposed chiefly by Appropriations Chairman Robert C. Byrd, D-W.Va., who successfully brought suit against a previous effort by Congress to create a line-item veto authority (PL 104-130). It was struck down by the Supreme Court as unconstitutional.

Gregg argued that his plan for “line-item rescission” is structured differently enough to pass constitutional muster. “It’s not a line-item veto,” he said. “It reserves to the Congress the authority to make the final call.”

Republicans refused to support cloture because a successful motion would have precluded consideration of non-germane amendments such as Gregg’s proposal.

Gregg nearly withdrew his amendment when Reid agreed Jan. 17 to give it a Senate floor vote sometime before the start of the spring recess, along with an opportunity to be conferenced with the House. But Byrd objected.

Turning to Politics

Negotiations on the amendment continued into the next day, and Democratic leaders convened a news conference to denounce Republicans for “obstructionism.”

“I want the world to know that this bill is not being brought down on principle,” Reid said. “This bill is being brought down because people don’t want to comply with ethics and lobbying reform. . . . This is a terribly unfortunate day for this body.”

Republicans, in turn, accused Reid of being undemocratic by not allowing a vote on the Gregg amendment. McConnell, who had worked closely with Reid to write the bill, scolded the majority leader, saying he was overstating the threat by Republicans.

“The Senate is not the House. You have to get the minority votes” to win passage, McConnell said. “No one seriously believes Republicans don’t want to pass this bill.”

By late Jan. 18, Gregg had agreed to allow Reid to have his plan considered as an amendment to the minimum wage bill (S 2).

And, even though he later lost a third time on an amendment that stripped language out of the bill, Reid had been able to turn a potential leadership disaster into a high-profile success.

“It’s difficult because it directly affects our lives,” Reid said about the ethics package. “In the short term, the reforms in this bill may take some getting used to, but in the long term we’ll be thankful we took these steps.”

Lobby Language Removed

Before passing the bill, the Senate adopted several more amendments, including one by Robert F. Bennett, R-Utah, that deleted a provision that would have subjected grass-roots lobbying groups to disclosure requirements.

The lobbying provisions were opposed by interest groups as diverse as the conservative Traditional Values Coalition and the liberal American Civil Liberties Union, and Bennett’s amendment was adopted, 55-43.

The Senate rejected, 27-71, an amendment that would have created an independent Office of Public Integrity with the power to investigate ethics complaints and make recommendations to the Senate Select Ethics Committee.

Other amendments adopted throughout the week would:

• Prohibit lobbyists from sponsoring fancy parties at national party conventions. It was adopted 89-5.

• Allow nonprofit 501(c)3 organizations to continue to pay for congressional trips. Critics said this would allow an exemption in travel rules meant to prevent special interests from funding congressional travel. It was adopted, 51-46.

• Force senators to reimburse private aircraft owners at the full charter rate for seats rather than at the much cheaper first-class rate, as they do under current rules. It was adopted, 88-9.

The corporate flight amendment, offered by Reid, was opposed by senators from some large states, such as Alaskan Republican Ted Stevens.

He argued that a state like his, with far-flung population centers, forced travel by private airplanes and that reimbursing at a higher rate would add significantly to the cost of doing the people’s business.

Reid said he wanted senators to resist the urge to trim his amendment. “You not only have to do away with everything that is wrong, but also everything that appears to be wrong,” he said.

Earmarks Targeted

Other amendments were adopted by voice vote, including a Coburn proposal to prevent lawmakers’ families from being the beneficiaries of earmarks and an amendment by David Vitter, R-La., that would prohibit the husbands and wives of senators from lobbying the Senate unless they were employed as lobbyists for at least one year before their spouse’s election.

“Using your office to increase your income is a fundamental problem at the heart of this debate,” Vitter said. “Special interests that employ a senator’s spouse pay large sums of money directly into that senator’s family bank account.”

The Senate also adopted an amendment by DeMint that would strengthen a provision in the bill allowing the Senate to surgically strike provisions from conference reports if they were not included in either the House or Senate version of the bill.

The new power would equip senators with a point of order that, if sustained, would delete the offending provision and send the legislation back to the House for a vote. DeMint’s amendment would apply the tool to earmarks, which parliamentarians had said would not be affected by the original language.

Other earmark provisions added to the bill would provide more information about authorship and make it easier to challenge some earmarks on the Senate floor.

In addition to adopting the compromise DeMint amendment, the Senate approved another, also 98-0, by Majority Whip Richard J. Durbin, D-Ill., that would mandate the disclosure of earmarks contained in the reports that accompany bills and the statements that accompany conference reports.

As amended, the bill now also states that the authors of earmarks for federal projects, such as an Army Corps of Engineers water project, would have to be disclosed in addition to earmarks benefiting private entities.

The bill also includes language to revoke the pensions of convicted lawmakers, but it would not become law until the 111th Congress in order to comply with the Constitution’s 27th Amendment, which prohibits changing the pay of lawmakers after Congress has convened.

House and Senate Democrats met last week to discuss ways to align a planned House bill with Senate language.

According to a top Pelosi aide, small differences between the two bills had to be ironed out.