Coconut Road


Here’s a corruption case that raises an interesting constitutional question. Actually, the ‘question’ seems pretty open and shut to me. But it is apparently being treated as one of some ambiguity. So here goes.

In 2005, rapscallion Congressman Don Young (R) of Alaska snuck in a $10 million earmark for a highway interchange (the “Coconut Road” project) which stood to benefit real estate mini-mogul Daniel Aranoff. The earmark appeared just days after Aranoff raised 40 grand for Young at a fundraiser. Adding to the fun on this little escapade is that this was an earmark for a road building project in Florida, which — unless my spatial reasoning is failing me — must be about as far as you can get in the United States from Alaska, the state Young nominally represents.

Okay, so far, not a particularly surprising story, certainly for the Alaska congressional delegation. But here’s where it gets more interesting.

The ‘Coconut Road’ earmark wasn’t in the bill passed by the House and Senate. I don’t mean it wasn’t in the original bills before they went to conference (where the separate bills from the House and the Senate are reconciled into a single bill). It wasn’t in the final, reconciled piece of legislation passed by both houses of Congress after conference.

But it is there now.

So here’s what happened. Apparently Young added the text after Congress had already passed it but before the president signed it. As Laura McGann explains in this post, this must have occurred during the process called “bill enrollment” when revisions of grammar and technical but not substantive changes are permitted to be made.

The president did sign the bill. But the portion apparently added by Young, if I understand anything about our system of government, was never passed by Congress. So it means nothing.

Based on this — to my mind — neatly fatal insufficiency to the earmark, local officials in Southwest Florida are investigating whether they can ignore the earmark and use the money to widen Interstate 75, which is what the bill had prescribed before Young’s extra-constitutional handiwork.

Now, here’s my question. I know some squirrelly things happen in the legislative process. But this strikes me as in a whole other category. In the previous Congress there was a lot of controversy over the fact that the Republican leadership was basically rewriting bill’s de novo in conference. And while that may make a mockery of the legislative process it doesn’t have narrowly constitutional implications — at least as I read it — since the whole Congress does pass the final law, even if it was just something Tom DeLay wrote out on a gumball wrapper and they’re only given five minutes to read it.

Anyway, to my question: how common is this? Laura got a quote on this from Keith Ashdown from Taxpayers for Common Sense who said, “I’ve seen little gimmicks and little tricks used to make sure somebody’s friend or contributor is taken care of but this is by far one of the more underhanded, surreptitious examples I’ve seen — ever.”

Is something even similar to this a commonplace occurrence?

So, how common is this — addressed to those of you on the Hill? Is there any question that this never-passed earmark lacks any force of law? And shouldn’t there be some sanction — by the Congress itself if not legally — for his having done it?