Tapscott's Copy Desk - Senate Democrats are trying to kill congressional probe of Coconut Road earmark scandal(UPDATED)

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Senate Democrats are trying to kill congressional probe of Coconut Road earmark scandal(UPDATED)

POSTED April 17, 3:59 PM

The Senate will vote sometime this afternoon on competing amendments to the Technical Corrections bill from Sen. Tom Coburn, R-OK, and Sen. Barbara Boxer, D-CA, regarding the Coconut Road earmark scandal. The earmark was originally included in the 2005 transportation bill, but was mysteriously retained after Florida officials said they didn't want the funds.

Coburn's amendment would establish a bipartisan congressional investigative panel to determine who changed the bill's language regarding the earmark. The amendment from Boxer, who chairs the Senate's Environment and Public Works Committee that has jurisdiction over highway funding, has offered an alternative amendment asking the Justice Department to investigate.

But Boxer's amendment is seen among the Senate's band of earmark reformers as tantamount to no investigation because separation of powers disputes between the executive and legislative branch would tie a Justice Department probe up in the courts before it ever got anywhere.

Judicial Watch's Tom Fitton recently explained in The Washington Examiner how the Supreme Court "took a dive" on those very separation of powers issues in the case of Rep. William "Cold Cash" Jefferson, who is accused of taking bribes. FBI officials found $90,000 stashed in his freezer.

This afternoon, one of Boxer's senior staffers has circulated the following memo, which makes clear to wavering senators that if they vote for Coburn's amendment, it will mean no election-year goodies. And Senate Democratic leaders have imposed a 60-vote super-majority requirement on the amendments.

Taken together, these development almost certainly mean no Coconut Road earmark investigation will ever happen. Here's the text of the Boxer staffer's memo:

OPPOSE THE COBURN AMENDMENT ON COCONUT ROAD
SUPPORT THE BOXER AMENDMENT

The Coburn Amendment raises major Constitutional issues under the “Speech and Debate Clause” because it allows one chamber to investigate another’s members.

The Constitutional concerns are very likely to prevent the Technical Corrections bill from becoming law, because the House has serious Constitutional concerns—the Coburn amendment is a poison pill.

If the Technical Corrections bill is not enacted, the controversial Coconut Road provision, which is fixed in this bill, will not be addressed and the improperly altered project will remain.

The Boxer Amendment provides an alternative approach that ensures that a proper investigation of the Coconut Road controversy occurs by the Justice Department. It also ensures that the existing standards and procedures that normally apply between Congress and the Justice Department are maintained.

The Boxer amendment has not raised similar concerns in the House, and so will not hinder passage of the Technical Corrections bill.

Senator Coburn’s resolution is a political one. It creates a Select Committee appointed by Senators and House Members that could well interfere with a Justice Department investigation. Senator Reid strongly supports the Boxer amendment and strongly opposes the Coburn amendment.

UPDATED: Coburn amendment wins vote, loses on supermajority

The Coburn amendment won on a 49-43 roll call vote, but lost because of the parliamentary game played by the Senate Democratic leadership to impose a 60-vote super-majority requirement on the proposal.

UPDATED: Boxer amendment approved, Coburn statement

As expected, the Senate approved the Boxer amendment by a sufficient margin, 64-29, to make it part of the Senate's version of the Technical Corrections bill. Coburn released this statement following the Boxer amendment vote:

“The Boxer amendment sets the troubling and bizarre precedent of turning the Attorney General into the de facto Senate and House Parliamentarian. Violating congressional rules is not a crime, yet Congress has just given away its right to police itself with this misguided amendment. If this earmark should be investigated by DOJ perhaps all earmarks should be investigated as well,” Dr. Coburn said.

“By rigging the congressional investigation process to fail, Congress has once again told the American people that the earmark favor factory hasn’t been shut down but turned over to new management,” Dr. Coburn said. “Less than two years ago, Democrats promised to ‘drain the swamp’ and ‘break the link between lobbyists and legislation’ if given control of Congress. It appears that the new majority has instead made ‘the swamp’ protected wetlands for politicians, lobbyists, and campaign contributors.”

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