2007 Coconut Road Earmark

Summary
In a 2006 transportation bill, Rep. Don Young (R-Alaska) earmarked $10 million for a construction project for Coconut Road in Fort Myers, Florida, which would connect the road to Interstate 75. The appropriations were not sought by the districts own representative, and the county authorities voted against using the money twice, until persuaded to do so by Young and the district congressman. However, the measure greatly benefited real estate developer Daniel J. Aronoff, who also happened to be a major campaign contributer to Young, having helped raise $40,000 only days before the legislation was introduced. Young responded to the allegations, revealed by the New York Times on June 7, 2007, by stating that it was "old news" and that the appearance of such trade-offs occur when you are chairman of a major committee and write such highly-funded legislation.

On June 13, 2007, Young stated that he was proud of his earmarks, for both the Coconut Road project in Florida and the so-called "bridge to nowhere," in response to accusations that his earmarks constitute a scandal. Young also criticized congressional Democrats as hypocritical over their decision not to disclose earmarks until the FY2008 appropriations bill reaches a conference committee. A DCCC spokeswoman responded that earmarks that waste millions of dollars for the benefit of campaign contributers are nothing to be proud of.

In August of 2007, a report by a former deputy assistant secretary for the Department of Labor revealed that the earmark allocating funds for the Coconut Road project had been edited after being passed by Congress, but before being signed by the President. During this time, someone deleted the earmark’s original language that would have given $10 million for widening and improvements to Interstate 75 and added the phrase "Coconut Rd. interchange I-75/Lee County," specifically directing the funds to Coconut Road. This change was made during a process called "bill enrollment," which is supposed to be used for the purposes of fixing small grammatical and spelling errors.

It was suspected that Don Young had a hand in this change, as he was the chairman of the House Transportation Committee at the time, and had just recently received $40,000 from Daniel Aronoff, real estate developer who benefited from the creation of the road.

Darla Letourneau, who wrote the report revealing the change, commented, "If this had come to light right after the bill had passed, there would have been a very quick technical amendment. This should not have happened."

Keith Ashdown of Taxpayers for Common Sense, stated "This goes beyond the intent of the technical corrections process. It’s supposed to be about getting your punctuation right, not about making sure that your major benefactor is getting their pork."

"This is not how the process is supposed to work," he 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."

Watchdog group calls for investigation
In early October, 2007 the president of Taxpayers for Common Sense, Ryan Alexander, sent a letter to the House Committee on Standards of Official Conduct Chairwoman Stephanie Tubbs Jones (D-Ohio), urging the committee to begin an investigation into how the earmark was changed between being passed by Congress and signed by the President. Alexander, in the letter, pointed out media reports she said indicated the changes to the bill were made by the House Enrolling Clerk at the request of transportation committee staff. She also said the occurrence would violate the Constitution because neither the House nor the Senate voted on the spending.

In an interview, Alexander said Taxpayers for Common Sense took this step because after court rulings on FBI searches of Rep. William Jefferson’s (D-La) office, the organization believed the Justice Department could no longer investigate citizen complaints. The committee is “the one body that clearly has the jurisdiction and power to investigate this” issue, said Alexander.

Although the House rules do not provide a mechanism for citizens to formally petition the committee to investigate members, other members of the House can file a formal complaint.

Returning the money
On August 17, 2007, the Lee County Metropolitan Planning Organization, representing the county where the Coconut Road project would be enacted, voted 10-3 to return the $10 million, asking for it to be used for its original purpose, a broader I-75 expansion project. The Coconut Road project was not popular in the county, though legally, they could end up being required to spend it there.

In early September, members of the House Transportation Committee considered returning the money to be spent for its original purpose- the widening of Interstate 75, rather than being spent specifically on Coconut Road. A spokesperson for Committee Chairman Rep. James Oberstar (D-Minn.) stated that he would likely let the committee Republicans handle the issue, saying "I don't know what course of action we are going to take, but generally we defer to the minority party on [these requests]. This was something that was inserted when the Republicans were in the majority, it was a Republican request and usually these are handled by the individual party."

A spokesperson for the ranking Republican on the committee, Rep. John Mica (R-Fla.), commented "I think however it is addressed going forward here, [Mica] would certainly want to do his best to make sure that it is done properly and technically correctly." Don Young would still be involved in discussions over the issue.

CRS memo outlining constitutionality of post-passage earmarks
The Congressional Research Service issued a memo on October 4, 2007 outlining the constitutional violations that occur when lawmakers, staff, or enrolling clerks make substantive changes to bills after they pass the House and Senate. An anonymous congressional office requested the memo, reportedly in an apparent attempt to gain insight into Young’s alleged involvement in the earmark language in the 2005 highway bill.

The memo said legislators must pass a concurrent resolution if they want to codify a substantive change to a bill that was made after it was initially passed in either chamber. According to the memo, if an error or change appears in a bill that was not included in the original version, and it does not “reflect congressional action on a measure,” “both chambers must agree to a concurrent resolution that directs the appropriate official to re-enroll the bill with specified changes.” A concurrent resolution can only be agreed to by unanimous consent. The memo states if the measure had already been presented to the President, the concurrent resolution must also request the President to return the bill to the chamber of origin. Moreover, the memo states that if Congress does not address the problem with a new enactment, the measure’s constitutionality may be challenged in federal court.

The Office of the House Clerk issued a statement to assure lawmakers it was taking the “appropriate steps.” However, the office had not openly stated whether the enrolling clerk knew about the language change and whether the office approved of it.

Mack letter supporting Coconut Road
It was revealed in October 2007 that Rep. Connie Mack sent a letter to a Florida university expressing his support for an interchange at Coconut Road.

For months Mack said he was not involved and knew nothing about the earmark’s inclusion in the highway bill, even though it was a high priority for the university in his district and he was a member of the House Transportation Committee when the earmark was placed in the bill. Mack has since pledged to reverse the earmark, but a March 2006 letter stands in contrast. In the letter, addressed to the university president, he was willing to support construction of the interchange after the earmark’s passage. Mack had maintained since the controversy began that he did not request the $10 million earmark for the interchange in his district. He also said he did not know about efforts to insert it into the bill. .

Both Florida Gulf Coast University (FGCU) and real estate developer Daniel Aronoff’s Landon Companies paid Potomac Partners, a lobbying firm, $140,000 since 2005 and $580,000 since 2003, respectively. Aronoff helped organize a fundraiser honoring then-Chairman Young but Mack was involved in hosting it. Earlier that day both congressmen attended a town hall meeting on the FGCU campus. Topics for the event according to a notice included a study commissioned by FGCU that recommended the construction of an interchange at Coconut Road and I-75 in addition to a high-tech command and control center that would be located on the FGCU campus. Minutes from the meeting stated that Young was invited to the university by Mack.

Mica expects earmark reversed before recess
Ranking member of the Transportation and Infrastructure Committee Rep. John Mica (R-Fla.) said he expected Congress to pass a bill that would reverse the Coconut Road earmark before the December recess.

Mica and Chairman Jim Oberstar (D-Minn.) agreed to work on making changes to the earmark in October, 2007. However the only vehicle for the change, a bill making technical corrections to the 2005 highway bill, was held up in the Senate. Mica had said he planned to change the Coconut Road earmark language during conference committee negotiations. The House passed its latest version of the bill in August, 2007 but the measure was languishing in the Senate because two unknown senators objected to moving it to the floor. Mica said now there “seems to be some movement in the Senate.”

Additionally, Republican Transportation Committee aides said that Senate Majority Leader Harry Reid (D-Nev.) planned to “hotline” the bill, an attempt to approve the legislation without debate or amendment.

Coburn sought probe
On December 19, 2007 Sen. Tom Coburn (R-Okla.) sent a letter to Senate Minority Leader Mitch McConnell (R-Ky.) informing him that he would object to any effort to "hotline" legislation making technical corrections to the 2005 highway bill if it did not include language calling for an investigation into the Coconut Road earmark. Specifically, Coburn called for the appointment of a select committee to probe the unorthodox change to the Coconut Road earmark after both chambers of Congress passed the highway bill but before it reached President Bush's desk.

Republican transportation committee aides had indicated that Reid planned to hotline the technical corrections bill, a process that requires unanimous consent. Coburn's objection would effectively put a hold on the bill and force the Senate to wait to take it up until 2008.

“Because secret, improper and unauthorized changes to congressionally passed legislation call into question the integrity of our entire constitutional and legislative process, I believe a full and open investigation into this matter is necessary to restore the integrity of both the U.S. Congress and the Constitution,” Coburn wrote. He acknowledged the bill reversed the changes to the original language, but Coburn argued more had to be done. "Those who perverted and distorted the explicit will of the U.S. Congress must be held to account," Coburn said.

Senate calls for Justice Dept. probe
In April 2008, the Senate voted to direct the Department of Justice to investigate the controversial Coconut Road earmark connected to Rep. Don Young (R-Alaska).

The Senate action may be the first time the body has called for a Justice investigation into one of its own projects, but passage in the House seems doubtful given opposition from both House Democrats and some Republicans.