Late last night, the Senate passed S. 1 by a 96-2 vote, after a deal was struck between Senate Majority Leader Reid (D-NV) and Sen. Judd Gregg (R-NH) to allow Gregg's non-germane presidential line-item or 'enhanced recission' authority amendment to be brought up next week during the Senate debate on the minimum wage. Sen. Robert C. Byrd, who appeared willing to hold S. 1 hostage so long as any accommodation of Gregg's amendment was made, dropped his objections and permitted a vote on S. 1.

This bill is both a significant institutional reform, affecting Senate procedure, as well as a major expansion of lobbying restrictions. Reid -- waxing proud after amendments he had resisted were adopted, adding teeth to his bill, and the Gregg/Byrd impasse that threatened to kill it had been resolved -- said:

This is the toughest reform bill in the history of this body as relates to ethics and lobbying, so everyone here tonight, when they vote on this, should vote proudly. This is historic.

The bill as introduced and amended includes a diversity of provisions.

Key earmarks provisions:

• requires disclosure of earmarks once those earmarks are adopted into a bill at the committee level (the committee is required to disclose the sponsoring lawmaker, the intended recipient, the earmark’s purpose, and include a certification that it will not yield a financial benefit to the sponsor or that lawmaker’s family; this information must be made available online in a searchable format)
• creates a point of order against bills that do not identify the sponsors of earmarks as required
• requires disclosure of earmarks contained in the reports accompanying bills and conference agreements and those, such as purchases of defense systems, that would pass through private entities before benefiting the federal government
• creates a point of order against bills that do not identify the sponsors of earmarks
• earmark definition includes any tax expenditure that provides a tax deduction, credit, exclusion, or preference to 10 or fewer beneficiaries
• prevents lawmakers’ families from being the beneficiaries of earmarks
• requires disclosure of earmarks again, 48 hours before the bill is brought to the floor

Key Senate ethics provisions:

• bans senators and their staff from accepting meals, gifts and trips from lobbyists
• prohibits senators from negotiating for private-sector jobs while still in office
• allows Section 501c(3) charitable organizations to have wider latitude in sponsoring trips, if the trips are approved by the Senate Ethics Committee privately sponsored travel

Key lobbying provisions:

• establishes a database of lobbyists’ contacts and activities
• forces lobbyists to certify that they have complied with the gift ban
• clamps down on parties funded by lobbyists at the national political conventions to "honor" lawmakers
• prohibits 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

The House has not passed any changes to lobbying law, so a conference committee is unlikely to convene any time soon.

S. 1 (text), the Senate ethics and lobbying bill (now in its second week on the floor), lies in a state of legislative limbo following the failure of a cloture vote, 51-46, late last night. Because S. 1 contains Senate rules changes, a two-thirds vote is required for cloture, rather than the usual 60 votes.

Sen. Judd Gregg (R-NH), on behalf of 30 co-sponsors, has filed an amendment to S. 1 that would grant limited line-item recission authority to the president. Unlike Congress' last bill giving the president line-item authority -- struck down by the Supreme Court in 1998 as unconstitutional -- the Gregg amendment provides that any rescissions of congressional spending would have to be approved by both houses of Congress.

But Sen. Robert C. Byrd (D-WV), a jealous guardian of the prerogatives of the legislative branch, says that he will object to a vote on S. 1 if it includes the Gregg amendment.

Some of the meritorious parts of the baby that would go out with the bath water if S. 1 goes down: here.

Within minutes of our blog below on the earmark disclosure debate in the Senate, word issues that Majority Leader Harry Reid will support the DeMint amendment in most particulars and move as early as next Tuesday to a cloture vote on S. 1, with a vote on the bill expected later in the week.

Per a CQ article ($$) and a call with a senior Reid staffer, the new compromise amendment will:

• require disclosure of earmarks on the internet 48 hours before a floor vote
• define specific projects within federal agencies as earmarks
• require inclusion of items in report language accompanying bills and conference reports

It will also apply to any provision offering a "limited group" more favorable tax treatment than "similarly situated taxpayers."

Senate consideration of S. 1, the Legislative Transparency and Accountability Act of 2007 (discussed here), veered off course of plans carefully plotted by Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) yesterday, when Sen. Jim DeMint (R-SC) introduced an amendment that would greatly expand the scope of earmarks covered under S. 1. DeMint says that S. 1 would not require the disclosure of about 95 percent of all actual earmarks. Yesterday, the Senate rejected a motion to table (i.e., to kill) the DeMint amendment by a 51-46 vote.

The DeMint amendment basically reprises the Pelosi earmarks disclosure requirement, adopted last Friday as part of the new U.S. House internal rules package.

The DeMint amendment also requires that information filed by the chairman of the committee or any subcommittee must be published in a searchable format on the committee's or subcommittee's website not later than 48 hours after receipt on such information. Neither S. 1 nor the Pelosi rule contain any such requirement.

There are, however, three key differences between the earmarks provisions in S. 1 and the Pelosi rules:

• federal agency spending -- under S. 1, only funds directed to non-federal entities are considered earmarks. The Pelosi earmarks rule includes specific projects within federal agencies -- such as Pentagon weapons systems
• report vs. legislative language -- the Pelosi rules include earmarks found in report language accompanying bills and conference reports, rather than merely in the legisltive language of spending bills, as S. 1 does
• publication of earmarks prior to a vote -- S. 1 would make any earmark available on the Internet to the general public for at least 48 hours before its consideration, while the Pelosi rules provide only that to be printed in the Congressional Record prior to its consideration

Pelosi and DeMint appear to be improvements in earmark transparency over S. 1 on all grounds except perhaps one. S. 1 provides a time certain for debate and consideration for earmarks; the Pelosi requirement is merely that an earmark be printed in the Congressional Record sometime before a vote. We assume that instantaneous pre-vote internet publication of earmarks in the Congressional Record is not contemplated here. We would prefer to see 72 hours provided in any case.

We also applaud the provision in the DeMint amendment for searchable-format, internet-accessible information about earmark requests sent to committees and subcommittees on a timely basis and would like to see this requirement extended to the point where all earmarks are trackable throughout the legislative -- and especially the conference committee -- process.

The House adopted its earmarks and ethics rules last week. This week, the Senate is struggling with its own rules package, S. 1, based on a bill that the Senate passed easily last year, with the expectation of considering several amendments and completing it next week. Regardless of the outcome, S. 1, "will be a tremendously important piece of legislation in the annals of history of this country," Majority Leader Reid (D-NV) said yesterday, per CQ($$).

Let's see how it turns out.

The ethics part of S. 1 tracks the equivalent provisions of the House rules. But regarding earmarks, the paths are diverging in one noteworthy respect thus far.

Like the House package, S. 1 would require disclosure of all spending earmarks, targeted tax benefits, or targeted tariff benefits, the identity of members requesting them, and an explanation of their "essential governmental purpose." Similarly, those seeking earmarks would have to certify that neither they nor their spouses had a financial interest in the item.

But the House version defined "targeted tax benefit" a federal deduction, credit, exclusion, or preference "to 10 or fewer beneficiaries," while S. 1, BNA ($$) reports, limits applicable tax benefits to those involving "a particular taxpayer or limited group of taxpayers." Budget Committee ranking member Judd Gregg (R-NH), author of the Senate provision, may withdraw it and replace it with the House version under pressure from reformers.

Stay tuned.

In the first legislative act of the 110th Congress, the House adopted an initial set of "honest leadership" rules changes yesterday by a vote of 430-1. A floor vote on a second set of rules changes, covering "civility and fiscal responsibility," is expected today.

Yesterday's package of rules changes provides the following:

• Ban on Gifts from Lobbyists: House members, delegates and staff are now prohibited from accepting gifts or meals from lobbyists or private organizations that have lobbyists. Beginning March 1, House members may not participate in travel financed, planned or arranged by lobbyists or organizations that employ lobbyists. Travel financed by colleges will not be covered. And the ethics committee will write firm guidelines allowing for 'de minimis' lobbyist involvement in lawmakers’ one-day, one-night trips to visit specific sites, attend forums or participate in panel discussions or to give speeches.

• Ban on Trips Paid by Lobbyists: Trips financed by private organizations not connected with lobbying will require pre-approval from the ethics committee, and disclosure reports would have to be filed within 15 days after any travel.

• Ban on Use of Company Planes: House members may not use their office allowances, personal funds or campaign funds to pay for travel on non-commercial corporate aircraft other than charter planes.

• End of K-Street Project: House members may not use their influence to coerce a private organization to make employment decisions on the basis of political affiliation.

• Ethics Training Mandated: House employees will have to participate in annual ethics training.

Over in the Senate, Majority Leader Harry Reid (D-NV), said he would begin by bringing up ethics legislation that passed last year when Republicans were in control. That legislation is a good deal weaker than what the House is adopting this week. Expect a difficult (but, alas, private) conference committee debate on this one.