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EXECUTIVE OVERREACH IN REGULATORY 

ENFORCEMENT AND INFRASTRUCTURE 

HEARING 

BEFORE THE

EXECUTIVE OVERREACH TASK FORCE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JULY 12, 2016 

Serial No. 114–86 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

EXECUTIVE OVERREACH TASK FORCE

STEVE KING, Iowa, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL E. ISSA, California 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

RON DeSANTIS, Florida 

KEN BUCK, Colorado 

MIKE BISHOP, Michigan 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

CEDRIC RICHMOND, Louisiana 

SCOTT PETERS, California 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

JULY 12, 2016 

Page 

OPENING STATEMENTS 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Chairman, Executive Overreach Task Force ............................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Executive Overreach Task Force .......... 3 

WITNESSES 

The Honorable Michael B. Mukasey, Of Counsel, Debevoise & Plimpton LLP 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

David Min, Assistant Professor of Law, University of California, Irvine School 

of Law 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 26 

The Honorable Gary Ridley, State of Oklahoma, Secretary of Transportation 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Executive Overreach Task Force .................................................................................................. 5 

(1) 

EXECUTIVE OVERREACH IN REGULATORY 

ENFORCEMENT AND INFRASTRUCTURE 

TUESDAY, JULY 12, 2016 

HOUSE OF REPRESENTATIVES

EXECUTIVE OVERREACH TASK FORCE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 4:38 p.m., in room 2237, 

Rayburn House Office Building, the Honorable Steve King (Chairman of the Task Force) presiding. 

Present: Representatives King and Cohen. 

Staff Present: (Majority) Paul Taylor, Chief Counsel; Zachary 

Somers, Parliamentarian & General Counsel, Committee on the Judiciary; Tricia White, Clerk; (Minority) James Park, Minority 

Counsel; Veronica Eligan, Professional Staff Member. 

Mr. KING. The Executive Overreach Task Force will come to 

order. Without objection, the Chair is authorized to declare a recess 

of the Task Force at any time. I will now recognize myself for my 

opening statement. 

Today’s hearing of the Executive Overreach Task Force will focus 

on executive overreach in the areas of regulatory enforcement and 

infrastructure. I will use my time today to focus on executive overreach as it adversely affects our Nation’s vital infrastructure. 

Federal mandates and untimely regulatory actions can often 

limit the efficient investment of the Nation’s core infrastructure 

funds. One prominent example that comes to mind is the misuse 

of the Highway Trust Fund to pay for liberal policy goals rather 

than to build and maintain our roads and bridges. 

The Highway Trust Fund is primarily funded through the Federal gas tax, a user’s fee, which is 18.4 cents per gallon on gasoline 

and 24.4 cents per gallon on diesel fuel. Rather than spending 

every penny directly to build, maintain, and repair our roads and 

bridges, the Highway Trust Fund is being diverted to pay for 

Davis-Bacon wages, bike trails, squirrel sanctuaries, and environmental and archaeological studies and compliance. 

Davis-Bacon wages, for example, make highway construction 

projects 20 percent more expensive than they would otherwise be 

if competitive, market-driven wages were paid. And by the way, 

those would be my numbers that come from our construction company that has been busy doing this kind of work for 41 years. 
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The reason for these inefficiencies in the Highway Trust Fund 

largely lay that the feet of a dormant Congress that delegated 

funding decision to the unaccountable bureaucrats in the executive 

branch. Without their elected representatives to fight for them with 

earmarks to fund direct needs, our constituents and their direct 

transportation needs are often ignored. 

Furthermore, Federal executive branch demands for dedicating 

transportation funds to secondary activities, such as bicycle and pedestrian trails and landscaping, often interfere with the funding 

mechanisms and list of priorities for core infrastructure programs 

as understood by the States involved. 

Without these formulaic prescriptions, we could build five miles 

of road instead of four, or build five new bridges instead of four. 

New layers of process upon process imposed in the name of protecting the environment can also significantly delay infrastructure 

improvements, even when many such improvements are known to 

have no significant environmental impacts. 

Researchers have laid out a variety of Federal regulations that 

make building transportation infrastructure to rural areas much 

more difficult today, including environmental reviews that can 

cause the approval process for some projects to extend 10 to 15 

years. 

A September 2015 study by Philip K. Howard at Common Good 

concluded that the cumulative effect of 6 year delays in starting 

construction on public projects costs the Nation a cumulative total 

of over $3.7 trillion, and that including the costs of prolonged inefficiencies and unnecessary pollution during the period of legal review. That waste amounts to more than double the $1.7 trillion 

needed through the end of this decade to modernize America’s infrastructure. 

As the author of that report noted, no one deliberately designed 

America’s infrastructure approval systems. It is an accident of legal 

accretion over the past 50 years. Environmental review was supposed to highlight major issues in 300 pages or less on complex 

projects so that officials can make an informed decision. 

As practiced today, environmental review often harms the environment. America’s antiquated power grid, for example, wastes the 

equivalent of 200 coal-burning power plants. Federal agencies, such 

as the Environmental Protection Agency and Corps of Engineers, 

also often seek to expand their jurisdiction over new waters 

through the issuance of guidelines like WOTUS—as we call it—or 

Waters of the United States—that interpret Federal laws in new 

ways that put things like drainage ditches and minor tributaries 

under Federal jurisdiction. 

In fact, some of this goes all the way up the dry waterway to the 

top of the hill or to the kitchen sink, and it has been years of facing 

that kind of overregulation. 

All the while, Congress has largely abandoned its power to direct 

Federal funds to the infrastructure and other priorities of the people under the name of earmark reform. While some criticize how 

Members of Congress sought to direct Federal funds to some 

projects rather than others, the alternative now is that unelected 

bureaucrats who are not beholden to the people through regular 

elections are directing Federal taxpayer dollars to their own infra-
3 

structure priorities, or rather to their own ideological pursuits, that 

may or may not have anything to do with core infrastructure priorities. 

In other words, they had the earmarking that was done by individual Members of Congress in the interests of their constituents 

in the light of day that was focused on those priorities of infrastructure, now has been handed over to the executive branch of 

government for them to select those earmark priorities as opposed 

to Members of Congress who are up for election and reelection. 

Members of Congress are uniquely positioned to better understand the need of their constituents and their districts. Renewing 

the use of earmarks is an important method to restore Article I authority in Congress and to exercise the powers of the purse. Prudent and authorized earmarks are an appropriate use of Congressional spending authority and ensure that Congress controls the 

purse strings rather than continuing to improperly delegate authority to unelected, unaccountable bureaucrats. 

I look forward to hearing from all our witnesses today, and exploring how the people’s elected representatives might regain more 

of the power to direct infrastructure priorities to the people’s will 

instead of the will of unelected bureaucracies. I conclude my opening statement, and now I would recognize the Ranking Member 

from Tennessee, Mr. Cohen, for his opening statement. 

Mr. COHEN. Thank you. I could read my opening statement, 

which is a very well-written opening statement. Staff did a great 

job. James, stand and take a bow. Great job, but I am not going 

to read it because it has things that I think my Chairman probably 

would not like. It suggests that we should be doing other things 

like voting rights and police minority problems that we have, and 

gun violence, and dealing with those issues, and the disparity in 

wealth, rather than this. 

So, I am just going to ask to enter this in the record, and I am 

going to just say that I think the Chairman is great, and he has 

done a great job today in talking about earmarks, and he is right 

about earmarks. 

We ought to have earmarks, and it is not just because it is in 

Article 1 and the unelected bureaucrats, but it is the oil that makes 

the machine run, and that is one of the reasons why we have not 

done much here in the last few years, is because we do not have 

earmarks. Where everybody has got a piece of the pie, and everybody has a reason to vote for a bill, and the speaker has got a little 

clout, and some other people have a little clout, and people can conform their conducts to what makes things happen, gets infrastructure projects funded, and gets money back home, which is real important. 

And the taking away of earmarks was a real mistake, and it is 

something Congress has—it hurt Congress. It has hurt the power 

of the Speaker, and it has hurt the power of us to create legislation 

and get things past. 

There should have been some reforms, and there were some reforms. There could be some reforms, but you do not just throw it 

out. You mend it, and that is what we ought to do, and we should 

do. 
4 

So, I want to hear from people about how good earmarks are. It 

is just music to my ears because I think it works. It is good to 

bring home the bacon, but it is also good to make this place get 

together, work with bipartisan support for bills, which we used to 

have in transportation, and we used to have on highway bills and 

we had on military defense spending and other areas, veterans 

bills. 

Everybody had something in the pie, and so everybody wanted to 

get something done, and it did not come to more than one or one 

and a half percent of the total budget, and otherwise it is unelected 

folks. It is bureaucrats making the decisions, or people in the State 

where the money goes to, and they decide where to spend projects. 

And it is ridiculous to think that they do not their politics when 

they make their decision. 

I am not even sure we consider politics in our decision. Some 

people may, but in my first few years when we had earmarks, I let 

the city mayors—who maybe had politics, but I wanted to make 

sure that their proposals were good government—the roads they 

chose were important to the development of downtown, and they 

would get people moving around, or there were projects that were 

important to the universities and medical school—University of 

Tennessee or the University of Memphis, and I let the leaders decide what was important, and I came up here and worked for them, 

and that is the way it ought to work. 

So, with that, I yield back the balance of my time. I thank Mr. 

King for being the voice of Mr. Young and others who understand 

the importance of earmarks. 

Mr. KING. I thank the gentleman from Tennessee for his remarks, his opening statement, as it will be introduced into the 

record. 

[The prepared statement of Mr. Cohen follows:] 
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Mr. KING. Without objection, other Members’ opening statements 

will be made part of the record as well. And let me now introduce 

the witnesses. 

Our first witness is the Honorable Michael Mukasey, former Attorney General, Federal judge, and now a counselor at the firm of 

Debevoise & Plimpton. 

Our second witness is David Min, assistant professor of law at 

the University of California, Irvine School of Law; and our third 

witness is the Honorable Gary Ridley, the secretary of transportation for the State of Oklahoma. 

We welcome you all here today and look forward to your testimony. Each of the witnesses’ written statements will be entered 

into the record in its entirety. I ask that each witness summarize 

their testimony in 5 minutes or less, and there is a clock in front 

of you with a green light, amber light, and a red light, which will 

be pretty obvious, I think. 

Before I recognize the witnesses, it is the tradition of the Task 

Force that they be sworn in. I would ask the witnesses, would you 

please stand and raise your right hand? Thank you. Do you solemnly swear that the testimony that you are about to give will be 

the truth, the whole truth, and nothing but the truth, so help you 

God? 

Let the record reflect that the witnesses have attested in the affirmative—you may be seated—testified in the affirmative. 

And I now recognize our first witness, Mr. Mukasey, and look 

forward to hearing your testimony, Mr. Mukasey—General 

Mukasey. 

TESTIMONY OF THE HONORABLE MICHAEL B. MUKASEY, 

OF COUNSEL, DEBEVOISE & PLIMPTON LLP 

Mr. MUKASEY. I think actually mister is better. I prefer it. But 

thank you very much, Mr. Chairman, and Ranking Member Cohen. 

I appreciate the opportunity to appear here in relation to what I 

think is an enormously important issue, and that relates to how 

our laws and regulations are enforced. 

And I am not going to read my statement into the record, not for 

the reasons that the Ranking Member mentioned, but rather because I think it is already in the record, and I think it is better 

simply to summarize and point out what the point is I am trying 

to make, which is that if—when enforcing laws and regulations 

stops being about simply the neutral application of neutral principles, and get incentives built into it that either permit regulators 

or enforcers to further their own agendas—which may include the 

public interest, or may include perpetuating their own activities, or 

further the agendas of others—then you create perverse incentives, 

and in that situation, it is not surprising that you often get perverse results. 

There are numerous cases that one could point to. The Vascular 

Solutions case involving a company that was selling a licensed-bythe-FDA device that was useful in treating vein disorders was able 

to—through results that it became aware of through physicians— 

found out that that device could also treat related vein disorders 

and so advised doctors. 
12 

They were prosecuted for 2 years for promoting an off-label use 

of the device, and it took them 2 years and millions of dollars to 

get cleared until acquittal was returned by a jury. That should not 

happen. That is an example of creating and permitting perverse results in law enforcement. 

There are other examples. Gibson Guitar case is probably a museum-quality example. The company was prosecuted for importing 

wood that was gathered in violation, not of the laws of the United 

States, but in violation of the laws of a South American country. 

They had no idea that those laws were violated, but there was a 

provision in the regulations that made it unlawful to import wood 

that was harvested in violation of foreign law. Not only did they 

get prosecuted, but there were fines extracted from them that were 

then used to contribute to the National Fish and Wildlife Foundation, even though that had absolutely nothing to do with the 

claimed violation that they had committed. 

There are a lot of other examples. The U.S. Department of Justice has an asset forfeiture—an equitable sharing program that it 

has entered into with the State, in which State police in essence 

have an incentive to stop people and seize money, which they then 

share with the Federal Government. 

Again, they share it supposedly for law enforcement uses, but the 

unregulated seizure and sharing of money is something that has 

gotten completely outside the control of the Congress, which is supposed to be in charge of allocating money, in charge of dispersing 

money, and instead leaves it to the discretion of people in the agencies. That is not the way, I think, the Constitution was written. It 

is not, I think, the way the founders envisioned the system would 

work, and it is not the way, I think, the system should work. 

Thank you. 

[The prepared statement of Mr. Mukasey follows:] 
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Mr. KING. I thank our Attorney General for his testimony, and 

now recognize Mr. Min for his 5 minutes. 

TESTIMONY OF DAVID MIN, ASSISTANT PROFESSOR OF LAW, 

UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW 

Mr. MIN. Thank you for inviting me here to testify on this important topic of potential executive branch overreach. As I discuss in 

my written testimony, the scope of today’s hearing is quite sprawling, spreading a broad array of complex and highly technical legal 

and constitutional issues. 

Obviously, I do not have the time to get into all of these today, 

but I would like to make one general observation. Today’s hearing 

assumes that there is executive branch overreach, and this assumption is based in large part on the claim that there is a socalled swarm of litigation that DOJ and other governmental agencies have initiated in recent years. But this claim largely ignores 

the context of these various DOJ investigations. 

Lest we forget, we are still recovering from the largest financial crisis in the history of the world, one which caused $22 trillion in 

total damages to the American people. 

Similarly, the BP Deepwater Horizon oil spill was the largest environmental disaster we have ever seen, one whose effects will be 

enormous and felt for generations. 

Given the magnitude of harm resulting from these and other recent incidents of business misconduct, it would be highly unusual 

if DOJ had not launched a wave of major prosecutions in recent 

years. 

My testimony today, however, focuses on one discrete issue related to executive overreach, which is this: When the Federal Government settlement of litigation claims includes provisions allowing 

or acquiring charitable donations to be made to third parties, to 

what extent do these charitable payment provisions encroach on 

Congress’ power of appropriations, and should we take measures to 

curb or eliminate this practice? 

Of course, H.R. 5063, the Stop Settlement Slush Funds Act of 

2016, would expressly prohibit the DOJ and other Federal agencies 

for negotiating for such charitable payment provisions unless they 

were specifically directed toward actual victims of the alleged misconduct. 

While I appreciate all the hard work that has gone into H.R. 

5063, I think it is a solution in search of problem, as there is a 

marked lack of evidence, other than anecdotal evidence, that charitable payment provisions actually pose any sort of problem, either 

from the standpoint of law or policy. 

Legally, it is well settled that charitable payment provisions are 

permissible and enforceable under current law, so long as they 

meet certain conditions. They should be executed prior to an admission or finding of liability. The government should not retain any 

post-settlement control over the donated funds, and there should be 

some nexus between the donations and the underlying legal violation. 

Charitable payment provisions that meet these criteria are clearly enforceable. Indeed, it is worth mentioning that the White House 

Office of Legal Counsel, the GAO, which advises and supports Con-
25 

gress, and the Federal courts are all in agreement on this point, 

as a describe in greater detail in my written testimony. 

Indeed, this very body has implicitly acknowledged the legality 

of charitable payment provisions by passing H.R. 5063 out of Committee. If these types of provisions were legal, of course there 

would be no need to pass legislation prohibiting them. 

There is also no evidence that charitable payment provisions 

pose a policy problem. This Committee has spent significant time 

investigating the charitable payment provisions negotiated by DOJ 

in recent settlements, but while there has been a flood of incendiary rhetoric accusing DOJ of various nefarious deeds around this, 

there has been a notable lack of any evidence behind these claims. 

The recent RMBS settlements negotiated by DOJ with the largest investment banks illustrates this point rather well, I think. 

These settlements, which include provisions for donations to be 

made to housing counseling groups, have been described by some 

as ‘‘liberal slush funds’’ because the list of approved donees includes groups like NeighborWorks or La Raza. 

But this characterization of these settlements is highly misleading. The charitable payment provisions in question allow the 

banks to choose from among hundreds of different HUD-approved 

housing counselling groups, including ones that might fairly be 

characterized as conservative. These groups were not chosen on the 

basis of their ideological postures, but rather because of their proven effectiveness in prevent foreclosures. 

Thus, H.R. 5063, in my view, does not actually solve any problems, but is likely to create a number of vexing problems. H.R. 

5063 weakens the Federal Government’s ability to pursue the best 

tailored remedies for civil and criminal violations. It is of course a 

first principle of negotiations that negotiators should have flexible 

and open-ended authority so as to be able to negotiation for Pareto 

optimal deals. H.R. 5063 would detract from that. 

Moreover, limiting DOJ settlement authority is likely to drive it 

toward a more aggressive litigative posture. That, in turn, is likely 

to stunt capital formation and economic growth by shifting prosecutorial resources away from negotiation and toward litigation, thus 

increasing the uncertainty of the business community around litigation. 

In my view, one of the key problems underlying H.R. 5063 is that 

it embodies a flawed view of the purpose of regulatory enforcement. 

Proponents of H.R. 5063 have expressed the view that civil penalties should serve a specific restitutionary function, providing compensation to injured individuals, but this view flies in the face of 

long-standing theory and basic logic. Civil penalties by their very 

nature are inefficient means of providing redress to injured parties. 

The long-standing goal of civil penalties has contrarily been to 

survey deterrents and general compensation function. Charitable 

payment provisions help to facilitate the public policy goals. 

If this Task Force is concerned about ensuring that victims of 

crime are compensated, it should create more private causes of action for these victims. Private litigation is, from both a theoretical 

and empirical perspective, a far more efficient vehicle for providing 

specific restitution. I thank you again for the opportunity to testify 

and look forward to your questions. Thank you. 
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[The prepared statement of Mr. Min follows:] 
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Mr. KING. Thank you, Mr. Min. The Chair now recognizes the 

Honorable Mr. Ridley for his testimony. 

TESTIMONY OF THE HONORABLE GARY RIDLEY, STATE OF 

OKLAHOMA, SECRETARY OF TRANSPORTATION 

Mr. RIDLEY. Thank you, Mr. Chairman, Ranking Member Cohen, 

Members of the Task Force for the opportunity to testify related to 

the benefits of congressionally identified transportation improvement projects, more commonly referred to as earmarks. 

We also appreciate the critical charge and the important work of 

the Task Force, and strongly encourage all possible action, in responsible limit, to reduce and eliminate Federal regulatory burden 

on citizens, business, and government entities. 

The deficiency of a long-underfunded national transportation system cannot be resolved by States alone. They require increasing a 

congressionally influenced Federal investment level and a longterm improvement strategy. Scarce Federal transportation discretionary dollars should not be unduly influenced by other fringe or 

completely unrelated initiatives, and should instead by wholly focused on critically needed transportation improvements. 

The resolution of our ongoing transportation funding crisis and 

cracking of new, more efficient project and program delivery protocols must be jointly developed by a renewed State and Federal 

partnership. Such a partnership must be based on trust and alliance between the State, local leaders, and our congressional Members, along with the clear and mutual understanding of the critical 

and growing needs of the infrastructure system. 

Oklahoma has had a long history of successfully communicating 

the State’s transportation system needs to our congressional delegation and, in turn, receiving congressional support for critically 

needed investments. 

Interstate 40 through downtown Oklahoma City and Interstate 

44 east of the Arkansas River in Tulsa are two tremendously important examples of dramatic improvements to the national transportation linkage that simply would not have been possible for 

Oklahoma to complete without the congressionally-directed Federal 

support. Oklahoma utilizes an 8 year construction work program to 

develop and deliver many of our federally funded projects. 

This plan is based on identified needs deficiency and is highly 

publicized around the State to ensure our transparency efforts. All 

projects in this plan have been fully vetted, are considered a priority, and are being actively advanced through the development 

process. 

The encompassed projects are inherently a topic of constant conversation and focus of the Oklahoma Congressional Delegation. 

Our delegation was always quick to try and help with Federal 

funding for our 8 year plan projects when opportunities were presented. 

It is important to recognize that any new addition of congressionally-identified project funding simply extended the planned investment and targeted projection, and enhanced the reach of the overall plan. While some earmarks were doomed to failure in some 

State, because there was never enough congressionally-identified 

directed funding to complete the initiative as conceived, conversely 
40 

our 8 year construction work plan projects are typically well into 

development, enjoy solid mix of resource commitments, multifaceted resource availability provided by a high degree of flexibility, 

and offer the greatest opportunity for success. 

Make no mistake, transportation infrastructure earmarks still 

exist today, such as the TIGER program, FASTLANE grants, but 

are largely directed through funding pools left to the discretion of 

the executive branch and the administration of the associated jurisdictional agencies. Oklahoma has been successful in garnering discretionary participation in improvement projects under these competitive programs. 

However, the projects are sometimes developed to include additional elements that divert a percentage of the funding away from 

the more direct transportation infrastructure investments and toward fringe enhancements to garner favor with perceived executive 

priorities. 

I believe that there is an inherent need for a methodology to facilitate congressionally identified projects that can assist with 

transportation infrastructure improvements of national significance 

and that clearly and undeniably support our national transportation network. 

Opportunities that encourage State leaders’ and officials’ interaction with their congressional delegations that require detailed explanations of the need of the national transportation network can 

only have positive outcomes. A carefully direct, transparent project 

vetting process is paramount and should be mandated before any 

congressionally identified funding is committed. 

In addition, the responsible congressional Committee leadership 

and Committee Members should be provided with greater influence 

to shape and direct all facets of the Federal program. Discretionary 

transportation funding programs should be utilized to encourage a 

greater understanding of the critical needs of the national transportation system, and should require the broad support of Congress, rather than to be styled to pursue a narrowly defined agenda 

almost entirely by the executive branch. 

I might make mention also, Mr. Chairman, that a couple of earmarks that come to light are the inland waterway system was an 

earmark, and so was our National System of Highways or the 

interstate system was both earmarks. 

Mr. Chairman, Members, thank you again for the opportunity to 

visit with you today. I will be happy to answer any questions. 

[The prepared statement of Mr. Ridley follows:] 
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Mr. KING. And I thank you, Secretary Ridley, for your testimony—all the witnesses for your testimony, and I will now recognize myself for 5 minutes. 

And I would turn first to you, Mr. Ridley, and ask you, if we 

were to repeal the Davis-Bacon Act, how much impact would that 

have on your ability to develop transportation in the State of Oklahoma? 

Mr. RIDLEY. Well, if I may, Mr. Chairman, give you just an example. Prior to 2010, Oklahoma had six zones that were covered 

under the Davis-Bacon Act. In 2010, for whatever reason, the 

Labor Department decided to do an audit and look at ours—and 

ours is a rural State, has two metropolitan areas, an Oklahoma 

City area and Tulsa area, but relatively a rural State other than 

that—and they came up with 66 zones. 

Now, an average highway project can be six to eight miles long. 

Therefore, many times, these projects fall within two or three 

zones. So, if you can imagine a contractor trying to keep track of 

a dozer operator’s wages as he passes through the total project or 

even a truck driver as he passes through the project, it makes it 

extremely difficult for a contractor to not only bid their job, but 

also to be able to keep track of it. Therefore, that causes risk, and 

any time you have risk in a highway project, that increases the 

cost. 

It is also difficult to administer by the DOTs—difficult and almost impossible to audit. So, it is a huge cost. The dollar amount 

I do not know, Mr. Chairman. I do not know that I can grasp it, 

but you had made mention of the 15 to 20 percent. I think that is 

probably fairly close. It is an unbelievable cost, again, because of 

the time that it takes to do it, but more importantly, the risk that 

a contractor has in trying to develop a bid document and be able 

to progress the project. 

Mr. KING. Thank you, Mr. Ridley, and those numbers I have estimated it back to 20 percent, but our numbers range in auditing our 

projects between 8 percent increase and 35 percent increase. The 

range varies depending on how much materials, how much labor, 

and what their relative competitive wage is in the area. Thank you. 

I turn to Attorney General Mukasey, and I want to pose a question here that you probably have not had an opportunity to digest. 

So, it has to do with some legislation that I proposed sometime 

back—in trying to figure out how we could get back to constitutional, authorized, and responsible earmarks. And so I had introduced in a previous Congress or two—it is called the Cut Act, and 

as I said, I want to be constitutional about this. 

I think it is the constitutional responsibility that we have here 

in Congress. We should not abdicate this responsibility over to the 

executive branch of government. And yet, there is a political question also to go back to earmarks in the face of the pressure that 

is there that is focused on the idea that earmarks were out of control, there were too many, and they were growing pretty fast; 

means that we want to have public scrutiny. 

So, I put it together in this way, that we would set up a bill that 

any Member of Congress could call up once a quarter, and only 

once a quarter, that would be a rescissions bill, that could call back 

earmarks after they had left the President’s desk, but before they 
47 

*Note: The material referred to was not available at the time this hearing record was finalized. 

were expenditures that were obligated. And it would be under an 

open rule that would allow only for those earmarks to be struck by 

a majority vote of Congress, and then any Member could bring an 

amendment to the floor to strike those earmarks. 

And so, for example, I was just thinking of one, that maybe it 

comes out of the Army side—the Cowgirls Hall of Fame—that was 

an Oklahoma earmark as I remember, so I am teasing our witness 

just a little. But say there is an amendment to strike the funding 

for the Cowgirls Hall of Fame. That gets brought up on the floor, 

it gets voted—the strike of that. The rescission of that funding 

would be successful, and then a whole series of others: the Bridge 

to Nowhere, and on and on and on, until there was public scrutiny, 

public focus, and we had the judgement of Congress always with 

recorded votes on those things that would strike the earmarks that 

were irresponsible in the majority of Congress. 

Would that be, Mr. Mukasey—or General Mukasey—a method by 

which we could restore integrity in the constitutional process and 

also maintain an integrity in fiscal responsibility? 

Mr. MUKASEY. You are correct that I did not have an opportunity 

to mull that over, except during the period that you were asking 

the question. However, my understanding of what you have suggested is that in essence, a law gets passed providing for an earmark, it goes to the President’s desk, gets signed, but that a superseding law can then undo the initial law and—when it is appropriate. I see no problem with that, and obviously each house has 

the power to set its own rules. That is right in the Constitution. 

The House of Representative is supposed to initiate all bills having 

to do with raising and disbursement. That is in the Constitution. 

So I see nothing to impede that kind of procedure, and as a matter 

of policy, it sounds very wise, because it allows people initially to 

put forward earmarks. The ones that can survive scrutiny will survive. The ones that cannot will not, and all in all, I think it makes 

perfectly good sense. 

Mr. KING. I thank you, General Mukasey, and if the Ranking 

Member will indulge me, I would like to offer that also up to Mr. 

Min and see if he would care to comment. 

Mr. MIN. I think I would echo the general’s comments. It seems 

like this is your house. You set the rules of how you appropriate 

the funds. 

Mr. KING. And so it sounds to me that we are relatively universal among the witnesses that restoring responsible earmarks 

would be a constitutional thing to do that would also restore authority back to Article I and in the legislative branch of government. And would you agree, Secretary Ridley? 

Mr. RIDLEY. Certainly on the legal aspects. I would not have a 

comment certainly on Article I of the Constitution. My understanding is that Congress is the one that decides where the money 

is spent. 

Mr. KING. I thank you, Mr. Ridley. And I would ask unanimous 

consent to introduce the Cut Act into the record. And hearing no 

objection, so ordered.* 
48 

Mr. KING. Now, I recognize the gentleman from Tennessee, our 

Ranking Member, for his opportunity to question the witnesses. 

Mr. COHEN. Thank you, Mr. Chair. General Mukasey, you were 

talking about, I guess, civil asset forfeiture? 

Mr. MUKASEY. As reflected in the particular program that I was 

referring to. 

Mr. COHEN. Yeah. 

Mr. MUKASEY. That is the division of spoils between the DOJ and 

State. 

Mr. COHEN. Right, that is what you were referring to, was it not? 

Mr. MUKASEY. Correct. 

Mr. COHEN. I think maybe I got it. I do not know, but there was 

some official with Justice who helped create that program, and 

then had an epiphany and sought to be forgiven for his misdeeds 

and has now come out strongly against, and saw how awful it was. 

And maybe there two of them. Do you know who I am speaking of? 

Mr. MUKASEY. I do not. 

Mr. COHEN. Well, I will find it eventually. It is the power of 

Google, but they said it would just—and it is awful, and I saw 

where the—— 

Mr. MUKASEY. I am sorry to interrupt. It is one of those bright 

ideas that sounds bright when you first think of it, and may have 

advantages, but then when it goes into practice, some things that 

are not so right about it emerge. 

Mr. COHEN. Was it in the early 1980’s that it started? 

Mr. MUKASEY. Not sure when it started. I know that there was 

a Washington Post series back in 2014, I think that exposed it, and 

it has been cut back substantially. Of course, the cutback is entirely voluntary by the Justice Department, and it is self-policed. 

I hope it is policed well, but, you know, one never knows. 

Mr. COHEN. There is a Mr. Seth wrote a piece, and maybe that 

is—but anyway, regardless, all those programs and the—Holder 

started to cut it back for some reason, and then the President, Attorney General, has reinstituted it, and it is just to take money 

from folks without a conviction; it is the antithesis of what you 

would think of as due process and government intrusion. 

Mr. MUKASEY. It is, and I mean, they will take the money immediately. You may get it back at some point, but it is not going to 

be until you have spilled a whole lot of blood and money in order— 

trying to get it done. 

Mr. COHEN. And does it not shift the burden on the citizen to 

prove it is their money? 

Mr. MUKASEY. In some instances, it does. You have people who 

have businesses that are high-cash businesses that wind up transporting cash, get pulled over, and they are accused of planning 

structuring, or money laundering. The money is seized, and it is 

sometimes years before they get it back. 

Mr. COHEN. Well, it is cash-registered justice is what it is. That 

happens a lot with drug laws, and a lot of these are drug cases. 

But in drug laws, the police get to keep cars and all kind of goods 

that they take, and we have really no choice in the matter. 

Mr. MUKASEY. Back in my youth, when I was assistant U.S. attorney, we prosecuted a bunch of police officers who started out 

that way, seizing assets, using them for public purposes, and 
49 

wound up seizing assets and using them for their own purposes 

and keeping the money and selling the drugs. So, you really create 

a slippery slope. 

Mr. COHEN. Yeah, we had a lot of that back in Tennessee when 

I was a police attorney and—after that I was a police attorney, but 

most of the drug agents were convicted of taking monies and taking—sometimes, it was not through the asset forfeiture program. 

They just took it, but neither here nor there. What do you know 

about deferred prosecution agreements? Those come through your 

office, too, do they not? 

Mr. MUKASEY. Well, they come through our firm. We have—— 

Mr. COHEN. But they used to come through your office. 

Mr. MUKASEY. Right, they did. 

Mr. COHEN. Do you think there should be a different method in 

choosing the monitors, so that there is no politics involved in it, 

and having some time of ombudsman or something? 

Mr. MUKASEY. I think that that whole system needs a whole lot 

of reform. You start out with the fact that many corporations—and 

I am not here to, you know, as a bleeding heart for corporations— 

but many corporations cannot take defending themselves against 

charges. Drug companies, for example—— 

Mr. COHEN. Medical device. 

Mr. MUKASEY [continuing]. Will suffer—pardon? 

Mr. COHEN. Medical device companies, too. 

Mr. MUKASEY. Medical device companies will suffer debarment if 

they are even charged, so they do not fight. It is cheaper for them 

as a business matter to settle, and they do, and permit a deferred 

prosecution agreement in which they state certain things that may 

or may not be true, and then are barred by the terms of the agreement from ever challenging them publically. 

In fact, those agreements sometimes provide that if anybody at 

the company issues a statement that is contrary to the statement 

of facts to which the company agreed in the deferred prosecution 

agreement, the government can go back and prosecute them. 

Mr. COHEN. Aare you familiar with Chris Christie’s adventures 

in those areas? 

Mr. MUKASEY. I mean, the contribution to his alma mater? 

Mr. COHEN. That was the one I was getting to, yeah. 

Mr. MUKASEY. That is kind of legendary in the department. 

Mr. COHEN. Yeah, that was just awful. It required this company 

to make—was it $100,000 or a quarter of a million dollars—to have 

a chair in ethics at some school in New Jersey, that was his school. 

Mr. MUKASEY. Well, it was his alma mater. 

Mr. COHEN. Yeah, right, it was not, yeah. But anyway, those 

things happen. 

Mr. MUKASEY. Not his best moment. 

Mr. COHEN. No, it was not. I wish we could do some things on 

civil forfeiture and get some—maybe Mr. King and I can work together on that and pass a bill. 

Mr. KING. So, we can have our conversation on the sidebar. 

Mr. COHEN. Thank you, sir. 

Mr. KING. I thank the gentleman from Tennessee, who has yielded back, and I thank the witnesses. This concludes today’s hearing, 

and without objection, all Members will have 5 legislative days to 
50 

submit additional written questions for the witnesses or additional 

materials for the record. 

I thank the witnesses, and I thank the Members and the audience. This hearing is now adjourned. 

[Whereupon, at 5:17 p.m., the Task Force was adjourned subject 

to the call of the Chair.] 

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