This vote was on an amendment by Barbara Boxer, D-Calif., one of the Senate’s more progressive members, that would call for a Justice Department review of the potential criminality of a member’s pet project (known as an “earmark”) that was altered AFTER both chambers of Congress passed it.  Critics say this had the effect of sending a version of legislation to the president that Congress did not in fact approve.  The amendment was offered to a bill that would make technical corrections and some programmatic changes (such as earmarks) to the 2005 surface transportation law. 

The earmark in question drew attention because the version that was passed by the House and Senate was not the version that was sent to the White House for President Bush’s signature.  Specifically, the version both chambers passed contained a $10 million earmark for expanding Interstate 75 near Fort Myers, Fla.  But the version that reached the White House directed those funds to a specific interchange at Coconut Road.  Critics of the earmark say this was done by a House staff member after the measure was passed by both chambers of Congress in order to benefit a developer in Florida.  This developer, who allegedly had ties to a project near the interchange, helped raise $40,000 for Alaska Republican Don Young’s re-election campaign.  At the time, Young was chairman of the committee that drafted the bill that contained the earmark.  His office has denied any wrongdoing.

“I think we know enough to say to the Justice Department: Please pay attention to this. Do your work. Make a determination and get on with it because this is very serious,” Boxer said.

Some who opposed the amendment steered clear of the specific allegation but said that it would set a precedent with broad implications.

“I am very hesitant to set a precedent that invites the Justice Department to come into the Senate and House to investigate us,” said Tom Coburn, R-Okla.

Indeed, Democrats adamantly defended congressional prerogatives in fighting against an allowing the FBI to search the offices of Rep. William J. Jefferson, D-La., in connection with a corruption investigation. 

By a vote of 64-28, the amendment was adopted.  All but three Democrats present voted for the amendment (Robert Byrd of West Virginia, Russ Feingold of Wisconsin and Claire McCaskill of Missouri).  Of Republicans present, 20 voted against the amendment and 25 voted for it.  The end result is that the bill went forward with language asking the Justice Department to investigate the earmark change.