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A Guide to Earmarks

Next week the House of Representatives will execute Speaker Pelosi’s agenda for congressional reform. While earlier versions of the proposed bills and rules have been made available to the public, the final versions have not. As one who has exercised himself in the past on the issue of pork (mostly in defense bills), I hope to help others assess these reforms quickly and effectively when they are made public.

I articulate below what I believe are useful criteria for assessing whether the Pelosi earmarking reforms are effective or not. Having worked the congressional pork system for over 30 years, I believe I can tell the difference between phony and real pork reforms.

1) How does the reform define “earmark?” Past ­ mostly Republican ­ loopholes have limited the definition of “earmark” to just “provisions” in bills. In fact, most earmarks are not in the text of bills but are in committee reports when the bills are initially reported to the floor of the House and the Senate, and many ­ but not all – are included the text of “conference reports,” specifically in the text of something called the “Joint Explanatory Statement,” (JES) which many mistake as the “conference report.” (In relatively rare instances, new earmarks are introduced in the JES [“Immaculate Conceptions”] but most in the JES are simply a final version of what was in either the House-passed or Senate-passed bill.)

Another favorite Republican loophole is to restrict earmarks to just those intended for “non-federal entities.” In DOD authorization and appropriation bills, that eliminates about 98% of all earmarks, which are directly appropriated to the military services for subsequent distribution to various contractors. To cite a notorious example, the appropriation for the “Bridge to Nowhere” was to the Department of Transportation, not directly to a private contractor; it would not qualify as “pork” under the “non-federal entity” loophole.

Some members of Congress like to pretend that just the appropriations committees push pork. Oh, please! Authorization bills and reports, such as from the Senate and House Armed Services Committees are just as porcine. In fact, when I worked for Senator Domenici, the Senate Appropriations Committee (under both Republican and Democratic leadership) insisted that they would not approve our ­ or any other Senator’s ­ request to include a pork item in their bills or reports unless it had already been approved by the Senate Armed Services Committee and its bill and/or report. Members like Senator McCain who assert that “pork” is bad because it has not been authorized in bills like the Armed Services Committees’ National Defense Authorization Acts are selling snake-oil of the rankest sort. No pork should be let off the hook if it is “authorized.”

In short, the definition of the term “earmark” must include all legislative vehicles and all possible recipients if it is to be considered a serious or meaningful reform.

2) Is sunshine enough? Most Democratic and Republican earmarking reforms have argued that more information about earmarks will restrain them. Their reforms seek to identify what member proposed the earmark ­ even, in some cases, what lobbying firm is pushing it. Some proposals also seek an explanation of the earmark. As written most of these proposals amount to little more than free advertising for earmarks and the members (and lobbyists) pushing them.

Ask first, who gets to write the description of the earmark. It is usually unstated, but the implication is that the sponsor of the earmark gets to write the description. Hopefully, no one needs an explanation for why that is a bad idea. In other cases, the implication is that the staff of the committee sponsoring the bill (or report) will write the description. That is hardly an improvement: committees, and especially their staff, are not in the business of alienating members by writing objective, complete, and frank assessments of the members’ handiwork.

If the “sunshine” is to be something other than blinding, the earmark does need to be described but by an objective, if not independent, party. For example, an assessment of the earmark by GAO (and of the cost by CBO) would be very illuminating. So as to not overburden GAO or CBO with the thousands of earmark descriptions that many bills would require, it might also be useful to have a description from the federal agency that will be required to execute the earmark. Indeed, dong so would force out into the open the current subterranean practice in many federal agencies when project managers express essential support to the authorization and appropriation committee staffs for the majority of earmarks that appear in their bills and reports.

Of course, all these earmark descriptions by any party will need to be printed in public congressional reports ­ with the authors of the descriptions specifically identified.

3) With or without “sunshine,” any earmark should be subjected to good governance in the form of appropriate contracting for it once it is legislated. Specifically, this would mean competing the contract for the earmark once the associated legislation is enacted. In other words, when Congressman Marty Meehan wants to add “fleece liners” to Department of the Army spending for winter uniforms, why should the winter-wear manufacturer in his district be guaranteed the work? Why not compete the contract for the earmark? Why not nationally? If the case can be made to increase Army spending for winter uniforms, why should the contact be a sole source one guaranteed to just one producer? Members of Congress like to talk about how much they want to improve federal contracting, especially with competition. Why not start the reforming at home?

These are what I believe the major criteria for distinguishing phony from real earmarking reform. Others may also have good ideas, but each should be inspected for loopholes and incompleteness.

WINSLOW T. WHEELER is the Director of the Straus Military Reform Project of the Center for Defense Information and author of The Wastrels of Defense. Over 31 years, he worked for US Senators from both political parties and the Government Accountability Office on national security issues. He can be contacted at: winslowwheeler@comcast.net.