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Just What Earmark “Moratorium” are They Talking About?

Photo by Daniel Huizinga | CC BY 2.0

Last week, the House Rules Committee held hearings on the idea of bringing back earmarks.  While some have been angling for this idea for a while, the immediate prompt was from President Trump’s assertion last week that if earmarks were revived, Members of Congress would get along better with each other.  Think what you want of Trump’s recommendation, but of one thing be sure: it’s an utterly clueless exhortation; earmarks never went away.

President Trump is joined in his misunderstanding by the Washington Post, Politico and almost every other media outlet I have read or heard on the matter.  The 2011 reform of the earmarking process that led to the so-called “ban” or “moratorium” on earmarks had major loopholes, quite readily circumvented by Members and staff in Congress.  However, thanks to the “reform” making the process opaque, it is hard, if not impossible, to identify who is doing the porking on Capitol Hill, what it is actually for and what it will really cost.

Some, not all, of the prepared testimony for today’s hearing at the House Rules Committee sheds important light on the earmarking process.  (All of the witnesses and their testimony are listed at https://rules.house.gov/bill/115/oj-hearing.)  Steve Ellis, Vice President of Taxpayers for Commonsense, presents some well informed assessments of the past pork process on Capitol Hill and, importantly, pokes holes in the various proposals to improve the earmarking process.  It makes important reading.

In his prepared statement, Thomas Schatz, President of Citizens Against Government Waste, tells us the earmarks never really went away.  He cited one of several examples as follows:

Although there are fewer earmarks since Congress adopted the earmark moratorium, far more money has been spent on average for each earmark, with no detailed information provided. In years past, individual locations (e.g., a bike path in a certain city) would appear next to the funding amount. The current trend sees members earmarking funding for an account that is responsible for that sort of spending (in this case, the Heritage Partnership Program), with the funding distributed later, without transparency or accountability. In a perfect demonstration of the new era of earmarking, the $25 million earmark for the National Predisaster Mitigation Fund appearing in the FY 2015 Department of Homeland Security bill corresponds to 58 earmarks totaling $24.6 million for the same program in FY 2010. In other words, the average dollar amount for the 58 earmarks in FY 2010 was $424,138, while the cost for a single earmark for the same purpose in FY 2015 was $25 million. The “Congressionally Directed Spending” section at the end of the FY 2010 bill contained the names of the members of Congress requesting each project and its location, as required by the pertinent transparency rules. In stark contrast, the single FY 2015 earmark, which is $400,000 greater than the combined total of the 58 FY 2010 earmarks, contained no such information and simply created a pool of money to be distributed later without any specific information about the eventual recipients or the member of Congress who requested the earmark.

Thus, Congress kept the pork process, but dropped the previous transparency on who did it and what precisely it was for.

The more you scratch, the more you find.

Take a look at the tables in the FY 2018 National Defense Authorization Act (NDAA) Conference Report, which start on pdf p. 1150 of https://www.congress.gov/115/crpt/hrpt404/CRPT-115hrpt404.pdf.  Note the items where the Conference added something to the President’s request.  Those are the earmarks.  Count them if you want; there are hundreds.  But that is not all of them in the post-“reform” era.

First, however, also recognize that many of the NDAA earmarks are labelled as “URF” or “Unfunded Requirement,” which are add-ons that the Pentagon initiated with what defense budget analysts commonly term DOD’s extra-legal “Wish Lists” of items the military services want but were unsuccessful in adding to the President’s OMB-approved budget.  Let’s not call those “congressional earmarks” (I’m being generous; many result indirectly from congressional pressure).  There remain many, scores perhaps hundreds, that are not so labelled. These are the congressionally initiated earmarks.

How can that be? The NDAA Conference Report specifically states “Pursuant to clause 9 of rule XXI of the Rules of the House of Representatives and Rule XLIV(3) of the Standing Rules of the Senate, neither this conference report nor the accompanying joint statement of managers contains any congressional earmarks, congressionally directed spending items, limited tax benefits, or limited tariff benefits, as defined in such rules.”

The House rule specifies as follows:

(e) For the purpose of this clause, the term ‘‘congressional earmark’’ means a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula driven or competitive award process.”

The Senate rule is essentially the same. Both require a specific amount for a specific project in a specific locality.

In the post-“reform” era, when the amount is made specific, as in the tables described above, the beneficiary is made vague.  When the specific project is identified (see below), the dollar amount is not specified.  In both cases Members of Congress and their staff will happily phone or send letters to the Pentagon to make sure no one there has any foolish ideas about spending the earmarked money in a manner different from what the provision’s author intend, or conversely, not spending any money at all.  But neither of these things are “earmarks” for the simple reason that they don’t conform to the House and Senate definitions.

I tried tracking several individual earmarks in these tables. You don’t find much. On pdf page 1241 of the NDAA conference report there is $1 million for “Study on Air Force aircraft capacity and capabilities.” I searched in the document with the Adobe search function, but all I could find is a listing showing that it is to be funded  by the Office of the Secretary of Defense. Being too specific about who/what is to do the study might get too close to the House/Senate rules on what is and is not an earmark.  However, this “Study” earmark was one of a very few that have any specific terminology associated with it at all; note how vaguely stated the vast majority of them are; the days of easy-to-shame earmarks for museums, bridges and such are gone.

Look also at the Committee Report for the 2018 House Appropriations Committee’s (HAC) Report for the 2018 DOD Appropriations bill (not yet enacted).  It tells us more about post-earmark-reform earmarks.

There are some items that are long time, traditional congressional earmarks, like $10 million for Historically Black Colleges and Universities” on pdf page 279.  There are also earmarks for school impact aid, breast cancer and more.

There is also a $250 million Defense Rapid Innovation Fund; this is a slush fund that Rep. Norm Dicks (D-WA, now gone) started after the 2011 “reform” to permit Members to pressure DOD to make sure their special projects got funded.  It was junk like this that perpetuated the terms “phone-marking” and “letter-marking:” staff calling DOD, and Members sending letters, to make sure DOD did the “right thing” with money pots like this.

There are also many, many non-URF earmarks in the tables in the HAC Committee Report.  (The tables in appropriations committee reports and conference reports are always key, they tell DOD just where the money is to go, and there will be hell to pay if the dollar amounts are not strictly observed.)

But there is also another form of post-earmark-reform earmark.  Look at the narrative parts of the report. There are many minor program specific passages, usually without any money amount stated, which of course makes them not-an-earmark (as defined by House/Senate rules).  Read some of them on pdf page 222; just in the research and development section of the report, there are scores.  A typical example follows:

ADVANCED LIGHTWEIGHT POLYMER CASED SMALL ARMS AMMUNITIONS

The Committee is encouraged by the Navy’s progress on design, development, and testing of advanced lightweight small arms ammunitions and encourages the Secretary of the Navy to continue exploring and refining the use of advanced lightweight polymer cased ammunitions to reduce the weight burden, improve mobility, and enhance the survivability of the warfighter.

As soon as the DOD Appropriation bill becomes law, if not already, the Navy will be getting a phone call, and/or a letter, to make sure it got the message and has in mind the “right” amount of money (extracted from other programs) to pay for this non-earmark earmark.  Of course, if money is not spent, the Committee staff or Members will extract some form of pain. They know how to do that; they have been doing it for decades.

Yet another form of the same sort of hortatory earmark is section 1259 of the NDAA Conference Report; put simply, it facilitates arms sales to Taiwan.  Lots of money to be made there, and lots of thankfulness perhaps to be expressed to the congressional author(s?) of that little blivet.  But note again, not a single dollar is mandated; not a single program identified: hence it’s not an “earmark” as defined by the slipshod rules.

The Washington Post ran an article last week that engaged in the myth that earmarks were banned after 2011: “Trump’s embrace of earmarks spurs push for a revival.” This article also cites a second misconception of the pork process.  It asserts that when earmarks were more specific, some of them were useful and helpful to achieve worthwhile policy ends.  It cites various positive examples: one of them “Dozens of police departments received money to improve their equipment and communications systems.”

Sounds good, but if you read Steve Ellis’ testimony to the House Rules Committee, cited above, you will understand what is wrong here.  Which police departments got this money: the ones that needed it the most or the ones in the states or districts of the most influential Members of Congress?  What equipment; was it surplus military vehicles that some justice agencies found unneeded and unhelpful?  How were these recipient police departments and the equipment vetted in the “positive” example cited by the Post?  The answer is simple; they probably weren’t, certainly not by any independent, objective entity. Ask the same question about the seemingly laudable idea of aiding “Historically Black Colleges and Universities.”  Which ones?  How much for each?  Is that the best distribution?  Who says so?  We don’t know.  These may be great ideas; they may not; we remain clueless.

The past congressional “reforms” didn’t make earmarks go away, but they did make them harder to identify and assess. And we have the added burden of a media that is mostly not paying serious attention to the matter.  Some people like to get loud about how clueless President Trump is about many things, and this is a good example.  However, when you scratch the surface–just a little–you understand that he is not alone.

Winslow T. Wheeler: 31 years of experience in the US senate staff and GAO.  12 years at the Center for Defense Information’s Straus Military Reform Project, which moved to the Project On Government Oversight in 2012.  Now retired.

For pervious writing on the congressional pork process, see an Outlook piece from 2004 at http://www.washingtonpost.com/wp-dyn/articles/A20380-2004Aug20.html, or a book on pork and more at https://www.usni.org/store/books/clear-decks-50-90/wastrels-defense, or an ignored proposal to reform the process at http://www.independent.org/pdf/policy_reports/2006-08-21-pork.pdf.

 

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Winslow T. Wheeler is the Director of the Straus Military Reform Project at the Project on Government Oversight.  He spent 31 years working for the Government Accountability Office and both Republican and Democratic Senators on national security issues.

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