An Earmark by Any Other Name; Hawaii Earmarks Detailed

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BY CONGRESS.ORG – For years now, politicians in Washington have been promising to reach across the party lines that have so long and so grievously divided the city. And for years, they’ve failed to do so — until now, inspired, as it turned out, by the dispute over earmarks that confronted members of Congress last week.

The earmark debate — on television, on the floor, in statements and press releases — dominated the Washington conversation. And parsing the words of those involved reveals some common ground in uncommon places.


[See an interactive graphic on earmarks here.]

Standing against earmarks, Republican Sen. Jim DeMint of South Carolina, who once vowed to “break” President Obama, now embraces the president, who in turn agrees with Wisconsin GOP Rep. Paul D. Ryan, who agrees with two senators from different parts of the ideological spectrum, Colorado Democrat Mark Udall and Oklahoma Republican Tom Coburn.

In defense of earmarks, Senate Majority Leader Harry Reid, a Nevada Democrat, agrees with Oklahoma Republican Sen. James M. Inhofe and, until he begrudgingly changed his mind, Senate Republican Leader Mitch McConnell of Kentucky.

The conversation also reveals a gradation of opinion on earmarks that is far more nuanced than the public posturing — and not at all simply pro and con.

Breaking down the comments suggests at least five rough schools of thought:

• Earmark pragmatists, who see them as necessary for members of Congress to do (and keep) their jobs.

• Earmark originalists, who see them as a solemn duty under the Constitution.

• Earmark purists, against them on principle, either because they waste money or because they invite corruption.

• Earmark symbolists, who oppose them for symbolic reasons only or because they’ve been browbeaten.

• Earmark asterisks, who oppose them, except, of course, the ones they don’t oppose.

“Advocating for transportation projects for one’s district in my mind does not equate to an earmark,” Minnesota Republican and tea party favorite Rep. Michele Bachmann told the Minneapolis Star-Tribune. “I don’t believe that building roads and bridges and interchanges should be considered an earmark.”

These are not new positions. But rarely have they been set forth so starkly and voluminously over the course of a few days — another reflection of the power of the tea party movement and politicians eager to please it.

This is not a new issue, either. One historian identified the first earmark as the handiwork of South Carolina Sen. John C. Calhoun, who, in 1817, got money for construction of a highway westward included in a bill concerning the Second Bank of the United States. President James Madison vetoed it as unconstitutional.

It could also be argued that the first earmarklike bill came in 1790, when Congress approved a measure calling for placement of the seat of government “on the river Potomac, at some place between the mouths of the Eastern Branch and Connogocheque,” which narrowed the choice to what is now Washington. It was part of a back-room deal, too, among the New Yorkers and the Virginians.

The broad category of what has been called “pork barrel” spending was a staple of 19th century politicking, as members added money to pay for pet projects such as railroads, dams, lighthouses, roads and ports.

In recent decades, as budget deficits became a political issue, lawmakers stopped adding funds directly to legislation and instead began “earmarking” to direct where some of the funds from an agency’s overall appropriations should be spent — usually with a direction written into the report that accompanies the legislation, not the bill itself.

Earmarks became “a staple in the political diet” about 30 years ago, wrote Jason Iuliano, a Harvard Law student, in the most recent and thorough scholarly survey of the subject. Since 1991, the number has increased tenfold, by his reckoning, to about $20 billion in fiscal 2009.

There is no agreed-upon definition of earmarks. The Office of Management and Budget has defined them as “specified funds for projects, activities or institutions not requested by the executive, or add-ons to requested funds which Congress directs for specific activities.” As an arm of the White House, the OMB has a vested interest in letting the president be the arbiter of what’s proper.

The Congressional Research Service has identified a form of presidential earmark as well, or a “functional equivalent,” consisting of designated spending “embedded within an agency’s spending plan before or after enactment of the agency’s appropriations.”

The implication of that definition is that banning congressional earmarks would not eliminate earmarks but simply shift them over to the White House.

Constitutional Mandate

The originalist school of earmark defenders proclaims a high-minded justification: Not only is there nothing wrong with congressional earmarks; it would be wrong to eliminate them, a violation of the Constitution.

“Earmarks have been part of the congressional process since the founding of our country,” Inhofe wrote. “As James Madison, the father of the Constitution, viewed it, appropriating funds is the job of the legislature. Writing in the Federalist, he noted that Congress holds the power of the purse for the very reason that it is closer to the people. The words of Madison and Article 1, Section 9, of the Constitution say that authorization and appropriations are exclusively the responsibility of the legislative branch. Congress should not cede this authority to the executive branch.”

Or, as Inhofe told Neil Cavuto of Fox News in an interview two weeks ago, dropping congressional earmarks “would make James Madison roll over in his grave.” Abandoning earmarks, indeed, could violate “our oath of office.” (Never mind Madison’s veto.)

Senate Majority Leader Harry Reid offered a similar opinion. “I believe, personally, we have a constitutional obligation, a responsibility, to do congressionally directed spending,” he said at a news conference last week. Banning earmarks “just gives more power to the executive. I am not one who believes in that. I think we have three separate and equal branches of government. And I think they should be equal in power. ”

Reid’s counterpart, Republican leader (and appropriator) McConnell, used a similar separation-of-powers argument to defend earmarks (it’s “about an argument between the executive branch and the legislative branch over how funds should be spent”) until pummeled by party colleagues into begrudging acceptance of an earmark moratorium, at which point the Constitution gave way to symbolism.

“There is simply no doubt that the abuse of this practice has caused Americans to view it as a symbol of the waste and out-of-control spending that every Republican in Washington is determined to fight,” McConnell said last week on the Senate floor. “And unless people like me show the American people that we’re willing to follow through on small or even symbolic things, we risk losing them on our broader efforts to cut spending and rein in government.”

The renewed battle over earmarks is the result of a combination of the ballooning deficit and the rise of the tea party movement, which has made ending earmarks a “no compromise” issue.

Few of those who favor the Republican-backed moratorium eventually endorsed by McConnell argue that dropping earmarks would make a significant dent in the deficit. Like Coburn, they see earmarks as a “gateway drug” to big spending.

“We can’t take on the real deficit problems, you know, without doing earmarks,” Ryan said last week on MSNBC’s “Morning Joe” program. “I mean, come on, the earmarks are important. They’re small, but they’re symbolically very significant. And if you can’t deal with earmarks, then how can you deal with the big fiscal mess we have around the corner?”

A leading critic of earmarks, Taxpayers for Common Sense, has estimated that as-yet uncompleted House appropriations bills for fiscal 2011 contain almost 3,000 earmark requests totaling $3 billion, while the Senate versions have about 3,700 requests totaling about $6 billion. These amounts represent less than 1 percent of the roughly $1 trillion in discretionary spending now under consideration for the year.

“We should not mislead Americans by saying that an earmark ban will do much to reduce the federal debt,” said Lamar Alexander of Tennessee, an appropriator and Senate GOP conference chairman.

It remains unclear how much the Senate Republicans’ voluntary moratorium on earmarks will matter, given lukewarm support from leadership and views such as those expressed by South Carolina Republican Lindsey Graham.

Graham, an earmark asterisk, last week signed on for DeMint’s voluntary earmark reform — at least for five months. He is waiting that long to see if Congress acts on a DeMint proposal for changing how ports are studied, or if Obama includes in his fiscal 2012 budget request money for the study to help the Port of Charleston prepare for new, larger cargo ships that are due to come through the Panama Canal in 2014.

“I maintain the right to seek funding to protect our national security or where the jobs and economy of South Carolina are at risk,” Graham said last week in a statement. “If the Obama administration and their bureaucrats in the federal agencies take action against the best interests of South Carolina, I will take swift action to correct their wrongs.”

Bucking the Party Line

Several Republicans have simply said no to the voluntary earmark halt, including John Hoeven of North Dakota, a newly elected senator who has already been promised a seat on the Appropriations Committee.

Republican Lisa Murkowski, who almost lost her seat to a candidate favored by the tea party, based her write-in campaign partly on her ability to secure earmarks. Alaska’s other senator, Democrat Mark Begich, agrees that earmarks are vital for small states.

“At the end of the day, an earmark moratorium is nothing more than a shell game that moves the money and the decision-making responsibility from Congress to the bureaucracy,” Murkowski declared last week in a statement.

Meanwhile, Missouri’s two senators are splitting from their parties’ positions and ending up on opposite sides: Democrat Claire McCaskill wants to get rid of earmarks, while Republican Sen.-elect Roy Blunt defends them.

An amendment offered by Coburn to a food safety bill that would bar earmarks from Senate bills through fiscal 2013 is scheduled for a Nov. 29 vote. While it’s unlikely that Coburn will prevail, Senate backers of earmarks may still struggle to use this easy route to secure money for pet projects.

House Republican leaders appear serious about banning earmarks, even amid a debate about whether this would extend to matters such as highway projects.

It’s certain to be a point of serious contention, at the very least, in the 112th Congress as the Republican-controlled, anti-earmark House sends appropriations bills to the Democratic-controlled, pro-earmark Senate. Conference committees to iron out final legislation should be lively.

Authored by Kerry Young, CQ Staff