Fix Congress - Earmarks

Earmarks are those things Congressmen do to the Federal Budget to send some special money to some special people. There is nothing inherently wrong in the earmark concept. Senators and Representatives are supposed to represent their constituents and that includes carving out a part of the budget for the folks back home. But earmarks are the source of two problems. First, earmarks too often add to the budget, rather than carve out a part of it. Second, the receivers of earmarks may not be the folks back home, but may be cronies, bribers, and other kinds of special friends.

Honest Leadership and Open Government Act

If I remember correctly, earmarking comes from England and we carried it to the colonies. It involves slitting or otherwise cutting the ears of livestock to show ownership. The purpose is to identify the livestock's owner. In Congress, an earmark identifies the recipients, not the author, until 2007 when the Senate passed the S. 1: Honest Leadership and Open Government Act of 2007 and the House adopted H. Res. 6: Ethics Reform resolution. S. 1 was also approved by the House and signed by the President, so it is now law. The House did not enact H.Res. 6 but did vote to use the new rules for earmark transparency.

Earmark Watch (see image at right, from Earmark Watch home page) is a tremendously useful site that lets you track the status of many bills in Congress (they are aiming for all bills). While their aim was to track earmarks, the site provides a wealth of info on many things dealing with transparency in government. Earmark Watch gives a summary of S. 1, Honest Leadership and Open Government Act. This act covers several areas where more transparency is needed. For earmarks, the Act:

"Requires that Senators who submit earmark requests on a bill or committee report be identified as the sponsor of their requests on a publicly accessible congressional website at least 48 hours before the item comes to a vote [Tile V (Sec. 521)]."

Earmark, noun; a distinguishing mark; or identification; ...

So, if earmarks are now transparent, why am I discussing it? Because transparency has not been achieved and, as you might guess, some Congressmen have found ways around S. 1. Part of the problem is that there is no agreed upon definition of earmarks.

Earmark Watch gives the following:

"For the purposes of Earmark Watch, earmarks are those spending provisions in appropriations bills that House Resolution 6 and the Honest Leadership and Open Government Act of 2007 require House members and Senators, respectively, to disclose. The Honest Leadership and Open Government Act of 2007 uses the euphemism "congressionally directed spending" for earmarks, which it defines as

a provision or report language included primarily at the request of a 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...

"But bear in mind that there is no single agreed upon definition of earmarks. The Office of Management and Budget defines them here as, in part,

funds provided by the Congress for projects or programs where the congressional direction (in bill or report language) circumvents Executive Branch merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise curtails the ability of the Executive Branch to manage critical aspects of the funds allocation process.

"However, the House Report to the Interior, Environment and Related Agencies Appropriation Bill notes that

Earmarking or directed spending of Federal dollars does not begin with Congress. It begins with the Executive Branch. For example, the list included above lists 92 specific land acquisition or construction projects which have been submitted by the Administration. The Administration, in selecting these projects, goes through a process that is the functional equivalent of earmarking."

Ok, the definition of an earmark is a problem, but why can't Congress, using S. 1, include those Administration earmarks and identify the source as the White House. They could even identify the department. They could also report, even after the fact, whether the money was awarded "other than through a statutory or administrative formula-driven or competitive award process."

Are earmarks really a problem? To answer, let's get into a bit of media flim-flamery.

2007 Federal Budget Contains 11,780 Earmarks

Search "earmarks" in Wikipedia and you get the following:

"Congress' year-end budget passed in December 2007 contains nearly 10,000 Congressional earmarks worth $10.4 billion, according to a comprehensive database compiled by Taxpayers for Common Sense.[4] In addition, the Department of Defense appropriations bill, passed earlier in the year, contains nearly 2,200 earmarks worth $7.9 billion. The total Congressional earmarks for fiscal year 2008 numbered 11,780 worth $18.3 billion. This is a 23% cut in earmarks from the high in FY 2005, but falls well short of the 50% reduction House leadership set as its goal earlier in the year.[5]

Citizens Against Government Waste identified 2,658 of the FY08 earmarks representing $13.2 billion as "Pork Projects", significantly lower than the numbers and dollar amounts of recent prior years: 13,997 "Pork Projects" for a total of $27.3 billion in 2005, and 9,963 projects for a total of $29 billion in 2006."

Wow, 11,780 earmarks in the 2007 budget and for a whopping $18.3 billion! That would be sound bite reporting. Hold on a minute.

In my last Navy tour, I was in Washington, DC, and was responsible for a small portion of the Navy's budget. I lived the budget cycle and even had to participate at Congressional subcommittee budget hearings. My miniscule part of the budget had at least 200 items and I can picture the Navy's total budget request running into several tens of thousand items. Now expand that to all the government departments and offices and the total items clearly comes to several million items. The draft budget is delivered to Congress in many volumes carried, no doubt, by forklifts.

John McCain is Outraged

Are 11,780 earmarks really a significant number? Not really, but John McCain was outraged by uncontrolled earmarks during his major economics speech back in April. Robert Borosage at the Huffington Post in the article, "McCainomics: A Double Dose of the Same Poison" has some good points (but I don't agree with all of his article).

Borosage makes the following point:

"First, foremost and repeatedly, he (McCain) is outraged by earmarked spending by the Congress which he vows to veto if president. This is cute, but a joke. Earmarks total less than $15 billion a year in a $2.7 trillion budget. Erasing them all will make utterly no difference in our economic posture."

I think the latest figure is more like $18 billion but we're still only talking about 6/10ths of 1%. So I ask, "Why am I still talking about earmarks?"

Hypothetical Earmarks

I am still talking about earmarks because $18 billion is still a big piece of change in anyone's language.

Let's say that all the Congressmen shared the $18 billion equally. Divide $18 billion by 535 and you get about $ 33 million each. Now let's say that we trust most Congressmen and maybe 75% goes to good causes for the folks back home. Some earmarks sneak by and we don't know which Member of Congress sneaked them into the budget, the language probably notes a worthy cause but the money is to go to a specified contractor (remember, this is hypothetical).

Why specify a contractor? Assuming we even knew about the earmark, we don't know why but we would be suspicious. So would an honest Congressmen. I don't know if 25% is a good figure for suspicious earmarks; it might be 10%. If it's 25%, then each portion comes to $8 million; if 10%, it's $3 million available to each our equally sharing Congressmen for their suspicious purposes.

But let the statistic keep rolling. About 62% of the budgets goes to entitlement programs and the federal debt. There isn't much change for shenanigans in those items. That leaves 38%, or about $1 billion susceptible to suspicious earmarks. The $18 billion in earmarks now comprises closer to 2% of the budget susceptible to earmarks. Increase all the above estimates accordingly.

from "Introduction to the Federal Budget Process"

Suspicious Purposes

The suspicious purpose could be simply going to a good contractor who deserves to the contract because he has the right skills - maybe ok, but we probably don't know. That contractor might also be owned by a relative of the Congressman - not good. That contractor might also be getting a payoff for campaign favors - definitely not good. Or it might simply be a payoff for a bribe - downright crooked.

My point is that hidden earmarks may constitute an awful lot of money when we discuss it in average human terms. I am not against earmarks, but I do believe all earmarks should be visible to the public and, especially, we should know the authoring Congressman. In other words, let's really earmark the earmarks.

This has been just a summary of the earmark subject. It gets really complicated in the details. So what should be done?

Mark the Earmark

First, get an agreed upon definition of earmarks and make that definition an Act of Congress, signed by the Senate, the House, and signed by the President (without a signing statement). A good place to start is the "OMB Guidance to Agencies on Definition of Earmarks." OMB should provide the guidance, but Congress must make it law.

After that, we probably need another, better Honest Leadership and Open Government Act of 200x. What that should contain depends on whom you ask. Larry Lessig, professor of law at Stanford and once aspired to be a member of Congress, has taken a puritanical approach of abolishing all earmarks and no money from PACs. He seems to be gathering a following among voters, at least one state legislature, and some US Congressmen of both Parties. You can read about Lessig at "Fix Congress First" at the Huffington Post, and "Larry Lessig: Time to reject corporate influence on Washington" on CNET News. Or you can visit his site, Change Congress and sign up as a supporter, see which Congressmen have recently signed up, or find how much or your local Member is getting from PACs.

I'm not fond of completely doing away with all earmarks, but I wouldn't oppose it if Congress takes the step. If McCain is elected, this is what he says he will do.

The public is aware of earmarks and wants solutions. Some Congressmen are for doing away with earmarks, more are for making earmarks completely visible. The next President and Congress will feel the pressure and have an opportunity to fix the problem. The only thing that might prevent a solution are those who benefit from the $18 billion in earmarks.