Lame Duck Stomps Earmarks

My headline is wishful thinking; but, according to an editorial in The Wall Street Journal,  it could happen. A President who doesn’t have to worry about reelection has some opportunities which a candidate doesn’t.

Federal earmarks (better known as pork barrel appropriations) are specific allocations – almost always of very local interest – which congresspeople insert into massive appropriations bills. At best, they are congressional micromanaging; at worst, they are bribes paid to us with our own money to get us to reelect our representatives and senators (and sometime they are even for the specific benefit of the friends of the congresspeople who get them inserted). Pork barrel is terrible governance; Pork barrel is an excellent reelection tool. Sometimes the buildings built with these funds or programs pursued with them are even named after the congressperson who procured them. Often you will hear people say “Senator so-and-so gave us the money to do this or that” as if it were the senator’s money and not ours.

The funds in the highway bill, for example, are appropriated in several broad categories and allocated nationally to the states by a complex formula. The states then decide, with some federal oversight, which projects to spend the money on. Earmarks say things like “build a bridge right here” like the famous bridge to nowhere in Alaska, “build a bikepath here”, or give a research grant to such-an-such an institution.  These are generally things the states and/or executive agencies could decide to do with the appropriated money without the earmark. However, they are often things that the states or agencies wouldn’t do because there are higher priority things to be done. And, of course, if the projects were done without earmarks, politicians wouldn’t earn reelection credits with them.

Earmarks are a big reason why most Americans have a low regard for congress as a whole BUT continue to reelect incumbents at an overwhelming rate.

My home state of Vermont and its institutions do, of course, seek earmarks just like every other state. No state can unilaterally give up on earmarks nor can any state’s congressional delegation unilaterally foreswear the pursuit of them. Such a virtuous state would just free up funds for its neighbors at the expense of projects which might have happened locally.

We can only get rid of earmarks and the waste they entail if we go cold turkey all at once and everywhere. Incredibly, according to the WSJ editorial, George Bush could make that happen.

Turns out most of the 8,993 earmarks in the $516 billion omnibus spending bill which Congress just passed aren’t really in the bill at all, they are in committee reports.

“December 18 legal analysis by attorney Todd Tatelman for the Congressional Research Service concludes that "because the language of committee reports do not meet the procedural requirements of Article I of the Constitution -- specifically, bicameralism and presentment -- they are not laws and, therefore, are not legally binding on executive agencies." In plainer English, this means committee reports have not been formally passed by both houses and "presented" to the President for signing.

“This means Mr. Bush has the legal authority not to fund these projects, which lack the force of law…

“Federal agencies would still be obligated to spend the money appropriated by Congress. But they could choose to spend those dollars on higher priorities that would benefit all taxpayers, rather than on favors for special interests or political donors. For example, the $700,000 for a bike trail in Minneapolis could be used to rebuild the collapsed bridge in that city and to strengthen others”.

There’d be a lot of howling, I’m sure, about the President defying the will of Congress. But what a great going away present George Bush could give us all – including those congresspeople in both parties who’d like to govern effectively – by instructing the agencies to disregard any earmarks which do not have the force of the law.

Of course the present crop of presidential candidates should also be asked how they’d act on this issue if elected.