Saturday, December 18, 2010

What's Up with Earmarks?

'Tis the season to be focusing on giving.  However, we must differentiate the Congress's tendency to give what it does not have from the gift exchanges associated with the Christmas season.

I got a private e-mail from someone who had read my blog yesterday, asking this question? "So what's the big deal with earmarks, Dave? Isn't that just the way states get their funding?"

The question itself demands an explanation and indicates how far down the slippery slope we have slid. When business as usual in Washington D.C. is business with no Constitutional oversight or even a nod of acknowledgement that there IS a Constitution by which we are governed that separates the defined powers of government carefully by design, you may know we have strayed far from the path the Founders laid out for us as a nation.

An "earmark" in a piece of legislation is a provision in a spending bill that directs approved funds to be spent on specific projects, or that directs specific exemptions from taxes or mandated fees.

They have taken on a personality all their own in recent years, some being designated as "hard earmarks" embedded in the text of Congressional committee reports which have the effect of law, and "soft earmarks" that don't have the effect of law but are acted upon as if they were binding.

Bob Bennett (R-UT) has "distinguished" himself (I use quotes intentionally) as a senator who knew how to "bring home the bacon" (hence the phrase "pork barrel spending") because of his position as a senior member of the Senate Appropriations Committee. He consistently defended the practice of earmarks, and as we saw yesterday in his advocacy of the omnibus bill remains unrepentant and defiant in defense of the practice.

Senator-elect Mike Lee (R-UT)
Back on March 17, 2010, then-Senate candidate Mike Lee (now Senator-elect) dared to raise an important question that went unanswered at the time: "Senator Bennett, why didn't you vote to support legislation banning earmarks for 2010 and 2011?" The Senate voted on the measure (Senator DeMint's Amendment 3454 to H.R. 1586), and Bennett was one of just a handful of Senators to abstain from voting. Lee said at the time, "Earmarks direct taxpayer dollars to specific recipients without review or public hearing. They are often wasteful pet projects and a reckless mismanagement of public funds for programs and projects not authorized by the U.S. Constitution. Though small in sum when compared to the total federal budget, they are an easy way to determine whether a Senator will adhere to the restraints found in the Constitution."

Noting Bennett's glaring absence for the vote, Lee said:

"Earmarks are an unfortunate footprint from where the Republican Party took the wrong path. True small-government conservatives, and even some conscientious Democrats, supported this measure to put a hold on a system that lends itself to abuse. We need an open, honest debate about earmarks, and missing a vote on something that critical is inexcusable. I think it's important for Utah, with its great national reputation for conservatism and thrift, to have representatives who will work to rein in this kind of system, rather than just look the other way."

The fiscally sound amendment had bipartisan support, and Utah's other Senator, Orrin Hatch, voted for it. Deficit spending facilitates the continuing growth of the federal government. Lee continued:

"It is far too tempting to shift the cost of today’s federal expansion to future generations. Until we require Congress to operate under a balanced budget, that expansion will continue. A balanced budget amendment is essential to restoring the original, proper role of the federal government."

Lee's critics continue to brand him as a wild-eyed conservative radical ideologue.  Well, if these are the statements of a radical, I say it's time to bring on the radicals!

The senators and congressmen who routinely insert these earmarks into legislation over which they directly preside as the bill wends its way through committee votes (assuming they observe the constitutionally-mandated practice of all spending bills originating first in the House through committee hearings before being sent to the Senate) often specify amounts of money designated for a favored organization or project in his/her home state or district.

The federal Office of Management and Budget defines earmarks as funds provided by 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. This usurpation of the defined privileges of the Executive Branch by the Legislative Branch has led to the routine of massive overspending, soaring national debt and the out-of-control federal deficit. The checks and balances designed into the Constitution have been badly abused.

There have been attempts in recent years to define earmarks in ethics and budget reform legislation, but because the earmarking practice is controversial and the effect would be to curb Congressional power, little has happened to stop the practice.

Congress is required by the limits specified under Article 1, Section 9 of the Constitution to pass legislation directing all appropriations of money drawn from the U.S. Treasury. This provides Congress with the power to earmark funds it appropriates to be spent on specific named projects. The earmarking process has become a regular part of the process of allocating funds within the Federal government.

However, earmarking differs from the broader appropriations process in which Congress grants a yearly lump sum of money to a Federal agency. These monies are allocated by the agency according to its legal authority and internal budgeting process. With an earmark, Congress directs a specified amount of money from an agency's budget to be spent on a particular project.  That practice must stop to begin restoring budgetary and fiscal sanity.

In the past, members of Congress did not have to identify themselves or the project. If there is any good news here, in more recent years earmarks are at least now associated and can be identified with requesting members in conference reports and members must certify that they and their immediate families have no direct financial interest in the earmark.

Senator Bob Bennett (R-UT)
In March, 2010, the House Appropriations Committee implemented rules to ban earmarks to "for-profit" corporations. According to the The New York Times, approximately 1,000 such earmarks were authorized in the previous year, worth $1.7 billion. (Eric Lichtblau, "New Earmark Rules Have Lobbyists Scrambling", The New York Times, March 11, 2010).

That said, here's my problem with earmarks, and it became a defining issue for me in my support for Mike Lee as he opposed Senator Bennett. The issue is one of accountability -- there is none. The process is not transparent at all, except to look up the name of the member of Congress who is requesting the spending in his home state. Under the present practice, Congressional members can secure hundreds of millions of dollars of funding for a project without subjecting it to debate by their colleagues in the Congress, or to the scrutiny and oversight of the public. Because earmarks are hard to identify, some members are tempted to use them to secretly award their biggest campaign contributors or exchange them for bribes. I make no direct allegations here, just sayin'. . . it could happen.

The secrecy of the earmarking process invites unethical and corrupt behavior, where lobbyists and contractors and well-connected individuals give campaign contributions to legislators in return for federal funding. The abuses could be legion (we'll never know the full extent), but rarely do they rise to the open sunlight of scrutiny in the public arena because the practice is secretive by design.

Generally, the more powerful members of the U.S. Congress get more earmarks. The good-old-boy seniority system is corrupt on its face and must be dismantled to gut this practice of earmarking once and for all. It's a false premise to run on a record of bringing home the bacon, using U.S. taxpayer money to fund state projects.

Members of the Appropriations Committees in the House and Senate (read Bob Bennett) are in the best position to secure earmarks. This was cited throughout the campaign as the reason to vote for Bennett in Utah. They can insert them into spending bills during closed committee meetings, with no public scrutiny. Earmarks are also offered to members to entice them to vote for a bill they otherwise might not vote for. Ask yourself, was earmarking used to round up enough votes for Obamacare a year ago? If you answered, "NO," you are excused.

Advocates who defend this practice like Senator Bennett argue that directing money to particular purposes is a core Constitutional function of Congress. If Congress does not make a specific allocation, the task falls to the Executive Branch. In their minds, there is no guarantee that the allocation made by executive agencies will be superior to Congress's, especially when the opposing party is in power. Presidents and executive officials have historically used the allocation of spending to reward friends and punish enemies.

The process of earmarking has been substantially reformed since the beginning of the 110th Congress. That's the good news -- the trend is positive -- but there is still a long way to go to clean up the practice.

The self-imposed limitation is that member-directed projects cannot exceed 2 percent of the federal budget. That's how you get to 6,631 earmarks totaling $8 Billion in this last omnibus spending bill monstrosity and justify it with a straight face.

Senator Bennett was fond of saying, "You just don't know how things work in Washington, D.C." To which the voters in Utah responded, "Yes, Senator, actually we DO know how things work, and we're seeking to change things."  Out with the old and in with the new.

For me, Mike Lee will be a refreshing and invigorating agent of change.

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