The Return of Federal Earmarks?

Tamar Hallaman wrote an article over the weekend about how the federal earmark ban has come back to haunt us in the form of the Port of Savannah. For those who have known me a while, you know I’m straining really hard not to say the most obvious, childish thing on the planet.

No, I’m not at all happy that we’re having to hope that the folks at the Army Corps of Engineers decide to use their funding toward the Savannah dredging project. I’m not at all happy that every Member of the Georgia Delegation, House and Senate, had to basically grovel in the form of a letter to the Corps of Engineers to please, please, please consider their request. (Side note: Look at that bipartisan cooperation for the good of the state, though. Snaps for everyone.) However, I do realize we might be coming full circle on this issue, with leadership discussing it openly within the past few months. One can only hope. It’s past time to bring earmarks back.

I am all for the Separation of Powers, and I am a firm believer that spending directives come from the Legislative Branch. There should be no question that the port’s dredging should be done, and once the Georgia Delegation indicated their desire to see this project completed, the Corps of Engineers should be expected to follow it. That’s not how it works, though. Congress appropriates money, and then the agencies do whatever they want with their funding within their respective scopes and following presidential priorities.

Opponents of earmarks, like Arizona Senator Jeff Flake and Oklahoma Senator Tom Coburn, point out correctly that earmarks have long been used to convince Members to vote for legislation. I disagree with them in their belief that Members will vote for legislation they would otherwise oppose if offered an earmark. If a Member is truly opposed to something, there is no way he or she is voting for that bill. I know because I worked in the office of a Member whose Senate counterparts included a really important earmark for his state in the bank bailout legislation in hopes he’d switch his vote during reconciliation. He didn’t.

If the Member is undecided, though, that’s when an earmark can be used to persuade. Further, some Members will withhold support on things they would otherwise support until they get a sweetener. That’s why earmarks have existed since 1789. The first earmarked spending in legislation was for a new pier in Philadelphia within The Lighthouse Act, which federalized state-owned lighthouses. The pier was an incentive to get a few fence-sitters to support the bill.

Given the gridlock in Congress, and the fact that one party has a majority of both Houses as well as the Presidency, one might wonder why it is that very little major legislation (VA reform aside) has been accomplished since January. Could it be that earmarks for many years were used as incentives by leadership, but now that they are not available, leadership has fewer bargaining chips to corral votes? The obvious answer is yes, and they were also a deterrent to letting special interest groups, the real permanent Washington class, fully control Members with their outside money. Remember how vocal some of those groups were about the evils of earmarks? Hm…

Since the era of Newt Gingrich as Speaker of the House, most earmarks have been attached to Appropriations bills, though they could and did less frequently pop up in other types of legislation. Opponents of earmarks have argued that this reduces the amount agencies have to prioritize their own budgets. From a 2007 Heritage Foundation report:

Under current federal budget practices, earmarks do not represent additional spending, but are instead carved out of predetermined spending allo­cation targets established early in the budget pro­cess by a congressional budget resolution. Thus, earmarks do not necessarily lead to increased spending in the year in which they are established, but over the longer term, they undermine the effec­tiveness of core programs and limit their ability to address specific needs and problems.

This goes back to my point about Congress directing federal spending. In 2005, when earmarks were seen to be “out of control” by a growing number of watchdog groups, they accounted for fully three percent of expenditures. The current earmark ban has not reduced spending for any of the agencies, but instead it has allowed the President to set all the priorities:

When Congress doesn’t make decisions on how money is to be spent, the executive branch does it for them. And make no mistake, the executive branch earmarks dollars, even in supposedly competitively bid grant programs. Take, for example, the TIGER grants the Transportation Department doles out. Somehow, then-Transportation Secretary Ray LaHood’s hometown of Peoria won $30 million for two TIGER grants — 1 percent of all money that had been allocated through the program at that time. One of the projects was for turning the city’s Warehouse District into the “newest, coolest neighborhood” in town.

Giving the executive branch such authority over small-bore projects is a symbol of the larger cession of power from Congress to the president. But it’s an important one. It reflects the broader inability of the two parties and the two chambers to take responsibility for basic governance.

We do need to be careful about how much money is allocated for earmarked spending if and when it returns, and I believe firmly that Members should have to attach their names to earmarks they request as well as provide justification for the projects. If we want to reform the process so that people like Bill Schatz at Citizens Against Government Waste don’t have panic attacks, Congress could stipulate that earmarked spending be attached solely to germane legislation and it must directly relate to federally stipulated powers. Dredging the Port of Savannah, for example, would possibly appear in Appropriations bills or the new transportation package, but could not appear in the farm bill, and it would be an approved spending type because of the Commerce Clause, for example.

Further, there could be prioritization for projects that have multiple Members’ support. Again, the port dredging is a good example. Assigning all Georgians’ names to the project would likely ensure that it would be one of the most likely earmarks included in finalized legislation, whereas a project that didn’t have a full delegation’s support would be less likely to be funded. I do realize that would be easier for a state like Wyoming, with one Member and two Senators, and nearly impossible for California with its bazillion Representatives, but surely there could be a rubric to make it more fair for larger states.

Finally, earmarks should be included in earlier drafts of legislation, not just in the final conference report, as was the case previously. Sure, the previous method allowed Members to put in pretty much any project they wanted, but that was the problem — it meant any project, including things like teapot museums, could get added to the final version of the bill after Members had voted. Returning to that will stoke the ire of the anti-earmarkers, and then we’ll fall back into the same cycle. On the other hand, simple changes can make the process of earmarking funds for important projects straightforward and transparent. This will return an important power back to Congress where it belongs.