How to End Congressional Earmarks

This post began in January 2007, just after the Senate had defeated an effort by Harry Reid to protect the hollowed practice of Congressional earmarks. By this and other maneuvers, Congress passed a “non-reform reform” and deftly deflected the “Earmark Controversy”. House Speaker Nancy Pelosi will doubtless trumpet her so-called reform loudly during the 2008 Election. Sadly, Congress seems to have overlooked a simple--and genuine--reform of the earmark process.

Although, typically special interest pork and often paybacks to big campaign contributors, their method of passage gives earmarks, as discussed here, their most noteworthy feature. To understand earmarks, contrast them with the normal provisions of any bill that gets through Congress. Sections, subsections, paragraphs, line items, and supporting documents make up any spending bill. A bill’s most important provisions undergo tedious and time-consuming scrutiny and debate during myriad hearings in subcommittees and full committees. These bodies then vote on each provision or on sets of provisions. Each house of Congress votes on the bills passed by its various full committees.

Earmarks take a slightly more direct route to enactment than the normal provisions of a bill. Because the Senate and House virtually always pass slightly different versions of a bill, each such bill goes to a “conference committee” that “conforms” both bills. Conforming means that one bill with exactly the same wording goes “from conference” to each house of Congress. Each house then votes on, and generally passes, the conformed bill. During the conference process, influential lawmakers can, and routinely do, "slip" earmarks into “the bill", often quite literally during the “dead of the night". Few Representatives or Senators beyond the author and a few influential leaders ever see the details of an earmark before it becomes law.

The most ballyhooed part of the new “Earmark reform” requires Senators and Representatives to put their names on some of the earmarks they insert into bills. Somehow, adding the names of sponsors to each earmark seems unlikely to blunt the zeal for earmarks of any representative or senator. This seems especially true in the meticulously gerrymandered House.

Imagine the voter response to a hypothetical “attack ad” about earmarks. Such an ad might boil down to:

"Senator Reid got $80 billion of pork for Nevada over the last six years; vote for me and I won’t do that.”

With opponents launching “attacks” like this, incumbents would not have to spend their own money running for re-election. More practically, few voters would hold the sin of “bringing home the bacon” against any senator or representative. The fact that some fat cat got the cash would be lost on most voters; and, many would not care if they knew.

Given the controversy and the “hammer and tongs” fight whirling around Earmarks in January, one could conclude that a solution was simply not possible. Perhaps a workable answer would prove too complex, too difficult to craft, or simply impractical. In fact, one very workable solution does exist; and, it is not at all complex. In simple terms, the proposal would require that “Nothing comes out of Conference that did not go into Conference.” This would limit the latitude of conference committees to the following:

<!--[if !supportLists]-->1) <!--[endif]-->Add a provision to a bill that neither house had passed

<!--[if !supportLists]-->

<!--[if !supportLists]-->2) <!--[endif]-->Set spending amounts to a total between the amounts passed by each house; that is:

<!--[if !supportLists]-->a) <!--[endif]-->Greater than or equal to the lower amount; and,

<!--[if !supportLists]-->b) <!--[endif]-->Less than or equal to the higher amount

<!--[if !supportLists]-->c) <!--[endif]-->One might instead grant conference committees the ability to reduce an amount below the lower value passed by either house; but, that would seem to create more problems than the value it might add

<!--[if !supportLists]-->4) <!--[endif]-->The proposed reform would apply to the various supporting documents that make up a bill, not just the law itself

The foregoing provisions would end the practice of inserting spending into bills when neither house had seen them; it would not end the practice of inserting sweetheart spending into bills upon which their house actually votes before conference. Of course, neither did the “reform” actually passed. In addition, this reform assigns accountability to every member of Congress who votes for an appropriation; more importantly, the proposal makes all spending go thorough at least one pre-conference vote.

The beneficiaries of earmarks would probably challenge the proposal here as a barrier to vital legislation. Without earmarks, they might argue, some powerful legislators could stop critically needed legislation. This argument holds no water! One should question the "vital necessity" of any bill that can only pass with the help of a secret payoffs. In addition, powerful members have other means to channel funds to pet projects; albeit, sometimes inconveniently visible means. Most importantly, every part of every bill should go through the full process of Congressional examination; and, should stand or fall on a full vote of either the House or the Senate.

While the proposed reform only addresses those “dead of the night” and other measures added in conference, it certainly does so better than the meaningless “reform” that Congress passed.