Critics contend loopholes are diminishing new earmark rules

As Congress heads toward an appropriations endgame this fall, earmarks, the much-maligned set-asides for specific recipients, are more out in the open than ever before.

Lawmakers must now disclose their backing for earmarks that make it into spending, tax, or tariff legislation, as well as the provisions' intended recipient, location, and purpose. They also must justify the spending, and certify that neither they nor their family will personally benefit.

Fiscal watchdogs see some improvement from past practices because of the new earmark disclosure rules that congressional Democrats have imposed. And overall, the number of earmarks has been cut by about half in the pending House appropriations bills and by about a third in the Senate bills, compared with two years ago. Nevertheless, critics contend that the rules are extraordinarily complex, vary from chamber to chamber, and are littered with loopholes.

Whereas under GOP control, earmark disclosure amounted to "not even half a loaf," said Steve Ellis of Taxpayers for Common Sense, now it is "somewhere between half a loaf and a slice."

The problems begin with inconsistency, Ellis said. House rules, for example, require committees to make members' detailed justification letters, which include all of the relevant information about an earmark, publicly available upon request.

But as part of the new lobbying and ethics reform law, Senate leaders negotiated a change that requires committees in their chamber to publicly disclose only the financial certification letters in which members pledge that they and their family will not gain monetarily from an earmark.

Citizen sleuths and the news media have an easier time seeing the full earmark picture in Senate bills, however, because the Appropriations Committee lists in one place in its committee reports each provision, intended recipient, dollar amount, and sponsor. In the House, appropriators require the public to flip to the back of the reports to find earmark sponsors.

Moreover, it is not as easy as critics had expected to target an earmark for removal from a bill once it comes to the floor in final form. Under the new rules, members ostensibly may challenge earmarked projects that are added at the last minute in conference committee. But in two recent cases, congressional conservatives and taxpayer groups were outraged to discover that this right would extend just to certain legislation.

Take the $23 billion Water Resources Development Act that Congress finalized last week. Sen. Jim DeMint, R-S.C., charged that nearly $2 billion in new earmarks were added in conference, upping the bill's overall cost to $9 billion more than the Senate had originally approved.

Although DeMint wanted to challenge the earmarks when the Senate debated the conference report on September 24, the parliamentarian ruled that such challenges could be made against direct spending only, and not against authorization bills such as WRDA.

"The ink on the new ethics bill was not even dried before the Senate rushed to violate its rules against secret earmarks airdropped into conference," DeMint complained.

Senate Majority Leader Harry Reid, D-Nev., subsequently wrote a letter to DeMint explaining the ruling.

"When earmark abuse occurs, it involves the unjustified use of taxpayer money -- not the setting of authorization levels," Reid said. "It is appropriate to require full disclosure of all items that involve specific member-requested projects, including authorizations, but only those items that actually spend taxpayer money should be subject to the extraordinary procedure of allowing a point of order to strike a provision that is within the scope of conference from a conference report."

Part of the problem is that there is no universally agreed-upon definition of an earmark. For the purposes of disclosure, both the new lobbying and ethics law, and separate House rules, define a spending earmark as "providing, authorizing, or recommending" specific dollar amounts to specific entities or locations.

But just a few pages deeper into the lobbying law, in the section describing senators' right to raise a point of order against projects inserted into a conference report without prior debate, the language suggests that this right applies only to appropriations or mandatory spending legislation, which actually provides funding, rather than authorization bills, which merely recommend funding.

In Ellis's view, the argument that earmarks in authorization bills should be exempt from challenge rings hollow.

"It's not just an empty promise," he said of such earmarks. "There is something to be had in authorization bills." Referring to a $683 million earmark that Senate Environment and Public Works Committee Chairwoman Barbara Boxer, D-Calif., secured in the WRDA bill, Ellis added: "Somebody who's got enough horsepower to get a $683 million earmark added behind closed doors is probably going to be successful in getting actual dollars down the road."

But even a conservative like Sen. James Inhofe, R-Okla., the ranking member on the Environment and Public Works panel, defended the parliamentarian's ruling on WRDA.

"Did you know that I am the No. 1 most conservative member of the Senate?" Inhofe said during last week's debate. "I am here to tell you something that is very unpopular, because nobody is going to understand it after I explain it to you ... I have to say it, and I say it in all sincerity to my good conservative friends: This is not money we are spending; it is authorizing projects as to what meets certain criteria."

President Bush has vowed to veto the WRDA bill because of its cost. Still, the conference report cleared both chambers with sufficient support -- 81-12 in the Senate and 381-40 in the House -- to override a veto.

Meanwhile, House Republicans were incensed when they discovered that legislation expanding the State Children's Health Insurance Program, which Bush vetoed this week, contained undisclosed provisions benefiting California, Hawaii, Michigan, and Tennessee.

Republicans, however, had no way to challenge the provisions, for two reasons: The final measure was not actually a conference report, but rather a House amendment to the Senate-passed SCHIP bill; and the House rules allowing a point of order against consideration of a bill with new spending items applies only to appropriations bills, not tax or mandatory spending bills, such as the SCHIP measure.

House Minority Leader John Boehner, R-Ohio, has filed a discharge petition to bring a resolution to the floor expanding the rule to cover other types of legislation, but he remains short of the necessary 217 signatures.

Rep. Jeff Flake, R-Ariz., the House's most prominent earmark critic, said that additional parliamentary sleights of hand can be expected in coming weeks. "I have a feeling we're going to see fewer conference reports and more 'amendments' between the chambers" to finalize bills, he said. "All you have to do is change the name and you've neutered the earmark rule."

Flake added that logrolling among congressional cronies also prevents strict enforcement of earmark rules. Although senators may "surgically remove" individual earmarks in conference reports, House members get one shot with a point of order to try to block an entire bill that contains objectionable earmarks.

"There's only one point of order that could be raised, so the natural inclination is to bring more people into it [when distributing earmarks] so there's more people with skin in the game," Flake said. "They'll never lose a procedural vote when everybody has something in it."

Just like everything else on Capitol Hill, the issue of earmark transparency comes down to politics, with each party climbing over the other trying to claim the "reform" mantle. Republicans, who readily admit that earmark-related scandals and excessive spending contributed to their downfall in the 2006 elections, are attempting to rebrand themselves as the party of fiscal conservatism.

"We made our share of mistakes over the last three or four years, and one of the big mistakes was the lack of real fiscal discipline," Boehner said in a recent interview with Fox News Radio. "And so, we have been working all year at holding the line on spending, having real earmark reform, bringing transparency and accountability to a process that has been out of control."

House Majority Leader Steny Hoyer, D-Md., brushed aside such talk, arguing that when the Republicans held the majority, the number and cost of earmarks exploded.

"It's a little bit like the alcoholic on the bar stool saying, 'Please don't give me another drink,' " he said. "Politically, they think they need to complain, because they were so criticized by their own people for what they did. We, in fact, have moved in exactly the opposite direction, and have done so transparently. But they're going to continue to complain."

Hoyer likes to quote Flake, who earlier this year said that Democrats have gone further than Republicans in making the process open and transparent.

But Flake said that even openness has limits, especially when lawmakers are still requesting earmarks at a fevered pace. Flake took particular objection to lawmakers' directing money to establishments bearing their names, such as $2 million in a House spending bill for the Charles B. Rangel Center for Public Service at City College in New York. (Rangel, chairman of the powerful Ways and Means Committee, said that the school asked to use his name, thinking his prominence would boost private donations.)

"Transparency and disclosure work best if there's an element of shame, and I think we're beyond that," Flake said. "When you're not embarrassed to get an earmark for a center named after you ... there are limits to what disclosure and transparency can do."