By Robert Brodsky
January 29, 2008As legislators and federal officials prepared to leave town for the Christmas recess last month, Congress hurriedly passed a massive 3,400-page spending bill to keep the government running for the next fiscal year. Tucked inside the report language of the omnibus bill, and not technically bound by the force of law, were nearly 9,000 congressional earmarks worth an estimated $7.5 billion.
Fiscal conservatives and government watchdogs immediately urged President Bush to remove funding for the pet projects, while some high-ranking lawmakers warned the White House to steer clear of the legislative branch's appropriations process. On Monday night, Bush offered a compromise to both constituencies and appeased neither.
During his final State of the Union address, Bush announced that he would veto all future appropriations bills that do not cut in half the number and cost of earmarks. He also issued an executive order on Tuesday directing federal agencies to ignore all future earmark requests that are placed into committee reports and not brought to a vote.
"The people's trust in their government is undermined by congressional earmarks, special interest projects that are often snuck in at the last minute, without discussion or debate," Bush said Monday night.
Despite the harsh rhetoric, left unsaid was the blunt reality that the administration would not attempt to strip any earmarks from the omnibus -- which also included 1,600 presidential earmarks, worth more than $16 billion -- or the Defense appropriations bill, which was stuffed with more than 2,100 pet projects valued at roughly $8 billion, according to figures from Taxpayers for Common Sense, a watchdog group in Washington that that tracks federal spending.
The Congressional Research Service concluded in December that the president had the legal authority to eliminate all earmarks that appear in committee reports or managers statements.
But Brian Riedl, a fellow at the Heritage Foundation, a conservative think tank in Washington, said the president may have feared that such a tactic would be viewed as "declaring war" on Congress and that compromise was his only option.
"The president didn't give conservatives the elimination of earmarks we were seeking," said Riedl, who blogs regularly about omnibus earmarks. "But he did not let appropriators or pork recipients off the hook in the future either. In the end, both sides got a little of what they wanted but not as much as they had hoped for."
Fiscal watchdogs were not the only ones greeting President Bush's earmarks reforms coolly. House Speaker Nancy Pelosi, D-Calif., told reporters that "one person's earmark is another person's absolute necessity" while anti-earmark reformist Sen. Jim DeMint, R-S.C., said he was "disappointed the president missed this historic opportunity to stop thousands of wasteful earmarks under pressure from big spenders in Congress."
By delaying any earmark restrictions until the fiscal 2009 budget, Bush has offered Democrats and Republicans several months -- the next fiscal year does not begin until October -- to exploit what critics suggest are some fairly simple ways to circumvent his executive order.
Appropriators could easily move all earmarks from committee reports to the heart of legislation, thereby binding the funds by the force of law. Lawmakers also could include language in all appropriations bills stating that committee report requests should be honored as law.
One of the benefits of including earmarks in the text of legislative bills is they can be debated on the floor and then amended, the White House has said. But, Congress could carve out another loophole around any such public discussion, according to Riedl.
Lawmakers could leave the earmarks in the committee reports until they come back from the House and Senate conference committee and then add the projects into the legislative bill. Once a bill has been agreed upon by a conference committee, it cannot be amended and altering or removing the earmarks would be next to impossible, Riedl said.
But not everyone agrees that including earmarks in the text of legislation is prudent. Scott Lilly, senior fellow at the Center for American Progress, a left-leaning Washington think tank, said the president's order will tie the hands of agencies and lawmakers who may discover, after funding has been appropriated, that a project is wasteful and should be dropped.
"What [Bush] is proposing takes away all flexibility, not only from the Congress but of the executive branch, to kill projects that are determined to be wasteful or counter to the policies that an agency is trying to pursue," Lilly said.
Meanwhile, avoiding a presidential veto for proposing too many earmarks may be as simple as appropriators sitting on their hands for a few extra months. The majority leaders in the House and Senate could delay passing spending bills -- possibly funding the government through a temporary continuing resolution -- if the they believe a Democrat will be occupying the White House in 2009. In that case, it would be up to the next president to decide whether to honor the executive order.
Last year, Congress and President Bush pledged to reduce the number of earmarks in half from its 2005 peak of 13,492 projects totaling nearly $19 billion. But the 2008 spending bills made only incremental progress, with the total number of earmarks reduced to 11,145 worth $15.3 billion.
While Bush has chided Democrats for failing to reach his goals, some critics see a level of hypocrisy in the president's message. Lilly said Bush allowed earmarks to soar when Republicans controlled the Congress but discovered his sense of fiscal discipline only after Democrats took over last year.
"This president has the worst record of any president in history in terms of permitting an explosion of earmarks," Lilly said. "Very few people that have the record that he has would have the brass to try and pull this off. But I don't think he can … It doesn't pass the laugh test."
With the White House preparing to introduce its fiscal 2009 budget priorities next week, it remains to be seen how much of an impact the president's proposed reforms will have on the culture of Washington's pork barrel politics.
"If a year from now the number of earmarks has been cut in half and the next president is willing to take a tough stand on earmarks, then this will have been successful," Riedl said. "Anything less than that will be seen as a missed opportunity."
By Robert Brodsky
January 29, 2008