Reforming Congressional Earmarks

Reforming Congressional Earmarks

Before the Subcommittee on Federal Financial Management, Government Information, and International Security

Committee on Homeland Security and Governmental Affairs
United States Senate

Mr. Chairman, Senator Carper, Members of the Committee, I want to thank you for holding this hearing and inviting me to appear as a witness. This is an important topic and we are in a period in which public awareness of the problems related to earmarks offers a potential for significant reform. Almost everyone realizes that the practice of earmarking has grown exponentially over the past decade. While the practice continues to have its defenders, even some hardened veterans at winning federal funds for the folks back home admit privately that the practice has grown out of control.

But meaningful reform is usually dependent upon understanding the processes that we are attempting to change; understanding exactly why those processes have become problems; and finally, understanding the potential side effects of proposed solutions. Many of the harshest critics of earmarks have spent too little time considering each of these issues.

The first impediment reformers face in dealing with earmarks is the ability to define them. The General Accountability Office has spent years attempting to develop a standardized and useable definition of the term and has thus far failed. The Congressional Research Service has produced a different definition with respect to each separate appropriation bill and their definition(s) continues to change with each paper they generate on the subject.

One of the most prominent critics of the subject defines earmark on his website as an item “not properly authorized by the Senate” and “not requested by the administration.”

I don’t think either of these criteria passes the laugh test.

The distinction between authorization and appropriation is obscure to most Americans. The Congress creates the legal authority for the executive branch to engage in specific activities through one set of laws called authorizations, while it provides the actual year-to-year funding necessary to engage in those activities in another set of laws called appropriations. This definition seems to argue that decisions made in the authorization process do not constitute earmarks while decisions made in the appropriation process should be considered suspect. One needs to look no further than the famous “bridge to nowhere” to find the utility of this definition. That symbol of how far off base the Congress has drifted with respect to earmarking was the product of the Safe Accountable Flexible Efficient Transportation Equity Act — an authorization.

Earmarking occurs regularly on a wide range of authorization bills and on tax legislation as well. Just last year we saw large sums of money earmarked to a Utah cancer hospital in amendments to the Medicare Act and special tax breaks to the manufacturers of fishing tackle boxes added to the energy bill. The Armed Services Committees select which military installations will get new child care centers or dental clinics and the Transportation Committees pick which levees get raised and which harbors get dredged.

What about the second criteria: “not requested by the administration.”

That seems to me to argue that the only politicians in Washington are on Capitol Hill. But we know that each administration has thousands of political appointees who are placed in positions to make budget policy from the Office of Management and Budget straight down to the staff of cabinet secretaries and sub-agency heads. Their number one job is to protect the president, and that often means directing federal resources to states or projects that are of political importance to him or his allies.

One must also recognize that career bureaucrats play games with the budget as well. When there is too-little room in the budget to accommodate all the programs that the bureaucracy sees as essential to accomplishing its assigned mission, frequently the highest priority items are left out. That is simply because those are the items that the executive branch can most comfortably rely on the Congress to restore.

For years the Pentagon under both Democratic and Republican administrations has cut funds for military family housing in the president’s budget request. That was not because of a policy difference between the White House and the Congress over whether our troops were living in too much luxury. Rather, it was because executive branch budget officers knew that the Congress fully concurred in Defense Department estimates that a large portion of military family housing was far below acceptable minimum standards and that failure to provide decent housing was adversely affecting reenlistments and forcing the services to pay higher bonuses to keep the most skilled and valued troops in the service. Therefore, family housing could safely be cut to allow Pentagon planners to place money in weapon systems and other priorities where the job of selling Congress would be more difficult.

When the Pentagon begins circulating its list of “unmet requirements” and the Armed Services and Appropriations Committees feel compelled to respond, it is often for good reason.

So if those are not good criteria for defining earmarks, what is a good definition?

I think if you ask ordinary citizens what the term earmark means to them you might get an answer something like this: When the government grants something of value that belongs to the entire country to a specific community, company, organization or individual based on parochial political interests rather than broader national priorities.

While I think that definition gets at the heart of what we are talking about, it leaves us in a very sticky situation with respect to determining whether a particular item is or is not an earmark.

Let me give you an example. A member of the House who has a great deal of influence over military spending had a long-term, ongoing argument with the U.S. Army over the question of whether or not enough of our Humvee fleet had the steel plating needed to protect soldiers from independent explosive devices. There were those in the Pentagon who argued that they needed priorities such as the Crusader artillery piece much more than they needed more heavily armored Humvees. They also pointed out that, while the plant that did the “up-armor” work for the Army was not in this member’s district, it was in the same state and not too far outside the district.

The only person who knows for sure what motivated this particular member of Congress to fight for more “up-armor” Humvees is the member himself. What everybody knows now in retrospect is that he was right.

If earmarking is putting politics ahead of sensible policy, and I think that is the essence of it, then we are, in a large number of instances, stuck with the very squishy issue of whether the arguments made on behalf of good policy were really about politics — which means we have to guess about motives. Sometimes that seems relatively easy to do, as it appears with the “Bridge to Nowhere.” But in a large number of instances we have reasonably good substantive arguments on behalf of a particular action which happens to coincide with the political priorities of powerful people.

That leads us to a second important question: “What is wrong with earmarking in the first place?”

Some of the most frequently repeated arguments against earmarks are not well supported by fact. Earmarks are not substantially increasing federal outlays or adding in a significant way to the growth of the public debt. If we limit the definition of earmarks to include only district-oriented increases above the amounts requested by the President, we probably have less than $14 billion worth in all 11 appropriation bills. That is less than two percent of discretionary spending — and discretionary spending accounts for only about a third of federal outlays.

Furthermore, that two percent is not money that, in most instances, was added to either the President’s budget or above the amounts permitted by Congressional Budget Resolutions. It is money that has been carved out of other priorities within the budget.

Finally, I think it is important to point out that a large majority of earmarks are not for blatantly wasteful purposes. Most Senators and House members work reasonably hard to identify needs in their states and districts that are considered a significant priority by their constituents and which would provide real value to the communities to which they are directed.

Despite these facts, there are strong reasons to be concerned about the explosion that has taken place in Congressional earmarking.

One reason is that the geographic distribution of earmarks is anything but fair. Look at last year’s highway bill: The state of Alaska has slightly more population than the average Congressional district, yet it received more than $1 billion of the $23 billion in earmarks contained in the entire bill. It got about 20 times as much money in earmarks as the average Congressional district. Bakersfield, California, a city that does not have the nation’s most pressing traffic problems, got more than $700 million — probably more than all of the earmarks going to Los Angeles, a city known worldwide for congestion and a host of transportation-related problems. Despite the fact that the average Congressional district will over time pay $50 million in gas taxes to cover the cost of the highway bill earmarks, most districts will get only a fraction of that amount back in projects. Members who are bragging about $10 million worth of items they got in that bill are in fact bringing home 20 cents on the dollar.

Earmarks are also directing a substantial amount of money intended to help disadvantaged populations to be spent in middle- and upper-middle-income communities.

A second reason for concern is that, although many and arguably most earmarks are of reasonable quality and provide reasonable value back to taxpayers, many of the ones that are bad are really bad. They have a corrosive effect on government generally, and they lower the standards and expectations of both the recipients of government services and those whose job it is to make the services available.

Equally disturbing is the growing prospect that earmarks are being used illicitly. The Cunningham bribery scandal opens the question of whether there are other cases in which unscrupulous contractors have persuaded members to support earmarks, not based on what it might do for their Congressional districts, but what it could do for them personally. There is no question that a nexus has developed between campaign fund-raising and the community that advocates on behalf of earmarks. The more earmarks a Senator or Congressman is able to win for a local university, hospital, city government or art museum, the more lobbyists he may expect to find in attendance at his fund-raisers.

There is also a corruption that is occurring in the legislative process itself. Earmarks are increasingly used to persuade members to support legislation that they might otherwise oppose or oppose legislative that they might support. In the House this practice is now being extended to the granting of earmarks in one piece of legislation in return for a member’s vote on unrelated legislation. Chairman Thomas joked openly about the delay in consideration of the highway bill last summer so that the leadership could gain more support for the Central America Free Trade Agreement. Whether or not you support CAFTA, this means the writing of our nation’s laws must be troubling to anyone who believes that elected representatives play a key role in translating the will of the people into the day to day policies of our government.

The dramatic growth in earmarks affects our democracy in another way. While we perhaps too often think of American politics as the contest between the two political parties, there is another contest in every election which determines how reflective our representative system will be of the voters who are supposed to control it. That is the battle between incumbents and challengers. If incumbents never lose, the whole system begins to be meaningless. And as incumbents are able to hand out more and more goodies back home, the prospects for their electoral failure become increasingly remote. They become significantly harder to defeat regardless of how they have voted on the issues of the day or how unreflective their lifestyles, public demeanor or policy positions become relative to the people they supposedly represent.

But of all the problems presented by earmarks there is one that I find most troubling. I do not believe it was intended, but it is nonetheless very real. The value of earmarks is perceived in both bodies of Congress to be so great that they have come to dominate Congress’ daily agenda.

Congress no longer spends much time in Washington. I don’t recall Congress ever before needing to take a break for St. Patrick’s Day. But each year the Congressional calendar seems to get shorter, and in the little time that Congress does spend in Washington, the dominant question is all too often earmarks.

The more earmarks that are granted, the more local officials and local charities become aware of the potential that this process might have for solving their problems. That awareness soon leads to a trip to Washington and an attempt to see their Senators and their Congressman about how to get their name on the list. The more they come, the more time legislators spend in meetings focused on earmarks.

This affects not only members but also staff. Staff that might have once been allocated to preparing a Senator for hearings now must be devoted to processing earmark requests. And this affects not only the staff in the personal offices of Senators but the core staff of key committees who were previously the institution’s eyes and ears for overseeing the rest of the government.

Last year the Appropriations Subcommittee that funds the Departments of Labor, Health and Human Services and Education received more than 15,000 separate requests for earmarks. This is a subcommittee that virtually never permitted earmarks until the latter part of the past decade. If each earmark requested from that subcommittee had been written on a single sheet of paper, the requests would have created a stack of paper more than 10 feet high. All of these must at a minimum be logged into computer databases, matched against other projects and reviewed to determine if there is legal authority to appropriate funds for the activity requested. There are often numerous conversations that must take place between a member or Senator requesting the earmark and his or her staff; the Senator or member requesting the project and the chairman or ranking member of the committee of jurisdiction; the Senator or member requesting the project and the staff of the committee with jurisdiction and between committee staff on the legality and propriety of the earmark. In short, the explosion in earmarking has significantly changed the work that Congress does, the way time is used and the ability of key committees to play any effective role in oversight.

The burden that this process places on a conscientious member of the House or Senate should not be understated. If you divide the number of earmarks in the highway bill by the number of Congressional districts in the country, you have about 15 earmarks per district. If one were to determine the 15 most critical traffic problems within a Congressional district one would need to do a lot of research. One would need to compare dozens of intersections, entrance and exit ramps, planned bypasses and streets which have been proposed for widening or additional lanes. One would need traffic flow data, site specific accident data, as well as rush hour congestion data.

No matter how conscientious a Senate or House office was in attempting to set appropriate priorities, it could at best produce a product of mediocre value and it would have exhausted all of its staff priorities in the process. The complexity of setting these kinds of priorities is precisely why we have the large bureaucracies in state highway departments and local planning agencies.

What has happened with earmarks strikes me as an implicit deal between the executive branch and the Congress. The executive is perfectly willing to let the legislature make a fool of itself on the two percent of the federal discretionary budget that contains earmarks if they will leave the other 98 percent of that budget to the discretion of the White House.

That means that the Congress is not performing its Constitutional responsibility to hold the federal bureaucracy accountable, to ask hard questions and force public debate — particularly when those in charge of writing the checks don’t have a clear plan on how to spend it and how to insure that we get a product that is worthwhile to the taxpayer.

But it is that 98 percent of federal discretionary spending that is not earmarked that clearly has the biggest impact on the life of a citizenry whose representatives are currently preoccupied with earmarks. Do our diplomats, military leaders and intelligence experts understand the real threats that we face? Are we being smart in terms of what portion of the wireless communications spectrum we sell and how we sell it? Do those charged with controlling illegal immigration have the resources and leadership they need to succeed? Do our troops have the equipment to do the job we sent them into the field to accomplish? Are the Centers for Disease Control and local public health agencies prepared for the next pandemic?

These are questions that the clamor for earmarks has too often drowned out. But it is how effectively Congress asks those questions that will determine whether it is viewed by historians as having met its Constitutional role or failed as a supposedly coequal branch of government. I fear we will not like their assessment.

Reforming the current system of earmarking will not come about easily. The Constitution gives the Congress the power of the purse and it cannot be, and I would emphasize it should not be, taken away by statute.

If anything, the current state of our government provides arguments for strengthening rather than weakening the innate powers granted to the legislative branch. True reform is dependent on the nation recognizing the pitfalls of earmarking and electing members who will use the powers of the purse more judiciously.

This is not a mere pipe dream. The temptation to earmark has always been present. But in our lifetime we have had leaders who followed a moderate and frugal course with respect to this practice. Edward Boland of Massachusetts chaired the Veterans, Housing and Urban Development and Independent Agencies Subcommittee of the House Appropriations Committee for nearly two decades, and during that period he virtually never allowed an earmark to be inserted into that bill. During much the same period, Bill Natcher of Kentucky chaired the Labor Health and Human Services and Education Committee. Natcher kept that huge bill earmark-free until the time of his death in 1994. It was not until several years after his death that the first earmarks began to appear in the Labor-HHS-Education bill.

These were powerful men who had to stand up repeatedly to Senate counterparts and House colleagues on their stringent earmark policy. But they were also supported, or at least tolerated, by leaders who recognized that as enjoyable as the earmarks can be, they are also dangerous and can be a huge embarrassment to the institution that they have been charged with protecting. We do not have those kinds of leaders today. They are first in line and often the strongest proponents of the practice. They not only seek them for themselves but also demand them for others in Congress whose support they seek on other matters.

I should also note that the so-called “line item veto” proposal put forward by the president last week is neither a line item veto nor effective medicine against the current excess of earmarking. The president already has the power to propose rescissions. Requiring a vote within a certain period of time after the rescission is proposed only establishes a timeframe in which the Congress must decide whether or not to reverse decisions that it has already made — it does not increase the likelihood that a reversal will occur.

The Constitution gives the president a great deal of power, and if he so chooses he can use that power to force the Congress to behave responsibly. The most potent arrow in his quiver is the veto, and he can force two-thirds of the Congress to support the policies of runaway earmarking or block a bill containing earmarks from becoming law. But in the midst of this explosion in earmarks, we have a president who has refused to use his veto pen once since being elected. His first term was the first four-year presidential term since the presidency of John Quincy Adams ended 175 years ago that no veto was exercised.

If the president is serious in his opposition to earmarks, he should establish limits on earmarking in each bill and threaten to veto any bill that exceeds those limits. The same strategy could be adopted by those in Congress who want to see the practice curtailed. They could negotiate new tighter limits on a bill-by-bill basis and build a coalition of those who would vote down any bill that they felt exceeded those limits. That is not only a practical approach, but it is one that would allow the Congress to return its attention to the serious challenges this nation now faces.

Scott Lilly is a Senior Fellow at the Center for American Progress who writes and does research in wide range of areas including governance, federal budgeting, national security and the economy.