Earmark “Reform”

At last night’s State of the Union, the biggest news was about earmark reform. The President took on earmark reform with two proposals. First, he told Congress that “if you send me an appropriations bill that does not cut the number and cost of earmarks in half, I’ll send it back to you with my veto.” Second, he announced a new Executive Order, which he signed today, that instructs federal agencies to only consider those earmarks as binding that were actually passed by both Houses of Congress as part of the text of the legislation. At first glance these two things sound like a lot, and in fact most of the criticism I’ve seen has been of the form of “it took you seven years to do this?” Look a little deeper at both of these “reforms”, however, and you’ll find a lot of showmanship and virtually no substance.

First of all, let’s define what an earmark is. An earmark is simply an appropriation set aside for a specific task, and which instructs federal agencies to spend money outside of the normal review process. For instance, if I want the federal government to build a bridge in my district, I could apply to the appropriate federal agency for funds that have been generally set aside for transportation infrastructure improvements. Alternatively, I could get Congress to simply instruct the appropriate agency to cut me a check. The former is “normal”; the latter is an “earmark”.

The obvious problem with earmark reform is transparency. Many earmarks are inserted at the last minute or without review, and many are inserted anonymously. I’ve not seen anyone try to defend either of these practices, and in fact both houses of Congress have taken steps to eliminate or reduce the frequency of these practices–although many claim that they haven’t gone far enough. In any case, President Bush’s “reforms” do nothing about these problems.

There are also some who claim that virtually all earmarks are bad, and you can certainly count the President as one of these. One argument is that most of the people in Congress do not have the time or expertise to evaluate the merits of these programs that they are funding. Certainly federal agencies do perform a valuable role in the governing of the country–I’m not one of those people who enjoys bashing Washington bureaucrats–and therefore I am sympathetic to the idea that we need to trust these agencies to do their jobs, in all but the most urgent or controversial of issues. Of course, President Bush is a power-fiend, and for him the issue is more this vague notion of “circumscribing executive authority”, which basically means that Congress does something without having the decency to give him direct power over its implementation. Obviously, I have zero sympathy for that argument.

So, back to the State of the Union proposals. Bush’s veto threat is the most obviously flawed, so I’ll deal with that first. In particular, the President threatens to veto any appropriations bill that fails to cut both the number and amount of earmarks in half. But what does “in half” mean? In half from last year’s version of the same bill? In half from when President Bush came into office? In half from some average of the last few years? I’m guessing he means the former but it isn’t clear. Of course, it also isn’t nearly as easy as it sounds. Congress doesn’t just pass a single appropriations bill–they pass about a dozen of them, and there is some fluctuation in what programs and departments get funded in which bill. So maybe last year there were an inordinate number of HUD earmarks, and relatively few Department of Transportation earmarks, and they were passed in two separate bills. What does Bush do if Congress cuts the number of HUD earmarks by 90%, and the DoT earmarks by only 15%, and sends it all in one bill? Does this satisfy Bush’s dictum or not? A related problem is that by forcing both the “number and amount” to be cut in half, fundamentally Bush is decreeing that the average size of earmarks must remain constant from last year to this year. There is no reason to expect, however, that the average earmark size last year was typical, good, or a useful metric for this year. For these reasons, Bush’s veto rule is wholly arbitrary, and if it is enforced it functionally codifies a status quo that may or may not be beneficial.

It may also be dangerous. One of the biggest sources of earmarks is emergency appropriations in response to a natural disaster. If it really cares about an issue, in many cases Congress can react to an unforeseen disaster faster than the federal bureaucracy. Disasters like Hurricane Katrina and 9/11 have elicited immediate and needed relief in the form of emergency earmarks. Is President Bush going to veto these kind of earmarks as well, because last year we didn’t have a disaster of that size and scale? I doubt it. President Bush is just trying to make a lot of noise on the issue and sound like he’s doing something.

At least the Executive Order allows him to sign a sheet of paper, although it’s no more useful or important. First I need to give a little background. Essentially, there are two kinds of earmarks. Some earmarks are passed into law, and appear in the text of the bill that Congress sends to the President to sign. Those kinds of earmarks are law, and for President Bush not to enforce them would be a violation of his Constitutional duties. The other kind of earmark, sometimes called a “soft earmark”, appears in the committee reports or other accompanying documentation of a bill. These “earmarks” haven’t actually been passed into law, and these are the earmarks that Bush told the bureaucracy that it is under no obligation to enforce. Now, many of you will be asking the following question: they were previously obligated to enforce laws that weren’t actually passed? No, in fact, they weren’t. In that sense, Bush’s executive order simply codifies existing precedent.

The rub is that they almost always are enforced as if they are actual law, and that this is not likely to change. Think about it. You are a high-level career civil servant working for the Department of Transportation. You have to go in front of a House Committee at least once a year, sometimes more, to justify your own job and the amount of money that your department will get to get the good citizens of this country to work on time. You feel like every year getting money from the committee is more and more difficult. Now, the chairman of that committee tells you that there is a really important bridge in his district that is desperately in need of repair, and asks you to set aside a small percentage of your budget this year to do so. Do you fund this guy’s bridge? As long as its not a completely moronic idea, and it really is pretty cheap in the grand scheme of things… of course you do. That basic logic was true yesterday and it will be true tomorrow–and Bush knows it.

In short, Bush hasn’t really done anything about earmark reform. Heck, he’s not even fighting the right battle. Earmark reform is important from a government accountability standpoint, but that battle has already been fought (and largely won, although there are certainly further improvements that could be made). Bush is dealing with the size of earmarks, trying to pretend like earmarks are an important source of our budget problems. In his State of the Union, President Bush bragged that his budget this year will eliminate or “scale back” 151 government programs totaling $18 billion. According to the group Citizens Against Government Waste, in 2006 there were almost 10,000 “pork-barrel” projects worth about $29 billion. We’ll call that an upper bound number.

The size of the discretionary budget that same year was about $800 billion, and we were almost $400 billion in debt. It takes an awful lot of $29 billion savings to cancel that debt, and even more $18 billions. That $29 billion would fund the Iraq War… for about five months. Let me remind you that the Iraq War (which is also an earmark by the way but doesn’t get counted in these numbers because it isn’t domestic) is about to enter its fifth year. The hawkish, pro-missile shield Heritage Foundation estimates that we will spend $110 billion (or almost four times the annual cost of earmarks) on the Strategic Defense Initiative… and that doesn’t even work! I appreciate President Bush’s new found fiscal discipline, but going after earmarks in domestic spending programs is a lot like cleaning a toxic waste dump by dusting the debris.