Omnibusting: Omnibus Spending Bill, Earmarks, Pork and Budget Gimmicks

When House Republicans convene behind closed doors today (Thursday) at the Greenbrier in White Sulphur Springs, W.V., they have a chance to make two bold moves to restore their reputation for fiscal responsibility. First, they could declare a one-year moratorium on Republican congressional earmarks. Second, they could name anti-earmark reformer Rep. Jeff Flake to a vacancy on the House Appropriations Committee. In fact, almost surely they will do neither.

Read more at Real Clear Politics.

Red State - The President has not issued his executive order on earmarks, and it appears he won’t.

Club for Growth - If this is true, what a disappointment. 

National Taxpayers Union - If the President misses this opportunity, it would be a heck of a shame. 

Citizens Against Government Waste - If President Bush ignores the big spenders and issues the executive order, it will prove to taxpayers that at least some in Washington have gotten the message about wasteful spending.
 

President Bush’s focus has shifted to an economic stimulus package, but that hasn’t discouraged fiscal conservatives from pursuing an executive order canceling lawmakers’ earmarks. A coalition of 24 groups signed a letter to Bush today asking him to bring an end to the “earmark era.”

January 18, 2008

The Honorable George W. Bush
President of the United States
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear. Mr. President:

On behalf of the millions of grassroots Americans we represent, we write to ask you to protect taxpayers by issuing an Executive Order that instructs all Federal agencies to ignore non-legislative earmarks tucked into committee reports and statements of managers. Now is the time to take back the appropriations process for the American people. Just as many families make decisions to cut wasteful spending when needed, the federal government must also set priorities and cut spending when necessary.

A December 18 analysis by the Congressional Research Service concluded that it is clearly within your legal authority to eliminate all earmarks that appear in committee reports or manager’s statements. By eliminating the over 9,000 earmarks included in the report language of the FY08 Omnibus spending bill, you will send a clear message to Congress that wasteful, secretive spending of taxpayer dollars will not be tolerated.

This situation requires strong action from the President, not transparent political ploys that fail to get the job done. For example, a rescissions package, in which the President submits a list of already-passed provisions for cancellation, would be the equivalent of doing nothing because it requires action from the very same Congress that passed the wasteful earmarks. Similarly, an Executive Order covering only “air-dropped” earmarks, those not appearing in either the House or Senate version of a bill and added in conference, would be a weak answer to a serious problem. The omnibus appropriations bill contained only 300 air-dropped projects and such an order would provide little disincentive for future earmarks.

We urge you to listen to the voice of millions of citizens across the country who resent wasteful earmarking. You have the authority and opportunity to put Congress back on the path to fiscal responsibility. We hope you will seize this opportunity and protect the American taxpayer from further abuse by ending the earmark era. Thank you for your leadership on this issue.

Sincerely,

American Civil Rights Union
American Conservative Union
American Family Association
Americans for Prosperity
Americans for the Preservation of Liberty
Americans for Tax Reform
American Values
Citizens against Government Waste
Council for America
Catholic Vote.org
Coalitions for America
Concerned Women for America
Eagle Forum
English First
Evergreen Freedom Foundation
Family Research Council
Let Freedom Ring
National Center for Public Policy Research
National Taxpayers Union
Porkbusters.org
Rightmarch.com
Taxpayers for Common Sense
U.S. Business and Industry Council
60 Plus Association

A day after his victory in the New Hampshire primary, Sen. John McCain spoke with bloggers about a variety of issues, including the option of a presidential executive order canceling earmarks in the omnibus spending bill. Erick Erickson of RedState posed the question to the Arizona senator, who has long been a critic of pork-barrel spending. Here is the exchange, courtesy of Jim Geraghty of National Review:

Erick Erickson: Senator Coburn wants investigation into Don Young’s appropriation got back into bill after it had been stripped out. Would you support an executive order to zero out these “airdropped earmarks”?

McCain: Absolutely, absolutely. I appreciate any time Coburn goes after these earmarks. He has torn the crown of ‘Miss Congeniality in the Senate’ from my grasp. I’m proud of the effectiveness of the way he has worked. We have to bring this to a halt. People are sick and tired.

Republican rival Fred Thompson is holding a conference call on Thursday. We’ll do our best to ask him where he comes down on the issue of an executive order. Thompson has outlined his views on earmarks as part of his plan to reduce federal spending.

Cross-posted on The Foundry.

If you’re on Facebook, please join the new group created by Phil Kerpen called Cancel Earmarks by Executive Order. There are already 200 people signed up as members.

Pork spending must be as American as apple pie, the way members of Congress pack the federal budget with pet projects for their home districts. It’s easy to take your pick of cultural curiosities with an “Americana” theme to plan a Pork Vacation Tour for the New Year. After all, Congress slipped in more than 11,300 budget-busting “earmarks” before Christmas. Here are just a few “destination” pork stops sure to delight any red-blooded American taxpayer.

John Fund writes in the Wall Street Journal today about President Bush’s legacy on fiscal responsibility:

This week President Bush will make one of the most important decisions of his remaining time in office. It won’t get headlines or lead the news, but it could play a major role in deciding whether this country ever gets any kind of grip on the constantly growing federal budget.

Fund’s column comes at a critical moment. The White House is expected to announce tomorrow if it will cancel lawmakers’ pork-barrel projects.

With attention shifting from the White House to Senate Minority Leader Mitch McConnell on the anti-earmark executive order, sources on Capitol Hill called our attention to the following story from Dec. 21 in the Bowling Green Daily News. The Kentucky newspaper spells out exactly why McConnell has taken a personal interest in preserving earmarks in the omnibus.

Western Kentucky University and Barren County stand to benefit from the federal budget recently passed by Congress - that is, if President Bush decides to leave those earmarks untouched.

Sen. Mitch McConnell, R-Ky., secured funding totaling more than $4.7 million for several projects in the area, part of a $550 billion omnibus budget bill recently approved by both the Senate and House.

…

Among the many projects for which McConnell secured funding were:

• $1.4 million for the construction of an Agriculture Research Service lab at WKU, the third installment of funds for the lab;

• $1.462 million to buy equipment and technology for WKU’s Science Building;

• $705,000 for the WKU Environmental Monitoring Network;

• $487,000 for WKU’s Mobile Health Screening Unit to buy new communications technology;

• $350,000 for WKU’s Small Public Water Technology Center;

• $90,000 for the WKU/Green River Water Quality and Biological Diversity Project;

• Continued funding for WKU researchers to study the nutritional value of new forages for livestock and animal health systems;

• $235,000 for the Barren County Sheriff’s Office to purchase mobile data terminals and other communications equipment.

Let’s not forget that McConnell was among the first people on Capitol Hill to boast about the pork-barrel projects he was bringing home with him for Christmas.

This was a tough year in the appropriations process, but after a long fight, Kentucky came out a winner. … Whether it’s for education, defense or agriculture, I will continue to use my seniority in the United States Senate to help bring home funding on behalf of the hard working people of Kentucky.

Is it really any surprise he’s lobbying Bush so aggressively?

With pressure mounting on President Bush to issue an executive order canceling lawmakers’ earmarks, Citizens Against Government Waste threw its weight behind the idea in a letter to Office of Management and Budget Director Jim Nussle today.

Citizens Against Government Waste (CAGW) was pleased to hear President Bush state in his December 29 radio address that he is disappointed that Congress sent him “a massive spending bill that includes about 9,800 earmarks.” He is correct when he said, “Earmarks are special interest items that are slipped into big spending bills … often at the last hour, without discussion or debate.” Furthermore, we were heartened to hear that the Administration is “reviewing options to address wasteful earmark spending.”

The best option to address the wasteful spending is for the President to issue an Executive Order instructing federal agencies to ignore the more than 9,000-plus earmarks found in the fiscal 2008 Omnibus Appropriations Act and 2,000-plus earmarks found in the Defense Appropriations Act.

As you know, Sen. Jim DeMint (R-S.C.) asked the Congressional Research Service (CRS) for a legal analysis of the President’s authority to issue an Executive Order that would instruct federal agency officials to ignore congressional earmarks contained in committee report language and whether earmarks contained only in committee report language are legally binding on federal agencies. In its reply to Sen. DeMint (enclosed), the CRS stated that based on their review of the “relevant constitutional provisions, statutes, and applicable case law it appears that the President possesses the necessary legal and constitutional authority to issue such an executive order,” and that “the language of committee reports do not meet the procedural requirements of Article I of the Constitution – specifically, bicameralism and presentment – they are not laws and, therefore, are not legally binding on executive agencies.”

Again echoing the President’s call to Congress to “restrain spending, keep taxes low, and continue on a path towards a balanced budget” and ensure the money taxpayers “send to Washington is spent wisely – or not at all,” I urge President Bush and your office to issue an Executive Order directing federal agencies to ignore earmarks. Such an action would be controversial and no doubt many members of Congress would be upset that their pork-barrel spending would be halted. However, stopping earmark spending would go a long way in restoring fiscal order to Washington. Instead of wasting precious time and tax dollars to provide funds to construct a gas station in Wilberforce, Ohio; build an organized crime museum in Las Vegas, Nevada; and support the First Tee golf program, such an Executive Order would help Congress to focus on more important federal issues, such as saving Medicare from bankruptcy.

Conservative groups and bloggers are growing increasingly vocal about their desire for President Bush to issue an executive order canceling lawmakers’ earmarks in the omnibus spending bill. There is already widespread support for the idea among fiscal conservatives.

Today several groups called attention to the idea. Dick Armey, president of FreedomWorks, issued an action alert that asked his organization’s members to contact the White House. The letter reads in part:

I am writing to ask you to issue an executive order directing federal departments and agencies not to spend any tax dollars that aren’t explicitly appropriated in the text of the Fiscal Year 2008 Omnibus Spending Bill. If you are serious about stopping the plague of earmarks, using this power would be a great way to show Congress they can’t waste our tax dollars.

Gary Bauer, president of American Values, used his daily e-mail to supporters to call attention to the issue.

With each passing day, we learn more discouraging news about items tucked into the massive $550 billion “omnibus” spending bill Congress recently passed. One of the items that caught our attention was the inclusion of legislative language that allows the District of Columbia to spend taxpayer dollars on needle exchange programs. …

Here’s another example of misplaced spending priorities: During the Senate debate on the omnibus spending bill, Senator Tom Coburn (R-OK) tried to offer an amendment that would have redirected all earmarked spending to improving deficient roads and bridges, like the bridge that collapsed in Minneapolis.

The Coburn amendment was denied even a vote due to an objection from Senate Democrat Leader Harry Reid (D-NV). But in future years, visitors to Las Vegas will be able to stop by the new post office museum, thanks to a $200,000 earmark requested by Senator Reid and paid for by you.

Meanwhile, the issue is also gaining steam in the blogosphere. Ed Morrissey of Captain’s Quarters cited sources on Capitol Hill who noted that appropriators are leaning heavily on President Bush to back down from an executive order.

The EO advocates need to remind Bush that only through dramatic action can the GOP reclaim any momentum on fiscal responsibility. A rescission package would only play into the hands of the same people who larded up the spending bill while delivering it three months late.

RedState has also joined the fight.

The Heritage Foundation’s J.D. Foster and Leslie Paige of Citizens Against Government Waste write to the Washington Examiner today in support of a presidential executive order canceling earmarks in the omnibus spending bill.

Foster says Republicans and Democrats agree on two things: Earmarks are out of hand and they’ll continue to grow by the thousands. Fortunately, he writes, there’s something that can be done about it.

Congress can’t stop itself from earmarking, but the president can end the epidemic. Few earmarks are written in the law. The vast majority are written in accompanying conference reports. The affected federal agencies may ignore these earmarks, but they do so risking congressional games with their own budgets. The solution is for the president to issue an executive order to all federal agencies to disregard completely all earmarks not in statute.

President Bush can with an executive order largely end the earmarks embarrassment and waste of taxpayer dollars. He should sign it immediately and stop the waste.

Paige said an executive order would be an excellent way for Bush to kick off the final year of his presidency and earn the appreciation of taxpayers who are eager to see the earmark gravy train come to a halt.

While most presidents struggle for relevancy during their final year in office, Bush would guarantee himself a place at the head of the table when it comes to the fiscal 2009 budget cycle; the next president would inherit a critically important waste-cutting tool; and best of all, the order would be wildly unpopular with the congressional grandees of earmarking from both parties who have been greedily feeding at the trough. Happy New Year, indeed!

The question now becomes, “Do Bush, GOP have the guts to kill earmarks?” as today’s Examiner editorial bluntly puts it.

DC Examiner  (December 31, 2007) - For Bush, the choice is whether to issue an executive order directing federal departments and agencies to ignore earmarks that aren’t explicitly included in the legislative text of the recently approved $515 billion omnibus spending bill.
. . .
Bush has considered such an order for a week. This is no time for timidity. Signing such an executive order tomorrow would make a fine New Year’s Day present for American taxpayers. Finally, somebody in Washington would be acting decisively to end the waste and corruption of congressmen freely handing out millions of tax dollars to campaign donors, relatives and former staff members, and special interest allies.

Chicago Tribune (December 31, 2007) - The Democrats took control of Congress with a promise to put an end to earmarking, the clever way in which lawmakers shower your money on their citizens. President Bush got in the game: He vowed to cut the number of earmarks in half. So, how to explain the 9,800 earmarks — worth more than $10 billion — stuffed into the $555 billion omnibus spending bill that Bush signed as he flew home to Texas Wednesday for a holiday break?
. . .
Bush complained about Congress loading up on earmarks — then he signed the spending bill. He still has some options to force Washington into rehab.

President Bush used his weekly radio address to once again criticize Congress for including nearly 10,000 earmarks in the omnibus spending bill.

I’m disappointed that leaders in Congress sent me a massive spending bill that includes about 9,800 earmarks. Earmarks are special interest items that are slipped into big spending bills like this one — often at the last hour, without discussion or debate. Among the earmarks Congress approved was one for a prison museum and another for a sailing school. In the last election, congressional leaders ran on a promise that they would reform earmarks. They made some progress, but not nearly enough. So my Administration is reviewing options to address wasteful earmark spending.

The fact that Bush is still talking about doing something to end earmarks is a good sign, but this fight is far from over.

President Bush’s suggestion that he would explore ways to stop wasteful earmarks in the $555-billion omnibus spending bill has been meet with praise from conservatives. Here’s just a sampling what’s being said about the idea of an executive order halting earmarks.

Weekly Standard Executive Editor Fred Barnes:

President Bush will take on congressional earmarks — you know, that wasteful special spending that members of Congress stuff in the budget. And here’s what he can do. He can nullify thousands of them because they’re not technically a part of the budget. They’re separate from it. He’s going to do it.

Washington Examiner:

It appears President Bush has a legal tool at his disposal that could be quickly employed to eliminate most congressional earmarks with the stroke of a pen, and it comes to him courtesy of the Congressional Research Service (CRS). The never-before-used tool is a presidential executive order directing federal departments and agencies not to spend any tax dollars that aren’t explicitly appropriated in the text of a bill… The monstrous spending bill was more than 3,500 pages long, counting its associated reports, with nearly 700 of those pages being lists of 9,400-plus earmarks. Together with the earmarks included in a defense bill approved earlier in the year, the first session of the 110th Congress approved more than 11,000 earmarks, the second-highest annual total in recent years.

Wall Street Journal:

Our suggestion is that Mr. Bush instruct his cabinet not to spend money on earmarks that aren’t specifically mentioned in the language of the spending bill. Most are listed in accompanying Appropriations Committee reports that lack the force of law. The point of this Congressional ruse, in part, is to let Members “air-drop” earmarks at the last minute and thus escape scrutiny by other Members who might try to expose their “Bridges to Nowhere” on the House or Senate floor. Mr. Bush assailed this habit in this year’s State of the Union address, and the Members cheered. So why not force Congress to live up to its applause?

Americans for Prosperity Policy Director Phil Kerpen:

Back in 1987, Reagan’s budget director, Jim Miller (who is on my organization’s board of directors), devised a simple solution to the earmark problem: uphold the U. S. Constitution… Miller instructed executive agencies to comply with the law, the actual legislative language, but to disregard the earmarks in the accompanying reports and to instead spend funds on their priorities based on project merit and the president’s own priorities. Capitol Hill erupted in protest, threatening all sorts of retaliation if their pork wasn’t protected… President Bush is extraordinarily well-situated to complete what Reagan started, and put an end to report language earmarks… Mr. President, all I want for Christmas is an executive order de-funding earmarks. Please?

Larry Kudlow:

In the most dramatic statement of his holiday news conference, Mr. Bush said he will not stand for the continuing congressional proliferation of pork-barrel earmarks… This is huge. The statute of limitations for Republican overspending, over-earmarking, and over-corrupting that caused huge congressional losses in last year’s campaign will not run out until the GOP shows taxpayers that it again can be trusted on the key issues of limited government and lower taxes. In these matters, Republicans must be holier than the pope.

Denver Post:

Similar conflicts of interest and unseemly handouts can be averted by curbing pork-barrel projects. Yet citizens are left to wonder why no steps been taken to restrain this obvious abuse of power. Evidently, there is bipartisan agreement when it comes to pork: more is better. The president, who has a well-earned reputation for out-of-control spending himself, has claimed he will investigate ways to deal with earmarks. We hope he does. As it stands now, the only winners are politicians and their special interests. The loser, as always, is the average taxpayer.

Dan Thomasson of Scripps Howard News Service:

Congress, that irrepressible spending machine that is held in lower public esteem than even the current war-strapped president, has been busy stuffing constituent Christmas stockings full of goodies and if you happen to be one of the lucky ones, the coming year should be a good one. That is if George W. Bush doesn’t issue an order to his troops to ignore most of the outlandish projects tacked on to the $555 billion omnibus appropriations bill just passed and the $459 billion defense appropriations measure adopted last month. Could he do that? Probably. Should he do that? He most definitely should.

Syndicated Columnist George Will:

Hell bent on driving its approval rating into single digits, Congress adjourned after passing an omnibus spending bill larded with at least 8,993 earmarks costing at least $7.4 billion — the precise number and amount will be unclear until implications of some obscure provisions are deciphered. The gusher of earmarks was a triumph of bipartisanship, which often is a synonym for kleptocracy.

President Bush signed the $555-billion omnibus spending bill yesterday and reiterated his dislike for the pork-barrel projects included in the legislation.

I am disappointed in the way the Congress compiled this legislation, including abandoning the goal I set early this year to reduce the number and cost of earmarks by half. Instead, the Congress dropped into the bill nearly 9,800 earmarks that total more than $10 billion. These projects are not funded through a merit-based process and provide a vehicle for wasteful Government spending.

Bush’s statement didn’t specific any specific steps he would take to trim the fat from the bill, but the White House later confirmed that Office of Management and Budget Director Jim Nussle was still exploring ways to curtain the earmarks.

Pressure is mounting on the White House do something about the nearly 12,000 earmarks included in this year’s appropriations bills. Today the Wall Street Journal editorial page weighs in again with a plea for President Bush to act.

Our suggestion is that Mr. Bush instruct his cabinet not to spend money on earmarks that aren’t specifically mentioned in the language of the spending bill. Most are listed in accompanying Appropriations Committee reports that lack the force of law. The point of this Congressional ruse, in part, is to let Members “air-drop” earmarks at the last minute and thus escape scrutiny by other Members who might try to expose their “Bridges to Nowhere” on the House or Senate floor. Mr. Bush assailed this habit in this year’s State of the Union address, and the Members cheered. So why not force Congress to live up to its applause?

Some in the White House fear that such a move would sour relations with Congress, including GOP leaders who love their earmarks as much as Democrats do. We hear that senior Republicans, especially in the Senate, have told the White House that if Mr. Bush refuses to fund these earmarks, he will be courting retribution. There’s a reason no Members will make this threat in public, however. They know how unpopular earmarking is with the voting public.

The Heritage Foundation’s Brian Riedl has outlined three specific steps Bush could take: canceling non-binding earmarks by executive order, refusing to implement earmarks that are not sufficiently specific, and banning “phone-marking.”

Will the White House get the message?

Sen. Jim DeMint today released a legal memo from the Congressional Research Service confirming that President Bush has the authority to eliminate non-legislative earmarks by executive order. The four-page report is available here as a PDF. It partially states:

This memorandum is in response to your request for a legal analysis of the President’s authority to issue an executive order that would instruct ‘federal agency officials to ignore Congressional Earmarks contained in committee report language.’ In addition, you have also asked us to address whether, as a matter of law, earmarks contained only in committee report language are legally binding on federal agencies.

Based on our review of the relevant constitutional provisions, statutes, and applicable case law it appears that the President possesses the necessary legal and constitutional authority to issue such an executive order. That said, the issuance of an executive order appears to be a discretionary act whose issuance is solely vested with the President of the United States. With respect to your second question, it appears that because the language of committee reports do not meet the procedural requirements of Article I of the Constitution — specifically, bicameralism and presentment — they are not laws and, therefore, are not legally binding on executive agencies.

DeMint said the report confirmed that Bush has the “tools he needs to stop wasteful earmarks and force Federal agencies to spend American tax dollars wisely.” DeMint concluded:

A lot of agencies will do whatever some powerful committee chairman tells them simply out of fear that their budgets will be cut if they don’t. This has got to stop. Americans want their tax dollars spent in ways that serve true national interests, not some lawmaker’s political interests. It’s time to give government agencies a clear directive by executive order to ignore all backdoor requests for pork projects.

With conservatives on Capitol Hill clamoring for a showdown over earmarks, the following document was prepared to by a congressional aide to explain the importance of a presidential executive order dealing with earmarks.

Q: Why must the President issue an executive order to instruct his agencies to ignore non-legislative or “report language” earmarks? Can’t the same thing be accomplished by other means — a signing statement, an OMB memo, or a rescissions package?

A: A rescissions package is dead on arrival on Capitol Hill. Congress will never take it up and won’t pass it. We cannot honestly expect earmark supporters in Congress to rescind their own pet projects.

A “signing statement” would have some of the positive effects of an executive order for FY08, but it would not create a lasting prohibition against wasteful and corrupt earmarks. A signing statement would also allow a future President who wants to placate Congress to return Washington to its previous earmarking ways. The next President could rescind an executive order but it would be politically dangerous and would show the American people that he does not support reform.

Anything short of an executive order will not have the gravity to discipline the Executive Branch. An executive order is a direct order from the President to all federal employees that they are required to ignore all report language earmarks. Anything less than full compliance would amount to ignoring an order from the President.

OMB attempted a similar directive with a memo near the end of the Reagan Administration. There was an open revolt from federal bureaucrats. A CQ article at the time summed up the situation,

“In one glaring case, Veterans Administration chief Thomas K. Turnage told [OMB Director] Miller June 24 he had ordered his agencies to “fully comply” with the fiscal 1988 spending bill and the accompanying committee report.

“The message in Turnage’s letter to Miller was clear. The VA would have to deal with Congress in the years to come, long after Miller and the rest of the Reagan administration have departed from the White House. ‘My obligations to this agency and to this nation’s veterans preclude me from taking action which, in the long term, will only negatively impact on them,’ Turnage wrote.”

If an agency head were to respond in a similar manner to an executive order, they would be shown the door.

But this does help highlight the fact that agencies know if they do not execute appropriator’s earmarks faithfully, there will be punishment. Only an executive order would sufficiently embolden them to reject wasteful earmarks, because they know they have the clear and unambiguous support of the President of the United States. Any problems a lawmaker has with an agency’s rejection of a non-legislative earmark would have to be taken up with the President.

Additionally an executive order would be crafted to stop the practice of “phone-marking” when a lawmaker calls an agency to pressure it to fund an earmark. An executive order would stop this kind of backdoor earmarking. It would instruct agencies to award funds according to the normal merit-based process and not allow phone calls or letters from Congress to distort the process.

Q: How can the President wipe out thousands of earmarks passed by Congress? Is such an executive order legal?

A: The Congressional Research Service has said repeatedly that report language earmarks do not have the force of law. These spending directives were never part of the bill voted on by Congress and signed by the President. On December 18th CRS stated that an executive order of this nature was completely within the President’s powers.

“This memorandum is in response to your request for a legal analysis of the President’s authority to issue an executive order that would instruct “federal agency officials to ignore Congressional Earmarks contained in committee report language.” In addition, you have also asked us to address whether, as a matter of law, earmarks contained only in committee report language are legally binding on federal agencies.

“Based on our review of the relevant constitutional provisions, statutes, and applicable case law it appears that the President possesses the necessary legal and constitutional authority to issue such an executive order. That said, the issuance of an executive order appears to be a discretionary act whose issuance is solely vested with the President of the United States. With respect to your second question, it appears that because the language of committee reports do not meet the procedural requirements of Article I of the Constitution – specifically, bicameralism and presentment – they are not laws and, therefore, are not legally binding on executive agencies.”

Q: Don’t Members of Congress know more about the needs of their districts and states than nameless faceless bureaucrats in Washington?

A: In a word: No. What politicians know is what is in the best interest of their political career. The Congressional Black Caucus Chair pointed this out quite clearly to the Speaker of the House when she stated, “Inherently, we understand that this earmark process is not equitable… There are a few examples of where your help could significantly assist a few members in highly contested races.” (See Rep. Jeb Hensarling’s press release.)

Members are not going award funds on the basis of what’s best for the nation or what’s best for their state or district, but rather what’s best for their political interest.

Even if the criteria they use is in the best interests of their district or state, the earmarking process doesn’t lend itself to merit-based decision making. The projects that come to Member’s attention are self-selected by the communities who have hired the right lobbyist to get the ear of the Member or their staff. If a meritorious project hasn’t retained a firm or the right firm, they’re often out of luck.

Further there is no competitive process in place to impartially evaluate the merits of competing projects. The selection of earmarks is a politically driven and secretive process with next to no transparency.

CNN recently attempted to find out what earmarks Members of Congress were requesting. Most Members refused to make these requests public, preventing even their constituents from knowing which projects they had selected to get federal tax dollars.

“Is your representative in Congress willing to share his or her list of earmark requests for 2008? CNN called the offices of 435 members of the House to ask whether they would make their lists public. Only 50 members’ offices provided a list; of the others, 68 declined, 311 did not respond and six said they had no earmark requests.”

If a federal agency had refused to disclose who it selected for the awarding of federal funds there would be widespread and legitimate outrage on Capitol Hill.

Q: Doesn’t Congress have the “power of the purse”? Article I of the Constitution says, “No money shall be drawn from the Treasury except as a consequence of appropriations made by law.”

A: Congress certainly has the power of the purse, but it should exercise it responsibly. The practice of earmarking has perverted the original purpose of the power of the purse. Congress has gone from appropriating funds for programmatic spending to micromanaging the expenditure or federal funds down to relatively tiny increments such as $133,000 for rodent eradication in Arkansas. Using earmarks, Congress is upsetting the separation of powers embodied in the Constitution by engaging in what are essentially executive functions.

The December 18th CRS memo also acknowledged that the power to issue an executive order turning off non-legislative earmarks was well within the President’s Executive power:

Generally speaking, executive orders and Presidential proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the Executive Branch, or to outline a policy view intended to influence the behavior of private citizens. The Constitution does not contain any provisions that define either executive orders or proclamations, nor is there a specific provision authorizing their issuance. As such, the legal authority for the execution and implementation of executive orders stems from implied constitutional and statutory authority. In the constitutional context, presidential power to issue such orders has been derived from Article II, which states that “the executive power shall be vested in a President of the United States,” that “the President shall be Commander in Chief of the Army and Navy of the United States,” and that the President “shall take care that the laws be faithfully executed.” The President’s power to issue executive orders and proclamations may also derive from express or implied statutory authority. Irrespective of the implied nature of the authority to issue executive orders and proclamations, these instruments have been employed by every President since the inception of the Republic. Despite the amorphous nature of the authority to issue executive orders, Presidents have not hesitated to wield this power over a wide range of often controversial subjects.

Given both the implied legal and constitutional authority as well as the long-standing accepted practice of Presidents, it appears that a President can, if he so chooses, issue an executive order with respect to earmarks contained solely in committee reports and not in any way incorporated into the legislative text.

The restoration of the Executive’s power to administer federal programs would be a welcome restoration of the balance of power. It would return day-to-day management control of the Executive Branch and remove politically motivated lawmakers from the administration of federal programs.

Q: Won’t this just force earmarks into bill text?

A: Yes and that’s a good thing. When earmarks are put in the text of the bill, they are subject to the earmark rules prohibiting so-called “air-dropped” earmarks — those added to bills that were not approved by either the House or the Senate. Forcing lawmakers to write then directly into the bill makes it much more difficult and much more transparent. It also allows Senators to force an up-or-down vote on every earmark.

Q: But if they’re in bill language won’t this eliminate the Executive Branch’s flexibility to put earmarks in the right place?

A: The idea that the Administration somehow has the flexibility to move around earmarks without retaliation from appropriators in Congress is not born out by the facts. The appropriations committees keep a tight reign on the ability of the agencies they oversee to reprogram funds. The informal arrangement between the agencies and the appropriations committees requires that the agencies get the appropriations committee’s permission before they exercise any “flexibility.” The GAO’s Principles of Federal Appropriations Law sums up as such, “In sum, reprogramming procedures provide an element of congressional control over spending flexibility short of resort to the full legislative process. They are for the most part nonbinding, and compliance is largely a matter of keeping faith with the pertinent committees.” (emphasis added)

In practice, flexibility doesn’t really exist for non-legislative earmarks. If an agency wants to exercise some flexibility they need the appropriations committee’s blessing or they will see their budgets for various offices cut in the next budget cycle. The agencies have the flexibility to modify earmarks into other earmarks, but they are not generally allowed to change them into something appropriators don’t like.

The executive order would put an end to this kind of kowtowing to appropriators. Federal agencies would be clearly instructed to allocate tax dollars according to the normal competitive or merit-based process.

According to Taxpayers for Common Sense, here are the top House and Senate earmarkers:

HOUSE:

John Murtha, D-Pa., $161.9 million.

C.W. Bill Young, R-Fla., $161.1 million.

Jerry Lewis, R-Calif., $136.8 million.

SENATE:

Thad Cochran, R-Miss., $773.6 million.

Ted Stevens, R-Alaska, $501.9 million.

Robert Byrd, D-W.Va., $429.5 million.

A political cartoon from Nate Beeler of the Washington Examiner:

A political cartoon by Roll Call’s R.J. Matson:

The fight against wasteful earmarks is not over. In a recently released report budget policy expert Brian Riedl reveals several options left to President Bush to combat careless pork-barrel spending. Riedl presents three immediate ways to reform fiscal year 2008 earmarks including canceling non-binding earmarks by executive order, flexibly addressing vague earmarks, and banning “phone-marking.” In addition, Riedl reminds us that “the estimated $20 billion of FY 2008 pork is not a trivial amount; it is equal to the entire federal personal income tax liability for the states of Iowa, New Hampshire, New Mexico, West Virginia, and Delaware combined. President Bush also pledged to rein in earmarks and has several options to follow through on that promise. Taxpayers will be watching with interest.”

Our friends at Opinion Journal’s “Best of the Web” might headline this item: “Bottom Stories of the Day.”  Senator Ted Stevens sent out a post-Omnibus press release highlighting pork projects contained in the Agriculture section of the bill and noted, “Much of this agricultural and rural development funding for Alaska was secured at the request of Senator Ted Stevens (R-Alaska).” 

In addition to highlighting $113,000 for rat control on the Aleutian Islands, Sen. Stevens took credit for these two other “important” agriculture priorities:

$2.45 million to research new uses for fish waste, and 
$842,000 to research alternative salmon products, to include nutritional supplements

Brad Dayspring of the Republican Study Committee reports that the omnibus includes more than 300 “air-dropped” earmarks, meaning they were secretly inserted in back-room negotiations between House and Senate appropriators.

This means that these specific earmarks were not passed by either the House or Senate during previous consideration of spending bills, were not subject to a point of order, amendment or debate on the floor of either body questioning their merit.

Click here for the complete list of “air-dropped” earmarks.

Republican Study Committee Chairman Jeb Hensarling (R-Tex.) plans to seek an immediate suspension of the earmarking process after learning Congressional Black Caucus Chairwoman Carolyn Cheeks Kilpatrick (D-Mich.) suggested to Speaker Nancy Pelosi that the procurement of additional earmarks could assist the campaigns of vulnerable Democrats.

In a letter to Pelosi last Thursday, Kilpatrick noted the unequal distribution of earmarks and suggested a more favorable distribution of taxpayer-funded earmarks would help members of the Congressional Black Caucus in their political campaigns.

Inherently, we understand that this earmark process is not equitable. … There are a few examples of where your help could significantly assist a few members in highly contested races.

Hensarling cited a report earlier this year from the Wall Street Journal, which reported that veteran appropriator Rep. John Murtha had “rebuilt [his] hometown on earmarks,” noting that “Johnstown’s good fortune has come at the expense of taxpayers everywhere else.”

It’s one thing when anti-earmark crusaders take on pork-barrel spending. But it’s quite another when an earmark recipient criticizes his own project’s funding.

Rep. Rodney Alexander (R-La.) secured the $1.6 million earmark for the Bastrop Police Department. But according to an employee who would benefit from the money, it’s well about the amount needed by the department.

The money is officially earmarked for the purchase of bulletproof vests and body armor. Bulletproof vests only cost about $700-800, however, so $1.6 million would appear to be overkill.

“There’s no way we’d need that kind of money just to put all our people in vests,” said Det. Curtis Stephenson.

Hat Tip: Bastrop Daily Enterprise

Sen. Jim DeMint’s office has compiled the following top 10 list of reasons to oppose the omnibus.

1. Contains more than 11,000 wasteful pork projects, second highest in history
2. Overspends by $24.3 billion in gimmicks, largest spending bill in history
3. Weakens border security, reduces fencing
4. Cuts national security to pay for liberal social programs
5. Cuts abstinence funding; increases Planned Parenthood funding
6. Cuts labor oversight; increases funding to labor unions
7. Cuts funding for U.S. Marshals Service that enforces sex offender registry
8. Allows government to sue businesses that require English in the workplace
9. Spends millions to help solve energy problems … in North Korea
10. Increases funding for National Endowment for the Arts

Earlier today, Heritage released its own top 10 list of the biggest problems with the bill.

We’ve pulled together some of the most egregious provisions in the bill and put together this top 10 list. With the Senate planning to vote this evening, time is running out to educate senators about the pork projects, policy riders and budget gimmicks in the bill.

1. Non-emergency, Emergencies Drive Up Spending

More than $11 billion in emergency designated spending has been crammed into this bill, most of which does not qualify as sudden, unforeseen or urgent spending including. For example:

• $100 million in emergency funding for presidential security at political conventions
• $602 million for crop disaster assistance and livestock assistance, in spite of the fact that farmers had record incomes last year.
• $210 million for “salaries and expenses” across various departments

2. A Threat to Border Security

The bill places new restrictions that will delay and in some cases prevent construction of the full border fence. The bill removes specific locations included in the Secure Fence Act and adds extra layers of bureaucracy that will make building a border fence more difficult.

3. Restricts U.S. Energy Sources, Threatening Energy Security

The bill prohibits funding for oil shale commercial regulations which makes commercial production of the United States’ 2 trillion barrels of oil shale resources is impossible. By restricting the supply of domestic oil, this bill increases our dependence on other nations to meet our energy needs.

4. The House Version Does Not Fund the Troops in Iraq

The House provided $31.2 billion for the troops in Afghanistan, but nothing for the troops in Iraq. This ties the hands of Pentagon officials and generals in the field by restricting the battlegrounds where money can be spent and puts troops in harms way.

5. Loaded with Excessive Earmarks

More than 9,000 earmarks — including 300 of which were airdropped— totaling more than $23 billion have been added to the bill. For example:

• The Charles Rangel “Monument to Me” ($1.95 million)
• Rodent control in Alaska ($113,000)
• Olive fruit fly research in France ($213,000)
• Hunting and Fishing Museum in Pennsylvania ($200,000)
• Louis Armstrong Museum in New York ($150,000)
• A bike trail in Minnesota ($700,000)
• A river walk in Massachusetts ($1,000,000)
• A post office museum in downtown Las Vegas ($200,000); and
• The Lincoln Park Zoo in Illinois ($37,000)

6. Funds Corporate Welfare

Advanced Technology Program, was deauthorized by Congress earlier this year, was given $65 million. ATP provides research grants, and 35% of its funding goes to Fortune 500 companies including IMB, 3M, and General Electric.

7. Uses Budget Gimmicks to Obscure Spending

At least $10 billion in gimmicks, such as advanced appropriations and recessions, have been used that artificially lower the cost of the bill.

8. Nobody Has Had Time to Read It

The bill is more than 3,417 pages, which is three times the length of the Bible and nearly the same length as the Second Edition of Webster’s Dictionary. In less than 24 hours, the House passed the bill, but, clearly, no one could have had time to read it.

9. Misplaced Priorities

Funding for security projects such as Nuclear Weapons Modernization ($89 million requested) which helps modernize the nuclear weapons stockpile was cut in order to fund:

• $20 million increase for the National Endowment of the Arts
• $1.5 billion increase for state and foreign operations
• $3.7 million in non-competitive grants that were awarded to the AFL-CIO
• $16 million for a new House office building although the House already has four office building and the Capitol Visitors Center hasn’t been completed

10. Blows Budget Caps

With all the budget gimmicks, “emergency” spending, and other tricks, this bill exceeds the President’s top line by more than $24 billion. The appropriations bills the President threatened to veto were $22 billion above his top line — the omnibus has only made things worse!

After a bit of counting, the Washington Examiner has found a suspected list of the top pork-getters in the Senate:  Schumer (323), Murray (310) and Clinton (301) are the three senators whose names appear most frequently in the bill, followed by Specter, Cochran, Levin, Feinstein, Shelby, Lincoln, Stabenow and Menendez.

A complete list of the 40 senators whose name appears at least 100 times in the omnibus spending bill is here.

Division A - Agriculture - $402,098,000

Division B - Commerce, Justice, Science - $810,947,165

Division C - Energy and Water - $6,411,952,500

Division D - Financial Services - $1,001,282,000

Division E - Homeland Security - $423,651,119

Division F - Interior, Environment - $623,362,000

Division G - Labor, HHS, Edu - $996,716,800

Division H - Legislative - $400,000

Division I - Military - $9,998,406,000

Division J - State – NONE

Division K - Transport, HUD - $2,839,626,669 

Total, Without State Dept - $23,508,442,253