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

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.

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.

A coalition of government watchdogs wrote to President Bush today asking him to issue an executive order directing all federal agencies to ignore non-legislative earmarks.

Mr. President:

This past week, Congress passed an omnibus spending bill that will soon be presented for your signature. While it is consistent with the total budget targets your administration has set, the 3,417 pages of the bill and associated reports are bloated by more than 9,000 earmarks which were subjected to little or no review during the scant 24 hours between the publishing of the bill text and the House voting to pass it. When combined with the more than 2,000 earmarks in the Defense Appropriations Bill this Congress has churned out over 11,000 earmarks this year. The vast majority of these earmarks do not even appear in the legislative text, but rather are buried in the committee reports that accompany the bill, further removing them from proper review and scrutiny. While the total number of earmarks is down compared to record highs and there is increased transparency, there are still far too many to be effectively vetted.

The rushed way in which Congress passed the omnibus — one of the largest pieces of legislation ever considered — made a mockery of our legislative process, and Congress itself bears the responsibility and shame for that. But you have the power to send a message both to Congress and the American people that the waste and corrupting influence of earmarks will not be tolerated. A December 18 legal analysis by the Congressional Research Service concluded 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. … Given both the implied legal and constitutional authority as well as the long-standing accepted process 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.”

On December 20, you stated that you were “instructing the budget director to review options for dealing with the wasteful spending in the omnibus bill.” We applaud you for this leadership, and ask that you follow through by issuing an executive order formally directing all Federal agencies to ignore non-legislative earmarks tucked into committee reports and statements of managers. Such an action is within your Constitutional powers, and would strike a blow for fiscal responsibility now while setting a valuable precedent for the future.

Tell Congress and the American public that the era of earmarks is over, and that the Congressional “favor factory” which mints earmarks is closed. The American taxpayer will applaud such an action, as will the many honest legislators in Congress who are trying to fight the broken and corrupt appropriations machine. We hope that you embrace this opportunity, and thank you for your leadership on this issue.

Sincerely,
American Conservative Union
American Values
Americans for Prosperity
Americans for Tax Reform
Calvert Institute for Policy Research
Citizens Against Government Waste
Club for Growth
Commonwealth Foundation
Eagle Forum
Evergreen Freedom Foundation
Family Research Council
Freedom Works
Illinois Policy Institute
Larry Kudlow, Kudlow & Company, LLC
The National Tax Limitation Committee
National Taxpayers Union
Porkbusters.org
Taxpayers for Common Sense

Hat Tip: Porkbusters.org