Problems for Porkbusters

With the increased attention given to earmarks lately - during the House Republican race for Majority Leader, in the scrutiny of Duke Cunningham, Alan Mollohan, Tom DeLay, and others, and in the focus on earmark reform as one way to help restrain federal spending - I think it's worth noting that fighting earmarks may be a lot tougher than people realize.

First off, most earmarks are not included in federal legislation. There are some appropriations bills rich with pork, where you can read the entire bill and not see any of them mentioned. This is because the most common way of earmarking dollars is through the Appropriations Committee report that accompanies the bill. These reports are prepared by the Committee and its staff, and they give directions to federal agencies about how money is to be spent. These instructions are often detailed and valuable. For example, a look at the House Committee report accompanying the 2006 Energy and Water Appropriations Act yields this useful instruction (on page 14):

When the Corps transfers funds from one project to another, it makes a promise to `repay' the borrowed amounts. These cumulative actions have created a significant financial obligation that the Corps has no way to honor except to continue the practice ad infinitum and to repay these borrowings from future appropriations. However, these repayments are not budgeted, nor can the Corps even provide an accurate accounting of these accumulated IOUs. This system may have worked well for the Corps in the past when budgets were rising and when the Corps carried over substantial unobligated balances from year to year. But, more recently, unobligated balances have all but disappeared, endangering the Corps' ability to honor its multitude of promises to `repay' borrowed funds to project sponsors except from new appropriations. The Committee is concerned that neither it nor the Corps knows the full extent of the payback required. Accordingly, the Corps is directed to submit a report to the House and Senate Committee on Appropriations, within 30 days of enactment of this Act summarizing, by project, the cumulative amount of repayments owed to the donor projects. The Committee further directs that these repayments be fully budgeted in the fiscal year 2007 budget presented to Congress.

This is the sort of thing that makes up most of the Committee report. The agencies funded typically treat this language as if it were staute, and follow these directions. That only makes sense; if they didn't, most of this stuff would begin to find its way into the actual text of the bill, and no one needs that level of detail or complexity.

However, these Committee reports are also the primary place you find earmarks. For example, pages 20-33 of the same report contain lists of dozens of projects to be funded, with specific instructions as to the level of funding for each. This is what pork-barrelling looks like. And while my examples here are from the House Committee report, the Senate Committee produces its own version of the bill, with its own report, and its own earmarks.

Once the bill has passed both Houses, the House and Senate Appropriations Committees meet to produce a conference report, which resolves both the differences in the bills, and the differences in the Committee reports (eg: here). Those conference reports can be very challenging to scrutinize. You may be forced to do quite a bit of work to find out how the earmarks on each side were treated. And of course, brand new earmarks can be inserted at this stage of the process as well.

Now if this were all there is to cutting off earmarks - changing Congressional rules to prevent any of these from making it into statutory language or reports, that would be hard enough. However, during my work in Congress, I encountered at least one other type of earmark. There are times when the Appropriations Committee sets a given level of funding for a program, but directs that expenditures from that program had to be agreed upon between the agency and the Appropriations Committee. In such a case, there may be a verbal consultation, followed by a letter that lists a whole raft of projects, with an agreed-upon funding level for each. Once again, the agency can treat such agreements as binding, because to do otherwise would be to invite the wrath of the Chairman that sets your budget.

All of this is not to say that earmarks can't be stopped, but to stress how difficult it may be to do so. And ultimately, it can't be done with rules changes alone - it will require constant watchdog efforts - preferably by Members of Congress (let's call them 'Fifth Columnists'), but also by taxpayer watchdogs. Absent such efforts, there are simply too many ways to skin the cat, and Members of Congress will figure out how to continue business as usual.