Porkbusters Will Require Eternal Vigilance

With the House of Representatives having handed Republicans a very narrow victory in their campaign to limit earmarks, I thought it might be instructive to look at the way that porkbusters are trying to fight pork barrel spending.

First off, the House of Representatives will consider a statutory change to put this reform into effect. The alternative would be to insert the reform in House rules. The statutory change is preferable, because it would require a new law to roll back the reform. If the change were simply in House rules, it would require nothing more than a one-time majority vote of the House to eliminate the reform and go back to the old way of business.

The most interesting thing to me is the mechanism used to limit earmarks. If you consider the question, there are several ways you could attempt to block Congressional earmarking. You could write a law that makes earmarks illegal. That would be awkward, because earmarks can be hard to define. How might you phrase it? Maybe something like 'no law shall have effect which specifies the expenditure of federal funds for a study, work of construction, capital expenditure, equipment purchase, outside contract... retroactively or prospectively made, by a state or local government entity, or by a commission or other independent governmental or non-governmental agency...' Well, it would be awkward, but I'm sure with enough effort, you could write a law that covers all possibilities without taking in other items unintentionally. If you take this approach, you have a few problems. You need the approval of the President and the Senate. And more seriously, you face the problem that anytime Congress appropriates dollars, it writes a new law which conflicts with the one we've just written. So a new appropriations bill with earmarks would presumably supercede our reform.

OK, so writing a new law is not the best way to do it. What else can you do? Well, you could write a Constitutional amendment. In such a case you'd still have the challenge of how you write it. As we discussed above, I bet you could do it - although it would be a long amendment. The next problem would be securing the two-thirds majority of both Houses of Congress, and the states. Well, forget the states really, because you probably would never get the two-thirds in Congress.

So what else can you do? Well, we could do what reformers are doing in the House bill. You can read it for yourself here, starting on page 23). It proposes a statutory change (better than a change of House rules), that only affects the process in the House (good, because the Senate is less likely to object). Further, it does not attempt to outlaw earmarks, or anything so ambitious. Rather, it requires that the Committee report which accompanies every appropriations bill contain a list of the earmarks included in both the bill and the report, with the name of the requesting Member of Congress specified. It enforces this rule by allowing any Member of the House to raise a point of order against consideration of the bill, on the grounds that this rule has not been followed. A 30-minute debate will follow, after which time the House has to vote on whether to consider the appropriations bill or not, notwithstanding the objection. In the case of a conference report (the compromise bill created by House and Senate negotiators, after both have passed different versions of an appropriations bill), the same procedure will apply if the conference report contains earmarks that were not previously identified in either the House or Senate Committee report for the bill.

There's another important item to observe in all this dry legislative back-and-forth. The House cannot vote to waive the point of order against consideration of a House appropriations bill, but it can vote to waive the point of order against a conference report. What does this mean? Well, it's standard operating procedure that prior to considering a bill, the House votes to waive all points of order against it. The reform pushed by porkbusters ensures that this point of order cannot be waived; the House will have to have the debate and vote if a Member rises to make a point of order. Unfortunately, the House can waive the point of order against a conference report.

This is a problem - although perhaps an unavoidable one. By a simple majority vote, the House can consider anonymous earmarks inserted by Senators, or by House Members in the House-Senate conference. This may well be a necessary concession, as it would be hard for reformers in the House to force a change in the Senate. After all, after Tom Coburn and John McCain, it's unclear how many porkbusters there are in the Senate.

If this imperfect reform makes it into law, it will discourage earmarks in the House by subjecting them to the sunlight of public scrutiny. And, it will shift the pressure for secret earmarks into the Senate, and the House-Senate conference committees. It may add to the power of appropriators, because they are the only ones in the conference committees. There will be Members of Congress who want secret earmarks for favored projects, who will ask members of the conference committees to insert them at that stage. Depending on how committed Congress is to the reform, there could wind up being no such projects added, or there could be hundreds of them. It will put lots of pressure on reformers in the House (and to a lesser degree, the Senate) to hold the line on conference reports that include pork barrel projects.

Now like a lot in life, this is both good and bad. First the good: it is narrow, specific, and achievable. It builds on procedures already used in the House. It goes a long way to achieving transparency. It doesn't allow (or shouldn't allow) Members of Congress to pretend the problem is 100% solved; rather, they must continue to press for adherence to a no-earmark policy. The bad: it won't end earmarking. It shifts power to the less-reformist Senate. It empowers appropriators in conference committees.

Make sure you contact your Representative and let him or her know you want to see Congress stick to real reform of the earmark process.

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