When Republicans in the last Congress, and Democrats in the current Congress, began taking up proposals to shed light on the earmark process, appropriators began to turn to the 'phonemark.' Simply put, that's when a Congressman or Senator calls an agency official to inform him or her that even though the Appropriations Committee hasn't said it, x dollars from a particular account are intended to go to this or that project.
As long as the Appropriations Committee stands behind the claim (or makes the call), it's no more or less binding than an earmark in the committee report. To address this end-run around earmark rules, Jim DeMint has gotten the Senate to agree to prohibit the practice:
The Senate on Tuesday backed a prohibition on federal agencies covered under the Commerce, Justice and science appropriations bill from using letters, phone calls or other communications from lawmakers in determining how to spend federal funds.
The amendment, offered by Sen. Jim DeMint (R-S.C.) and approved by voice vote, is the latest in a series of provisions DeMint and other Members have proposed to strengthen the key provisions of the ethics and earmark reform package passed by Congress earlier this year.
With increasing public scrutiny of earmarks, many Members of the House and Senate in recent years have used “phonemarks” to direct federal funding to specific recipients or regions.
Although the White House Office of Management and Budget issued a memorandum earlier this year directing federal agencies to disregard these phonemarks, lawmakers have continued to contact executive branch officials over a variety of projects, according to data collected by the Sunlight Foundation. Additionally, federal officials previously have warned that given the power many of the Members have — particularly those who serve on authorizing or appropriations committees for their agencies — there is enormous pressure on them to comply with these requests.
DeMint argued the changes were needed in large part because of changes to the ethics package eliminating much of the law’s transparency provisions. Congress “pretty much gutted the transparency provisions. We’ve made some progress” in reversing those changes, DeMint said.
While the amendment will only apply to these agencies, and will only apply if it is preserved in conference, this is a valuable step forward. If the Senate votes to apply it to one appropriations bill, there's no reason to think they won't do so across the board. And as long as OMB is willing to assist in enforcing it -- by disclosing attempts by Members of the Senate to get around it -- it should be enforceable.
Another good move by Senator DeMint.