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.

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.

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?

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.

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.