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February 11, 2006BELTWAY BLOGROLL
Moving Target
Reprinted with permission from the Feb. 11, 2006, issue of National Journal magazine.
By Peter Cohn
"Earmarks have become the currency of corruption," Rep. Jeff Flake, R-Ariz., wrote to House Speaker Dennis Hastert, R-Ill., after the guilty pleas of ex-Rep. Randy (Duke) Cunningham, R-Calif., and lobbyist Jack Abramoff. "We can't allow this to continue."
But the road to earmark reform is potholed with definitional booby traps. Take these examples: $1.7 million to rehabilitate historic buildings at White Grass Dude Ranch in Grand Teton National Park, Wyo.; more than $1.5 billion to support "ultra-deepwater" drilling, largely directed to the Texas Energy Center in Sugar Land, Texas; a $44 million break from import duties for makers of ceiling fans, spearheaded by hardware mega-chain Home Depot.
All of the above could be considered earmarks, yet none qualify under the usual definition -- that is, a project inserted into an appropriations bill by a member of Congress. The dude-ranch funding, for example, was not a request from the Wyoming congressional delegation but a line item in the White House's 2006 National Park Service budget.
"What's an earmark? If there's a ship in there the administration wants, is that an earmark?" asked Senate Budget Committee Chairman Judd Gregg, R-N.H. "The definition of how you get into this is going to be difficult."
Veterans of the House and Senate Appropriations committees say that critics are looking in the wrong places. "The earmarks people are talking about are $5 and $10. The real money is in the tax bills or the mandatory spending bills" such as the $286 billion highway bill enacted last year, said James Dyer, who served for nearly a decade as Republican staff director for the House Appropriations Committee.
The ceiling-fan provision, for example, was stuffed into a $140 billion 2004 tax bill designed to bring the United States into compliance with a World Trade Organization ruling. The offshore-drilling money was included in last year's $80 billion energy bill.
Even within traditional congressional appropriations, the definitional problem for anti-"pork" crusaders remains. Gregg, who chairs the Senate Homeland Security Appropriations Subcommittee, declares that he has included no earmarks in his spending bills since his panel was created in 2003. But the nonpartisan Congressional Research Service counted nine earmarks worth $33 million in the $30.6 billion 2005 Homeland Security appropriations bill. The advocacy group Citizens Against Government Waste found 64 earmarks costing $1.72 billion in the same measure.
"One of the principal challenges to measuring earmarks in appropriation bills is defining the term and applying it consistently," CRS said in a January 26 report. "There is not a single definition of the term 'earmark' accepted by all practitioners and observers of the appropriations process, nor is there a standard earmark practice across all appropriation bills."
The Office of Management and Budget considers an item an earmark if it was not in the president's budget request or if Congress added it to proposals in the president's budget.
Citizens Against Government Waste uses similar criteria, but it also includes project funding that is not authorized in prior law. Rival watchdog Taxpayers for Common Sense pulls in line-item funding requests in the president's budget, such as the Army Corps of Engineers' water projects.
Sen. John McCain, R-Ariz., has developed his own definition, which includes items added to a conference report that were not in either the House or Senate version of a bill and provisions that transfer or dispose of federal property in contravention of existing law.
Another challenge is that earmarks can turn up in places that generally don't get attention even from critics. The CRS classifies most of the annual foreign-aid spending bill as earmarked, divided into "hard" earmarks (spending limited to a particular nation or institution) and "soft" earmarks (language urging or recommending where money should be spent). According to CRS, annual military and economic aid for Israel and Egypt can be considered an earmark. All told, between both hard and soft earmarks, CRS concludes, 73 percent of the $19.8 billion 2005 foreign-operations bill was earmarked.
Then there are policy riders, targeted to specific industries or interests, which often appear in legislation late at night, just before a final floor vote. House Appropriations Committee ranking member David Obey, D-Wis., called it a "blatantly abusive power play" when Republican leaders inserted 40-plus pages of legislation shielding vaccine makers from liability into the 2006 Defense appropriations bill, after House and Senate negotiators had already signed off on a final package.
Dyer, who now works as a lobbyist with Clark and Weinstock, has his own definition of an earmark. "An earmark is something that flows into 434 congressional districts and not yours. When it comes into your district," he said, "it's a federal investment in jobs and education."
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