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Loopholes in earmark reform bills

By Elana Schor

The Hill

May 11, 2006

New rules aimed at curbing the growth of earmarks are among the most widely touted elements of both chambers’ recent lobbying overhaul bills, but a loophole written into the very definition of “earmark” could allow more than 40 percent of member-directed pork to continue unlabeled and unchecked.

The House and Senate each approved earmark reforms that would require appropriations bills and conference reports to include a list of their earmarks along with the names of the requesting lawmakers, but the measures exempt earmarks directed to federal entities. While government watchdogs and several conservatives have condemned the lobbying bills’ narrow definition as an invitation to continued abuse of Congress’s power of the purse, the provision is unlikely to be expanded before any lobbying bill becomes law.

Taxpayers for Common Sense Vice President Keith Ashdown, whose group helped the “Bridge to Nowhere” and other massive earmarks achieve public notoriety, estimates that about 42 percent of earmarks go to federal entities and would avoid any new labeling rules.

“An incomplete or inaccurate picture of earmarks is worse than no legislation,” he said.

“This is such a massive loophole that we really have to start again because it’s not going to give a clear understanding to voters of how lawmakers are managing the nation’s books.”

Taxpayers for Common Sense has compiled a lineup of strange and vague federal-directed earmarks from 2006 appropriations bills that would avoid scrutiny under the lobbying bills’ new earmark reforms, most of which go through federal agencies. The Defense Department leads the way in the earmark-loophole money chase, with $1.7 million going to a military operation to keep brown tree snakes in Guam and $1.8 million sent by Washington’s Democratic senators to an Army program developing genetically modified fruits and vegetables.

“By exempting federal entities, they have unporked 98 percent of stuff in defense bills,” said Winslow Wheeler, a 30-year-veteran Senate staffer who directs the Strauss Military Institute. Wheeler noted another “very sneaky” loophole in the Senate’s earmark-reform language that allows the joint explanatory statements that traditionally accompany appropriations conference reports to avoid any new limits.

The Senate lobbying bill mandates that any rundown of member earmarks in appropriations, authorization or tax legislation list only “earmarks in such measure,” leaving out the estimated thousands of annual earmarks that appear only in joint explanatory statements.

The House earmark-reform provision does cover joint explanatory statements , but as of now it applies only to targeted spending in appropriations bills. House GOP leaders vowed to expand that reach during conference negotiations after appropriators revolted against the lobbying bill and nearly derailed it outright.

Still, conferees on the lobbying bill are unlikely to redefine “earmark” to include federal entities receiving funds. Sen. John Ensign (R-Nev.) made a bid to include federal agencies and other bodies in the Senate bill’s definition of earmark, but his amendment was turned away on the floor, 57-41.

Senate Appropriations Committee Chairman Thad Cochran (R-Miss.) spoke strongly against the amendment’s “impractical effects and unintended consequences,” and only four of his panel’s 28 members supported Ensign. The two Republicans who backed Ensign, Sens. Conrad Burns (Mont.) and Mike DeWine (Ohio), both face serious reelection challenges this year.

In the House, Republican Study Committee (RSC) member Rep. Jeff Flake (Ariz.) was among the most vocal supporters of strong earmark limits. Yet Flake has focused on ensuring that authorization and tax bills will be covered, leaving him little time to work on applying earmark transparency to federal agencies, said spokesman Matthew Specht.

Flake “would like to see the definition of earmarks expanded to include federal entities, but he feels the provision in the House lobbying bill is a pretty good start,” Specht said. “Hopefully, once this is law, [he] can refocus his efforts to expand the definition of earmarks.”

Rep. Scott Garrett (R-N.J), who attempted to expand House earmark reform to tax and authorizing committees while the lobbying bill was still on the floor, issued a statement after its passage questioning the House’s decision to consider the government-sponsored enterprises, or GSEs, Fannie Mae and Freddie Mac federal entities for earmarking purposes. Fannie and Freddie, private mortgage lenders once under congressional purview, have come under fire for considerable accounting and lobbying improprieties.

“I can find no evidence that GSEs have ever received an earmark, which begs the question of why would they need to be mentioned in the bill at all,” Garrett said. “I am concerned that this sets a bad precedent and that such an exemption could very well attract earmarks.”

Sen. Tom Coburn (R-Okla.) has made curtailing earmarks his personal mission, most recently in his parliamentary challenge to the Senate’s war and hurricane supplemental. Just before the Senate passed its lobbying bill, Coburn held a hearing in which he lambasted the spread of federal-agency earmarking.

“Committee report language directs federal agencies to spend money on particular earmarks,” Coburn said, “and the agencies have learned that congressional appropriators will retaliate if their language is ignored — even if it’s in the national interest to ignore it.”

Yet the earmark-reform bill that is considered the gold standard, sponsored by Coburn and Sen. John McCain (R-Ariz.), prohibits federal agencies from disbursing earmarks not included in bill text and then exempts the agencies themselves.