Earmark Requests Pulled
By Paul Singer,
Roll Call Staff
Democratic objections forced House Transportation and Infrastructure Committee Republicans to pull dozens of Democratic earmark requests from the panel’s public files on Tuesday, as a subcommittee prepared to mark up a project-laden water resources bill today.
The dispute erupted after Roll Call reported Tuesday that Republicans had made available for public inspection the earmark requests of both parties for legislation making technical corrections to the 2005 highway bill. Democrats claimed that Republicans had violated protocol by releasing Democratic request letters to the public, while ranking member John Mica (R-Fla.) said the majority was flouting its own rules. The dispute raised the prospect that today’s markup could be canceled while the two sides sort out the ground rules.
A little before noon Tuesday, while a Roll Call reporter was leafing through a stack of the several-hundred Water Resources Development Act earmark request letters on file in the Transportation and Infrastructure Committee Republican offices, a staff member came over and explained that Democrats had requested their letters be removed from the public file. Several staffers then pulled the Democratic letters from the file drawer, and the reporter complied by handing over the request letters of Oversight and Government Reform Chairman Henry Waxman (Calif.), Education and Labor Chairman George Miller (Calif.) and 15 other Democrats from the pile he was reading.
Mica happened to walk into the office at that moment and clearly was caught off-guard by the Democratic objections. “I’m not playing that game,” Mica said. “They are all free and open and we should not be pulling them ... if [the Democrats] want us to pull them, they are not complying with their own rules.” After a discussion with staff members, Mica reluctantly agreed to allow the sorting process to continue, as long as it was clear that the Democratic letters would not be returned to the majority offices.
Mica said the Democratic request raised questions about whether today’s markup in the subcommittee on water resources and the environment could still proceed, given that he no longer was sure how the new earmark rules were being applied. The requests are supposed to be known to both parties 24 hours before the markup, he said, and “I have to know that nothing is being slipped in at the last minute.”
Mica said he was hoping to talk to Transportation and Infrastructure Chairman James Oberstar (D-Minn.) before the subcommittee markup, but they had not been able to schedule a conversation. “If they want to violate their own rule and hide their earmark requests, I don’t know what we are going to do,” he said.
Jim Berard, a spokesman for the committee Democrats, said Republicans never were supposed to release Democratic request letters for earmarks that were not included in the final bill. “They had not checked with us ahead of time about whether they could release the Democratic requests for [public] inspection,” Berard said Tuesday morning. “It was a breach of protocol, and we asked that our requests be removed” from the public file. A few hours later, Berard clarified that Democrats actually never asked Republicans to remove the Democratic requests from the file. “I misspoke,” he said. The Democrats did complain that releasing the documents without prior notice was a breach of protocol, but the Republicans “determined that the best course of action was to withdraw the requests [from the public file]. We didn’t ask them to do that.”
A Republican staffer responded, “Democratic staff were upset that we were making Democratic Members’ project requests available, and after complaints, we pulled those requests from our file and referred any further inquiries about Democratic Member project requests to the Democratic staff offices.”
Oberstar said in an interview Tuesday afternoon that he believes that making Member requests public before they had been vetted by the committee simply would serve to embarrass Members who might not be experts in the act’s requirements or the limitations of the legislation the committee is handling.
“An attempted earmark is not a crime,” Oberstar said. “I want to treat Members fairly. I assume when a Member comes to me with a request, it is my job to help them do it correctly. They are coming here for advice and guidance.”
And that advice should be confidential until the product is final, he said. “I felt that we should not release these Member requests until we have vetted them and until they are in a bill and then that bill will be public.” Oberstar said publicizing the requests was akin to arresting someone for jaywalking when they simply are thinking about crossing against the red light. “Is this thought police, or what?” the chairman mused. “We are trying to save Members from making a mistake. ... I think it would be mean-spirited to say we are going to hang out all these projects and let all these Members be embarrassed.”
Democratic staffers on the committee say the procedure will be that when the water resources development bill — or any other legislation — is reported by the committee, it will include a list of earmarks in the bill and the names of the requesters. Those request letters will be made public, but requests that are not included in the bill will not be made public.
According to Oberstar, about 300 Members have asked for projects in the water resources development bill, but 30 Republicans and two Democrats had failed to file the necessary certification documents for their requests, so those projects were being stripped from the bill late Tuesday.
The language of the new House earmark rule states that the “written disclosure for any congressional earmarks ... included in any measure reported by the committee or conference report filed by the Chairman of the committee or any subcommittee thereof shall be open for public inspection.”
Steve Ellis, vice president of Taxpayers for Common Sense, said the language of the rule appears to support Democratic contentions that only successful earmark requests must be disclosed. But “Rep. Mica gets it and he gets the spirit of what this is about,” Ellis said. “The public deserves to know what the Members are asking for and where the money is going ... the Democrats, by stripping the information out of your hands and squirreling it away in a bookshelf until the very last minute, are missing the point.” Ellis said that the irony in all this is that Democrats are now in the position of favoring less disclosure than Republicans, but “they are the ones who won an election in part because of this.”
GOP: Conflict Rules Unclear
By Susan Davis,
Roll Call Staff
A group of House GOP ranking members is asking for clarification of the chamber’s new rules requiring lawmakers who request earmarks to certify that neither they nor their spouses have any financial interest in the requests.
The recently enacted earmark reforms are part of Democrats’ efforts to regulate a process that played a role in a series of prominent corruption cases, most notably that of jailed ex-Rep. Duke Cunningham (R-Calif.). The rules have been applauded by outside watchdog groups and Democratic leaders who promised to cut down on the number of earmark requests that ballooned under 12 years of Republican control.
But a cadre of senior Republicans have recently raised concerns with the ethics committee that the rule — which calls for Members making earmark requests to send a letter to the committee of jurisdiction vowing that they have no personal monetary stake in the issue — is vaguely written, asking the committee to clarify what does, and does not, constitute a “financial interest.”
“The addition of the requirements for disclosure contained in [House Rules] significantly raise the stakes for compliance with the rule,” they wrote.
The letter, dated Feb. 28, was signed by GOP ranking members David Dreier (Calif.) on Rules, Spencer Bachus (Ala.) on Financial Services, Tom Davis (Va.) on Oversight and Government Reform, Ralph Hall (Texas) on Science and Technology, Pete Hoekstra (Mich.) on Intelligence, Howard McKeon (Calif.) on Education and Labor, John Mica (Fla.) on Transportation and Infrastructure, and Lamar Smith (Texas) on Judiciary.
The Committee on Standards of Official Conduct, as the ethics panel is formally known, has not yet responded to the request.
To proponents of the new disclosure rules, the requirement seems fairly straightforward.
“I think it’s laudable that leadership has set up a process for Members to sign on the dotted line and say ‘I have no financial interest here,’” said Steve Ellis, vice president of Taxpayers for Common Sense. “To try to find every detail, every possible permutation, twist and turn, and implication of every potential investment decision presents a much greater hurdle than what was intended here. I think reasonable people can come to similar conclusions.”
But as the House embarks into uncharted territory to comply with the new requirements, these Members and knowledgeable aides argue that more explicit guidelines need to be made available because the the way rules are interpreted now will set important precedents for the future.
“There is no history on this,” one senior GOP aide said. “I think Members need bright lines when it comes to new rules.”
The ranking members said they are concerned that the absence of more explicit rules “has the potential to expose Members to severe sanctions for even inadvertent omissions, and these clarifications are necessary for us to assist our Members in their compliance with the rules,” they wrote.
These Members also are seeking clarification on when the letter has to be filed with the committee of jurisdiction. The current rule does not offer time guidelines. “In the case of a bill which contains an earmark, is it at the time of introduction? At the time the committee holds a hearing? When the committee takes action on the measure? As currently drafted, Members do not know when and under what circumstances to file the disclosure ...” they wrote.
A Member’s failure to disclose his or her personal financial interest in an earmark request could now result in an ethics violation because the reforms fall under the code of conduct provisions in House Rules.
Members also have raised questions over how many degrees of separation a lawmaker and his spouse need to be from a request to certify that they have no financial interest in the project.
In their letter, the GOP Members wrote: “For instance, if a Member requests an earmark to build a road near a parcel in his district, and the road will facilitate the construction of new housing, does the Member or his spouse have a financial interest if they own stock in a bank which could potentially underwrite the mortgages for new housing? Does the situation change if the Member owns shares in a mutual fund which contains a number of banks which are mortgage lenders?”
Similarly, Ellis acknowledged that there are gray areas when it comes to the disclosure forms. For instance, any road that is built in a district has the potential to raise the real estate value of a lawmaker’s home — which could count as a financial interest even if the road is important to the district as a whole.
“In that case, it’s hard to say if there was a financial benefit or not,” Ellis said. “At some point, you have to decide, ‘How many degrees do you want to take it?’ But I think reasonable people can make those determinations.”
Taxpayers for Common Sense and other reform groups — as well as House Appropriations Chairman David Obey (D-Wis.) — have said the ultimate goal of the reforms is to severely restrict the total number of earmark requests, which quintupled under Republican control. Ellis argued that Members should more often be seeking funds through regular order and the budget process than relying on earmarks as heavily as they have in the past.
“At the end of the day, if all this means is Members are going to take a harder look at their requests and that there’s going to be less earmarking, then we’re not going to shed any tears over that,” he said.
A spokeswoman for the Appropriations Committee said the panel is referring all disclosure inquiries to the ethics committee; the panel has not released any public guidance on the new earmark rules. Ethics Chairwoman Stephanie Tubbs Jones (D-Ohio) declined to comment last week when asked if the committee was working toward that end, but the panel does not comment on internal matters.
Members can always seek individual guidance from the ethics committee on the new earmark requirements. While the committee does not make those communications public, the requesters can do so if they choose.
