Should members of Congress be allowed to add classified earmarks to government budgets?

No

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by Jeff Vidrine

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Should members of Congress be allowed to add classified earmarks to government budgets?

Classified earmarks are the bane of the American taxpayer's existence, serving the inflated egos of legislators and wasting billions of dollars. Before I can substantiate that statement, however, I must address the form of this question. For under the Constitution and after review by the Supreme Court, Congress is allowed to earmark, classified or otherwise.

Constituti onal Authority?
Under Article I, Section 8, the powers of Congress are enumerated with two powers cogent to this question. Section 9 imposes limits on Congress which have resulted in the modern practice of passing appropriation bills authorizing the expenditure of public money and publication of a statement of such expenditures. The portions that apply to this subject are:

Section 8: The Congress shall have power:
To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.(1)

Section 9: No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.(1)

The interpretation of the necessary and proper clause gives Congress sweepingly broad powers, known as implied powers, not explicitly enumerated in the Constitution. It is under these implied powers of the necessary and proper clause that Congress gave itself the authorization for earmarks. This may also be construed to fall beneath Section 5: Each House may determine the rules of its proceedings.(1) Therefore, earmarks are an implied power given to Congress by the Constitution.

What is an Earmark?
Another aspect of this question is the accepted definition of an earmark. The White House Office of Management and Budget has developed this definition: "Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or report language) circumvents the merit-based or competitive allocation process, or specifies the location or recipient, or otherwise curtails the ability of the Executive Branch to properly manage funds. Congress includes earmarks in appropriation bills - the annual spending bills that Congress enacts to allocate discretionary spending - and also in authorization bills."(2)

Despite the lack of a consensus definition, the one used most widely was developed in 2006 by the Congressional Research Service, public policy research arm of the U.S. Congress: "Provisions associated with legislation (appropriations or general legislation) that specify certain congressional spending priorities or in revenue bills that apply to a very limited number of individuals or entities. Earmarks may appear in either the legislative text or report language (committee reports accompanying reported bills and joint explanatory statement accompanying a conference report)."(3)

More simply put, an earmark is a statement accompanying an appropriation or authorization bill that directs or specifies by Congress how the particular federal agency will spend or prioritize spending the money appropriated in the bill. A classified earmark is one that is hidden in the classified portion of a report accompanying a measure which the public can not view. It hides the author, nature, and dollar amount of the earmark.

Why Earmarks?
The intended purpose of earmarks is so that a career bureaucrat, like a civil servant who can not be fired, doesn't spend on his pet projects, and ensures that revenues are spent by an elected representative accountable to the voters. In this way, a system of checks and balances is established when legislators face the electorate. The problem as posed by this question is of classified earmarks that do not reveal the legislator responsible for the earmark. Members of Congress have used earmarks for political patronage, self enrichment, and pure wasteful spending, These earmarks have earned the appellation "pork" or "pork barrel spending".

There is a proper, justifiable use of earmarks as Rep. John Mica (R-Fla.) posted on theHill.com on 04/04/08 entitled: Congressional earmarks essential for effective, prudent use of funds.(4) To quote, "Setting policy and project priorities is an essential legislative responsibility. If a project is transparently submitted by a member of Congress, publicly vetted by congressional committee, and in compliance with legislative rules, there is no reason to impose a ban on congressional earmarks, as some have proposed." Senator Patty Murphy (D-Wash.) believes, "People tend to talk about earmarks as something that is a bad thing. I see it as a way to make sure that the tax dollars that are spent are spent in a very wise way."(5)

Abuses and Waste
The number of earmarks are growing each year and with this growth an increase in pork barrel earmarks. In a paper by Heritage Foundation written in 1999 by Dr. Ronald D.Utt entitled How Congressional Earmarks and Pork-Barrel Spending Undermine State and Local Decision-Making, Dr. Utt reports that "the more troublesome and often overlooked implication of this process is the extent to which these earmarks reflect Washington's growing propensity to micromanage local affairs through its distant bureaucracies."(6) This micromanagement by distant bureaucrats results not just in waste but in pork barrel projects that local states or communities don't want or need but are mandated to implement. In some respects, it is tantamount to central planning, the failed modus operandi of Soviet communism.

Classified earmarks deny transparency of government spending by not allowing voters to know who is responsible for this pork. The policing by its own members through Article 5 of the Constitution presents an opportunity for Congress to eliminate classified earmarks.

What are some solutions and the results?
Legislative remedies:
An attempt to prevent classified earmarks occurred when the 104th Congress under the Contract With America enacted the Presidential line item veto in 1995.
It was used by President Clinton in 1997 but in 1998 ruled as unconstitutional by Supreme Court.(6)

The latest try to legislate control of earmarks is the New Honest Leadership and Open Government Act of 2007. The ink was barely dry on this act when House and Senate leaders began looking for ways to circumvent or obstruct its earmark disclosure rules.(7)

Non-legisla tive remedies:
Congress was successful to a limited extent in past by self imposed moral suasion. Dr Utt suggests that "the last best hope for slowing the growth of federal pork-barrel spending may lie with governors and local leaders because their communities pay the price for congressional meddling which forces them to accept unwanted projects at the expense of locally determined priorities..."(6) My favorite solution is through organizations like Citizens Against Government Waste (CAGW). CAGW is right now waging an aggressive campaign to determine which members of Congress are willing to pay more than lip service to transparency and accountability. Their website points out "while House and Senate rules do not require members of Congress to make their earmark requests available to the public, Americans deserve to know on which pet projects their elected representatives would lavish their hard-earned tax dollars." It goes on to say "transparency is a vital first step toward eliminating the tens of billions of dollars spent on congressional earmarks annually and ending the "culture of corruption" that earmarking breeds."(7)

What is the answer?
Congress should just say no to classified earmarks. Earmarks are here to stay because they are an implied power of Congress through the Constitution, have been upheld by the Supreme Court in Clinton v. City of New York as constitutional, and by some accounts serve a useful purpose in government administration. However, classified earmarks deny citizens the accountability of elected officials by hiding their earmarks in the classified section of a Congressional report of an appropriation or authorization bill. There is no accountability if there is no transparency. To quote J. Peter Grace, Co-Founder CAGW, "To advocate an efficient, sound, honest government is neither left wing nor right wing. It is just plain right."(7) The only recourse the American people have is the transparency to know who is wasting our money and throwing the bums out! Congress must do what is right, follow its own rules, and eliminate the practice of classified earmarks to restore public trust in government.

Bibliogra phy

1.Article One of the United States Constitution. (2008, June 30). In Wikipedia, The Free Encyclopedia. Retrieved 07:26, July 2, 2008, from http://en.wikipedia. org/w/index.php?titl e=Article_One_of_the _United_States_Const itution&oldid=222576 058

2.What is an Earmark? (2008, January 28). Office of Management and Budget website, Earmarks page. http://www.whitehous e.gov/omb/earmarks/p ublic-site-preview/

3 .Comparison of Selected Senate Earmark Reform Proposals. (2006, March 6). In CRS Report for Congress. Sandy Streeter, National Analyst. http://www.opencrs.c om/rpts/RL33295_2006 0306.pdf

4.Congressio nal earmarks essential for effective, prudent use of funds. (2008, April 4). Blog post on theHill.com. Rep. John Mica,(R-Fla.) http://thehill.com/o p-eds/congressional- earmarks-essential-f or-effective-prudent -use-of-funds-2008-0 4-08.html

5.$4.5 million for a boat that nobody wanted. (2007, October 15). The Seattle Times. http://seattletimes. nwsource.com/html/na tionworld/2003948586 _favorfactory14m.htm l

6.How Congressional Earmarks and Pork-Barrel Spending Undermine State and Local Decision making.(1999). Heritage Foundation Executive Summary #1266. Ronald D. Utt, Ph.D, http://www.heritage. org/Research/Budget/ BG1266ES.cfm

7.Citize ns Against Government Waste home page. (2008, June 30). http://www.cagw.org/ site/PageServer?page name=homePage

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