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‘Letter’ of Earmarks Law Tough to Follow

A little-noticed provision included in the House rules package on earmark reform has prompted a growing tide of frustration from rank-and-file Members’ offices over the lack of clarity provided by the new requirements.

And as the spending season begins in earnest, some lawmakers also have raised concerns that the rules cut down on Member input to the Appropriations Committee, giving the already powerful panel even greater autonomy to dole out tax dollars.

The confusion stems from what has been a common practice in past years — to build support for projects of broad or regional interest, lawmakers often circulate letters to their colleagues to sign on to “multi-Member” funding requests.

For instance, Members in Western states make requests for certain flood control projects, or border state lawmakers request more funds for programs to combat illegal immigration, or rural state Members ask for money to combat the illegal production of methamphetamines.

However, Congressional aides familiar with the process say there has been a notable drop in the number of letters circulated this session because the interpretation of the new rules from the staffs of both Appropriations Chairman David Obey (D-Wis.) and ranking member Jerry Lewis (R-Calif.) suggest that any Member who signs one of these letters risks sacrificing one of their total appropriations requests annually allotted to each Member’s office.

In the past, multi-Member letters were considered a separate act from a lawmaker’s yearly earmark requests that are used to steer funds to benefit an individual district’s interests. The deadline for the annual requests this year is March 16. Now, aides said, Members could take a hit on their aggregate requests just by signing on to a multi-Member letter.

“There’s a lot of uncertainty if this is going to be a ding against one of your projects,” said one legislative aide who spoke on condition of anonymity. Compounding the problem is that each of the Appropriations panel’s 12 subcommittees has different standards for the number and restrictions for earmark requests, so what might count against a Member on one subcommittee might not on another. “The entire thing is a crapshoot,” the aide said.

There appears to be consensus that it would not count against a Members’ earmark allotment if the request is “programmatic,” meaning it already is included in the federal budget, but aides have said — under guidance from Obey’s office — that they should nevertheless take the new required step for all requests of certifying there is no conflict of interest for the request.

Now any Member who signs on to such a letter will have to submit a separate letter to the Appropriations Committee on official letterhead verifying the purpose of the funding request and certifying that neither the Member nor their spouse has any financial interest in the requested project.

Another GOP legislative aide noted that the House ethics committee has offered no training sessions or guidance as to exactly what “financial interest” means in regard to earmark requests and what might be considered a conflict or not.

Furthermore, if even one Member signing on to a letter fails to submit the additional certifying letter, the Appropriations Committee will not consider the request because it will be considered in violation of the rules. For instance, if 100 Members sign a letter but one does not submit the form, the request will be null and void in the eyes of the panel.

As a result, Congressional aides say there has been a notable drop in multi-Member letters. “It’s been a lot of guesswork,” said one legislative aide to a GOP Member who does not sit on the committee. “No one is sure what they can ask for anymore.”

Added another aide: “We’ve had very little communication this year. I’ve seen hardly any letters.”

What that means, some aides have argued, is that the Appropriations Committee will have even more authority over earmarks if rank-and-file Members are reluctant to make their requests known in ways such as multi-Member letters.

Appropriations lobbyists said group letters have become a powerful tool for securing funding requests. “We get half a dozen clients funded that way,” said Rich Gold, who heads the lobbying practice at Holland & Knight.

Several lobbyists said they often draft the language of the letter, then shop for Members to sign on. The Members first to support the letter typically ask their colleagues to join them, while lobbyists behind the request follow up and try to stir grass-roots support.

A former Appropriations staffer said the committee looks at both the number of Members behind a request and their overall clout. “If you get a letter from five guys, you can ignore it, unless it’s got leadership or a member of the committee,” the former aide said. “You usually have to get at least 30” signatures.

On Monday afternoon, Troy Zimmerman, director of government relations for the National Kidney Foundation, was awaiting word from an office he hoped would sign on to a letter requesting funding for a chronic kidney disease program.

The foundation kick-started the program two years ago by securing $1.8 million for research at the Centers for Disease Control and Prevention. Funding was flat last year, and now Zimmerman’s group is looking for an increase.

He said he believes the new rules count requests only for projects, not programs, toward a Member’s tally, meaning his request would not be impacted. But he was unsure. “I don’t know if we’ll be able to get a letter out,” he said.

Another lobbyist said success at finding signatures for a group letter will depend on which Appropriations subcommittee will take it up. He said the subcommittee on Energy and water is not placing any limits on requests. But the subcommittee on the Interior and environment is clamping down, allowing Members to ask only for five items. “The process is definitely more competitive, and Members are very antsy,” he said.

One GOP legislative director said the new disclosure requirements were not overly burdensome. “We’ll easily adjust,” the aide said, noting that Member offices’ frustration was more over the lack of one cohesive policy on the new reforms — and what could count against a Member’s individual earmark requests — coming from the spending panel. “The Appropriations Committee has been cryptic about what they want, typical of the committee,” the aide said.

The aide said that one consequence of the reform also could be to shed sunlight on how members of the Appropriations Committee tend to receive a disproportionate amount of earmarked funds.

“What this process is going to uncover is the gross amount of earmarks that appropriators have been giving themselves,” the aide said. “What you’ll probably see as a result is appropriators put some leashes around themselves this year.”

Regardless of the new reforms, earmarks will be cut back this year, as Obey already has made it known in a Feb. 9 “Dear Colleague” letter that the panel is going to cut by 50 percent the dollar amount of earmarks in appropriations bills.

While the new earmark reforms may be unclear and have unnecessary consequences, complaints largely will fall on deaf ears because the earmark process has been under a firestorm of criticism in recent years as the number of earmarks skyrocketed under a GOP majority, and Democrats pledged to clean up the process when they won control of both chambers.

One Democratic leadership aide said Monday that the House could consider even broader reforms when the House takes up the conference report on the ethics package, likely before the Easter recess.

“Earmarks were out of control,” said one Democratic aide familiar with the Appropriations Committee. “I don’t think the argument that [appropriators will have too much control] holds water because we’re cutting projects across the board.”

The aide acknowledged that the new requirements have received widespread and bipartisan criticism but added that the end goal is not to limit Member requests. “The goal is to honor the intent of these Members,” the aide said. “The process will work itself out.”

Tory Newmyer contributed to this report.

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