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.”