Earmarks Still Pose Challenge

Panel Scrubs Lands Measure

Posted February 4, 2008 at 6:57pm

Despite the passage of new earmark rules in the House and Senate last year, the definition of what an earmark is and what disclosure is required remains a moving target. As a consequence, the Senate Energy and Natural Resources Committee is scrambling to generate earmark disclosure documentation for more than a dozen legislative provisions that were not declared earmarks when they were passed by the House last year.

Senate Majority Leader Harry Reid (D-Nev.) has said that before the Presidents Day recess, he plans to bring to the floor S. 2483, a collection of several dozen public lands provisions that have been assembled into a single legislative package.

The bill includes measures that have passed the House as stand-alone bills, most of which were not treated as earmarks, despite the fact that many of the bills authorize federal spending for specific projects in specific geographic locations. Sponsors were not required to certify that they do not have a conflict of interest, as earmark rules now require.

The projects in the bill range from $15 million to declare an “Abraham Lincoln National Heritage Area” encompassing 42 counties in — and about half the landmass of — Illinois, to a $12 million authorization for a water-recycling project in Southern California. While there has been some dispute about whether the earmark rules apply to authorizing language as well as appropriations bills, similar projects were defined as earmarks when Congress passed the Water Resources Development Act last year.

While the Congressional Budget Office has not scored all of the measures in the bill, CBO scores that have been conducted suggest that the total cost of the package will be in the range of $250 million.

The Senate Energy and Natural Resources Committee is now assembling paperwork on the provisions because floor staff have concluded that earmark disclosure rules will apply to the whole bill.

The package is apparently the first bill that the Senate Energy Committee has moved since the earmark disclosure rules of S. 1 were signed into law last September.

In a Monday letter to Reid, Energy and Natural Resources Chairman Jeff Bingaman (D-N.M.) wrote that “Ten of the House-passed bills incorporated into S. 2483 contain provisions authorizing the appropriation of specific amounts targeted to specific entities or localities. These authorizations are included in S. 2483 because they are part of the House-passed text. No Senator submitted a request to me to include them.”

Nevertheless, Bingaman wrote, he posted on the committee’s Web site a list of specific authorizations included in the bill, and the name of “the principal sponsor of the Senate companion measure that corresponds to the House-passed bill.”

At press time the list was still a work in progress; the committee had posted letters from Senators certifying that they had no conflict of interest for projects that were not included in Bingaman’s list, and several Senators listed by Bingaman had not yet provided signed certification letters.

In the House, these provisions were not treated as earmarks. For instance, the bill includes $12 million for a Southern California water-recycling project requested by Rep. Darrell Issa (R-Calif.), which passed the House in May as a stand-alone bill, H.R. 30. The bill was never considered by the House Natural Resources Committee — though the committee had approved the project in prior Congresses, before the earmark rules were in place — but was brought to the floor last year under suspension of the rules. Issa never provided a certification that he has no financial interest in the project, as would be required for other earmarks. Issa’s office said he has no financial interest in the project, but has never been asked to provide a certification letter.

Democrats point out that the earmark reforms were intended to prevent secret legislative deals, and were never meant to address stand-alone legislation, which already is carried out in public view.

House Republicans say that they have little control over the earmark rules anyway, and that they provide whatever documentation they are asked to provide, though the demands may change by bill or by committee.

The Senate bill apparently also contains provisions that have already been signed into law. Section 512 of the Senate bill authorizes $20 million for two water projects requested by Rep. David Dreier (R-Calif.) that he had requested in a stand-alone bill numbered H.R. 122. According to his spokeswoman Jo Maney, those provisions already were passed in last year’s omnibus spending bill, and Dreier provided the earmark documentation to the Appropriations Committee at that time.

“Democrats said they had the most sweeping earmark reforms in history, but it was really poorly done,” Maney said. “It’s very haphazard.”

An Energy Committee spokesman said the Dreier provisions will be dropped from the bill on the Senate floor.

Steve Ellis, vice president of Taxpayers for Common Sense, said the Senate is taking the right approach on the lands bill. “When something migrates from being an individual bill to being a project within an unrelated package … they become earmarks in that bill and should have disclosure.”

Ellis said this is the kind of “wrinkle” in the new earmark rules that Democrats should be willing to address. “I can’t imagine that the Democrats would come out and say everything is perfect.”

House Republicans last week sent a letter to Speaker Nancy Pelosi (D-Calif.) recommending creation of a bipartisan panel “to fix Washington’s wasteful pork-barrel spending habits.”

A Democratic leadership aide said “we are committed to disclosing everything that is required by the historic earmark reform Democrats brought about last year. That being said, we are always open to continued improvements.”