Executive Order on Earmarks (2/1/2008)

During the State of the Union, President Bush spoke out strongly against earmarks. “I will issue an executive order that directs federal agencies to ignore any future earmark that is not voted on by Congress.” On Tuesday, true to his word, President Bush signed Executive Order 13457, “Protecting American Taxpayers from Government Spending on Wasteful Earmarks.” The order requires all executive agencies to “take the necessary steps” to ensure that agency decisions to commit, obligate, or expend funds for any earmarks are based on the text of laws. Earmarks should be “included in the text of the bills voted upon by the Congress and presented to the President.”

According to the order, the agency decision to commit, obligate, or expend funds for any earmark should be based on statutory criteria and merit-based decision making. No oral or written communications concerning earmarks shall supersede statutory criteria, competitive awards, or merit-based decision-making.

To facilitate the agency decision, the order directs agency heads to refer to Office of Management of Budget (OMB) Memorandum M-07-10, dated February 2007. In this memorandum, former OMB Director Robert Portman directs agencies to act with transparency and according to government-wide and agency regulations governing the selection of grant recipients or contractors.

“In the application of authorized discretion,” wrote Portman, “each agency shall use transparent and merit-based determinations to achieve program objectives, consistent with the purpose of the statute and Administration policy (including the President's Budget).” In the event of additional lobbying from Congress in favor of an earmark, the order requires all agencies to post all “written communications” from Congress recommending the inclusion of an earmark on the Internet, not later than 30 days after receipt of such communication.

In short, the executive order strongly directs executive agencies to encourage transparency in the way they manage earmarks (which is a good thing), but in no way does it eliminate the activity. The matter remains a Congressional practice stemming from the power of the federal purse under Article I, Section 8, Clause 1 of the United States Constitution. Members of Congress must, ultimately, regulate this practice themselves. How they plan do that, however, is a political hydra that is still emerging. We will continue to monitor and report on the matter as this election year develops. Please find the Executive Order attached to this email.

Resource:
“President Bush Signs Executive Order Protecting American Taxpayers from Government Spending on Wasteful Earmarks,” The White House, Press Release, http://www.whitehouse.gov/news/releases/2008/01/20080129-3.html.
Author: DAD