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

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Future of Earmarks Discussed at GOP Retreat (1/25/2008)

House Republicans are meeting this weekend to discuss their policy platforms for the legislative session. One of the first topics is how the GOP plans to address earmarks in the near future. Although there are a number of proposals, and the issue is murky at best, House Minority Leader John Boehner (R-OH) plans to come back to Washington with a “caucus-wide position.”

In January of 2006, the former Republican majority was entrenched in the fallout of a number of lobbying and ethics issues. Following the fall of former powerhouse lobbyist Jack Abramoff, the American public began to pay more attention to the way Congress conducts business. While the public scrutiny of lobbying practices rose, a special focus on the spending practices of Congressional leaders became a top priority for reformers. People wanted to know who was asking for special spending projects, and who was receiving that money. Republicans began looking into reforming the earmarking process.

Once the new Democratic majority took over in 2007, lobbying and ethics reform was on the list of top priorities. New rules were put in place that required members to put their name on their requests, which could no longer be added in conference. However, some reformers noted that knowing who is asking for these funding projects does not do anything to keep earmarks from getting out of hand. Rep. Jeff Flake (R-AZ) made it his personal mission to dispute most of these earmarks on the House floor, bringing more scrutiny to how Congress spent taxpayer dollars. Both parties want to keep the practice of earmarks in play, because bringing funding to a congressional district is a good way to work towards reelection. However, most lawmakers agree the process still needs to be reordered.

Republican leaders in the House are discussing ways to handle the issue. One suggestion is to put a year-long moratorium on earmarks for FY09 until a long-term solution is reached. However, with elections coming up in November, most members of the House will not be willing to let go of such a powerful campaigning tool. A more practical suggestion is to create a joint committee to oversee the process, hopefully making spending projects more transparent.

Earlier this month, Office of Management and Budget (OMB) Director Jim Nussle announced that he would review the more than 11,000 earmarks in the fiscal year 2008 omnibus bill, and see if there was any Executive authority to eliminate those deemed too wasteful. However, considering the fact that all lawmakers enjoy the political benefits of earmarking, Republican support for those projects is likely to keep Director Nussle from eliminating a significant number of earmarks. There is little doubt that the whole process will continue, the only question is how Congress will choose to regulate itself when it comes to targeted spending.

Resources:
Alan K. Ota, “GOP Seeks Consensus on Earmarks at Retreat,” CQ Today, January 24, 2008.
Author: SAS

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Earmarks Under Review (1/18/2008)

The fiscal year 2008 budget debates have not ended. Last week we detailed how the U.S. Department of Education revised the numbers produced by Congress due to slight calculation errors. While the changes were not significant, they were enough to give fiscal administrators pause.

This week, the discussion turned to the earmarks in the final appropriation bill continued. Before signing the fiscal year 2008 (FY08) appropriations bill on December 26th, President Bush stated his intention to scrutinize all the earmarks in the bill. “I am instructing budget director Jim Nussle to review options for dealing with wasteful spending in the omnibus bill.” Now Congress returns over the next two weeks expecting an executive order, or some administrative measure, by the President to direct agencies to ignore spending earmarks.

This will not go over well with the Congressional appropriators, neither Democrat nor Republican, who will certainly resist any infringement on their legislative prerogative. The National Journal reports that President Reagan was the last President to threaten earmarks in such a manner. In 1988, Reagan ordered his budget director Jim Miller to scrutinize earmarks in a legislative measure, but the Congressional leadership in both parties trounced the effort.

Many expect the same result from President Bush’s effort. It is certain that, if Bush executes such an order, that the chairmen and ranking members of the appropriations committees and the Republican and Democratic leadership will reject any limitations to their power of the purse. This is not a tolerable precedent for Congress. That much is certain.

Resource:
“Congress Braces For Potential Anti-Earmark Executive Order,” National Journal, January 14, 2008.
Larry Kudlow, “Bush’s Very Good Year,” National Review Online, December 21, 2007, http://article.nationalreview.com/
Author: DAD

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Congress Sends Lobbying Overhaul to President’s Desk

Congress passed the first major lobbying and ethics reform legislation this week. S. 1, the Legislative Transparency and Accountability Act, passed through both chambers with large bipartisan report (83-14 in the Senate and 411-8 in the House). Many Republicans criticized the bill for not going far enough to end the private and often unethical practices on Capitol Hill, but after a year and a half of failed legislation after the public downfall of former lobbyist Jack Abramoff, even critics feel this is a step in the right direction.

Under the bill:

• Earmark sponsors have to be identified, and the earmark information must be posted in a publicly available database at least 48 hours before any votes on the provisions;
• Members of Congress, as well as presidential candidates, have to start paying the equivalent of charter fares for rides on private planes;
• Members and their staffs are barred from accepting gifts from lobbyists;
• Congressional and presidential candidates are required to report when lobbyists arranged donations and delivered them as bundled contributions once the bundles reach $15,000 during a six-month period;
• Senators may still place anonymous holds on nominations and legislation, but the cloak of anonymity could dissolve after six days with the unanimous consent of the Senate;
• Committee chairmen are required to identify any “congressionally directed spending item,” limited tax benefit or limited trade benefit; and
• The majority leader or parliamentarian would identify “dead of night” provisions added to conference reports that were not passed in either the House or Senate version of the underlying legislation.

Nearly a year and a half after the Abramoff scandal, this legislation marks the first advanced step toward lobbying and ethics reform. Both the House and Senate adopted certain rules for their own proceedings, but these rules do not constitute federal law. As such, this bill is lauded as the most significant institutional overhaul effort in more than a generation. S. 1 now heads to the White House for the President’s signature.

Resources:
Bart Jansen, “Changes Already a Topic for Just-Cleared Lobbying and Ethics Measure,” CQ Today, August 2, 2007.
Tory Newmyer, “Senate Passes Ethics Reform; Measure Moves to White House for Signature,” Congress Now, August 2, 2007.
Author: SAS

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House Passes Lobbying Bill

More than a year after the Jack Abramoff scandal brought lobbying and ethics reform to the forefront of the political arena, the House finally passed a new lobbying reform bill yesterday, amid internal strife and multiple accusations from Republican leaders that the bill is a watered-down version of the bill that passed through the Republican House last year. H.R. 2316, the Honest Leadership and Open Government Act, passed by a vote of 396-22, after the minority won two key victories in shaping the bill they criticized as too weak to affect the lobbying and ethics problems on Capitol Hill.

The Democratic leadership brought up two separate lobbying bills yesterday, including H.R. 2317, the Lobbying Transparency Act, which amends the Lobbying Disclosure Act of 1995 to require registered lobbyists to file quarterly reports on contributions bundled for certain recipients. House Republicans were able to amend the bill to require lobbyists to disclose whether they had bundled donation checks for political action committees. The amendment passed 228-192. Republicans were then able to attach the bill as an amendment to H.R. 2316, the larger lobbying overhaul bill.
The bill is now ready to go to conference with S. 1, the lobbying reform package the Senate passed at the beginning of the year. Under the two bills, lawmakers would have to reveal negotiations for private-sector jobs while still serving in Congress and would have to recuse themselves from any legislation where there could be a conflict of interest with potential employers. The lobbying provisions affect only activities involving Congress. They would not apply, for example, to former members who wanted to lobby the administration or state governments. The House bill would double the civil penalties for violating the disclosure rules, from $50,000 to $100,000; the Senate bill would permit fines of up to $200,000.
The biggest difference between the two versions is the Senate’s proposed two-year lobbying ban by former members of Congress. The House rejected a similar provision in the Judiciary Committee markup May 17th, and House members are unlikely to embrace anything beyond the current one-year “cooling off” period before members can cash in and lobby their former colleagues on Capitol Hill.
Resources:
Martin Kady II, “House Passes Lobbying Overhaul,” CQ Today, May 24, 2007.
Author: SAS

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