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An earmark by any other name…. is still an earmark

February 7, 2011 - by Donny Shaw

When Congress recently agreed to stop earmarking, they of course were not agreeing to deny themselves the ability to load up bills with funding for their favorite pet projects. They were simply agreeing to end the formalized annual process of submitting requests to the appropriations subcommittees to be included in the annual appropriations bills or the accompanying committee reports. The plan now is to just put all their earmark-type stuff in other, non-appropriations bills, and do it without any of the disclosure requirements that came along with the old process.

Politico reports that the very first bill in the Senate to come to the floor since the earmark ban was announced actually contains …wait for it… earmarks!

Earmarks might be on the outs in Washington, but the first bill on the Senate floor since Democrats reluctantly embraced an earmark ban is still chock-full of expensive aviation pet projects that lawmakers are eager to defend for their voters back home.

Tucked inside a current draft of a bill to fund Federal Aviation Administration programs are legislative line items that would direct money to state-specific projects and programs, including $12 million to subsidize flights to 44 rural communities in Alaska, a land transfer for a new airport in Nevada and new airspace testing sites likely in Oregon.

While the line items don’t fit the strict definition of appropriations earmarks, the FAA bill shows how the deft use of legislative language by senators can accomplish the same thing — making sure their home states are taken care of with special projects. Critics call these backdoor earmarks, while defenders say they’re not violating the rules of the ban and are doing an important part of a senator’s job.

Last week, the Senate barred earmarks from spending bills that wind through the Appropriations Committee, but the scramble to keep sending money home raises the question of what is — and isn’t — an earmark.

“The earmark ban is only, as I understand, for the appropriations bills,” Sen. Mary Landrieu (D-La.) told POLITICO. “There are probably, I haven’t looked, there are half a dozen earmarks in this [FAA] bill that we’re on now.”

Got that? The bipartisan position among members of Congress is that it’s not an earmark if it’s not in one of the 12 annual appropriations bill. So, even if it’s a line item in a bill that was requested by a specific member, directs funds to a specific project, and authorizes those funds to be disbursed, if it’s not in an appropriations bill, it’s not an earmark.

As absurd as that sounds, I’d say it’s actually not as absurd as the logic behind the whole earmark ban itself. There has never been a single definition of what exactly an earmark is. In the most general sense of the word — a congressionally-directed spending item — the entire budget is earmarked because Congress is the entity that decides how to divvy up the federal funds. Instituting a ban on earmarks gives Congress a chance to define the word, and what they chose to have it mean just happens to be one of the most transparent elements of the appropriations process — member line items. Obviously, disclosure of those earmarks could have (and still should) be dramatically improved, but the alternative that we’re entering now is definitely worse. There are no clear rules, no single place for reporters and citizens to look to find out who’s responsible for what areas of spending, and no way to judge what kind of impact earmarks are having on the budget.

This is why we need earmark transparency, not a ban. Obama seemed to understand this in his 2011 SotU speech. He called for better disclosure then. Now, led by the Republicans who swept into power this year on a wave of fiscal responsibility, Obama has changed course and called for an outright ban. But let’s be clear. Banning earmarks is not fiscally responsible. It does not reduce the budget or the deficit by one cent. What it does is make the budgeting process more secretive and give more control of the commons to the connected, moneyed interests that are working to manipulate Congress.

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