There Are Ways to Make Earmarking Process Work Better

Earmarks are back in the spotlight. For years, of course, we were out of whack entirely, as the earmark system careened out of control, resulting in not just a lot of added spending, but in a genuine climate for corruption. When every Member of Congress knew that he or she had a huge sum in projects and contracts to allocate as the Member saw fit, with no close scrutiny, no real transparency, and a green light from leaders to use the process as a fundraising tool, it was the Gilded Age Redux.

We had Members like ex-Rep. Duke Cunningham (R-Calif.) who engaged in outright bribery, including creating a menu for contractors to choose from--for X dollars or considerations, this size contract, for Y dollars, this earmarked project, and so on. We also had Members like Rep. John Murtha (D-Pa.), who steered earmarks that appeared to benefit relatives, friends and staffers, and others who made sure to benefit themselves, via campaign contributions or other ways. One way, still not adequately investigated or enforced, was for lawmakers to create earmarks that enhanced their real estate holdings; the most notorious was former Speaker Dennis Hastert (R-Ill.), who became rich when an earmark for a highway interchange that was not requested by local officials or local residents, but was conveniently close to property he owned, caused his property to mushroom in value. He was not alone.

Those excesses did lead to significant reforms, including more transparency and some significant tightening of the number and amount of earmarks. But obviously, they have not disappeared, and the problem has vaulted back into the public eye both with the scandals involving PMA Group, which lobbied Members for earmarks for its clients, and with the 8,570 earmarks amounting to $7.7 billion in the $410 billion omnibus spending bill.

Many lawmakers, led by Arizona Sen. John McCain (R) and Rep. Jeff Flake (R), both longtime earmark scourges who have resolutely resisted the wrath and retribution of their colleagues, exploded at this revelation; the Republicans, especially, have aimed barbs at President Barack Obama for not vetoing the bill.

Let us grant that Congressional leaders were obtuse and tunnel-visioned when they forged ahead with those earmarks. Nonetheless, if I were advising Obama, I would tell him to sign the bill. A veto would enrage your allies (and privately, some of your adversaries) in Congress as a cheap shot. You have higher priorities at the moment than picking a fight with your own leaders in Congress over a few billion dollars, especially when most Members of both parties have eagerly offered their own earmarks. That would not pass any cost/benefit analysis. The real issue is what a president and Congress can do to make a fundamental long-term difference in the earmark process.

President Obama has higher priorities at the moment than picking a fight with his own leaders in Congress over a few billion dollars.

What does it mean to make the earmark process work? First is to recognize that somebody in the federal government will be making allocation decisions, which is what earmarking happens to be. To put it in simplistic terms: Should those decisions be made by faceless bureaucrats who may have no connection to local areas, and no understanding of local priorities, or by Members of Congress, whose life blood is to be connected to their districts? But if many of the decisions are made by Congresspeople, how can we avoid the excesses, either wasteful spending, bribery or other quids pro quo, including campaign contributions, favors done for family or staff or lobbyists?

We need transparency, more than we have achieved through the reforms of the past couple of years. Real transparency means all earmarks available on the Web for enough time, meaning weeks, that people around the country can examine the list and probe for anything out of line or suspicious. We need not only identify where the earmark request came from, but make sure that if it requires contracts with private companies that the process of implementation is fair and above board--get rid of no-bid contracts, earmarks structured cleverly so that only one favored company can compete and benefit.

We also need better ways to make sure that earmarks reflect genuine priorities for the country and for local areas. And we need further safeguards to make sure that corruption, via earmarks that enrich directly or indirectly Members or others in their constellation, and via a cozy relationship between lobbyists who earn big fees for getting earmarks into bills and who provide campaign sustenance for the lawmakers who do what they want, doesn’t routinely occur.

I will judge President Obama not on whether he postures by vetoing a spending bill, but by whether he crafts and pushes this next generation of reforms.

But I will also judge Congress by whether the Members do more to make sure that the earmark decisions in fact reflect genuine local priorities and a careful eye on the use of taxpayer dollars, and build more safeguards to protect against both corruption and the appearance of corruption. Here is the best next step to achieve that goal: local and state advisory boards or panels on legislative priorities.

The model here is what many Senators have done to create a balance and reduce bias in the selection of federal district judges and other top judicial and law enforcement posts. For example, in Florida, Sen. Bill Nelson (D) and Mel Martinez (R) have created a Judicial Nominating Commission to select finalists for judges, U.S. attorneys and federal marshals, with 56 members divided into three geographical boards. The focus, of course, is on quality, and the two have in large measure taken partisanship out of the equation for jobs where it should not be a major factor.

Why not apply this broad principle to earmarks? I would like to see a series of such boards, consisting of local officials, representatives from business, labor and academia, charged with producing a yearly evaluation of the economic and social needs of the Congressional district or state, in order of priority. There could be a state-level board, created by both Senators regardless of party, along with a series of Congressional district panels. Their project and grant lists would be made public. Earmarks introduced by the relevant lawmakers could be judged on the basis of the priority list.

If a Member pushed an earmark not on the list, or low on the list, he or she would have some explaining to do. If a lobbyist pushed a Member to introduce an earmark for a client, the lawmaker would run the request by the priority board members to see if it fit their criteria; if so, it would give some substantial rationale and backing to the request, taking it out of the realm of suspicion as a quid pro quo.

Of course, this would not ensure the elimination of waste. Many things that local areas want are wasteful. We are spending billions on weapons systems that are outdated or unneeded because local communities want to keep the jobs they represent. That is why we also need the other rules, like more transparency, more time to evaluate line items, and more control over contracting, along with a budget process that actually sets national priorities and puts some constraints on local wish lists. If you add these reforms to a new set of advisory panels, we can come much closer to a reasonable balance.

Norman J. Ornstein is a resident scholar at AEI.

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