Earmarks infection

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A recent poll NBC / Wall Street Journal poll found an astounding 39 percent of Americans consider appropriation earmarks, or "pork," the most important matter for Congress to address before adjournment -- more important than immigration, tax cuts, and lobbying.

It is obvious that overspending by Congress, stories of relocating a recently rebuilt railroad, erecting an indoor rain forest, providing subsidies for shiitake mushroom research, dog therapy and housing, music education at the Rock 'n' Roll Hall of Fame, and suchlike have caught the public's attention. They demand change. The president can give it to them.

One of the little secrets in Washington is that the vast majority of earmarks are not included in appropriations bills, but are described in the committee reports that accompany those bills. Since these mandates don't meet the presentment clause of the Constitution, they are not law and can be ignored. What cannot be ignored is the appropriation itself. The Congressional Budget and Impoundment Control Act requires the president to spend the money on the account for which it is appropriated, but not on the specific items listed in the committee reports.

In his 1987 State of the Union address, President Reagan held up a copy of the recently approved omnibus appropriations bill, cited a bevy of pork committee reports, and announced, "if you send me another one of these I will not sign it" -- and promptly received a standing ovation from the very people who had sent it to him in the first place. The next day, as the president's budget director, I endeavored to do something about report-mandated pork.

After checking with the Justice Department's Office of Legal Counsel as well as my own general counsel and being assured a string of court precedents had affirmed report language is not law, I instructed each executive agency head to spend money on the accounts appropriated but to spend it wisely, and in no case spend the money on projects inconsistent with the president's program (read: "ignore the pork").

Then all hell broke loose. The White House switchboard was jammed with calls from Capitol Hill to "do something" about this "madman" trying to "wreck our environment of comity" and trying to "dissolve the glue [read "pork"] that holds appropriations together." Many in the West Wing headed for the tall grass. Agency heads, fearing retaliation, were slow to affirm they wouldn't move forward with pork projects. The appropriators even zeroed-out the Office of Management and Budget. The president was distracted by the Iran-Contra scandal and couldn't help. I gave up.

The situation is different now, and, after all, he is the president. By telling members of Congress they won't prevail in their pet projects, the president should be able to reduce earmarks included in new appropriations. It is possible, of course, members will respond with even more earmarks, knowing they won't come to fruition. This would allow them to take credit for their efforts with their constituents and blame the president for their inability to bring home the bacon. And, they might start including more pork projects in the appropriations themselves, in which case the president's only resort would be to veto the bills.

On the other hand, like the criminal who walks into the police station and cries, "Stop me before I kill again," Members of Congress may well welcome the president's initiative. They know the controversy over earmarks hurts them all, but as long as earmarks are available, each member must get his or her fair share.

Though imperfect, this approach is superior to the one the president has chosen. Though characterized as the "legislative line item veto," the president's proposal is really a form of "enhanced recession," an idea first raised by then-Sen. Dan Quayle.

A recession is basically a presidential request that Congress "de-appropriate" certain items. The problem is that typically Congress ignores such requests. Under the president's plan, Congress would pass a bill, which then he would sign into law, forcing an up-or-down vote on each recession. Presumably, the president would then send up recessions on individual earmarks or groups of earmarks. The problem is, Congress is not likely to give him such authority -- at least not without the threat of what is outlined here.

The President doesn't have to wait for Congress to act on earmarks. He can take them on himself.

James C. Miller III, a former budget director for President Reagan (1985-1988), is a member of the board of Americans for Prosperity.