- The Washington Times - Wednesday, May 23, 2007

As regular readers of this column know, I’m a disciple of parliamentary procedure. Understanding the power of a “motion to recommit” or when to “move the previous question” is a strange but safe personal indulgence of mine. My baseball-fan wife can tell you how many games the Washington Nationals won at home versus on the road; I’m better prepared to recount the number of “closed” versus “open” rules in the House of Representatives this year.

But my fascination with procedure is grounded in a deeper principle. After watching and studying lawmaking for 25 years, it’s clear process dictates policy. Others agree. Congressional scholar Walter J. Oleszek, in his book “Congressional Procedures and the Policy Process,” recounts the adage of House Energy and Commerce Committee Chairman John Dingell of Michigan, “If you let me write the procedure, and I let you write the substance, I’ll (beat) you every time.”

This week’s controversy about Rep. Jack Murtha, Pennsylvania Democrat, threatening one of his Republican colleagues over the treatment of an earmark that Mr. Murtha included in the intelligence authorization bill is case in point. Some believe the root of this dust-up stems from Republicans lacking an effective procedural mechanism to challenge earmarks due to current Democratic parliamentary practices.

House Republicans last fall passed new rules making earmarks more transparent, including a procedure to reject legislation that did not properly disclose them. Here’s how it worked: Every bill or conference report had to contain a list of earmarks along with the name of the member requesting each one — or a statement from the chairman of the committee certifying the legislation did not include any earmarks. Absent such a list or statement, the legislation was subject to a point of order — a so-called question of consideration. If the House voted and sustained the point of order, the entire bill was rejected.

At the beginning of this Congress, Democrats adopted most of the Republican earmark plan, incorporating it into the new House rules. But an interesting twist in its application makes it harder to remove earmarks — even after their disclosure — on most legislation. Under the Democrats’ rule, if a committee chair either includes a list of earmarks or certifies the bill does not contain any, the point of order is “turned off” and can’t be raised on the House floor. So lawmakers have to trust the chairman’s representation that the earmark list is accurate, and they have limited tools to challenge it. Under a so-called open rule, an amendment to strike an earmark could be offered. But other than that, once the list is disclosed, the point of order to block the bill can’t be raised and a motion to strike the earmarks is not in order.

Last year’s Republican practice allowed any member to raise and debate this point of order about objectionable earmarks when the House was considering the rule on a bill, (in the House most major legislation is preceded by a separate measure called “a rule,” which lays out the terms of the debate, how long the House will consider the bill and which amendments are considered). But Democrats now structure the procedure differently. As long as a chairman provides a list of earmarks or certifies the bill contains none, the procedure to question the consideration of the bill because of earmarks is turned off — at all stages of the process. Democrats are saying, “you need to trust us” — but there is no way to verify.

A Republican House Rules Committee document states: “The current practice provides a Member with no opportunity to debate the (earmark) question because the chairman of the committee will provide either a list or a statement that no earmarks exist, ‘turning off’ the point of order against the bill, and the failure to waive the earmarks point of order in the rule eliminates the opportunity to debate the question on the rule.”

This new practice takes away a major earmark enforcement tool, thereby limiting lawmakers’ ability to kill a bill over this type of objectionable directed spending. Under the Republican procedures last year, lawmakers could potentially defeat any legislation that included unwarranted earmarks by raising the earmark question when the House debated the rule on a bill. But according to knowledgeable Hill experts, based on the current practice, that is not possible today. The new Democratic practice — while not appearing on the surface to do so — actually helps protect earmarks. It’s a reminder once again that process sets policy.

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