Like the weather, federal spending earmarks have been much-maligned but never addressed. However, unlike the weather, something could be done if congressional budget hawks just look at a little-known Senate budget procedure that just celebrated its 20th anniversary.
It is not surprising pet project spending got so much attention in 2005 with its high underlying deficits compounded by unexpected additional disaster expenses. On top of this, earmarks piled on unprecedentedly. In addition to their customary venue of annual appropriations, they appeared in everything from disaster relief to Homeland Security funding with their most focal appearance being in the $280 billion federal highway bill, which earmarked $24 billion for 6,400 specific projects — up from 1,850 earmarks in the 1998 highway bill.
Yet despite their inopportune proliferation, the same old solutions have been proposed to address them — shame through public vetting and removal by presidential veto. Vetting and vetoing is have proven ineffective largely due to their coming after-the-fact. If earmarks are to be truly solved, rather than simply lamented, they need to be scrutinized, challenged and removed before reaching the president’s desk.
Does such a solution exist? Not only is there one, but it has a proven track record in the Senate. Its template is the Byrd Rule, a well-known law to those who follow the Senate’s arcane budget reconciliation budget process.
Budget reconciliation is the process for carrying out the spending and tax numbers in the Congressional Budget resolution. The Byrd Rule simply allows any senator to challenge particular items deemed “extraneous” to a reconciliation bill.
Does the Byrd Rule work? Yes, extraordinarily well. From 1985 through 2004, it eliminated 42 of 55 targeted provisions, according to the Congressional Research Service. The reasons for this success are fourfold:
(1) The law includes a criteria list for determining if a provision is extraneous. That is, an extraneous provision is explicitly defined in the law, making targets easy to spot.
(2) The scrub-work (commonly known as a “Byrd bath”) is also required by law. The Senate Budget Committee is required to produce a list of extraneous items before the bill comes to the floor. This presents a roadmap for hunters.
(3) Once challenged by any senator, and sustained by the presiding officer, the provision is automatically stricken — “Byrd droppings” in the Senate vernacular. This turns the tables, putting the onus on the provision’s defenders, rather than its challengers.
(4) And finally, for reinstatement a provision’s defenders must obtain the votes of 59 other senators. History shows such a 60-vote supermajority can be very hard to come by.
This effective process could be easily adapted to hunting earmarks. Unlike its current Senate-only applicability, it could be expanded to both bodies of Congress.
Earmarks could be defined if they met one of several criteria: If not authorized by other legislation, if they apply only to a limited population or locality, for a single project, a one-time grant, are unrelated to the underlying bill — each would be logical earmark definitions. Such definitions could be applied to all spending bills and the Budget Committees in both houses could be required to submit a list of qualifying provisions — a job which comports with their oversight responsibilities.
Any member could be allowed to challenge a provision and, if the body’s presiding officer so-ruled, it would be removed unless a supermajority overruled the decision.
By applying such a rule to both bodies, it would mean a surviving earmark was truly worthy — having survived bicameral scrutiny. It also would mean each body got to examine the other’s projects.
Such a system would have much to recommend it. It would avoid any potential constitutional problem because Congress would be policing itself — not intertwining two government branches in the process. Allowing any member to challenge a provision would deputize every member a potential budget watchdog. And importantly, the process would occur before the president received the legislation, thus avoiding the complexity of constitutional confusion that caused the Supreme Court to overturn the first line item veto law in 1998.
There will still be those who doubt such a system’s efficacy. Some will say the pork barrel nature is “to go along, to get along” and members wouldn’t challenge another’s earmark in order to protect their own.
Cynically compelling as this logic may be, it hasn’t proven true with the Byrd Rule. Yet even if such logic held, the onus would be reversed and the burden laid on the earmark’s defender rather than its challenger. And even if certain earmarks prevailed, they would still have been subject to ruling, debate, and vote — none of which exists today.
If earmarks are a problem and Congress is serious about them, it has a proven solution at hand — one with two decades’ effective testing. And if its potential weren’t great enough already, it could have a bonus. Replicating the Byrd Rule’s success on all spending bills could have a real upstream effect. If earmarks became vulnerable to challenges and their money forfeited, spenders would be reluctant to insert them in the first place. Thus Congress has an opportunity to not only go after earmarks, but change its spending dynamic as well.
Perhaps this year, instead of an open season for earmarks, Congress could have an open season on them.
J.T. Young served in the Treasury Department and the Office of Management and Budget, 2001-2004.