What happenned to Bush's State of the Union anti-earmark plan?

Apparently, legislators can spell out certain funding projects in committee reports that aren’t part of the bill that is voted on (earmarks). At least they are buried so deeply that it is difficult for the public or other legislators to comment on them before it is too late.

Apparently in the past these were treated as binding by previous administrations.

In the S of the U, Bush said he would instruct his admin not to spend that money. Makes sense to me and even though he’ll be gone in a year, it would be tough for the next admin to undo it.

I heard very little reaction to it at the time and nothing at all since.

Earmarking is usually done in the conference report that accompanies an appropriations bill. Essentially, Congress will pass the text of legislation which lays which accounts will get how much money. Then they will issue a conference report to accompany the legislation that says, “of the amount we provided for transportation, we want X dollars to go to the Olaf L. Teagle Memorial Bridge in Milwaukee.” The conference report has never been legally binding, but the federal agencies know that if they don’t direct the funding as requested by Congress they’ll probably get their funding slashed in the next year’s appropriations bill.

The President has said that he will order agencies to ignore earmarks in conference reports. Basically, this is just a formula for Congress to start including the earmarks in the text of the legislation itself, which is legally binding and cannot be ignored by the agencies.

Bush has issued an executive order that directs agencies not to comply with earmarked funds in conference reports unless they meet a very strict standard of what the Administration believes is a “good” earmark. Although there is a slight loophole, the executive order would stop the overwhelming number of earmarks. However, the executive order Bush signed does not become effective until fiscal year 2009, which begins on October 1 of this year. As stated, this executive order could be rescinded by the next president with simply the stroke of a pen, or he/she could choose to enforce it.

I should take this chance to discuss some of the claims about earmarks. As mentioned in the OP, there is a belief that earmarks are buried or somehow hidden from public view. As that argument is structured, it is untrue. Earmarks are contained in both committee reports (which explains a bill as it is passed out of a committee so that it may be taken up on the floor of the House or Senate) and conference reports (which explain the final version of a bill that goes to a vote in both houses before it is sent to the White House). These reports have always had to be available to members at the time the bills go to the floor of either house, and since last year there is now the requirement that the reports be available to the public for not less than 48 hours before the bill is called up for debate.

The implication that one cannot know what earmarks are in a bill before it is voted on is false, with one caveat: sometimes the reports are so long that it would take quite a long time to read through the report to understand all the implications in the report. However, it is now also required that the conference or committee reports have a list of all earmarks in the bill, so finding earmarks is no more difficult than turning to the back of the report and looking at a chart.

Another common point is that it is impossible to undo an earmark by an amendment because the earmarks generally do not appear in bill text. This is true for conferenced bills because those are unamendable. (Reminder: after the House and Senate pass different versions of a bill, a conference committee is held to reconcile the differences. The resulting compromise bill is called a conference report, and is brought up for a final vote in the House and Senate so a single version of the legislation can be sent to the White House. Conference reports are generally unamendable because any change would mean that there would have to be another conference so that both houses can pass the identical bill.)

But there is no problem whatsoever in removing an earmark that appears in a committee report to an amendable bill. An amendment may be offered that simply says, “No funds appropriated in this Act may be used for the Ravenman Memorial Bridge Project in Washington, DC.” So while the project may appear in the report, if approved, the amendment would be placed in bill text and would override the text of the report. This is exactly the process used last year to stop the earmark for the rather infamous Woodstock museum in New York.

The other point that has been raised is whether what appears in a conference report is binding law. It is actually a very complex question. The White House maintains that report language simply illuminates congressional intent, and it cannot be law. However, the Government Accountability Office recently issued a legal opinion which states that depending how a bill is constructed, language in a report (such as earmarks) could have the same effect as law. Cite. This has to do with spending provisions which state, “There is appropriated $100 million for such-and-so purposes, which shall be allocated as directed in the report accompanying this Act.” This is not the way Congress generally direct earmarks, but really there’s no reason why Congress couldn’t include that language in every appropriations bill.

Ravenman … thanks a ton for all of the info!!

Do I understand correctly that the original bills have a 48 hour period without exception?

Do the conference reports have the same requirement?

I do seem to recall hearing that the latest strategy is to save the ermarks for those conference reports as a means to get them through.

From your location and knowledge it appears that you may be in “the business”… can you tell us in what capacity.

To add even more to the arcana, the new Ethics rules require a 48 hour waiting period after the conference report is issued and before it is voted on, and prohibits “airdropped” earmarks – earmarks that appear in neither the House nor Senate version of the bill, but are added in conference committee.

However, a conference report is not the only way to settle differences between the chambers. Last year’s omnibus appropriations bill was passed not as a conference report, but as an exchange of amendments between the chambers. The House passed their version, the Senate amended it and sent it back, and then the leaders in the two chambers worked out a compromise and amended the bill in the House and sent it back to the Senate.

This allowed them to evade the new requirements on conference reports. The final version included several earmarks that were not present in the original versions passed by each chamber, and there was no 48 period for Senators and Reps to review the final version.

Politics as usual…promise them anything, reneg it later…this has been Bush’s M.O. since day 1…the man is a pathological liar!


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