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 As stated, this executive order could be rescinded by the next president with simply the stroke of a pen, or he/she could choose to enforce it.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.