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Grounding the Pelosi-Murtha Earmark Machine
Congressional influence on the executive goes far beyond legislative action.


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Phil Kerpen

House Democrat John Murtha, chairman of the Defense Appropriations Subcommittee, has made it abundantly clear that the Democrats’ supposed moratorium on earmarks is inadequate. Ironically, the result of that moratorium could be to make earmarking even less subject to public scrutiny than it was before, since it will now be performed informally — with no paper trail.

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To see this we must visit the controversy currently circling House Speaker Nancy Pelosi.

Since 2001, the speaker of the House has been provided with a military plane for security reasons, which is not unreasonable given that the speaker is a constitutional officer who falls immediately behind the vice president in the line of succession for the presidency.  From 2001 until last year, Speaker Dennis Hastert used a 12-seat military jet to travel between D.C. and his Chicago-area district. This year, the Pentagon offered Speaker Pelosi use of the same jet, but she is insisting on a much larger military transport that can make the longer flight to her California district nonstop.

Now enter John Murtha, who has made it clear that Pelosi will get the bigger plane — or else the Pentagon will pay the price.

Murtha has boasted that he doesn’t need to pressure the Pentagon over the matter: “I just tell them what they need to do.” He also has said that the Pentagon made a mistake by leaking the controversy to the public, since Pelosi “decides on allocations for [the Pentagon].”

What does this have to do with earmarks? It reveals how congressional influence on the executive goes far beyond legislative action.

Congress doesn’t have to pass a law providing for Pelosi’s use of the plane, and it similarly doesn’t have to pass a law funding its favored pork-barrel earmarks. Threats to withhold future funding, explicit and implicit, are almost certainly being deployed to “persuade” agencies to fund earmarks. If Murtha & Co. can make threats like this in the newspapers, imagine what they’ll threaten in private phone calls.

President Bush, however, has a tool at his disposal that can solve this problem: the executive order. Bush should issue an order that requires executive agencies to both disregard such requests and mandate that all awards of federal funds not specifically required by law be based on competitive bidding or formula-driven processes. (Americans for Prosperity has assembled a coalition of 12 national taxpayer advocacy groups urging the president to issue precisely such an order. Several senators, led by Jim DeMint, have echoed this call.) This would mean an end to Congress’s pork-barrel priorities, as well as those of the administration, making it clear that the president’s commitment to earmark reform is based on principle and not partisan interest.

Such an order would remove all the potential for mischief that is inherent in a system that gives agencies wide discretion in determining who will receive federal awards. It also, in a single stroke, would eliminate about 90 percent of the earmarks that have been enacted in recent years, since these earmarks have appeared only in report language. Report language does not meet the presentment clause of the Constitution and therefore does not carry the force of law. Congressional Democrats, in the continuing resolution recently passed in the House, reiterated the fact that earmarks in report-language can be ignored.

Nobody is questioning Congress’s power of the purse, but that power should not extend to individual members of Congress who tell agencies “what they need to do” with threats of funding cuts. Congress has a proper means for telling agencies what to do — it’s by enacting laws, with all the visibility of the legislative process.



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