The case for earmarks

Bring back pork.

Yes, earmarks. Those bursts of cash that members of Congress used to send back to their districts to pay for everything from Sidewinder missile launchers to hospital equipment and midnight basketball.

Congress formally banned the practice in 2011 after a few too many scandals: The $223 million "bridge to nowhere" in Ketchikan, Alaska, the conviction of Duke Cunningham, who actually wrote down a bribe menu for donors, and annual reports of projects that dripped with bacon grease.

But as is often the case, politicians overreacted to a public-relations crisis. The system invited corruption, and it needed to be overhauled. It shouldn't have been sentenced to death. For that rash reaction, the American public has paid a much stiffer price than the cost of earmarks in the form of a Congress that has become more paralyzed and that has ceded to the president more and more of its constitutional power over the purse.

That's part of a disturbing trend in which the Article I branch of government has handed power after power, including budget, war-making and treaty authorities, to the Article II branch. The Framers put Congress first for a reason, and earmarks, contrary to popular opinion, helped keep it there.

Moreover, earmarks gave congressional leaders more power to reward and punish rank-and-file members; without them, party leaders have less power to push even the most fundamental legislation through Congress.

So, there are two main reasons that lawmakers must take back their porking permit: To grease the locked wheels of government and to begin sliding the balance of Washington power back toward Congress.

To borrow from the movie "Wall Street," earmarks are, for lack of a better word, good. But with the right reforms, they could be much better.

Slow down. What the hell is an earmark?

Over the years, there's been a lot of debate in Washington about just what constitutes an earmark. At one point, pork was a little like porn, of which Justice Potter Stewart famously said it can't be defined, but "I know it when I see it." But we have to do better than that. The definition of what makes an earmark matters for prohibiting pork — and for bringing it back.

At first, an earmark was generally understood as a line in a spending bill directing a portion of the money in the measure to a specific project. Each spending bill carried hundreds or thousands of these tiny infusions of cash for particular projects. By the time they were banned, most lawmakers had earmarks in most of the dozen annual spending bills. That gave each member of Congress a real reason to vote for the bills carrying their earmarks. A member who voted against a bill carrying his or her earmarks risked losing them in a House-Senate conference committee.

When the campaign against earmarks began to gain traction, members of the House and Senate Appropriations committees tried to protect their pork by expanding the definition of earmarks. They pointed out that tax and tariff bills often created targeted breaks for particular businesses or industries. Those should also be considered earmarks, they argued, hoping that that would bring powerful tax-writers to their side. Certainly, the Senate Finance and House Ways and Means Committee wouldn't want to give up their pet projects, too.

They won the battle over the definition of earmarks, but they lost the war.

The House and Senate have effectively banned earmarks, as well as targeted tax and tariff benefits requested by individual members of Congress. Here's the way the House rules define them.

Congressional Research Service

Now, the term "earmark" is broadly used to apply to any effort by an individual lawmaker to provide benefits to a specific beneficiary or a small set of beneficiaries.

But there's something that often gets lost in these definitional debates — something crucial to understanding why earmarks were never as bad as their detractors feared, and why their loss is worse than most realize: earmarks were carved out of the cost of the bills, not added on top. Or, as John Hudak at the Brookings Institution put it, "pork barrel politics determines how the pie is cut; it does not decide the size of the pie."

Earmarks and me: a love-hate relationship

I'm going to pause for a minute and admit something: a part of me hates having to write this piece.

Back in the Aughts, I did a lot of painstaking work to show what was wrong with the earmark system. In 2007, the first year in which the House released the names of earmark sponsors to the public, I built a database of the members who got them, the projects they sought, and the price tag of each request. What I found when I started sorting the data was appalling: black and Hispanic members got half as much money as their white counterparts; politically vulnerable Democrats and Republicans got more money than those in safe districts (so they would have more to brag about in seeking re-election); the people who sat nearest to Defense Appropriations Subcommittee Chairman Jack Murtha got more; and there was virtually no vetting process.

I wrote an 8,000-word series of stories titled "Manifest Disparity" for Congressional Quarterly's weekly magazine detailing my findings, which I could not have reached without the help of a group called Taxpayers for Common Sense. David Rogers, the legendary Wall Street Journal and Politico congressional reporter, approached me in the Senate press gallery after the stories were published and accused me of trying to kill earmarks. I said that wasn't my intention. But that will be the result, he said, knowingly. The blood's not on my hands — I don't pretend to have been that influential — but the story was part of the zeitgeist that brought them down.

The other conclusion I reached — beyond the reasons the system needed repair — was also important, even though it got a lot less attention: The vast majority of earmarks went to worthy projects that weren't necessarily being funded by executive-branch grants. Earmarks routinely went to fund things like a $100,000 bump for a job-training program for people with disabilities in Fort Wayne, Indiana. One man's waste is another man's ladder back into the workforce. And isn't the idea behind a geographically diverse legislature that members of Congress will know and fight for the needs of their constituents better than anyone else?

The problem wasn't in the earmarks, it was in the process that doled them out. Until the very end — when Congress tried to save the system — the sponsors of earmarks weren't publicly named. The money was distributed based on political calculation — to increase the power of a particular appropriator or help vulnerable party members win re-election — rather than being spread equitably or based on the merits of the projects competing for cash. There was no vetting to safeguard against lawmakers exchanging earmarks for campaign money.

That's why I'm enthusiastic about advocating for the return of pork under a new system designed to help Congress pass basic bills, reduce opportunities for corruption, and more equitably distribute the pot of cash.

Why the system sucked

AFP PHOTO/ANDREW CABALLERO-REYNOLDS

The old way of doing things was revolting. The chairmen of the Appropriations subcommittees in the House and Senate — known as "cardinals," like the priests who elect the Pope, because of their power — determined how much money each member of Congress got in earmark money. Rather than vetting the projects, members were told their allocation and they, individually, got to decide how to hand it out among recipients in their districts.

There were at least three major problems with the way the system operated.

First, it allowed members of Congress to trade earmark money for campaign contributions. Lobbying firms with big interests before Congress could be counted upon to deliver bundles of donations to lawmakers, and far too often, the projects those lobbyists favored got funded. There were whole firms founded and funded on the premise that they could secure earmarks for clients.

Second, the allocations resulted in huge disparities between influential and non-influential members of Congress. Take the example of black and Hispanic lawmakers. Very few of them were committee chairmen, which meant they had less power to make trade-offs with appropriators. The chairman of the Armed Services Committee, which writes policy for the military, could be relied upon to accede to requests from the top defense appropriator, who would then ensure that the Armed Services chairman got the earmark allocation he wanted.

Even within the Appropriations Committee, there were very few black and Hispanic lawmakers who held subcommittee gavels — none when Republicans were in control of Congress. Because black and Hispanic lawmakers tended to come from heavily Democratic districts, party leaders — who had a hand in the appropriations process — felt no need to give them extra money to help them win re-election.

Third — and this was a favorite argument of former Appropriations Chairman Dave Obey — rank-and-file lawmakers spent way too much of their time lobbying for bigger allocations. You could tell it was earmark season when Democrats, and sometimes Republicans, lined up in the corner of the House chamber to lobby Murtha, who extracted his fair share of promised votes in exchange for earmarks. Instead of focusing on legislation, members of Congress spent an outsize amount of their time politicking for a slightly larger slice of the earmark pie.

Why earmarks are necessary, part 1: making Congress work again

It would be hard to find a pair with more intimate knowledge of the workings of Congress — and its failures — than former Senate majority leaders Trent Lott and Tom Daschle. Late last year, at a breakfast hosted by the Christian Science Monitor, they explained why they think Congress can't get anything done, and they cited the absence of pork as a major factor.

"We used to cut deals," Daschle said. "And, frankly, earmarks were part of deal-making. ... It wasn’t pretty, but it worked."

There are a limited number of carrots available to congressional leaders tasked with one of the toughest jobs in Washington: making laws. The vast majority of bills never make it out of the drafting stage, and those that do need majority support in the House and, in today's filibuster-fried world, three-fifths of the Senate to pass. And even if they get all that, they might still die in a conference committee if the two chambers can't agree on how to resolve their differences.

Earmarks were the lucre that lay on the table every time major legislation came to the floor. The implicit agreement: vote for a bill that spends billions of dollars on national priorities, and you'll be able to brag about the million bucks that came to your district. For Republicans, a targeted tax break often took the place of an earmark but served the same purpose.

Earmarks were also an opportunity for lawmakers to work together — to pool their allotted amounts — to fund bigger regional projects. In that way and others, they were a boon for that rarest of Washington commodities: bipartisan cooperation.

In 2003, I asked Jack Murtha, the Democratic defense appropriator who controlled about $4 billion in earmarks each year, about Tom DeLay, the Republican leader known as "The Hammer" for his ability to nail down votes. Murtha sat in the far corner of the Democratic side of the House, out of view from the press galleries, and DeLay would sometimes come to visit him before a tight vote. When DeLay needed a few Democrats to secure a win on the floor, Murtha said, "He comes over to the corner, and we work it out." Murtha's earmarking power meant that he had a roster of people who owed him favors. For a little more money, he could easily swing a small bloc of votes to help DeLay pass a bill. Murtha and DeLay didn't agree on much, but earmarks kept them talking, and working with each other.

Of course, not everyone agrees with the idea that earmarks help Congress legislate.

Ryan Alexander and Stephen Ellis of Taxpayers for Common Sense, for whom I have deep and abiding respect, argued in an op-ed last year in U.S. News that there's little evidence that earmarks helped pass legislation.

"Even for bills that were the most heavily earmarked, the presence or absence of earmarks did not seem to make them easier to pass. It took seven years – five more than it was supposed to – to enact the Water Resources Development Act of 2007. As were its predecessors, that bill was chock full of hundreds of earmarked water projects and studies."

But pork-slayers in Congress are just as convinced as party leaders that earmarks help move bills. Indeed, that's exactly why the small-government crowd fought so hard to get rid of them.

Then-Sen. Tom Coburn, an Oklahoma Republican, described it this way in a 2010 National Review piece.

"It’s true that earmarks themselves represent a tiny portion of the budget, but a small rudder can help steer a big ship, which is why I’ve long described earmarks as the gateway drug to spending addiction in Washington. No one can deny that earmarks like the Cornhusker Kickback have been used to push through extremely costly and onerous bills. Plus, senators know that as the number of earmarks has exploded so has overall spending. In the past decade, the size of government has doubled while Congress approved more than 90,000 earmarks."

Even House Speaker John Boehner, who holds himself up as a paragon of pork abstinence, has noted the value of earmarks in greasing legislative wheels, according to an anecdote in Robert Draper's book "When the Tea Party Came to Town." Chatting with then-Rep. Ralph Hall, a Democrat-turned-Republican, during a close vote in 2011, Boehner observed that it was easier to get independent-minded lawmakers to jump into line when pork was the coin of the realm.

"It's not like the old days," Boehner said. "Without earmarks to offer, it's hard to herd the cats."

BRENDAN SMIALOWSKI/AFP/Getty Images

The loss of earmarks as a carrot means that party leaders have less influence over their members. Coupled with the explosion of outside spending in the wake of the Supreme Court decisions freeing up corporate and labor donations, power has shifted away from the party and toward outside groups. Why would a member of Congress side with a party leader who is offering nothing in the face of a threat from the Club for Growth, the Koch Brothers or the AFL-CIO to fund a primary challenger with big bucks? In the old days, an earmark would at least provide a salve for the beating the lawmaker might take back home. Now, it's an easy decision to vote with the interest group rather than the party.

This raises the question, of course, of why it's preferable to tie politicians to their party leaders rather than their assembled interest groups. Here's the reason: the party has a definable agenda that has been endorsed by a large portion of the national electorate. It's relatively open and transparent about its goals, which are designed to win popular support. And, last but certainly not least, the party has a major incentive to govern responsibly so that it can keep power.

The interest groups, by definition, have narrow, self-serving goals that are often indecipherable to the voter. They aren't responsible for governing. Most important, voters can't send them packing. They are the permanent class in Washington. And they are already powerful enough.

Why earmarks are necessary, part 2: making Congress strong again

When Congress debated instituting a pork ban in late 2010, Hawaii Democrat Daniel Inouye took to the Senate floor to argue that such a prohibition would hand too much power to the president — a president of his own party.

"None of us should be surprised that President Obama is expressing his opposition to earmarks. A ban on earmarks would serve to strengthen the executive branch of government by empowering the president to make decisions that the Constitution wisely places in the hands of Congress. As I have said many times before, the people of Hawaii did not elect me to serve as a rubberstamp for any administration. Handing over the power of the purse to the executive branch would turn the Constitution on its head. So I must admit I find it puzzling that some Republicans would want to grant all authority over spending to any President, but especially to a Democratic president."

The Framers of the Constitution, wary of executive power in the wake of their break from King George III, designed the legislative to be the strongest of the three branches of government. The most awesome and serious powers of government were reserved for Congress: To declare war, to impeach and remove the president, and, of course, to levy taxes and spend public money. The powerful legislature is the underpinning of our republican form of government — if we can keep it.

But for decades now, Congress has been handing away its power to the president. The most obvious example is war-making authority. In the last 65 years, the United States has fought in myriad countries — Korea, Vietnam, Iraq (twice), Afghanistan, Grenada, Libya and others — without a formal declaration of war. In the face of legislative paralysis, President Obama has deployed military force in Iraq and Syria by relying on existing grants of power from Congress rather than a new one designed for that purpose.

If Congress won't earmark then the president will. (Charles Ommanney/Getty Images)

Earmarks are, quietly, part of this same trend. When Congress doesn't make decisions on how money is to be spent, the executive branch does it for them. And make no mistake, the executive branch earmarks dollars, even in supposedly competitively bid grant programs. Take, for example, the TIGER grants the Transportation Department doles out. Somehow, then-Transportation Secretary Ray LaHood's hometown of Peoria won $30 million for two TIGER grants — 1 percent of all money that had been allocated through the program at that time. One of the projects was for turning the city's Warehouse District into the "newest, coolest neighborhood" in town.

Giving the executive branch such authority over small-bore projects is a symbol of the larger cession of power from Congress to the president. But it's an important one. It reflects the broader inability of the two parties and the two chambers to take responsibility for basic governance.

The dysfunction in Congress is so predictable and profound that Obama has factored it into his calculation in expanding executive authority. While some of his executive actions have been popular, particularly with liberals on climate change and immigration, they are evidence that even a Congress with Republican majorities in both chambers is helpless to put a check on his power.

As a result, the institution has been weakened, and, unimaginably to the founders, the executive and judiciary branches of government have become far more powerful. This is a death spiral for the most democratic branch of government: The public hates Congress, which gives away its power to avoid the wrath of the electorate, so voters then see a yet-weaker Congress, and that gives the president — whose approval rating is both far above that of Congress and far below mandate level — yet more clout.

Congress must begin re-establishing its primacy and its prerogatives for the republic to prosper, as intended and as it has for more than than two centuries. One small way is to bring back the power to direct federal spending.

How to bring earmarks back

Pork should be revived, but only if the rules for its use are completely rewritten. The old system was an embarrassment to our democracy. The new rules would have to be designed to take advantage of the best features of earmarks while mitigating their biggest bugs.

If these goals can be accomplished, Congress will be a stronger institution. And that's good for all of us.

It would be a dodge for me to write this many words on earmarks without offering some kind of plan. But as you read my ideas on this, keep in mind the following three ideas: Given polarization, gerrymandering and special interests, it's too hard for Congress to get anything done. Given that Congress is meant to be the most responsive branch of government, members of Congress should have the ability to direct money to local needs. And finally, a Congress beholden to inside money — federal dollars going to one program instead of another in exchange for a vote — is better than a Congress entirely beholden to outside money.

Here's my idea:

1. The federal budget would include a line for the total dollar amount of all earmarks for the coming fiscal year. If Congress can't pass a budget, the House and Senate Appropriations Committees would set the number as they do now for overall discretionary appropriations for the year.
2. The dollar amount would be equal to 5 percent of the discretionary spending for the year. Give or take, that would be a little more than $50 billion this year out of a $4 trillion budget.
3. That starting amount would be allocated through a formula that apportions money to each state, based on two senators per state and the number of House members in each state. That would preserve the basic power balance designed by the Framers of the Constitution.
4. There would be a short window each year for members of Congress to submit all of their requests to the Appropriations Committee for all of the spending bills that year. Those requests would be published at least one week before a House or Senate vote on a spending bill in a report including the name of the member making the ask, the recipient and the dollar amount.
5. The staff of the Appropriations Committee in each chamber would be increased to allow for basic research into the prudence of the earmark and whether there are any outstanding reasons to reject it. A short report listing the benefits and potential red flags would be prepared for each earmark, and that report would include a recommendation to approve or reject an earmark. (Further reading on this point: in a recent piece in Washington Monthly, New America's Lee Drutman makes a very good case that the imbalance in policy expertise between Congress and outside interest groups distorts outcomes. This would help with that problem.)
6. The House and Senate would vote en bloc to approve or reject all earmarks with a red flag as part of the consideration of any spending bill.
7. The same process would apply to requests made for targeted tax and tariff benefits made to the House Ways and Means and Senate Finance committees, and the staff of those panels would also be expanded to research requests.
8. Earmarks — including tax and tariff breaks — could only be routed to public institutions, including state, local and regional governing authorities, or non-profit organizations.
9. A member of the House or Senate who voted against a bill would lose his or her earmarks in that measure. This would create a disincentive to vote against annual spending bills. However, to encourage bipartisan cooperation — and discourage the majority from writing bills designed to elicit "no" votes (and earmark losses) from the minority — all earmarks would be stripped from measures on which more than 40 percent of senators or more than 40 percent of House members voted "no."
10. The money from rejected earmarks — those lost because of the above provision and those flagged by committee staff and rejected by the Congress — would be pooled for reallocation.
11. That pool of money would be divided in the following manner: 12.5 percent would be given to each of the party leaders in each chamber to designate for projects in the districts of members of their choice and the remaining 50 percent would be divided evenly among the 10 poorest Democratic congressional districts and the 10 poorest Republican congressional districts in the nation based on the most recently available Census data on median household income by district. This gives a little bit more power to party leaders and gives an incentive to rank-and-file members to fall in line.
12. Congress would create a fast-track procedure for an up-or-down vote on the reallocated funds before adjournment for the year. In the event of a "no" vote, the funds would be given to the executive branch for projects desired by the president.

Are there problems with this solution? No doubt. Raise them, write to us about them, suggest a different plan. The biggest obstacle, though, is Washington's willpower.

The good news: Congress is beginning to miss earmarks

Boehner has always held himself up as anti-earmark, and there's little chance he would tarnish that reputation by bringing bacon back to Congress. Moreover, as the system now stands, the Obama administration gets to decide how to spend money that would otherwise be earmarked. That creates a disincentive for Democrats in Congress to hand some of the cash back to Republicans.

Ironically, that has turned some former earmark foes — including some Tea Party Republicans — into advocates for a return to porking. Rep. John Culberson, a Texas Republican, has developed a proposal for bringing back earmarks that won the endorsement of some Tea Party leaders in his state in 2012. His plan wouldn't really rewrite the old system so much as tweak it — and the topic is controversial enough that Culberson declined to talk when I asked him about it recently in the Capitol — but it shows that even the anti-spending crowd wants to take power back from the president.

As an institution, Congress has grown weak — both from the atrophy of the legislative process and because it has given part of its most awesome authority, the power of the purse, to the president. Congress would be in within its Constitution-granted rights to earmark every dollar in the federal budget.

I'm not proposing such a dramatic swing. Indeed, what I recommend is just the first small step in a long process of shifting power to the first branch. Congress was wrong to give up its power. It's way past time to take it back.