This is part 2 of a series on earmarks. I recommend that you consider looking at Part 1 from February. [Editor’s note: see also related postings on beSpacific]

A discussion of earmarks needs to go deeper into the nature of legislation in Congress. I warn you, it is a sort of netherworld, but it is a necessary netherworld. It is confusing, but there is some rhyme and reason to it. Much like the spaghetti maze of cable company wiring in my back alley, it serves a purpose and the televisions work, though I do not think any self-respecting engineer would be particularly proud of it.

One clarification on my previous article. The earmark is usually associated with an Appropriations bill in Congress. Earmarks also exist, some would say in their most raw form, in Authorizing legislation. Technically, a different authorizing committee must authorize all monies appropriated by Congress. Would I be too obvious to note that this requirement is not always followed? But when it is, earmarks make their way into the Authorizing legislation as well.

An earmark is the specific direction of funding for a specific project within the appropriations or authorization bill. It is not included in the actual bill itself but rather in the Committee or Conference Report that accompanies the bill. This is an important factor, partly because the Conference Report is at least as large as the original bill and is also cobbled together at the very last minute, sometimes as the chambers are voting on it.

In order for something to become law, both the House and the Senate must pass the exact same measure. There can be no differences between the two chambers. Even the most minute typographical error can call the legality of the bill into question. This happened recently, but is a topic for a different article. In order to compensate for this obviously important requirement, when both chambers have different bills, they create a Conference Committee that hashes out the differences. Then both chambers vote to approve or disapprove the Conference Report, thereby passing a bill that has exactly the same language.

So after months of Committee meetings and floor debate, the final crafting of the bill is done often late at night by a selected group of Senators and Representatives. Here is where the earmarks get inserted and other things too. This is also where the rules of the chambers can often get muddled. When a chamber selects members for a conference committee, called “conferees,” they are often given specific instructions, i.e. things not to change, things that must remain, etc. These instructions are not always followed and since the only arbiter of a chamber’s rules is the chamber itself, you can figure out what usually happens.

It is not uncommon to hear a Member or Senator bewail the shifting of the rules and of items added to the conference report that were not instructed by the chamber. These usually are minority party voices that are ignored. This special Conference procedure is the home of earmarks and since the Appropriations Committee Chairperson is always included in the Conference Committee, earmarks move along with the Chairperson to the Conference Report. Also since the Conference Committee is made up of members in proportion to their party voting strength, you can see how earmarks easily get inserted into the Conference Report. Please do not interpret this as an indictment on the process; it is all very reasonable. Legislation needs to be reconciled somehow and the Conference Committee is a good way to do it. Earmarks just go along for the ride.

Where do these earmarks come from? Well, there used to be a Web site that you could use (internally within the US Capitol) and enter your earmark request. Now there is a form you complete. Your name, your suggested earmark, some justification, some suggested language, and you’re done. It is much like filling out an interlibrary loan request. I have several of these forms lying around my desk; every Appropriations committee has their own version. One form asks to make sure you put the organization’s point of contact so the federal agency can contact the right person to quickly dispense the money. I filled out this form and posted it on my door, hoping some wary Congressperson might pass by and take it with him or her. (Note: this is unlikely for a variety of reasons, one of which is that I am a resident of the District of Columbia, whose delegate to Congress has no floor voting privileges.) They pile up on the Chairperson’s desk until the Fall when they are stapled to the Conference Report. Of course, the Chairperson is free to omit ones he or she feels are not worthy.

But then again, there are some occasions where the earmark isn’t even in the Conference Report. Instead of the standard form, a Member can communicate with the Appropriations Chairperson by letter, or perhaps even in a casual conversation, about a specific earmark. It never even sees a piece of paper. The Agency is notified and it is done. This aspect of earmarking is the most insidious and most likely to be reformed as it runs counter to some very standard democratic principles. Senator John McCain’s reform proposal addresses all these issues quite plainly. There are other proposals for reform as well. I refer to McCain’s measure for three reasons: 1) this is one of his traditional issues, 2) he is a Senator, and 3) he is part of the majority party. That is not a bad way to score legislation on Capitol Hill. Name recognition, the chamber (the Senate has 100 members, the House 435 plus assorted delegates), and the majority party has the votes to pass a measure.

Interestingly earmarks are quite bi-partisan. A minority party member or Senator frequently has earmarks inserted. You would think that they would be excluded but this is the US Congress, not the House of Commons in London. Party discipline is strong, but not obsessive. Also if the organization is to function, minority participation, especially in the Senate, is needed. A Representative voting against his/her party direction is embarrassing to the party but is not necessarily a threat to his/her career. The government does not fall; chairpersons do not lose their posts.

There is also the prospect of unintended consequences of earmark reform. Today, the Chairpersons of the Appropriations committees are usually collegial folks who frequently dine with their minority or “ranking” counterpart. This collegiality breeds at least some bi-partisanship in the distribution of earmarks. If the process was to be thrown back to the actual bill itself, a line item voted up or down in committee and on the floor, it is quite possible that what used to be earmarks would become purely partisan largess.

A few groups share some complicity in the earmark process. One of them is the federal agencies themselves. They are part of the executive branch, not the legislative. While they report to the President, they also have to go back to the same authorizing and appropriating committees every year to get their budget approved. Do they want to rock the boat? Do they want to testify to an angry committee? Do they want more money next year?

There is also complicity in the recipients of the earmark. I have not noticed a grassroots cry to retain the process from the people who receive the money. I have counted only two statements from members of the House defending earmarks. If they do so much good, you would think there would be a groundswell of support. The states are recipients of earmarks too, yet they do not seem to be complaining about the process.

Perhaps I have been too cynical about the process of earmarking. Let me turn the tables a bit. Without earmarking, the Agencies would receive appropriations, which would be spent according to the authorizing law and the rules and regulations of the Agency. Would that process stand up to close scrutiny? Are those rules and regulations followed much like the Congress’s own rules? Well, there is a third branch of government that can intervene. But there is a bureaucracy, a very large bureaucracy. A deteriorating highway may get fixed, maybe in the next decade. Congress is just providing a means for the democratically elected Senator or Member of Congress to help the process along and set priorities. Congress is the organization that according to the Constitution (Article 1, Section 9) must appropriate the money to be spent, so why not afford them the opportunity to direct the spending?

I probably told you more than you wanted to know about Congress in this article. The sausage-making machine is in full form when it comes to Appropriations measures. Congress thrives at building consensus and earmarks are one of the principle methods to foster consensus. Rules are not really rules, just guidelines (which is another article). Would reform really improve the process or could it make it worse? Are earmarks necessarily such a bad thing? I will let you know what Congress does to them in the next few months.