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Ready remedy for earmarks?

By J.T. Young
February 1, 2006

Like the weather, federal spending earmarks have been much-maligned but never addressed. However, unlike the weather, something could be done if congressional budget hawks just look at a little-known Senate budget procedure that just celebrated its 20th anniversary.
    It is not surprising pet project spending got so much attention in 2005 with its high underlying deficits compounded by unexpected additional disaster expenses. On top of this, earmarks piled on unprecedentedly. In addition to their customary venue of annual appropriations, they appeared in everything from disaster relief to Homeland Security funding with their most focal appearance being in the $280 billion federal highway bill, which earmarked $24 billion for 6,400 specific projects -- up from 1,850 earmarks in the 1998 highway bill.
    Yet despite their inopportune proliferation, the same old solutions have been proposed to address them -- shame through public vetting and removal by presidential veto. Vetting and vetoing is have proven ineffective largely due to their coming after-the-fact. If earmarks are to be truly solved, rather than simply lamented, they need to be scrutinized, challenged and removed before reaching the president's desk.
    Does such a solution exist? Not only is there one, but it has a proven track record in the Senate. Its template is the Byrd Rule, a well-known law to those who follow the Senate's arcane budget reconciliation budget process.
    Budget reconciliation is the process for carrying out the spending and tax numbers in the Congressional Budget resolution. The Byrd Rule simply allows any senator to challenge particular items deemed "extraneous" to a reconciliation bill.
    Does the Byrd Rule work? Yes, extraordinarily well. From 1985 through 2004, it eliminated 42 of 55 targeted provisions, according to the Congressional Research Service. The reasons for this success are fourfold:
    (1) The law includes a criteria list for determining if a provision is extraneous. That is, an extraneous provision is explicitly defined in the law, making targets easy to spot.
    (2) The scrub-work (commonly known as a "Byrd bath") is also required by law. The Senate Budget Committee is required to produce a list of extraneous items before the bill comes to the floor. This presents a roadmap for hunters.
    (3) Once challenged by any senator, and sustained by the presiding officer, the provision is automatically stricken -- "Byrd droppings" in the Senate vernacular. This turns the tables, putting the onus on the provision's defenders, rather than its challengers.
    (4) And finally, for reinstatement a provision's defenders must obtain the votes of 59 other senators. History shows such a 60-vote supermajority can be very hard to come by.
    This effective process could be easily adapted to hunting earmarks. Unlike its current Senate-only applicability, it could be expanded to both bodies of Congress.
    Earmarks could be defined if they met one of several criteria: If not authorized by other legislation, if they apply only to a limited population or locality, for a single project, a one-time grant, are unrelated to the underlying bill -- each would be logical earmark definitions. Such definitions could be applied to all spending bills and the Budget Committees in both houses could be required to submit a list of qualifying provisions -- a job which comports with their oversight responsibilities.

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