mheslep said:
There's a long record available to show how earmarks differ from the general appropriation process in clearly distinguishable ways, so there's no need to shrug when asked to define one. Typically earmarks see no public hearing or other review, have little or no connection to the primary purpose of the legislation to which they are attached, and are often inserted at the last minute. So while the Constitution grants Congress collectively the power to appropriate, for each Congressman individually it guarantees nothing except a right to vote on behalf of district or state. The Constitution certainly does not grant each congressman the right to draft his/her own piece legislation. Congress is free to choose its own rules in regards to the crafting of legislation. It seems to me and many that earmarks corrupt that process through petty bribery, and in this turn at the plate I hope this Congress will choose rules that eliminate earmarks.
M, I appreciate that your heart is in the right place, and that this idea
sound really good to you, but like most such things, the truth is not as idyllic as the principle. First, I
absolutely agree that the appropriations process should be more strictly scrutinized and money for conservatively allocated. However, the process is
already in place to do this - majority voting means you need at least half the Congress to consent before you can spend a dime, and bipartisan committees have broad authority to filter and restrict legislation before it reaches the floor. We tend to react to crisis - real and imagined - with the creation of new rules and new bureaucracies to enforce them, when the problem was
already governed by rules and bureaucrats before hand. This is constant. We did it with ill thought out security legislation after 9/11 (and I don't mean PATRIOT), and with the wholly unnecessary consumer protection and financial reform legislation after the credit crash. No need to apply the same conduct to something as integral and, frankly, well designed as the legislative system.
Now, let me address ear marks specifically. The idea is great; Congress shouldn't push earmarks through under the table. So, how do we go about banning them, and who enforces the ban?
Congress could do it legislatively. Assuming such a law even passes Constitutional muster (unlikely in the extreme), it would give standing to
every American resident to sue to block
every new law that directed the appropriation of money. The Court, at a loss for an objective means of defining earmarks, would probably apply a "reasonable person" test - would a reasonable person conclude that this particular appropriation met the criteria, whatever they might be, for an earmark. This sounds fine, except that it's subjective. Anybody could argue that about anything, and the court would have to sort it out. You think things are slow and inefficient now?
Congress could instead do it through rule making, and self policing. Ok, great, so who decides now? How about a majority of the Congress? Er, well, that's already how it works - every piece of new legislation has to be debated by the Congress, and then passed by that Congress. The particular rules vary between House and Senate, but the steps are there. How about requiring small, bipartisan committees, specialized to particular topics and with special access to technical details of the field, to review and approve new piece of legislation as to relevance and function? Er, well, that's
also already how it works, through the Congressional committee system.
See what I'm trying to say? The system doesn't need any new rules; the rules are already in place to give Congress numerous chances to review, amend, debate, and finally pass new legislation. No one Congressmen can insert his own language in the dead of night without telling anyone else, and then force Congress to vote on it without debate. This is pure mythology. Individual congressmen might want you to believe that, to escape responsibility for their individual votes, but it is not the case, except to the extent that Congress itself abdicates its responsibility voluntarily because they'd rather not know (see the healthcare bill).
Can you offer any concrete, objectively enforceable amendments or additions to existing rules that would make the process less likely to result in "bad" versus "good" appropriations? Again, simply saying "it needs to be relevant" doesn't cut it; who decides what's relevant and not, and why is that person more qualified than the persons who do so now (individuals, followed by committees, followed by the whole congress)? Congress isn't spending this money in this way despite the public; it's spending it because of the public. People demand that Congressmen bring home as much money as possible to their districts. When that changes, Congressmen will stop. Right now, the system is just representing the electorate. Isn't that the point? And is it really a bad thing? If the government wants to build a new base, it has to happen somewhere. Who decides? Congress could just fund it and let the Executive decide, but why is that somehow less inherently politically risky or more transparent? Doesn't leaving it to Congress (which is popular and debates openly and methodically), and then locking the decision into law so it can't be changed later, have some advantages in terms of "transparency" and "debate" versus leaving it to a bureaucrat somewhere?
