James T. Walsh, a Republican from New York, served on the House Appropriations Committee from 1993 to 2009 and is now with K&L Gates, an international law firm. Melanie Sloan is a partner with Summer Strategies, a public affairs firm, and serves as senior adviser to American Oversight, an executive-branch watchdog group. Rich Gold is the leader of Holland & Knight's Public Policy and Regulation Group. Craig Holman is Public Citizen's government affairs lobbyist.
When the House approved a moratorium on earmarks in 2010, some of us were initially in favor of the ban. But it didn't take long to realize the decision was no panacea and that, in any event, Congress was unlikely to give up this beloved prerogative forever.
Now, as President Trump has spoken out in support of earmarks, lawmakers have been debating whether to end the ban. This is encouraging, but if Congress does decide to bring back earmarks, it's important to do so in a way that incorporates the lessons learned since the 2010 reforms.
We are a group of unlikely bedfellows — including a former member of Congress, lobbyists and good-government advocates who have sought the prosecution of lawmakers who personally gained from earmarks — but we all agree that while spending had run amok, a total ban on earmarks isn't the answer. After long discussions on this topic, we have identified five reforms that would allow lawmakers to use earmarks, but also ensure greater accountability.
These reforms are:
●Members of Congress should not direct earmarks to those who have contributed to their congressional campaigns. After a number of earmarking scandals, this represents the best way to break the link — whether real or perceived — between campaign contributions and legislative action.
●Congressional staff should be barred from participating in fundraising activities. Their attendance at fundraisers gives the appearance that the legislative process is for sale. Further, many of these hard-working individuals probably would prefer not to have to attend these evening and early-morning functions but cannot easily refuse.
●Congress should create a downloadable database of all earmarks on a public website. Finding an earmark should be as easy as finding a book online.
●The Government Accountability Office should regularly and randomly audit projects to ensure taxpayer dollars are spent wisely.
●Members of Congress should take responsibility for their earmarks by certifying that the recipients are qualified to perform the work. A lawmaker should have to stand by any earmark he or she believes is a worthwhile expenditure of public money.
For critics of earmarks, this may raise the question: Why bring them back at all? The simple explanation is that the current system is worse than what we attempted to reform. Elected leaders have lost the ability to make spending decisions to bureaucrats and political appointees. This has reduced transparency, damaged accountability and raised questions about how agencies select projects.
For example, in 2014, the Government Accountability Office found that the Transportation Department had not documented key decisions, deviating from established procedures and internal controls when awarding grants as part of the 2009 economic stimulus package. The office also noted that these grants raised questions about the integrity of the selection process.
Before the ban, most earmarks were at least public before they were finalized and could be debated and critiqued on the House floor and Senate floor. But today, agencies frequently dole out grants with no objective criteria, and no one can challenge the selection of projects. Further, waste has not been eliminated; in fact, agencies have at times selected projects that members of Congress opposed because they were not priorities for their districts — the very same ill the earmark ban was instituted to fix.
The current system has also allowed political interference we didn't expect. Some officials in the executive branch and others, including members of Congress, have kept the earmark tradition alive with less transparency by pressuring agencies to fund particular projects through phone calls (or "phonemarks"), letters ("lettermarks") and meetings. These decisions are never publicly disclosed; in fact, while it was once common to read media reports about seemingly inexplicable funding decisions (e.g., a teapot museum), such reports are now rare.
Further, since Congress gave up earmarks, the wheels of the annual spending process have ground to a halt, as we witnessed with the most recent budget showdown. While earmarks are not a cure-all, they do provide a common reason for members to support spending legislation overall, helping the appropriations process run far more efficiently than it has since the ban was enacted. Additionally, because federal formulas often benefit large urban centers, the ability to direct spending would advance the interests of rural areas and small towns.
No one is advocating a return to the bad old days of unaccountable earmarking, but we're encouraged that Congress is beginning to debate these important issues. Rather than all or nothing, the system should be carefully reformed.