Without earmarks, Congress can use phone-marks to feed pet projects

Matthew Boyle Investigative Reporter
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Even if the GOP effectively pulls off its earmark ban, there’s still a major loophole congressional members can slip their pet projects through. They still will be able to call or write to federal agencies to ask that funds are spent on projects they recommend, and there’s currently no official record of how often representatives and senators do this.

Though the process, dubbed “phone-marking,” doesn’t forcibly require those federal agencies to grant a congressional members’ request, they frequently do because of the clout representatives and senators carry in Washington. Brian Riedl, a fellow for The Heritage Foundation, said the only difference between phone-marks and earmarks is that there is no “paper trail” of members’ requests. Riedl said federal agencies grant the requests more often than not for fear of their budgets being cut by spurned legislators.

“They don’t have to, but they do it because they don’t want their budgets reduced. Agencies are very influenced by members of Congress because Congress controls their budget,” Riedl told The Daily Caller. “It is not atypical for certain federal agencies to be more deferential to Congress than to the leaders of their own executive branch.”

Riedl told TheDC there’s “absolutely no way to know” how many phone-marks agencies follow through with because there’s not currently a tracking system in place. Phone-marks are worse than earmarks, he said, because they’re done in secret whereas earmarks are publicly available on the legislation they’re attached to.

“Members will say, ‘I really, really think you should give it to my friend in this district,’” Riedl said. “If they don’t, the agency worries, ‘okay, if I don’t do this, what’s going to happen to my budget next year? Are they going to cut my budget next year because I didn’t give into their demands?’”

Iowa Republican Rep. Steve King told TheDC he’s trying to find a sustainable solution that would hold every member of Congress accountable for every part of every budget, by allowing each member to bring objections to the floor on every appropriation the Congress passes. He’s still not sure what will happen with phone-marks yet, but maintains that the earmark problem has to be addressed first.

“This whole call for banning phone-marks calls again for the necessity to define earmarks, so we know what it is that we’ve all sworn off of,” King said in a phone interview. “I think that would be a good thing for us to get a definition of earmarks and somebody else can write it, because I don’t know how.”

At this point in time, under GOP Conference rules, the “official definition” of an earmark is any request for, “authorizing or recommending a specific amount of discretionary budget authority, credit authority or any other spending authority for a contract, loan, loan guarantee, grant, loan authority or other expenditure with or to an entity, or targeted to a specific state, locality or congressional district other than through a statutory or administrative-formula-driven or competitive award process.”

There are two types of earmarks: those that are on appropriations bills and those that are on authorization bills. Authorization bills create programs and define Congress’s intended level of spending, whereas appropriations bills set aside money for those programs created by authorization bills. Sean Davis, managing partner at the political research firm Davis Intelligence Group, said that about 95 percent of appropriations earmarks are not constitutional because they are not voted on in Congress or signed off by the president.

Davis, who once was on the front lines of the earmark fight as a staffer of Republican Oklahoma Sen. Tom Coburn, said those appropriations earmarks are usually written in a committee report about the legislation, which is meant to explain the intention behind the legislation. Congress doesn’t vote on anything in the committee report and the president doesn’t sign off on anything in it either. Davis told TheDC that the committee report is nothing more than a set of recommendations from legislators and it certainly is not law.

Article I, Section 9 of the Constitution states that, “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law,” meaning that, for money to be spent, it has to be voted on by Congress and approved by the president, just like any other law.

In an e-mail to TheDC, Tea Party Express spokesman Levi Russell said the organization, “stands against higher taxes, wasteful spending, and the encroachment of government into our private lives. Whether excess spending gets approved via earmark, phone-mark, smoke signals or carrier pigeon, it goes against the ideals of the tea party movement,” adding that “in addition, phone-marking has even LESS accountability than pork approved via earmarks, which at least appears in writing. That means less transparency and less accountability to We the People, who are the ones actually paying to fund these various pet-projects. We think it’s time for politicians to find ways to be MORE accountable to American citizens, rather than finding ways to get around the process.”

King, though, maintains that defining the nitty-gritty language of what is an earmark or phone-mark is the first step in solving the problem. He said several Democrats claim there aren’t earmarks in their legislation because they’ll add a line into the first few pages of a bill that says something like, “this bill has no earmarks by definition.”

Davis told TheDC that, though appropriations earmarks are not constitutionally valid, phone-marks move a step further from the Constitution in that there’s no record of phone-marks and phone-marks aren’t even seen by other congressional members or the president.

Both Davis and Riedl expect congressional members to shift to the more inconspicuous phone-marks in the 112th Congress if conservatives succeed in banning earmarks.

Davis said forcing agencies and congressional members to keep public records of phone-marks would only partially solve the problem.

“That is a solution that would fix the secrecy of it. It would do nothing to address the inherent problem constitutionally with phone-marking in general,” Davis said in a phone interview. “So, the best way to do this is to get an executive order that is clear and blocks the process outright.”

Davis told TheDC that, if President Barack Obama really wanted to stop phone-marking, he could. It would take an executive order banning it and some guts to follow through with enforcing it.

“The president has the complete and total authority to do that,” Davis said.

King said he and other Republicans are upset that Obama, who he says ran his presidential campaign on banning earmarks, has yet to do so. In terms of banning phone-marks, King said, “it doesn’t make much difference in what I think.”

“If the president is going to issue an executive order, he’s going to do it unless there’s a constitutional challenge to it,” King told TheDC. “So, it’s pretty interesting that you have a president who campaigned on an end to earmarks, there would be no earmarks in his presidency. That rule that he has pledged has been violated over and over again”

Riedl said he thinks the enforcement of an executive order banning phone-marks would be much more difficult than it sounds, given the secret nature of how things are done now.