Two seemingly unrelated events in 2005 promise to contribute to some of the most significant changes in federal budget practices since the enact­ment of the Budget Control and Impoundment Act in 1973.

First, the enactment of the Safe, Accountable, Flex­ible, Efficient Transportation Equity Act (SAFETEA- LU)1 in late July revealed that there was a limit to the congressional waste that the American public was prepared to tolerate. With its more than 6,300 pork- barrel earmarks, the federal highway program and Representative Don Young’s (R–AK) $220 million for the infamous “bridge to nowhere” became objects of national ridicule. As the public demanded a remedy, many fiscally conservative Members intensified their efforts to curtail the embedded fiscal irresponsibility that has made pork-barrel spending increasingly commonplace.

Second, the indictment of former Representative Randy Cunningham (R–CA) for selling earmarks to defense contractors and the revelations of Jack Abramoff’s unethical lobbying practices have added the taint of corruption to the earmarking process, which had once seemed merely irresponsible.

Egged on by the national media, the public responded with a degree of disgust that initially forced worried Members of Congress to take a num­ber of steps to appear responsive to the public’s con­cern. Among these early steps was a dramatic request from Senator Ted Stevens (R–AK) that the Senate delete funding for the two controversial bridges in Alaska, though the governor decided to restore spending for them a month later.2

Despite the Senate’s empty gesture, the public’s concern was not satisfied. As evidence of more improprieties emerged, demands for a fundamental reform continued to escalate. In response, many in Congress have sought ways to clean up the process. As of mid-April 2006, 51 bills had been introduced in the House and Senate to regulate the relationship between Congress and its earmarks and lobbyists. President George W. Bush took the unprecedented step of addressing the issue in his State of the Union address:[1] [2]

I am pleased that Members of Congress are working on earmark reform—because the federal budget has too many special- interest projects. And we can tackle this problem together, if you pass the line item veto.[3]

Yet despite the broad public concern, presiden­tial interest, and the introduction of dozens of leg­islative remedies, most in Congress remain skeptical about the need for any change in behav­ior. In a radio interview, Senate Minority Leader Harry Reid (D–NV) said, “There’s nothing basi­cally wrong with the earmarks. They’ve been going on since we were a country.”[4] In response to the President’s expression of concern, Senator Stevens retorted that “What needs fixing is to have the public understand what we do when we ear­mark bills.”[5] During his recent primary challenge, Representative Tom DeLay (R–TX) emphasized “that he can bring home pork. His handouts claimed more than $1 billion in federal dollars to Houston-area transportation projects, the port, NASA, universities and law enforcement.” Of the transportation earmarks, Delay said, “Quite frankly…[we’re] using earmarks to force dollars into this region.”[6]

With their lucrative client contracts now at risk, the vast lobbying community is providing congres­sional skeptics and opponents of reform with vocal support and will certainly use its considerable skills, contacts, and resources to thwart any mean­ingful reform that would undermine its prosperity. John Engler, head of the National Association of Manufacturers and former Michigan governor, tes­tified in a Senate hearing that “Additional rules and laws weren’t needed.” At the same hearing, Paul Miller, president of the American League of Lobby­ists, echoed a theme that will be at the core of the anti-reform defense effort in the coming months: “[T]his is not a widespread scandal…. Our gov­ernment is not corrupt, lobbyists are not bribing people, and members of Congress are not being bought for campaign contributions…. I don’t think we can say with certainty that the current system is broken.”[7]

Source: Citizens Against Government Waste, at http://www.cagw.org.

Put on the defensive, many Members of Con­gress and the lobbyists have responded to the crit­icism with justifications for their actions and activities. Some have promised to consider changes and reforms, but not everyone has. The leadership and staff of the House Appropriations Committee went on the offensive in February 2006 by compil­ing a list of earmark requests submitted to the com­mittee by Members who have co-sponsored the earmark control legislation introduced by Repre­sentative Jeff Flake (R–AZ). In turn, the committee staff leaked the list of 717 earmarks and who requested them to select journalists in an effort to embarrass the bill’s supporters.[8]

Earmark Corruption: Widespread or an Aberration?

As Congress and the lobbying community scramble to defend themselves against charges of questionable practices and illegal influence ped­dling, many note—quite correctly—that the vast majority of Members and lobbyists are scrupu­lously honest, abide by all the rules, and are doing nothing more than exercising their constitutional right to petition government on behalf of them­selves or their clients. Nonetheless, a growing body of evidence suggests that illegal and questionable lobbying practices are not uncommon and that incidents such as those involving Mr. Abramoff have likely been repeated in similar transactions between other lobbyists and Members.

A recent Congressional Research Service (CRS) analysis indicates the scope of such activities. The analysis found that the number of earmarks authorized by Congress in appropriations bills alone increased from 4,155 in 1994 to 15,887 in 2005—an increase of 282 percent.[9] Using a slightly different methodology, Citizens Against Government Waste (CAGW) concluded that there were 1,439 earmarks in 1995, which grew to 13,997 in 2005, for an increase of 872 percent.[10] By both the CRS and CAGW counts, earmarks in fiscal year (FY) 2006 fell by about 3,000, in large part as a result of the refusal of Senator Arlen Specter (R–PA) to allow any in the Labor–Health and Human Services bill.

Earmarking in federal highway reauthorization bills shows an even more dramatic longer-term trend. Notwithstanding Senator Reid’s contention that “They’ve been going on since we were a coun­try,” the data in Table 1 and the data provided by the CRS and CAGW demonstrate that today’s volume of earmarking is a relatively recent phenomenon.

In large part, this escalation in the number of earmarks reflects the growing number of lobbyists offering to obtain them for a fee. As the number of earmarks increases with each passing year, the business attracts more lobbyists who apply more pressure on Congress to spend more on pork-bar­rel spending.

For example, the annual appropriations bill for the civilian programs of the Army Corps of Engi­neers typically is the most earmarked bill produced by Congress. The Corps’ $5.3 billion annual budget for FY 2006 spawned a lucrative practice among lob­byists seeking a piece of the action for their paying clients. Among them is Marlowe & Co., which spe­cializes in representing seaside resort communities seeking money from the Corps for “beach nourish­ment” projects. With the Corps’ budget limited by annual appropriations, beach projects that promote tourism and enhance the value of vacation homes come at the expense of investment in flood control, including improved levees.

In a 2004 interview, firm owner Howard Mar­lowe bragged: “We know beaches.” The article went on to note that the company earned more than $700,000 in 2003 and estimated that it had won more that $100 million in beach projects since entering the business.[11] Even more revealing is the Marlowe & Co. Web site, which provides prospec­tive clients with its success stories. In its beach nourishment practice, the firm lists 172 beach ear­marks that it claims to have earned for its clients over the past several years.[12] Assuming that Mr. Marlowe is providing an accurate description of his company’s successes, taxpayers deserve an expla­nation of how a for-profit firm is allowed to partic­ipate so intimately in the congressional budgeting and appropriations process.

*Includes only earmarks assigned a number in the bill and listed in specific sections of the bill. Including the earmarks in dozens of other provisions would increase the total to about 7,000.

Source: Highway reauthorization bills, 1982–2005.

Turning Pennies into Dollars. As the number of earmarks has escalated, there has been a similar increase in the number of lobbyists registered with the House and Senate, indicating their intentions to pursue clients’ interests with the Appropriations Committees. According to a Knight-Ridder article on lobbying, 1,865 lobbyists were registered with Congress in 2000 to pursue appropriations issues, but by 2004, the number is estimated to have increased to 3,523 lobbyists, an increase of 89 per­cent in four years.[13] Even if Mr. Abramoff’s activities were an aberration or a “not widespread” practice, 3,522 other lobbyists would still be registered to pursue earmarks for paying clients.

Adding to the pressure for earmark growth is lob­byists’ increasingly common practice of aggressively marketing their services with unsolicited offers to prospective earmark buyers. This side of the busi­ness was exposed more than a year ago when offi­cials in Culpeper County, Virginia, received an unsolicited offer of assistance to obtain a congres­sional earmark from Alcalde & Fay, a Washington- area lobbying firm. According to the public discus­sion of the offer at a subsequent meeting of the county’s board of supervisors, a representative of the firm approached a county official with the offer to obtain an earmark of $3.5 million to construct a community sports complex in the county.

Although the county had planned to finance the complex with the proceeds of a county bond offering that the voters had already approved, the represen­tative “expressed optimism that funds for the $3.5 million sports complex could be tied to one or more federal appropriation bills.”[14] “The cost of hiring Alcalde and Fay would be $5,000 per month, with an 18-month recommended contract.”[15] For a total fee of $90,000 in return for a prospective federal grant of $3.5 million, the lobbying firm was propos­ing to sell the county federal taxpayer money for just 2.6 cents on the dollar—something that was not really the firm’s to sell. That the lobbyist believed he could deliver on the transaction indicates that some­thing is terribly wrong in today’s Congress.

Members of Congress making pork-barrel spend­ing promises to their constituents and delivering on them is one thing, but the buying and selling of ear­marks by private speculators as if they were bushels of wheat on the open market is quite another.[16] Appar­ently, all this wheeling and dealing is taking place without any involvement (at least not yet) by a Mem­ber of Congress. Since Article I, Section 9, Clause 7 of the Constitution reserves the power of appropriating money from the U.S. Treasury exclusively to Con­gress, how is it that these lobbyists have come by the same privilege, and who has allowed it to happen?

Representatives of Alcalde & Fay and Marlowe & Co. are just a few of the many registered lobby­ists who attempt to provide clients with taxpayer- funded earmarks and other legislative favors in exchange for costly retainers. Exactly how these many firms make good on their client commit­ments remains something of a trade secret that nei­ther the lobbyists nor the Members and staff of the Appropriations Committee are eager to reveal.

Nonetheless, those firms with a successful track record are not shy about reporting it. In a recent interview, David Carmen, president of the Carmen Group, a mid-size lobbying firm in Washington, D.C., revealed:

In 2004, the latest year available…[Carmen Group] collected $11 million in fees and delivered $1.2 billion in benefits—a ratio of less than 1 to 100. The payoff is large but fairly typical of modern-day lobbying.[17]

Carmen’s fee/reward ratio compares favorably to Alcalde & Fay’s proposal to Culpeper County, which was more than double Carmen’s implied rate. It also compares favorably to former Repre­sentative Cunningham’s price list, in which ear­marks of up to $20 million were for sale for a nickel on the dollar. Perhaps reflecting volume discounts, his price for larger earmarks fell to half this rate.[18]

In defense of the lobbying practice, some contend that the lobbyists earn their fees because they are more adept at making an effective pitch to Members and staff on the importance of a project. Yet if that was all there was to it, why could the Culpeper County officials not simply visit with their Congressman when he or she was back in the district and make the request themselves? While many earmarks may in fact result from routine meetings between Members and constituents, the fact that so many petitioner/ constituents pay tens of thousands of dollars for an alternative channel to the U.S. Treasury offers dis­turbing insight into the appropriations process and the extent to which parts of it have been outsourced to the K Street lobbyists in return for campaign con­tributions and other sorts of rewards and favors.

Delivering the Earmark. Who the lobbyists are and whom they represent is known from their con­gressional registrations, and the evidence of their success appears annually in the appropriations and varied authorization bills. However, little is known about the process by which the lobbyists secure these rewards from Congress for their paying cli­ents. Recent investigations by some in Congress and in the U.S. Department of Justice are beginning to shed some light on the process.

One such instance was exposed by Senator McCain, who released copies of a September 2001 e-mail exchange between Jack Abramoff (JA) and his colleague Tony Rudy (TR) at a hearing before the Senate Committee on Indian Affairs in mid 2005. The afternoon exchange between the two lobbyists was in an e-mail entitled “Is This Viable?”:

TR to JA: There are a few senate staffers I would like to help reward. Would the choctaws or coushetta donate like 10k to pay for a trip? Tony Rudy

JA to TR: A trip where?

TR to JA: There is a hunting and fishing resort 3 hours south of texas that smith’s[19] people expressed an interest in. Tony Rudy

JA to TR: I don’t see how we can sell them on funding that.

TR to JA: Thank you trip for the approps we got. Tony Rudy[20]

The bribery investigation into former Representa­tive Cunningham has revealed additional informa­tion on how earmarks are placed into legislation. At the hearing held to accept a guilty plea from Mitch­ell Wade of MZM Inc.—the defense contractor accused of bribing Cunningham—Wade also pleaded guilty to making nearly $80,000 in illegal campaign contributions to “Representatives A and B” in return for earmarks that would benefit MZM operations in their districts. According to news reports, Representative A succeeded in placing the earmark in a bill, while Representative B “made such a request for funding, but it was not granted.”[21]

Given how little access the public and media have to the detailed process of lobbying and the rewards that are privately offered and received in response to legislative favors, there is no way of knowing how typical such reward arrangements are among Members and staff.

Recommendation #1: The House Committee on Standards of Official Conduct and the Senate Select Committee on Ethics should invite a cross section of registered lobbyists and current and former congressional staff to testify on all facets of the lobbyist/earmark process.

Some in Congress Propose Reforms

In response to the many revelations of misbehav­ior by Members of Congress, congressional staff, and registered lobbyists, the House and Senate leadership have promised to develop a package of reform pro­posals that would more closely regulate the conduct and contact between Congress and the lobbyists. On March 29, 2006, the Senate passed an amended ver­sion of the Transparency and Accountability Act of 2006 (S. 2349), sponsored by Senator Trent Lott (R– MS), which would ban gifts from lobbyists, require more extensive reporting by both Members and lob­byists, allow for points of order against earmarks that originate in conference, and provide a comprehen­sive definition of earmarks. The House has yet to pro­duce a comprehensive bill, but an effort to do so is underway in the committees of jurisdiction.

For the most part, the delays in developing a comprehensive legislative response reflect strong disagreements among Members on key provisions and the extent to which they are willing to limit their discretion. While the leadership debated the proper course of action, many Members introduced their own proposals as pending legislation.

Lobbying Reform. Of the 51 bills introduced on earmarks/lobbying reform through early April 2006, the most notable is the Lobbying Transpar­ency and Accountability Act of 2005 (S. 2128), introduced by Senator McCain. Among its many provisions, the bill would:

• Require lobbying firms, lobbyists, and their political action committees to disclose their campaign contributions to federal candidates and officeholders, their political action com­mittees, and political party committees;
  
• Mandate both the disclosure of fundraisers hosted, co-hosted, or otherwise sponsored by these entities and the disclosure of contribu­tions for other events involving legislative or executive branch officials;
  
• Require registrants to list as clients those enti­ties that contribute $10,000 or more to a coali­tion or an association;
  
• Lengthen the period during which senior mem­bers of the executive branch, Members of Con­gress, and senior congressional staff are restricted from lobbying;
  
• Require registrants under the Lobbying Disclo­sure Act to report gifts worth $20 or more; and
  
• Require Members of Congress and congres­sional staff to pay the fair market value for travel on private planes and the cost of the highest-priced ticket in the arena for sports and entertainment tickets in skyboxes.

Introduced in mid-December 2005, Senator McCain’s bill had only seven cosponsors as of early April 2006. The companion bill in the House (H.R. 4667) fared worse, gaining no cosponsors out of the 434 Representatives.

The absence of congressional support is espe­cially disturbing given that the bill would mostly just require greater disclosure of certain activities and contributions and require Members to pay their own way (at full market value) on private planes and at entertainment events. The bill’s only new limitation would be extending the prohibition on lobbying former colleagues from 12 months to 24 months after the official leaves government. Several of the provisions of Senator McCain’s bill have been incorporated into the final version of S. 2349, but overall, the bill is not as tough as S. 2128.

Earmark Reform. Senator McCain has also introduced two other lobbying reform bills: The Obligation of Funds Transparency Act of 2005 (S. 1495)[22] is intended to establish better control over the growth of congressional earmarks. The Pork- Barrel Reduction Act (S. 2265), which was intro­duced several weeks later, should be viewed as a much-improved version of S. 1495. It would attempt to limit the incidence of earmarks by:

• Allowing Senators to oppose an earmark by raising a point of order, which requires 60 votes to overrule under Senate rules. If the point of order is sustained, the earmark would be dropped from the bill or its report.
  
• Requiring that conference reports be filed and available publicly for at least 48 hours before consideration on the Senate floor.
  
• Requiring the disclosure of earmarks, including the identity of the lawmaker seeking the ear­mark and a description of the earmark’s “essen­tial government purpose.”
  
• Requiring recipients of earmark funding both to disclose the amount of money that they spent on registered lobbyists to obtain the ear­mark and to identify the lobbyists.
  
• Prohibiting federal agencies from spending money on items and earmarks that are included only in conference reports.
  
• Strengthening Senate rules against the inclu­sion in conference reports of matters not con­sidered by either the House or the Senate.

With only nine cosponsors as of early April 2006, the provisions of the Pork-Barrel Reduction Act were more than most Senators were willing to accept. Nonetheless, the House should revisit many of these proposals as it develops its own package of reforms.

One weakness in S. 2265 is that it would apply only to earmarks in appropriations bills, not those in authorization bills. While appropriations bills have been the chief legislative vehicles for ear­marks, authorization bills have also been used, and several have been loaded with costly earmarks. The most notorious pork-laden authorization bill is SAFETEA-LU, the recent highway bill. Signed into law in 2005, it contained more than 6,300 ear­marks, compared to the 13,997 to 15,877 ear­marks included in the 12 appropriations bills in 2005. If the Pork-Barrel Reduction Act were passed as is, Congress would likely shift more and more earmarks to authorization bills to preserve the ear­marks and keep their origins and associated finan­cial rewards confidential.

Although the Pork-Barrel Reduction Act has attracted more cosponsors than many of the other reform measures, the number was well short of the votes needed to pass it, especially since many Sen­ators view the pursuit of earmarks as an essential and legitimate part of their duties. As a result, there is a profound lack of enthusiasm for any type of earmark reform but lots of interest in figuring out how to get even more. Indeed, in October 2005, 82 Senators voted for spending more than $220 mil­lion on the infamous bridge to nowhere in a well- publicized, stand-alone vote after the project had become an object of national ridicule.

In response to the Pork-Barrel Reduction Act, the Senate Rules Committee produced the Trans­parency and Accountability Act of 2006 (S. 2349), which is more modest in scope, provides for less transparency, and includes fewer requirements and prohibitions. S. 2349 allows for points of order on a relatively small fraction of legislative earmarks, bans all gifts except for meals (which must be reported within 15 days), imposes limits on travel, and prohibits Senators from having “official” con­tact with a spouse or an immediate family member who is a registered lobbyist. While a weaker bill overall, it has some good points, notably a more robust definition of an earmark and limits on con­tact with family members acting as lobbyists. After extensive debate and numerous amendments, the Senate passed S. 2349 in late March 2006 by a wide margin.

Perhaps recognizing that their colleagues will not support any meaningful lobbying and earmark reform, Senators McCain and Tom Coburn (R–OK) have also announced that they intend to use what authority they have under existing Senate proce­dures to challenge each pork-barrel project. In a press release on January 26, 2006, the Senators announced: “We are committed to doing all we can to halt this egregious earmarking practice and plan to challenge future legislative earmarks that come to the Senate floor.”[23]

Pressure to Move Forward with Reforms

For much of 2005, many in Congress responded to the public’s escalating concern over lobbyists, earmarks, and corrupt practices with the attitude that these were one-day stories and individual aberrations that will soon be forgotten. Beyond some perfunctory sense of regret and an acknowl­edgement that they can probably do a little bit bet­ter, some Members and staff believe that nothing much needs to change and that the only priority that matters is the swift return to business as usual.[24] Campaign fundraisers with lobbyists remain on the schedule, including golf outings to Florida.

A week after the President urged earmark restraint in his State of the Union address, a staff member of the Senate Committee on Appropria­tions sent an e-mail notifying all Senate Republican offices that they had until April 5, 2006, to submit their earmark requests for the FY 2007 Labor and Health and Human Services bill. The staffer urged them to be “realistic,” noting that “You should not have 50 project priorities. Remember, these lists will be held confidential by the committee.”[25]

Thanks to an enterprising media and Justice Department prosecutors, this state of blissful avoidance may not last much longer. Former Rep­resentative Cunningham and Jack Abramoff and his associates have all agreed to cooperate with prosecutors, and revelations to date suggest that many more will be implicated and that new mech­anisms and channels for illicit influence peddling will be uncovered.

Added to this will be the evidence uncovered by the many more investigations now being con­ducted by the media. After all, a San Diego Tribune reporter was the one who asked why the new owner of Cunningham’s former home—a defense contractor benefiting from congressional ear­marks—was selling it six months later for about half of the purchase price and why Cunningham was living rent-free on a yacht owned by the same contractor. This successful investigation has led to dozens more, and several more Members of Con­gress have recently been linked to questionable leg­islative initiatives that closely coincide with campaign contributions and lobbyist influence.[26]

Essential Provisions of Lobbying and Earmark Reform

With the prospect of ongoing revelations of cor­ruption and influence peddling, Congress will be forced to address fundamental lobbying and ear­mark reform. The bills introduced by Senator McCain offer an excellent place to start, but these proposals should be strengthened.

Letting the Sun Shine: The Need for Greater Disclosure. Key to any meaningful reform is much greater transparency in the lobbying process. As former Supreme Court Justice Louis Brandeis observed, “Sunshine is the best disinfectant.”

Several of the bills designed to diminish the cor­rupt aspects of the process would require more reporting on lobbyist contributions to Members of Congress and other government officials, but while this would lead to important improvements, most of the proposals stop well short of the degree of dis­closure necessary to clean up existing problems. For example, S. 2128 does not require any addi­tional reporting by Members of Congress or con­gressional staff, nor does it require lobbyists to report anything more than contacts at which some­thing of value transpires. It does not extend the reporting requirement to lobbyist’s clients, who are often the ones providing the campaign contribu­tions and the other types of rewards and favors (although S. 2265 does cover clients).

The exemption of lobbyists’ clients is of particu­lar importance because even though registered lob­byists are relatively modest contributors to candidates, evidence from several investigations of improprieties indicates that financial transactions between Members of Congress and the clients of lobbyists are significantly more substantial. Indica­tive of the confusion stemming from the lack of transparency are the hairsplitting allegations between the two political parties about whether campaign contributions and other financial favors from Jack Abramoff’s clients, as opposed to Abramoff himself, reflect an attempt by Abramoff and his associates to influence a Member’s vote.[27]

Similarly, officers of a company seeking legislation to require the Transportation Security Administra­tion to buy its products contributed a total of $122,000 to a well-placed Member’s political action committee (PAC).[28] While some of these question­able contributions came from organized fundraising events and thus would have to be reported under the provisions of S. 2128, conducting these same finan­cial transactions outside the scope of an organized or reportable event would be relatively easy, thus escap­ing the reporting requirement. Such a loophole would not exist if clients of lobbyists were also required to report campaign contributions regard­less of the mechanism used to move money from one person to another.

New reform legislation should also require full disclosure by lobbyists of blood, marital, and other formal relationships between them and Members of Congress, senior congressional staff, and executive branch officials. At present, some restrictions apply to husbands and wives, but none address relationships between parents, sib­lings, or lobbyists serving as officers on a Mem­ber’s campaign finance organization or political action committee.

As the lobbying industry has grown in size and profitability and as the appearance of ethical propri­ety becomes less important in today’s Washington, more and more wives and husbands, sons and daughters, and in-laws of Members of Congress and staff have become registered lobbyists. Moreover, as the traditional family structure gives way to alterna­tive relationships among consenting adults, many of these otherwise close and intimate relationships are not subject to the same limits that would apply to a legally married husband and wife.[29]

In 2003, a lengthy investigative report in the Los Angeles Times revealed an extensive network of law­makers’ sons who were registered lobbyists and were serving clients whose business and financial interests involved issues that came before their par­ents’ congressional committees. Part 1 of the article named at least 17 Senators and 11 Representatives with family members who lobbied or worked as consultants on government relations. The article also quotes an attorney who worked as a consultant on government ethics for one of the political parties and who believed that at least 70 relatives of law­makers lobbied at the federal or state level.[30]

Part 2 focused on the relationship between one Senator and his four sons and his son-in-law, each of whom was then employed by one of two law firms with extensive lobbying practices targeted at state and federal officials.[31] Following publication of this information, the Senator announced that his son and son-in-law (the only two of the five who were regis­tered as federal lobbyists at the time) would not be allowed to visit his office on behalf of clients. Later that year, the son gave up his position as a Washing­ton-based federal lobbyist and returned to Nevada to work for a developer.[32]

While expressions of concern over potential conflicts of interest between Members of Congress and their family members and relatives who are registered as lobbyists have become more common in recent years, similar problems are emerging over such conflicts between congressional staff and their family members who lobby. In mid-February 2006, a Senator acknowledged allegations that clients of a lobbyist married to a member of his staff had received 13 earmarks totaling $48.7 million. To the Senator’s credit, he has asked the Ethics Committee to look into the allegations.[33]

Recommendation #2: Lobbyist reporting requirements should be extended to blood and marital connections with Members of Congress and senior congressional staff.

The Pork-Barrel Reduction Act could be made more effective if the provision requiring publica­tion of the client and the fee paid to lobbyists also included blood and marital relationships with Members of Congress, senior staff, and senior executive branch officials. The Lobbying Transpar­ency and Accountability Act should also require the lobbyist’s client and the client’s staff to report any campaign contributions or contributions to a Member’s charitable affiliate related to the pursuit of an earmark.

Developing a Workable Definition of an Earmark

One potential deficiency in most of the reform proposals before Congress is the absence of a clear definition of what constitutes an earmark. Without such a definition, many existing legislative abuses on behalf of lobbyists, their clients, and influential constituencies could escape scrutiny and control, and future Congresses could circumvent the new controls by devising earmark-like acts that fall out­side the implied definition of an earmark.[34]

To avoid these potential pitfalls, legislative reform proposals should include an expansive def­inition of earmarks that covers all existing practices used to provide some tangible benefit to some nar­row constituency. That definition should also attempt to anticipate attempts by future Congresses to avoid the new controls.

As the following examples suggest, Congress is increasingly using the legislative process to provide other kinds of financial rewards—in addition to earmarks for location-specific projects—to influen­tial constituents in their states and districts.

Earmarks for Location-Specific Projects. Although not formally expressed, the earmark reform proposals focus primarily on the type of ear­mark generally found in annual appropriation bills and in highway reauthorization bills, which are enacted once every six years. For the most part, these earmarks appear in neat lists that enumerate exact sums of money to be provided to tangible projects in specific locations. The infamous “bridge to nowhere” was one of the 6,371 location-specific earmarks in SAFETEA-LU, along with the High Knob Horse Trail in Virginia, the National Packard Museum in Ohio, the American Tobacco Trail in North Carolina, and the Sapelo Island Visitor Cen­ter in Georgia.

As this type of earmark has become more com­mon, the practice has been extended to all federal programs. Project-specific earmarks are included in bills to fund the Federal Aviation Administration’s Airport Improvement Program, the Federal Transit Administration’s New Starts Program, the Commu­nity Development Block Grant Program at the Department of Housing and Urban Development, and virtually all spending by the civilian compo­nent of the U.S Army Corps of Engineers.

Individually Tailored Earmarks. While tangi­ble, location-specific projects are the most com­mon type of earmark, Members of Congress are increasingly using the legislative process to provide other kinds of individually tailored financial rewards to influential constituents in their states and districts. A close reading of SAFETEA-LU reveals many more earmarks buried in the text beyond the 6,371 already identified. For example:

• Sections 1937 through 1963 mandate 24 project-specific earmarks, including some ben­efits for the Apollo Theater in Harlem and funding for a documentary about Alaska’s infra­structure.
  
• Section 1925 requires spending $2 million on a Community Enhancement Study conducted by “a national organization representing architects” with the stated goals of “Enhancement of com­munity identity” and “Creation of a greater sense of community through public involvement.”
  
• Section 5505 provides combined grants of $160 million to 10 identified universities, including the University of Alaska.
  
• Section 5506 provides grants totaling $188 million to another 32 universities specified in the bill.
  
• Section 5504 awards a grant to the National Association of Development organizations to establish the Center for Transportation Advancement and Regional Development.

The 844-page bill is peppered with hundreds more such special-interest provisions, yielding a total earmark count well in excess of the acknowl­edged 6,371.

Transfers of Federal Land to the Private Sector. Past efforts to sell federal land to raise revenue for programs have almost always faced strident oppo­sition and congressional rejection.[35] Opponents of land sales contend that the land will be degraded by development, mining, or other commercial uses. As a consequence, federal land holdings, now totaling more than 700 million acres, have actually increased in recent years as new land is acquired to save it from commercial uses.[36]

Despite nearly consistent opposition to land sale proposals that would benefit the general public, Congress sometimes votes to give valuable parcels away to politically influential developers or to local communities that in turn sell or transfer the land to for-profit developers.[37] Although federal spending remains unaffected by these transfers, the govern­ment loses valuable assets and the opportunity to raise more revenue for programs, tax relief, and deficit reduction.

Research Grants. Many long-time observers of congressional earmarking contend that the modern lobbyist/earmark market originated a few decades ago when innovative lobbyists discovered willing (and paying) clients among universities and Mem­bers of Congress happy to accommodate them with research grants and other types of spending tied to specific institutions of higher education. Although the federal government has long funded academic research, the traditional practice had been to iden­tify high-priority areas of research and study that would benefit the nation at large, encourage quali­fied institutions to compete for the federal funding to perform the research, and award the contract based on merit. Through such competition, the federal government would be more likely to obtain the best results from the most qualified organiza­tion in a cost-effective manner.

However, because competition yields both win­ners and losers, Members of Congress have increas­ingly intervened to ensure that less qualified academic institutions in their states and districts receive a share of federal research dollars. Increas­ingly, they are absolving the grant recipients from the pesky requirement of actually performing research on specific topics of interest to the federal government. More recently, federal research grants are being provided directly to the trade and profes­sional associations that lobby on behalf of the grant, as in Sections 1924 and 5504 of SAFETEA-LU.[38]

As with the traditional earmarks, SAFETEA-LU offers numerous examples of such grants. For example:

• In addition to the earmarks in Sections 5504, 5505, and 5506, Section 5309 creates four new Centers for Surface Transportation Excellence, designating Virginia Tech and the Hubert H. Humphrey Institute for two of them and allow­ing the Department of Transportation to select the other two based on competition.
  
• Section 5508 funds grants to investigate the development and/or deployment of Intelligent Transportation Infrastructure in congested met­ropolitan areas and lists the 51 cities that are to receive the grants, including Richmond, Vir­ginia, which is one of the least congested met­ropolitan areas in the country.

As more and more research earmarks are added to a fixed total of research funds, spending on high- priority, merit-based research must be reduced to accommodate the academic pork. In a review of the 2005 energy and water appropriations bill, an offi­cial with the American Association for the Advancement of Science calculated that:

[E]armarks in energy research and development hit $266 million in the current fiscal year, “more than double the previous record from last year.” Among the earmarked money is $495,000 for a pilot project in North Dakota to make hydrogen from wind power, $1.5 million for wind turbines in Alaska, and $500,000 for the expansion of ethanol fuel pumps in several states.[39]

Product and Service Purchase Requirements. Another common mechanism used by some Mem­bers of Congress to transfer federal budget resources to influential constituents is to require a federal agency to purchase a product or service from com­panies owned by the constituent regardless of the government’s need for the product or product’s per­formance compared with competing products. Examples of this practice include the following:

• A provision was included in the FY 2006 Trans­portation Appropriations bill to give Amtrak an additional $8.3 million to compensate for the cost and inconvenience of hauling certain freight cars, used to transport perishable fruits and vegetables, that are owned and operated by a particular company. The company is located in the district of the Congressman who added the provision to the law and who has received substantial campaign contributions from the company’s owner.[40] After the press confronted him with documents concerning his relation­ship with the company and its lobbyists, the Congressman announced that he would work to rescind the $8.3 million appropriation.
  
• In 2000, Congress required the Federal Avia­tion Administration (FAA) to buy and install airport baggage screening machines made by a specific company. The FAA had previously been reluctant to buy and install the company’s machines because the Department of Transpor­tation Inspector General concluded that the machine’s performance was substandard in detecting weapons and bombs.[41] The new law required the FAA to buy one of this company’s machines for every machine that it purchased from a competitor.
  
• In 2004, the Homeland Security Appropria­tions Committee included a similar require­ment in legislation, which strongly encouraged the Transportation Security Administration to buy baggage screening equipment made by a company that had just developed a new prod­uct. However, rather than explicitly identifying the company and its product, the bill’s language required spending $30 million on explosives- detection devices “that are currently being tested, certified, and piloted.”[42]
  
• Although much of the earmarking takes place in the discretionary programs subject to the appropriations process, earmarking also occurs in the federal entitlement programs—for exam­ple, when Members of Congress require Medic­aid to offer eligible beneficiaries a certain product in response to lobbying and political support by influential constituents. Ironically, one such costly measure was included in the 2005 budget-cutting bill to pare $38.8 billion from future federal spending. The Congres­sional Budget Office estimates that the provi­sion will add $125 million to the federal budget over the next five years and possibly even more to state budgets in shared Medicaid costs. Cali­fornia contends that the provision will cost the state $50 million per year.[43]

Federal Loans and Loan Guarantee Earmarks. In addition to the more common practice of ear­marking federal spending, Congress is earmarking direct loans and loan guarantees to private entities through many of the federal credit programs. The Energy Policy Act of 2005 (an authorization bill) contains a number of direct loans, loan guarantees, tax credits, and grants for the construction of energy production plants in certain specific loca­tions, including an integrated coal/renewable energy system in the “Upper Great Plains” (Section 411); a clean coal technology plant near Healy, Alaska (Section 412); a coal gasification plant in a Western state at “an altitude greater than 4,000 feet above sea level” (Section 413); and new research facilities to derive fuels from Illinois Basin coal at Southern Illinois University, the University of Ken­tucky, and Purdue University.[44]

Legislation That Directly Profits Members and Their Families. For the most part, much of the Capitol Hill–K Street market for earmarks appears to revolve around the exchange of campaign contri­butions for legislative and budgetary favors, with no apparent personal financial benefit to a Member. However, there are exceptions to this practice, many of which are not prohibited under congres­sional rules or traditions. For example, Members of Congress are not required by either rule or tradi­tion to recuse themselves from involvement in leg­islation that would provide direct financial benefits to themselves or their relatives.

While the more typical connection would be between legislation and the value of a Member’s investment portfolio, in some cases, the connection is even more direct. For example, between 1995 and 2002, nine Members of Congress received a total of $2,177,491 in federal farm subsidies. In 2002, they received a total of $243,605,[45] and these and other Members of Congress voted to extend the federal price supports for another five years at substantially more generous levels.

Relatives also often benefit from a Member’s leg­islative actions. A few months after the highway bill was enacted, it was revealed that close relatives of two of the three members of Alaska’s congressional delegation owned land on the islands that would be served by the two controversial bridges funded by earmarks in the highway bill. The land’s value is expected to increase as a result of the better access to the mainland.[46]

More troubling cases of personal gain stem from the use of legislation for corrupt purposes subject to criminal charges and punishment. Former Rep­resentative Cunningham pleaded guilty to accept­ing bribes in return for earmarking federal funds to a specific government contractor. Likewise, a con­gressional aide to another Member pleaded guilty to charges of bribery in January 2006.[47]

Private Communication from Congress to a Department or Agency. In some cases, an earmark may be “authorized” without ever appearing in the legislation, the accompanying conference report, or any other public document. Instead, as agency and department officials privately acknowledge, once the legislation is enacted and signed into law, the chair­man of the relevant committee writes a letter to the secretary of the relevant department strongly suggest­ing that a portion of the funds provided in the recent legislation be spent on a series of projects that are described in the letter. Although such letter requests have no force of law, department heads know that it is in their interest to accommodate requests from the congressional committees that control their budgets.

Miscellaneous Types of Earmarks. Other types of earmarks and self-dealing do not fit into any of the above categories but nonetheless involve using the legislative process to provide location-specific federal benefits to a particular constituent or nar­row constituency. For example, Section 4408 of SAFETEA-LU includes the following statement:

Notwithstanding any law, regulation, or grant assurance, but subject to the requirements of this section, the United States shall release all restrictions, conditions and limitations on the use, encumbrance, conveyance, or closure of the Rialto Municipal Airport, in Rialto, California, to the extent such restrictions, conditions and limitations are enforceable by the United States.

In other words, Section 4408 absolves Rialto from paying back the $14 million that it received from the FAA to improve and expand the airport, $9 million of which was used to acquire the land for the expansion.

Instead of expanding the airport, Rialto decided to shut it down and sell the land acquired with federal money to a private developer.[48] Because this was an improper use of the federal grant, the FAA demanded its return, but Section 4408 overruled the agency. Instead, Rialto can sell the land for development, keep 55 percent of the proceeds for itself, and rein­vest the remaining 45 percent in a nearby airport. How an aviation provision ended up in legislation related solely to surface transportation is a puzzle that merits further investigation and explanation. What­ever the ultimate findings, this represents a new and deeply troubling type of earmark in which recipients of federal grants can be legislatively absolved of the federal penalties for misuse of federal funds.

While the previous examples of earmarks were designed to reward certain constituencies, in late 2005, Representative Tom Davis (R–VA) floated the idea of a novel type of “anti-pork” earmark when he threatened to use his legislative clout to punish sev­eral of his constituents financially. At the time, Fair­fax County, Virginia, where Representative Davis lives, was in the process of approving a large, high- density, mixed-use real estate development near his neighborhood of single-family detached houses. Although most of the land to be developed was pri­vately owned, a small 3.7 acre slice was owned by the Washington Metropolitan Area Transit Author­ity (Metro), the regional public transit authority, which receives federal subsidies.

Metro planned to sell that parcel to the developer to allow for a seamless connection between the new development and the Metrorail station, but nearby resident Representative Davis opposed the devel­opment and the congestion it might cause, and he threatened to use his congressional clout to enact legislation forbidding the sale if Metro tried to sell the land.[49] After public criticism of his threat, Davis decided that a taxpayer-funded incentive might work better than a threat and introduced H.R. 3496, which would prohibit Metro from sell­ing the land but soften the blow by offering Metro an additional federal subsidy of $1.5 billion (pro­vided that all of the jurisdictions served by Metro enact additional taxes dedicated to the transit sys­tem.)[50] If enacted, H.R. 3496 could become one of the most expensive earmarks in U.S. history.

Finally, there is an earmark category best described as the “stealth earmark” in which the lan­guage of the authorizing bill is vague enough to obscure its purpose or value. For example, SAFETEA-LU includes designations such as:

• $100 million for “CREATE” (what and where is it?);
  
• $1.6 million for “Lewis and Clark Expressway” (is this for repairs, expansion, or flower plantings?);
  
• $400,000 for Jeanette Truck Route (for what purpose?); and
  
• $880,000 to “Provide pedestrian and water access to Convention Center from surrounding neigh­borhoods” (where is this convention center?).

Other language may be deliberately misleading: Earmark number 4584, for example, provides $2.5 million for “Improvements for West 125th Street in West Harlem,” which is the street on which the Apollo Theater is located. Since Section 1963 also contains opaque language regarding some addi­tional federal benefit to Harlem’s Apollo Theater, the use of “for” instead of “to” in the earmark description may be telling.

While most of the earmark language is reason­ably clear and precise, vague descriptions are not uncommon. To the extent that any enacted reforms allow for points of order against wasteful earmarks, future descriptions will likely be made even more vague and misleading. To discourage such prac­tices, reform legislation should require clarity as well as transparency.

Legislative Remedies to Curb Earmarks

As the previous discussion indicates, Congress has devised a number of legislative mechanisms to provide financial benefits to influential individuals, relatives, businesses, universities, trade and profes­sional associations, and communities. In addition to the typical earmark involving the spending of money on a tangible project in a particular commu­nity, other forms of congressional earmarking involve mandatory product purchases by govern­ment agencies, transfers of federal land to private developers, research grants to universities, and for­giveness of debt to the U.S. government. While many more kinds of legislative mechanisms proba­bly can be devised to transfer financial rewards from government to private interests, the examples provided above were drawn largely from SAFETEA-LU, which was an authorization bill.

SAFETEA-LU is a fitting target for an investiga­tion of earmark abuse, not just because it took the process to its historic extreme by designating a record number of earmarks—more than 7,000— but also because not one of those earmarks would be subject to any of the exposure, transparency, or control provisions that would be established by the Pork-Barrel Reduction Act. This is because S. 2265 would apply only to appropriations bills, not to authorization bills.

Under current practices, this is not a serious deficiency because the vast majority of earmarks— between 13,000 and 16,000 in 2005—are in the appropriations bills. With the exception of the highway bill, most authorization bills have not been used as vehicles for significant numbers ear­marks, and highway bills are enacted only once every six years.

Nonetheless, if appropriations bills are subjected to greater scrutiny and spending controls, Mem­bers of Congress will quite probably begin to use authorization bills as earmark vehicles. The recently enacted energy bill is a good example of this likely outcome. Because the controls in S. 2265 would apply only to “unauthorized” earmarks in appropriations bills, adding an earmark to both appropriations and authorization bills would shield it from points of order and all of the impor­tant transparency provisions.

Distinguishing Between Good and Bad Earmarks

Excluding authorization bills from control and transparency may appear to be a significant defi­ciency in S. 2265, but this exclusion may recognize that the earmarking process in some federal pro­grams is not only acceptable, but also essential. What follows is an attempt to delineate between programs in which earmarks are a source of abuse and programs in which they may be essential for effective operation.

Earmarks on Formula Programs Based on State and Local Discretion. To date, much of the concern over earmarks has been focused on the several discretionary programs in which federal money is allocated to states and communities according to a formula that attempts to measure need. In turn, the states and communities allocate those funds to their priorities, subject to the pro­gram’s rules and restrictions. For example:

• The highway program uses a formula that con­siders miles of roads, number of licensed cars, vehicle miles driven, and other quantitative fac­tors to determine how much money (expressed as a share of the total spent nationwide) each state receives from the highway trust fund. States are then free to spend this money on their own transportation priorities, subject to a series of rules and guidelines.
  
• The Department of Housing and Urban Devel­opment’s Community Development Block Grant program operates in a similar manner, using a formula to determine need within a community. It assumes that the cities and coun­ties receiving the money are capable of ade­quately identifying their own priorities.

Over time, however, Congress has been reducing the states’ discretion by creating more categorical programs (SAFETEA-LU created about 30 new ones) and by carving out more and more earmarks from the money that states would otherwise have to spend on their own priorities. By earmarking these otherwise discretionary funds, Members of Con­gress (urged on by influential constituents and hired lobbyists) are taking the position that they and their staffs—not the state and local govern­ments—know what is best for the communities in their states and districts.

Speaker of the House Dennis Hastert (R–IL) spoke in support of this view when he asked rhetorically: “Who knows best where to put a bridge or a highway or a red light in their district?”[51] Many of his col­leagues and their staffs share his view, which reflects poorly on the quality of the Illinois Department of Transportation and on how they see their duties as members of the legislature of the world’s greatest democracy. Either way, this new attitude reflects both a growing propensity of Congress and its staff to micromanage policy to the minutest degree and a sig­nificant centralization of power in Washington.

Earmarks and Entitlements. While earmarking can be detrimental to the efficacy of discretionary formula grant programs, the issue is less clear-cut in other federal programs. In entitlements in which federal statutes define benefit levels and eligibility, Congress must influence all facets of a program and become involved in the details by exercising its oversight authority.

In a health care program like Medicare, for example, congressional micromanagement of pric­ing decisions, eligibility, benefit levels, and broad issues of treatment is unavoidable. Because Medi­care sometimes lags in approving treatments and procedures already widely approved by private insurance plans, it may be appropriate on policy grounds to push Medicare into covering them as well. However, it would be inappropriate for Mem­bers of Congress to decide which company’s drugs and devices can be used in approved treatments and which ones cannot.

Many of the federal food assistance programs are under pressure to include the products of influen­tial agriculture groups. Food processors and grow­ers use their influence to obtain the eligibility and use of their products in the school lunch program; the Women, Infants, and Children Program; and military commissaries.[52]

Centralized Discretionary Spending. The most problematic are discretionary spending programs in which project earmarking is essential to their value because of their objectives and modes of operation, such as in national defense and the civilian compo­nent of the Army Corps of Engineers. In operating these programs, Members of Congress (and the Pres­ident) are well within the responsible execution of their duties to insist that the annual authorizations and appropriations for these programs be very spe­cific on a project-by-project basis.

Tasked with a number of responsibilities that include flood control and river navigation, the Army Corps of Engineers each year submits to Congress its budget request (currently in the $5 billion range), which details what it intends to do with the money. In theory, the Corps applies a comprehensive cost- benefit analysis to all of the projects under consider­ation and selects those with the highest comparative benefits. In this way, its fixed budget yields the max­imum benefit to the nation, in comparison to a pro­gram that uses a formula to allocate money to the states or communities as an entitlement. Because the risk of flooding is higher in some areas than in others and river navigation improvements are limited to navigable rivers, Corps spending tends to be con­centrated in a relatively small number of places to ensure maximum benefits.

In practice, however, Congress and lobbyists often interfere with this allocation process and use the project-by-project nature of the programs to include projects of low social or economic priority but high political benefit. For example, in recent years, Congress has allocated much more money to high-cost, low-benefit navigation programs in Lou­isiana at the expense of the state’s levee repair and flood control programs.[53]

The annual Department of Defense (DOD) budget is also subject to considerable earmarking as the DOD makes its case to Congress for the next year’s budget. As with the Corps and its diverse goals, the DOD budget begins with the goal of protecting the nation, which involves identifying threats and pro­posing a detailed spending request to meet those threats. In doing this, the DOD proposes broad allo­cations of spending among the uniformed services, detailing manpower needs, where the personnel will be stationed, the requested additions to its weapons inventory, and investments in new weapons and weapons technology. Of necessity, the proposed defense budget is quite specific on where and how the funds will be spent on a project-by-project basis.

As in the Corps budget, the project-based nature of the DOD budget allows for plenty of opportuni­ties for traditional pork-barrel earmarking. Because most weapons are produced by a single company or a consortium of several companies, individual businesses stand to benefit substantially from the necessary earmarking and thus have a compelling interest in shaping the budget decisions. As a result, weapons, services, and products that the DOD does not want are often forced on it, and mil­itary bases of little value but high expense are kept open well beyond their useful life.

Defense-related research has also been subject to a growing incidence of earmarking, as the criminal case against former Representative Cunningham illustrates. Among the charges against Cunningham is accepting bribes in return for using defense appro­priations bills to provide research grants to influential companies represented by Washington lobbyists.[54]

Several other government departments have similar operational and program structures that require some allocation of spending to specific projects and locations.

• The Veterans Administration builds, renovates, and expands its hospitals located throughout the country.
  
• The Departments of the Interior and Agricul­ture allocate a portion of their funds to specific projects and improvements at various sites managed by the National Park Service, the Bureau of Land Management, and the National Forest Service.
  
• The National Aeronautics and Space Adminis­tration spends a substantial portion of its bud­get at a few sites in Texas, Alabama, and Florida and depends on a handful of companies to build its rockets and satellites.

Nonetheless, some in Congress have abused this need for project specificity to direct taxpayer dol­lars to influential constituents that might otherwise not be qualified to participate in the programs.

Adjusting to the Differences. As the above dis­cussion demonstrates, the process of earmarking the federal budget does not always lead to frivolous waste but is sometimes essential to effective bud­geting and agency accountability. Any effort to reform the budget process to diminish wasteful ear­marks must devise a mechanism that allows for an orderly process that can distinguish between good and bad earmarks.

To some extent, S. 2265 achieves this in three ways.

First, it would exempt authorization bills from coverage, excluding many of the project-based spending proposals from review. This is particu­larly important for the Defense Department, which relies on the authorization bill to establish priorities among projects, weapons, bases, and other opera­tional factors—a necessity that many Members of Congress regrettably abuse.

Second, with earmarks subject to a point of order rather than a prohibition, Congress would be inclined to focus only on those that seemed wasteful.

Third, inasmuch as many earmark-like spending plans are proposed by the agencies, there would be no formal lobbying activity to be exposed, thereby suggesting some greater measure of legitimacy. Nonetheless, enactment of S. 2265 would force Congress to stop shirking its responsibility to make tough choices.

Recommendation #3: Any successful effort to limit Congress’s propensity to earmark spend­ing and other federal privileges requires a rea­sonably precise definition of what is and what is not an earmark.

A reasonably comprehensive definition is also needed to control congressional abuses that allow the transfer of valuable public resources to other interests for reasons based solely on influence and privilege. Members of Congress have used a num­ber of legislative mechanisms to benefit special interests at the expense of the general public, and all of these costly and questionable mechanisms should be discouraged.

Of the bills introduced so far, S. 2349 offers the most detailed definition of an earmark. Section 3 defines it as covering “budget authority, contract authority, loan authority, and other expenditures, and tax expenditures or other revenue items.”

There are as yet no easy answers to these impor­tant questions of scope and definition. To close this gap in knowledge, Congress should investigate this issue of definition and applicability through public hearings and in consultation with its key support institutions: the Congressional Research Service, the Government Accountability Office, and the Congressional Budget Office.

Conclusion

As is apparent from a review of the earmark and lobbying reform legislation introduced by Senators McCain and Coburn and Representative Flake, much of the hoped-for improvement would rely on more detailed reporting and greater transparency than exists at present. While that would certainly lead to some beneficial results and deter some of the more questionable practices and projects, it is not apparent that reform proposals that rely largely on better reporting would make much of a dent in the legislative malpractice that they are designed to discourage and end.

In commenting on new federal laws requiring more detailed reporting by publicly traded corpo­rations, Professor Todd Henderson of the Univer­sity of Chicago Law School observed:

Ever since Brandeis turned the neat phrase “sunlight is the best disinfectant; electric light the best policeman” in praise of transparency, it has been virtually accepted wisdom in legal and policy making circles. But the efficiency and efficacy of “sunlight” is not always so obvious.[55]

Representative Flake expressed a similar senti­ment when he wrote to Speaker Hastert of his con­cern about a proposal from then-Acting Majority Leader Roy Blunt (R–MO) to reform the earmark process by having Members of Congress attach their names to earmark requests: “Anyone who thinks that members are averse to claiming credit for securing earmarks hasn’t been reading his own press releases.”[56]

Both Representative Flake and Professor Hend­erson have raised an important concern that needs to be addressed in any reform proposal that depends largely on transparency and reporting to curb fiscally irresponsible behavior. Much of the sensational reporting in the media since August 2005, when SAFTETEA-LU became law, has depended on facts and acts openly available in leg­islation, legislative reports, lobbyist Web sites and registration forms, federal election law disclosure reports, open invitations to fund raising events (including pay-to-play Florida golf outings), and congressional press releases. These are just a few of the public venues in which the information is not just available, but often flaunted.

As noted earlier, lobbyist Howard Marlowe lists on his Web site details of every beach nourishment earmark that he has obtained for clients, and pub­licly available documents filed with the Clerk of the House and the Secretary of the Senate would reveal which clients paid him for those services. Congres­sional press releases would reveal who facilitated the transfers of money from the taxpayers to the clients.

The Carmen Group puts all of this information together to show the great service that it provides clients by calculating and promoting the dollar amount of earmarks that it has obtained compared to client fees paid. With regard to the most notori­ous earmark of all—the bridge to nowhere— Alaska’s congressional delegation defended it aggressively and sometimes flamboyantly to ensure its survival. Believing that the problem was not with the infamous earmark but with the American public’s misperception of it, Alaska’s governor announced plans to fund a nationwide publicity effort to set the record straight and restore the state’s tarnished reputation.

Under the circumstances and relying on the super majority required in points of order to strike an earmark, it seems likely that the vast majority of earmarks will survive this modest procedural gant­let. Absent a stronger deterrent, the increasingly popular process of earmarking is likely to grow at an accelerating rate.

Where the provisions of some of the bills could have their biggest impact is in deterring some of the corrupt practices that appear to be associated with some earmarks. By requiring extensive reporting and transparency and by making the links between earmarks and campaign contributions more obvi­ous, these bills would enhance the integrity of the process. While these provisions are unlikely to slow down the growth of earmarks, they should make the process more honest.

As is apparent from the Cunningham incident and the information referenced in many of this report’s footnotes, the press deserves much of the credit for exposing the problems and instigating the formal criminal investigations that have revealed the shady nature of this process. In turn, these exposés have led to helpful legislative proposals and the prospect of greater integrity in the future.

If not for a free and inquisitive press, the com­prehensive reform process now underway would never have happened. With more reporters being assigned the earmark beat and with more transpar­ency forced on Congress, some of the worst prac­tices should disappear.

Ronald D. Utt, Ph.D., is Herbert and Joyce Morgan Senior Research Fellow in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.