Bush's War on Earmarks: The Right Message from the Wrong Messenger

By MICHAEL C. DORF

Wednesday, Jan. 30, 2008

During his State of the Union Address on Monday night, President Bush denounced Congressional "earmarks"--a practice in which members of Congress use legislative history to direct funds to particular programs not specified in the appropriation bill's text. Like prior attacks on pork-barrel spending,the President's denunciation of earmarks is sound in principle. But for two reasons, Bush is poorly positioned to make the case against earmarks.

First, the amount of money at stake in earmarks is small compared with the amount of money President Bush has sought and obtained for the Iraq War and the revenue he has foregone through his tax cuts.

Second, as I will explain below, Bush's specific proposal to combat earmarks is based on the premise that evidence of Congressional intent extrinsic to a law's text is not part of the law. Although that view finds support in Supreme Court precedent, Bush himself has done more than any other President in history to override statutory text through his repeated use of tendentious signing statements.

In short, President Bush is the wrong messenger to deliver the anti-earmark message.

Earmarks Are Small Potatoes Compared to the Revenue Consumed and Lost by the Bush Administration's Spending and Taxing Decisions

For years, politicians of all stripes have railed against wasteful government spending. For example, in the 1970s and 1980s, the late Democratic Senator from Wisconsin, William Proxmire, issued "Golden Fleece" awards to what he regarded as particularly foolish expenditures of government funds, often scientific studies that aimed to uncover obvious answers to questions no one could reasonably think worth asking. Although Proxmire sometimes missed the mark and ridiculed worthwhile programs, no one seriously doubts that the federal government regularly makes questionable funding decisions.

Earmarks, the Bush Administration contends, are particularly likely to constitute wasteful government spending because they are typically favored by a small number of members of Congress--often just the one Representative whose district will benefit from the influx of funds for a pet project. Thus, in 2007, the Administration challenged Congress to reduce the cost of earmarks by half.

According to the Administration's calculations, earmarks for the most recent fiscal appropriations total about $17 billion, which is slightly down from the 2005 total that the Administration has used as its baseline, but still substantially more than half of that year's total.

Accordingly, President Bush has signed Executive Order 13457, instructing Executive Branch agencies to ignore all earmarks that are not contained in the text of statutes enacted by Congress, and has threatened to veto future appropriations measures that contain earmarks.

Eliminating $17 billion in wasteful government spending is not a bad idea. As the late Illinois Republican Senator Everett Dirksen supposedly said, "A billion here, a billion there, and pretty soon you're talking about real money."

But Dirksen made his remark (or at least had the remark attributed to him) in the 1960s, when a billion dollars was worth a lot more than it is today. To gain some perspective on what's at stake in the earmarks battle, it is worth noting the net effect of two key Bush policies on the nation's fiscal health.

According to the Congressional Budget Office's calculations, the war in Iraq will likely ultimately cost well over a trillion dollars (to say nothing of the human cost). Meanwhile, the tax cuts enacted in 2001 and which President Bush proposed in his State of the Union to make permanent, will also cost revenues reckoned in trillions of dollars.

The Administration is not wrong to think that earmarks lead to wasteful government spending, but it would be hard to find a worse spokesperson for this proposition than President Bush, whose fiscal policies have been irresponsible on a scale that utterly dwarfs the effect of earmarks.

Earmarks in Committee Reports Versus Earmarks in Statutory Text

The President's Executive Order will not eliminate appropriations that appear in the text of any bill duly enacted by Congress as a whole. Rather, the Administration will ignore those earmarks that appear only in the legislative history of spending measures.

In a fact sheet, the Administration explains that earmarks that appear only in Congressional committee reports or other Congressional documents, but not in enacted legislation itself, do not constitute binding law. The fact sheet rightly invokes Supreme Court cases holding that where the text of an appropriations measure allocates funds to an executive agency on a lump-sum basis, more specific allocations in the legislative history do not constrain the agency's discretion to decide how to spend those funds.

There is, moreover, some reason to think that an earmark that appears only in a Committee Report is more likely to amount to pork-barrel spending than an appropriation that appears in the text of a statute. Members of Congress as a formal matter only vote on the text of legislation, and thus may not be familiar with an earmark that appears only in a committee report.

One should not make too much of this point, however. Most Senators and Representatives do not read most of the text of any proposed statute, either, nor could they, given the length and detail of typical omnibus appropriations measures. Members of Congress rely on their staff and party leadership to keep them generally informed about the nature of the legislation they vote to enact.

Accordingly, there is a nicely self-correcting feature to the Bush Executive Order on earmarks. If the President is right that use of committee reports permits earmarks to sneak unseen into appropriations measures, then forcing them into the light of the statutory text could have the salutary effect of reducing the number and value of potentially wasteful earmarks.

Likewise, if the President is wrong about the difference between the legislative process for text and legislative history, then the Executive Order will do little harm. Members of Congress will still be able to get their earmarks; they will just put them into the law's text.

Is Legislative History Different From a Signing Statement?

But just as this profligate President is poorly positioned to object to wasteful government spending, so too is the current President poorly positioned to complain about statutory interpretation that departs from the enacted text.

Earmarks are suspect, the President says, because they go beyond what the formal text of appropriations laws say. But at least earmarks do not contradict the enacted text. A typical earmark provides that a certain portion of the dollars allocated by statute for a general program--say, defense spending--must go to a particular program not identified as such in the statute--say, research on a weapon at a laboratory in a particular Congressional District. The earmark purports to impose limitations beyond those that the statute does, but it is consistent with the statute.

By contrast, the President, through his use of hundreds of signing statements, has frequently asserted a power to ignore points of law that have been specifically enacted by Congress. Typically, these signing statements say that the statutory limitation the President intends to ignore is unconstitutional, but very often that conclusion rests on a highly idiosyncratic and self-serving interpretation of the Constitution.

Thus, President Bush has frequently asserted that either the principle of the "unitary Executive" or his role as Commander in Chief permits him to cast aside statutory limits on his freedom of action--even though the leading court cases indicate that the relevant statutes actually fell well within Congressional power. It takes a very peculiar view of constitutional checks and balances to think that extra-textual Congressional statements of legislative intent cannot even supplement a statute's text, but that extra-textual Presidential statements of signing intent can legitimately contradict a statute's text.

Hence, even if we can all agree that earmarks poorly serve the national interest, President Bush is the wrong person to lead the fight against them. Viewing the attack on earmarks in the full context of the Bush Presidency, it is hard to escape the overwhelming impression of hypocrisy about both fiscal discipline and the importance of statutory text.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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