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Representative Nancy Pelosi's Smart Proposal to Reform the Earmarking of Appropriations:
How Democrats Have Turned Republican, and Vice-Versa, When It Comes to Spending


Thursday, Nov. 16, 2006

With the historic 2006 midterm elections now over, the Democratic leadership has been quick to point to legislative changes it would like to see. Some are predictable democratic fare - such as a bill to increase the minimum wage. But Representative Nancy Pelosi (D. CA) - likely to soon become the new House Speaker -- caught me off-guard when she announced that she would like to change the practices surrounding "earmarking" appropriations bills and make them more transparent to the people.

This is an old-fashioned Republican proposal, so why has it been left to a Democrat to champion? The answer, I think, shows how far Republicans have departed from their traditional principles and beliefs - a subject I also discussed in an earlier column.

Earmarking: What It Is, And Why It Encourages Wasteful "Pork" Spending

Earmarking is the practice of attaching usually frivolous spending - otherwise known as "pork" -- to an appropriations bill in order to curry favor with constituents and lobbyists. It is often done "under the table" in the final hours before the bill becomes law -- which means that few know about it, no one has an opportunity to challenge the policy behind the earmark, and, often, one cannot even identify the source of the earmark. Congressional seniority gives members priority in the pork queue.

The best recent example was the "bridge to nowhere" in Alaska. Rep. Don Young (R-AK), the shameless Chairman of the House Transportation and Infrastructure Committee at the time, secured a $223 million, pork-filled earmark for a bridge between Ketchikan (8900 pop.) and the small airport in Gravina Island (50 pop.). There was absolutely no need for the bridge, as those Ketchikanians who needed to get to the airport had been using, quite successfully, a 10-min. ferry ride for years.

According to USA Today, Young bragged that the transportation bill to which the bridge to nowhere was earmarked was "stuffed like a turkey" with pork. The story does not end there - when Sen. Tom Coburn (R-Okla.), introduced an amendment to a later transportation bill to shift the funds for the useless Alaska bridge to repair of a bridge destroyed by Hurricane Katrina, Sen. Ted Stevens (R., AK) loudly and angrily objected, even threatening to resign from the Senate if the pork was not preserved. Coburn's amendment lost.

Unscrupulous members of Congress love earmarks, for they permit them to use the federal purse for their own ends without being caught. In other words, through the practice of earmarking, they have accorded themselves expansive power to pillage public funds without any meaningful accountability.

The result, under the Republican-led Congress, has been that the practice of earmarking has become rampant, and billions have been spent on projects with little or no connection to the national good. Republicans in the past would have called it fiscal irresponsibility.

Pelosi's Proposed Reform: Using Disclosure to Curb Earmarking Abuses

Pelosi suggested a reform that would transform the process: No one should be permitted to earmark a bill unless the name of the sponsor is made public. In other words, members would have to take public responsibility for their bridges to nowhere and their public projects benefiting lobbyists and industry.

Of course, Republican heavyweight John McCain, quite rightly, has been fighting pork for years on the ground that it fosters irresponsible spending and increases the power of lobbyists at the expense of the public good. So no one should think that Pelosi's suggestion is the most extreme or effective reform that might possibly be wreaked on the wayward earmarking system. Nor should anyone believe that the fight against pork is now the sole province of Democrats; McCain will doubtless continue his worthy work.

Still, Pelosi's proposal is remarkable, because it shows that the parties have changed positions 180-degrees when it comes to the spending of federal money.

When the Democrats Become the Republicans - and Vice-Versa

Pelosi's insistence on transparency in the budgeting process is what one would have expected of Republican, not Democratic, leadership in Congress - at one time.

Such a proposal might have come from the Reagan-era when Republicans sought more accountable and smaller government. Or it might have come from a Newt Gingrich Congress offering to make an enforceable "Contract with America" to ensure accountability. Or it might have been part of the Republican push to balance the federal budget.

Conversely, many of the free-spending Democrats vilified by the Republicans in those eras might have been expected to fight such a proposal tooth-and-nail.

What is going on here? The answer is simple: It's old-fashioned hubris. Republicans have had the White House for six years, have had control of the House for twelve years, and have had control of both houses since 2002. Since they took control, Republican members of Congress have been spending at a dizzying clip, as the White House has introduced programs that require spending, like No Child Left Behind, which institutes federal oversight of public school performance and cost $ 4.7 billion in its first year, and the Faith-Based Initiative, which permits the federal government to give money directly to religious entities for social services, and has been used to enrich the likes of the Rev. Jerry Falwell, whose programs hardly needed the infusion of funds.

The Republicans became addicted to power, and, in turn, used spending to secure their power position. If one ever needed an object lesson on the result of unchecked power, this is it.

But one needs some further explanation for the extent to which the Republican members of Congress and the President departed from the values of fiscal responsibility. They had power, to be sure, but what would lead them to completely abandon their former values?

The answer, I believe, is that this Administration and the Republican-led Congress walked away from traditional (and worthy) Republican values toward what they seem to have thought were "higher values." They weren't just drunk on power; they thought they had God's mandate as well. There is no more potent mix to lead fallible human representatives to assume that everything they do - no matter how callow or greedy - is somehow for the larger good.

Echoes From the Time of the Framing

The Republicans' perilous position, though, should not come as a surprise. If there is any one theme that can be drawn from the Constitutional Convention, it is that every human who holds unchecked power is likely to abuse that power.

Of course, the very reason the Framers were forced to gather in Philadelphia was that the new country's first attempt at a constitution, the Articles of Confederation, failed miserably. Because the Articles did not institute sufficient checks on the exercise of state legislative power, state legislatures became vortices of corruption, to paraphrase the Framers at the Convention.

The Framers gathered together out of humility, and out of desperation. Their keen sense of human shortcoming was built into the Constitution. No wonder that the Framers spent the vast majority of their time assigning powers, and then ensuring that every power granted would be subject to some countervailing power.

When one political party wields power from all three federal branches, though, the system of checks the Framers instituted is not working at peak capacity, as contemporary experience teaches us well.

If the People Insist on Accountability, Then Whoever Has Power Must Provide It

There is a small miracle in Pelosi's interest in making earmarks accountable to the people. It is, by now, no longer conjecture, but simply fact that the Republicans in Washington have lost their way. Political scientists, sociologists, and the rest of us will be tracing how, and asking why, for a very long time. But look how the phoenix of accountability rose up out of the ashes of this fallen power.

The people really have only one true power - the power to choose who will make the governing decisions. (They cannot make those governing decisions themselves under the federal system, which unlike some states', does not put initiatives or propositions directly to the people.) Elections like this one remind Americans that the power of choosing representatives, though an indirect way to achieve their ends, can be potent.

When one party swoons with power, leaving the people behind, the people have the capacity to unseat that party. When that happens, the other party, out of fear or a desire to be the one in power, comprehends that it can only regain power by paying attention to the people and making accountability to them a priority. Thus, the Democrats have become the party demanding accountability, as Republicans have lost their majority voice in Congress.

Let's just hope Pelosi can succeed in selling (and passing into law) her earmarking accountability idea before the Democrats get an inflated sense of their worth in the system. Political power in the United States works on a pendulum-like swing, and the people are best served when a party is at the base of its swing into power. That is when the party most clearly sees that the people are the means to power -- and that is when it has not yet persuaded itself that the people are peripheral, because its power was divinely ordained.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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