Congress Faulted for Using Budget to Tie Bush's Hands

A GROWING congressional tendency to put tight constraints on some appropriations is raising hackles in the White House and several administration departments. Congress increasingly is instructing the Bush administration, as it did its recent predecessors, on how it must spend some of the money that Congress appropriates. In some cases Congress directs that money must be provided to specific programs. In other cases, it forbids the administration from using funds for certain projects.

In recent years Congress has: specified types of research that must be conducted under welfare reform; forbidden the Federal Communications Commission from conducting a study that a court had required (concerning whether the FCC should change its minority preference policy in awarding television licenses); banned the Office of Management and Budget from spending money to study whether the Bonneville Power Administration should be privatized, or whether agricultural marketing orders are beneficial on a cost-benefit basis.

This fall Secretary of Housing and Urban Development Jack Kemp protested when Congress, supposedly looking for ways to cut the budget, wrote into the HUD appropriations law a requirement that he give more than $28 million to 40 specific projects, ranging from apartment renovation to an arts center, in at least 20 states.

Moreover, the money was to come from a part of HUD's budget that Mr. Kemp wanted to end altogether: a discretionary fund that previous HUD officials allegedly had misused for political purposes.

Kemp's complaint was that instead of disbanding this fund Congress was financing it. ``The question isn't so much on the individual projects,'' says Mary Brunette, an assistant secretary of HUD, ``as it is on whether HUD should have a pot of money'' that is to be divvied up irrespective of whether or not they actually have merit.

``Many of the programs that Congress specifies may be perfectly meritorious,'' says a high-level civil servant. ``But they may have nothing whatever to do with the mission of this department, and they reduce the amount of money the secretary has to spend on programs that are important to that mission.''

``There's no doubt that the Congress is spending increasing amounts of time restricting the executive about what programs to fund and how to run them,'' says Douglas Besharov, a resident scholar at the American Enterprise Institute.

The appropriations process should not be used to control a president, says Gregory Sidak, a Washington lawyer who was an official of the Council of Economic Advisers and Federal Communications Commission during the Reagan presidency. ``It's not a lever by which Congress is supposed to have political power which it can raise over the president.'' Efforts to use it this way often are unconstitutional, he adds.

In the messages that accompany his signing of appropriations bills President Bush in recent weeks has objected to both kinds of earmarking, the required and the forbidden spending. On Nov. 21 the president expressed ``serious concerns regarding the extensive earmarking of funds'' in an appropriations bill for foreign operations and export financing, which he was signing that day. ``This degree of earmarking will vastly complicate my ability to fund key programs and will hamper US efforts to meet its responsibilities to important allies and friends,'' the president said.

Congress is escalating its earmarking of required spending as a consequence of divided government, says Mr. Besharov. ``The major reason is because it looks as if the executive [arm of government] will be Republican for some time to come, and the Congress Democratic for some time to come. Thus the normal inhibitions about congressional mandates on executive actions are loosening.''

Congressional favoritism for political contributors is another reason, say some critics. ``More and more the purpose of these [earmarking] riders is to get money for congressional contributors,'' says Mark Liedl of the Congress Watch project of the Heritage Foundation.

One final reason: Some earmarking of of funds for projects a new form of an ancient tradition - pork barrel politics. ``Some of the earmarking is not Congress vs. the president but just pork barrel,'' Besharov says.

The other side of the coin - Congress's forbidding of the executive branch to spend money for specific purposes - ``is already a serious problem,'' Sidak says. ``It isn't just some arid question that's fun to debate among constitutional lawyers. It's really something that can affect not just the policymaking functions of the executive branch but the civil liberties of the citizens.''