The drive for more transparency on earmarks, or congressionally directed spending, is sputtering on Capitol Hill.
Two months after passing the most sweeping ethics-reform bill since the Watergate era, lawmakers are giving the new law its first field test as they move to complete authorization and spending bills for the new fiscal year.
Thanks to the new law, there is more information about member earmarks than ever before. For the first time, the public can link the name of a member to a specific project in that member's district – although the process is not as user-friendly as sponsors once suggested.
But key changes promised in debates in the House and Senate aren't yet the practice behind closed doors. Without public pressure, critics say they may never be.
"We have more disclosure about earmarks than we've ever had before, but among the more frustrating things we've seen is a simple word change that really delays disclosure until it's almost meaningless," says Bill Allison, a senior fellow at the Sunlight Foundation, which tracks earmarks.
One of the key venues for abuse, critics say, is "air-dropping" projects in conference. In other words, measures are added after a bill has passed both the House and Senate but before it goes back to both bodies for a final vote. That backroom tactic is what ex-lobbyist Jack Abramoff called "the favor factory." It's where former Rep. Randy "Duke" Cunningham (R) of California, now serving an eight-year sentence after pleading guilty to corruption charges, linked earmarks to bribes without scrutiny.
Water bill gets $2 billion in earmarks
Even before conferences on the 12 spending bills for fiscal year 2008, where most earmarks are typically added, critics note that the recently passed Water Resources Development Act added some $2 billion in earmarks in conference.
In a clarification of the intent of new reform bill, Senate majority leader Harry Reid told the Senate parliamentarian that the new law only applied to spending bills, not to authorization or tax bills. That means that members had no opportunity to challenge specific projects on the floor of the House or Senate.
"Under the OPEN Government Act that the president signed into law, everyone thought that the ability for senators to raise a point of order against earmarks added in conference applied to all bills – appropriations, authorization, tax bills," says Tom Schatz, president of Citizens Against Government Waste, a budget watchdog group in Washington.
"Now, senators know that they can add projects with impunity to the authorization bill and no one can object. That's business as usual," he adds.
Conservatives urge more openness
House Republicans and conservative activist groups rallied on Thursday to call for stronger disclosure requirements for earmarks. In June, House Republican leader John Boehner introduced a resolution to require that earmark reforms apply to all bills, including tax and authorization bills, so that they can be amended or challenged on the floor of the House.
"A lot of the promises of transparency just haven't come true," says Ed Frank, vice president of public affairs of Americans for Prosperity, which led a national campaign for earmark reform. "Their addiction caught up with their rhetoric. They find it's a lot easier to talk about getting earmarks under control than to actually do it."
In a letter to Sens. Reid and Dianne Feinstein (D) of California, Sen. Jim DeMint (R) of South Carolina challenged how Democrats were interpreting the new law in the Senate. "While we have had numerous disagreements about the ethics bill, I believe we share a common desire to restrict the practice of adding earmarks into bills behind closed doors," he said.
In a Sept. 20 letter in response, Sens. Reid and Feinstein wrote that there are "sound policy reasons" for treating authorization and spending bills differently. "Stronger safeguards are appropriate when Congress actually spends taxpayer money," they wrote. "But when Congress passes an authorizing bill, it is simply expressing a goal."
But critics note that the most infamous earmark of all, the $223 million "Bridge to Nowhere" in Alaska, was attached to an authorizing bill, not a spending bill.
Some Democrats side with GOP
A wild card in the fallout over earmark reform is the role of freshmen Democrats, who campaigned on ending corruption in Washington. Sen. Claire McCaskill (D) of Missouri opted out of the earmark system this year because she says that reforms of the process didn't go far enough. In June, she and freshman Sen. Jim Webb (D) of Virginia voted with Republicans on the Senate Armed Services Committee to require that all earmarks in the Defense authorization bill be made transparent. That measure passed. She also voted against the Water Resources Development Act, because of the millions of dollars in earmarks added in conference. The measure was approved anyway.
"These deals are being made behind closed doors and stuck in conference, and that's just not right," says her spokeswoman, Adrianne Marsh. "If a public project isn't worthy of public scrutiny it's not worthy of being funded."