Omnibus Raises Debate: Pork or Policy Directive?

Published Jan 22, 2014. In Congressional Quarterly.

Summary: While lawmakers overwhelmingly passed the omnibus spending bill earlier this month, Congressional Quarterly (CQ) reports some lawmakers are concerned the bill represents a return of earmarks -- provisions in legislation that direct budgetary resources to specific projects, usually in a particular legislator’s district.

 

Joshua B. Gordon, policy director for The Concord Coalition, says these concerns are misplaced and that Congress, by passing appropriations bills, is operating its power of the purse.

 

“There is, from a congressional power perspective, still this correct desire on the part of appropriators to put the money into where the policy priorities are. A lot of people claim all of that to be earmarks, but it’s really Congress exercising the power of the purse and I think there is sometimes a problem looking at congressional action as pork,” he told CQ.

 

The Jan. 22 story, “Omnibus Raises Debate: Pork or Policy Directive?”, says anti-earmark legislators such as Senators John McCain (R-Ariz.) and Tom Coburn (R-Oakl.) voted against the omnibus bill out of concerns that the condensed time to negotiate and debate the bill allowed legislators to include earmarks and policy riders that did not belong in an omnibus. Earmarks have been banned in Congress since 2010.

 

Top appropriators fought against these accusations, saying they did not use the omnibus to legislate policy or add funding for parochial projects.

 

Gordon said Congress “is directing where the spending goes instead of having the executive branch do that.” He added what really matters now is that Congress makes sure to adhere to the spending caps that were modified by the bipartisan budget agreement that was signed into law late last year.

Original Story: The $1.1 trillion omnibus that cleared Congress and was signed into law last week includes funding for a naval shipyard in Maine, an Ohio-based uranium enrichment research project whose parent company recently announced its intent to file for bankruptcy and a provision aimed at cutting down on helicopter noise in Los Angeles.

They are the kind of tightly targeted policy provisions that fill parts of the massive spending plan that critics point to as a sign that earmarks are making a comeback on Capitol Hill.

Anti-earmark crusaders including Citizens Against Government Waste and Sens. John McCain, R-Ariz., and Tom Coburn, R-Okla., are criticizing lawmakers for looking the other way and even bragging about what they see as a sprawling spending bill filled with pork-barrel projects and policy directives.

They say the practice of earmarking, banned by both chambers of Congress since 2010, is back in all but name. Instead of filling out a traditional earmark request form, critics say, lawmakers are achieving their goals by plussing up program funding levels at certain federal agencies and including policy riders that direct or limit departments from doing one thing or another.

Citizens Against Government Waste President Tom Schatz said the omnibus (HR 3547) was "overflowing with earmarks."

"Taxpayers should be worried about this bill setting a precedent for a return to earmarking," Schatz wrote in a letter to House lawmakers last week urging them to vote against the bill.

In a floor speech recalling his anti-earmark soliloquies of years past, McCain decried last Thursday what he called a proliferation of pork in the bill, which he voted against. He also slammed appropriators for "overstepping their bounds" and legislating policy in the omnibus, pointing to a provision related to the management of drones, a legislative prerogative he said should be left to Congress' authorizing committees.

"While there may be differing opinions on who should control drone counterterrorism operations, we should be able to debate these differences in the committees of jurisdiction and eventually on the Senate floor. The fact that a major national security policy decision is going to be authorized in this bill without debate or authorization is unacceptable and should not be the way we legislate on such important national security issues," he said.

Top appropriators are defending the spending package, saying they did not use the telescoped nature of the omnibus negotiations -- which crammed months of work into slightly more than three weeks of closed-door talks -- to legislate policy or push for parochial projects.

"The bill complies with both the letter and the spirit of the House rule on earmarks and contains no such provisions," said a House GOP appropriations aide.

"Sen. McCain, he's looking for pork sometimes and a lot of us would dispute whether it's pork," said Senate Appropriations Ranking Member Richard C. Shelby, R-Ala. "We have no earmarks in there. No bill's perfect, but overall this is a good bill."

Frank R. Wolf, R-Va., chairman of the House Appropriations subcommittee that oversees the Commerce-Justice-Science spending bill, said it is Congress' prerogative to direct federal spending instead of ceding that authority to the White House.

"This is what the Congress is here for, to have policy. We're not supposed to be a potted plant" and simply hand federal agencies top line funding numbers, Wolf said at a Friday press conference. "So there are no earmarks in this bill, but these are policy issues that make a difference for the country."

"We want to make sure that we're safe with regard to a terrorist attacks, we want to make sure the prisons are run well, that we have the necessary resources on cyberattacks, to make sure that young women are not sexually trafficked and that gangs are not spreading through our country," Wolf said.

Joshua B. Gordon, policy director for the Concord Coalition, said such barbs at appropriations bills are well-worn criticisms that have a stronger spotlight now because Congress has defaulted so often to continuing resolutions.

"Non-appropriators have been complaining about appropriators legislating through appropriations bills for decades. But they haven't had a chance to make this complaint as frequently because there haven't been a lot of appropriations bills that have actually passed," he said.

Gordon said that by passing such spending bills, Congress is exercising its power of the purse.

"There is, from a congressional power perspective, still this correct desire on the part of appropriators to put the money into where the policy priorities are. A lot of people claim all of that to be earmarks, but it's really Congress exercising the power of the purse and I think there is sometimes a problem looking at congressional action as pork," he said.

"Really what they're doing is directing where the spending goes instead of having the Executive Branch do that. I'm not very troubled by that. What really matters from a fiscal perspective is that they adhere to the spending caps," Gordon said.

Back for Good?

Some observers said policy provisions seeping into appropriations bills is to be expected following a Congress that did not move much legislation, making the omnibus a major moment for many lawmakers trying to incorporate their policy priorities.

"Certainly the fewer pieces of legislation you have moving the more things want to catch a ride on" appropriations bills, said Steve Ellis, vice president of Taxpayers for Common Sense. "That's part of the process."

Sarah Binder, a political science professor at George Washington University and a senior fellow at the Brookings Institution, said since the "omnibus was really the only big train leaving the station this year, it was a natural vehicle for facilitating lawmakers' parochial needs."

"The fact that this is showing up in the omnibus probably shouldn't be surprising to us except for the fact that we at least thought that both parties had sworn off earmarking. What is a little usual here in the last couple of years is that they've been running on continuing resolutions, which hasn't provided the opportunity for lawmakers to insert these policy riders," she said.

McCain suggested late last week that even though he thinks the spending bill contains pork barrel spending, he sees that as a symptom of an omnibus, which is dealt with in rapid floor action generally closed to significant amendments, and not necessarily because earmarking is on the rise.

"This is one of the major evils of an omnibus: you only have a couple three days, it's wide open for pork, rather than debating and amending and full disclosure on the separate appropriations bills, and so that's why this is such a flawed process," he said.

Binder said if appropriators move all 12 spending bills individually in fiscal year 2015, as the chairmen of the House and Senate spending panels have promised, "It creates many more opportunities for the anti-earmark folks to see what's in these bills and to raise alarms about them in some cases."

Ellis believes it is "absolutely premature" to suggest there will be a large-scale return to earmarking, adding he sees a marked change from less than a decade ago, when his group counted "more than 15,000" earmarks in the spending bills moved in fiscal years 2005 and 2006.

The omnibus "does not herald the return of the earmark by any stretch, and I would argue that the appropriators deserve a measure of credit for producing what seems to be a relatively clean bill," Ellis said. "Congress should be exercising their power of the purse and their funding priorities. That's part of our democracy and part of how our institutions should function."