Earmarks by another name

"There are no earmarks in this bill," Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, told fellow lawmakers in May when he urged support for a major bipartisan agreement on legislation to develop the nation's water resources.

"This conference report contains no earmarks," added Rep. Robert Gibbs (R-Ohio), chairman of the Water Resources and Environment Subcommittee that handled the bill, which the House passed 412-4.

House Speaker John Boehner (R-Ohio) reinforced the point the same day when he told reporters that he has kept his promise and that as long as he is speaker, "there will be no earmarks."

But that message apparently did not reach the other side of the Capitol two days later when the Senate gave final approval to the measure, 91-7. A summary prepared by the bill's bipartisan managers boasted that the agreement "sets priorities that address the needs of larger ports, like Los Angeles, Long Beach and New Orleans."

Not coincidentally, those major facilities happen to be in the home states of the chairman and ranking minority member of the Environment and Public Works Committee, which handled the bill in the Senate. Neither Chairwoman Barbara Boxer (D-Calif.) nor the panel's senior Republican, David Vitter of Louisiana, cited or embraced the no-earmark claims of the bill's House sponsors.

A legislative hybrid

The House and Senate were participating in what could be called the "big wink." Their bicameral deal created a legislative hybrid that seems similar to the old practice of approving funds for local projects, but with little public or news media attention, Congress added sufficient additional steps so that earmark opponents could claim that they were abandoning their bad practices of the past.

The new procedures likely will emerge in other federal programs, and they are already placing significant burdens on executive branch agencies -- such as the Army Corps of Engineers with the water-resources plan. Buried in the accompanying legislative language in the House/Senate conference report on the waterways bill were the Corps' detailed descriptions of more than three dozen projects nationwide.

The agency's descriptions and approvals, including specific locations and costs, filled more than 300 pages of the Congressional Record, leaving no doubt about who were the agreement's beneficiaries.

Even before the Boehner-led Republicans took control of the House in 2011, they publicly emphasized their opposition to any legislation that targeted projects for specific locations. Earmarks had been particularly popular for measures that fund public-works projects, which historically have been called pork-barrel spending and are now prime targets for foes of excessive government spending.

IT has not been immune to the process. Technology earmarks have ranged from a data center in Bowling Green, Ky., to a "wideband multimedia mobile emergency communications pilot project" in Wasilla, Alaska.

Republicans added the earmark ban to House rules, including leadership protocols for handling legislation, in 2010. And in early 2011, President Barack Obama said he would veto any bill that included such projects.

"The handwriting is clearly on the wall," said the late Sen. Daniel Inouye (D-Hawaii), who was chairman of the Senate Appropriations Committee at the time. "Given the reality before us, it makes no sense to accept earmark requests that have no chance of being enacted."

Nearly four years later, the ban remains in place. But senior legislative aides and other close observers emphasize that the devil is in the details.

"The current earmark rules capture some things that [they] shouldn't and fail to capture some things that [they] should," said a veteran congressional aide who has worked on the issue. A major problem is that "people often look for process solutions to problems that aren't process problems."

Former House Minority Leader Richard Gephardt (D-Mo.) voiced similar concerns at a recent conference on congressional budget procedures, which was sponsored by the Bipartisan Policy Center.

"We expect too much out of the Budget Act and out of Congress," he said. These fights are "so contentious because it's all about who has the power."

At the same conference, former Congressional Budget Office Director Douglas Holtz-Eakin added, "You can't design a process to trump a political problem."

A positive role for earmarks?

Like the Army Corps of Engineers, other federal agencies that administer large projects or are subject to congressional whims have in recent years learned the consequences of ever-changing Capitol Hill politics. The Defense Department, for example, has found itself contending with congressional committees that impose programs or contracts that the military doesn't want. And in many cases, lobbying firms are taking their case directly to Pentagon officials.

"The congressional earmark ban and stringent caps on discretionary spending have dramatically altered the landscape" for the defense industry and federal contractors, CQ Weekly reported in June. "Defense companies are increasing their outreach to the Pentagon to build support for their programs and are targeting congressional authorizers, who can write policies favorable to their businesses and their bottom lines."

For decades, the congressional appropriations committees have targeted local projects to favored members, especially those who serve on the panels. Those abuses grew when Rep. Tom DeLay (R-Texas) became a House Republican leader in 1995. Indeed, Republicans' recent no-earmark pledge built on bipartisan objections to DeLay's excesses.

However, the breakdown of the routine appropriations process in the past few years -- coupled with the growing use of omnibus spending bills -- has reduced opportunities to target spending to particular states or congressional districts, and many appropriators are now seeking ways to revive earmarks but with fewer political shenanigans.

Defenders of earmarks argue that they were useful in generating lawmakers' support for complex bills, which have become more difficult to pass amid the current congressional dysfunction. For a relatively modest fiscal cost, proponents contend, restoring some of that legislative grease might facilitate political alliances.

A former agency CIO told FCW that earmarks can have other benefits. "I can recall some earmarks which I likely bridled about at the time but did serve to get us working with and looking at companies that weren't among our 'usual suspects,'" he said.

Given the Obama administration's emphasis on innovation and Silicon Valley-style development, "those past earmarks did get us acquainted with new and up-and-coming firms...that often proved to be a good thing," the former CIO said.

Still, the deep public disapproval of Congress makes it doubtful that many earmark defenders will embrace their cause with straightforward support. For now at least, calls for modifying congressional budget procedures seem unlikely to yield more than modest tinkering at the edges.

And some lawmakers will continue to seek ways to wink at reform pressures as they carry on with business as usual.