Senator Jim DeMint's Press Release: CRS Report: 95% of Earmarks Not Legally Binding

A recent press release from the offices of Senator Jim DeMint makes the case that the "Administration has authority to ignore wasteful spending". (Hat Tips: fellow S.O.B alliance member BizzyBlog and Club for Growth):

March 7th, 2006 - WASHINGTON, D.C - Today, U.S. Senator Jim DeMint (R-S.C.) released a report from the Congressional Research Service (CRS) that details the abuse of non-legislated earmarks. CRS found that in the Fiscal Year 2006 appropriations bills, over 95% of all earmarks were slipped into committee and managers reports and not written into law.

“This report makes the true problem of earmarks crystal clear,” said Senator DeMint. “The vast majority of earmarks are secretly slipped into bills without much debate. These non-legislated earmarks are not legally binding, and the Administration has the authority to stop them. President Bush should instruct his cabinet to ignore wasteful non-legislative earmarks and reserve the funds for their core missions. This would make it much harder for Congress to add wasteful earmarks and spend more than is truly needed.”

The CRS report lists the number of earmarks in each of last year’s appropriations bills and how many of those earmarks were actually legislated in the text of the bill. When added together, there were a total of 12,852 earmarks in last year’s appropriations with a value of over $67 billion, only 543 of which were actually in bill text. The remaining 12,309 earmarks were not in the text of a bill; instead they were added to committee and managers reports with no debate. As the report states, “Earmarks that appear in committee reports and the statements of managers do not legally bind agencies…”

At first Porkoplis thought that the 95% total "non-legislated" earmarks seemed a bit high. But a quick call to Senator DeMint's press secretary confirmed the methodology of the calculation.

The CRS Report notes the following on page CRS-3 (emphais added):

Coverage of Relevant Documents. Some earmarks are included in the text of appropriations measures, floor amendments, and bill text in conference reports on such measures, according to CRS report 98-518, Earmarks and Limitations in Appropriations Bills. If enacted, these earmarks are legally binding. Many earmarks, however, are included in the Senate and House Appropriations Committees' reports explaining a measure as reported, as well as the managers' joint explanatory statement that accompanies the conference report. Earmarks that appear in committee reports and the statements of managers do not legally bind agencies, unless text in a statute provides that they shall have the force of law. In the absence of such language, departments and agencies generally are not legally bound by their declarations. These documents do, however, explain congressional intent and frequently have effect because “an agency that fails to ‘keep faith’ with the Congress may find its next appropriation reduced or limited by line-item restrictions.”

That establishes the Congressionl Research Services claim for "non-legislated" earmarks.

Next, Senator DeMint's office started doing the math based on this criterion on each of the 11 appropriations bills that the report analyzed. For example, on the Agriculture Bill we find that note 'b' on page CRS-8 points out that:

b. Of the 689 earmarks identified, 5 are in the text of the law; all 5 are duplicated in the joint explanatory statement of the conference committee. Another 585 are in the joint explanatory statement, and the remaining 99 are in the House and/or Senate Appropriations Committee report but not in the joint explanatory statement.

Using this methodology on each of the 11 segments we get:

• Agriculuture:
  5 legislated earmarks; 585 non-legislated earmarks
• Defense:
  46 legislated earmark; 2,801 non-legislated earmarks
• Energy and Water Development:
  22 legislated earmarks; 2,414 non-legislated earmarks
• Foreign Operations, Export Financing, and Related Programs:
  103 legislated earmarks; 290 non-legislated earmarks
• Homeland Security:
  3 legislated earmarks; 18 non-legislated earmarks
• Interior, Environment, and Related Agencies:
  5 legislated earmarks; 820 non-legislated earmarks
• Labor, Health and Human Services, and Education, and Related Agencies:
  4 legislated earmarks; 4 non-legislated earmarks
• Legislative Branch:
  4 legislated earmarks; 0 non-legislated earmarks
• Military Construction, Military Quality of Life and Veterans Affairs:
  13 legislated earmarks; 562 non-legislated earmarks
• Science, State, Justice, Commerce, and Related Agencies:
  228 legislated earmarks; 2,166 non-legislated earmarks
• Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies:
  101 legislated earmarks; 2,719 non-legislated earmarks

The Math:

• Total Earmarks = (534 legislated + 12,379 non-legislated) = 12,913
• % on non-legislated earmark = (12,379 non-legislated / 12, 913 Total Earmarks * 100) = 95.8% (Q.E.D.)

DeMint claims that the executive branch can use a legal argument to stop spending on the earmarks; in essence going against the "congressional intent" of the supporting, "non-legislated" documents. This would be quite an undertaking by President Bush and would clearly establish his political cojones on pork barrel spending. Porkopolis is not holding his breath on this one. George Bush has had ample opportunities to veto spending bills and has yet to do so.

Unfortunately, our President's courage to stand up to Congress on spending is in an inverse relation to his courage on fighting the war on terrorism.