Before they left town for the St. Patrick’s Day recess, 10 U.S. senators gathered around President Bush at the White House to hear him make the case for a line-item veto. But Sen. Jim DeMint, a freshman Republican from South Carolina, had a better idea for the president: Why not instruct your department heads to ignore the earmarks Congress adds to your budget?
DeMint was not encouraging Bush to take the law into his own hands and defy statutes passed by Congress. A March 6 report by the nonpartisan Congressional Research Service (CRS) said more than 95 percent of all earmarks were not written into law but were merely contained in the reports of congressional committees and legislative managers. "Earmarks that appear in committee reports and the statements of managers do not legally bind agencies," said the report.
The president did not respond to DeMint at the meeting, and that signifies opposition to the idea. Administration officials have flinched from any such confrontation with Congress. But this exercise of executive power by a president who has yet to use his veto would go a long way toward controlling runaway federal spending. In contrast to a dubious quest for a line-item veto, Bush with a brief order could change the climate of spending on Capitol Hill.
Bush has explained that he has not vetoed any spending bills because they generally follow his overall limits even though individual earmarks are unacceptably high. Accordingly, the president has dusted off the line-item veto, which would enable him to kill individual categories of spending though the Supreme Court in 1998 declared a line-item veto unconstitutional because it cut Congress out of the legislative process. Even if the new version clears its formidable legislative hurdles and actually passes, it would require positive congressional assent to each veto, which might make the whole process unworkable.
A practical alternative was suggested by DeMint on Feb. 16 when Vice Adm. Conrad C. Lautenbacher, administrator of the National Oceanic and Atmospheric Administration (NOAA), testified before the Senate Commerce Committee. DeMint asserted that NOAA and other federal agencies are under no obligation to fund earmarks stuck in congressional reports in the dark of night on Capitol Hill. "I agree that it’s not legally required," Lautenbacher replied, "but it is in fact a practice that has been in place for many, many years."
For many, many years, the executive branch has submitted a modest NOAA budget. It is a sham, however, because the budget is annually expanded by congressional earmarks, which this year total 2,600 and exceed $2 billion. Apart from the additional expense, this process ties up the NOAA staff to try to harmonize its budget what was imposed on them by the lawmakers. Lautenbacher, who has said he does not want this money, has told Congress this is "a very hard budget to execute." Like most department heads, he has made clear he does not want the earmarked money.
Two days after the CRS reported that 95 percent of the earmarks are not binding, five senators — Republicans John McCain, Tom Coburn and DeMint and Democrats Evan Bayh and Russ Feingold — wrote the president. On March 9, they urged Bush not to fund the earmarks. "I hope the president does not hesitate to use the power that is already at his disposal," said Coburn.
The informal reaction by the Bush team has been negative. "This would be seen by Congress as sticking them right in the face," one skeptical Cabinet member told one of the five senators. Administration officials talk about "retaliation" by committee chairmen. However, with Republicans disconnecting themselves from an unpopular president and Democrats seeking to make his life miserable, it is difficult to see how the legislative branch could be any more hostile.
Bush might well measure the benefits of bold action. If they are required to submit earmarks for floor action by the Senate and House, the lawmakers’ ability to overspend would be diminished. From a political standpoint, DeMint is giving the president the opportunity for a dramatic gesture showing that he really cares about spending. By all appearances, Bush won’t take it.
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