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Mr. President, all I want for Christmas is an executive order de-funding earmarks.

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Give the Gift of Fiscal Responsibility, President Bush

Mr. President, all I want for Christmas is an executive order de-funding earmarks.

Some Republicans left town this holiday season feeling triumphant, with a no-tax-hike AMT patch, an energy bill that could have been much worse, a clean SCHIP expansion, and an omnibus appropriations bill relatively free of policy riders and ostensibly within the president’s budget limits.  But leading fiscal conservatives are less than sanguine.  Their major concerns with the omnibus are the use of budget gimmicks and emergency spending designations to hide higher social spending, and the large-scale re-emergence of pork-barrel earmarks.  President Bush has little choice at this point but to accept the former, but he has it within his power to eliminate the over 9,000 earmarks in the bill simply by upholding the U.S. Constitution and issuing an executive order clarifying that earmarks should be ignored.  There is a precedent here, and a good one for conservatives: Ronald Reagan.

Eleven years ago, Congress passed an omnibus appropriations bill.  At the time, it seemed pork-laden, although the earmarks numbered in the hundreds, amateurish compared to the thousands in this year’s bill.  In his 1987 State of the Union Address, Reagan cited some of the more egregious examples of pork-barrel earmarks from the committee reports and said: “If you send me another one of these I will not sign it.”  He then turned to his executive staff to see if anything could be done about the wasteful earmarks in the bill.

A decade later, in last year’s State of the Union Address, President Bush picked up this mantle from Reagan, saying:

“Over 90 percent of earmarks never make it to the floor of the House and Senate — they are dropped into committee reports that are not even part of the bill that arrives on my desk. You didn’t vote them into law. I didn’t sign them into law. Yet, they’re treated as if they have the force of law. The time has come to end this practice.”

Unfortunately, efforts by the White House, fiscal watchdog groups, and pork-busting heroes in Congress like Rep. Jeff Flake of Arizona and Sens. Jim DeMint of South Carolina and Tom Coburn of Oklahoma haven’t been enough to get the job done.  The recently passed omnibus, along with the already-enacted Defense Appropriations bill, has pushed this year’s earmark total to over 21,000, the second highest total in history.  If Bush is going to succeed in stopping earmarks, he will have to do it himself.

Fortunately, he can.  Back in 1987, Reagan’s budget director, Jim Miller (who is on my organization’s board of directors), devised a simple solution to the earmark problem: uphold the U. S. Constitution.  He checked with the Department of Justice’s legal counsel and determined that the case law was clear that committee report language, which is where earmarks appear, is not law because it fails to meet the requirements of the Presentment Clause of the U.S. Constitution.

Miller instructed executive agencies to comply with the law, the actual legislative language, but to disregard the earmarks in the accompanying reports and to instead spend funds on their priorities based on project merit and the president’s own priorities.  Capitol Hill erupted in protest, threatening all sorts of retaliation if their pork wasn’t protected.  They even tried to de-fund the White House’s budget office.  Reagan had a bigger fight over Iran-Contra to deal with, and he backed down.

President Bush is extraordinarily well-situated to complete what Reagan started, and put an end to report language earmarks.  He has the public on his side, with overwhelming majorities opposing earmarks in poll after poll, and he has shown a remarkable fortitude on fights like the SCHIP battle to stick to his policy guns in the face of Congressional backlash.
 
President Bush should therefore issue an executive order requiring agencies to disregard earmarks that appear only in committee reports.  Forcing earmarks into the sunlight of appropriations bill texts would enhance transparency and accountability while reducing in the overall number of earmarks.  It would correct Congress porking profligacy in the omnibus bill, and has the virtue of upholding the U. S. Constitution.

Mr. President, all I want for Christmas is an executive order de-funding earmarks.  Please?

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Written By

Mr. Kerpen is policy director for Americans for Prosperity. His website is PhilKerpen.com.

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