The Truth About Earmarks

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If we have heard or watched the news over the past two years or so, it is likely we have caught the word "earmark" in a reporter's mouth at some point. A strange word, certainly, but an earmark is not all that difficult to define once we get beyond its purposely obscure label. Originally, an earmark was just that: a mark made on an animal's ear to identify its owner. Yet, the word's etymology has only a slight connection to its political and financial usage today.

Congress' own definition, a quintessence of legalese, obscures the meaning even further:

"[C]ongressional earmark" means a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process.

The generic definition is far clearer: "funds specified or set aside for a particular purpose." Article I, Section 8 of the U.S. Constitution grants Congress the power to direct appropriations of money drawn from the treasury, including earmarking funds to be spent on specific projects. A member of Congress can use earmarks to take credit for funneling federal monies toward a project in his district. Committee chairs make use of earmarks to negotiate the passage of favored bills or to reward support for them. Another advantage of earmarking is that earmarked funds bypass normal government-agency regulations, and thus they reach their recipients sooner and bound with less red tape. One can see why they are so popular.

The latest furor over earmarks began with the so-called Alaskan "Bridge to Nowhere." In 2005, Senate Appropriations Committee Chairman Ted Stevens, a Republican, earmarked $223 million to build a bridge from a town of less than 9,000 to an island inhabited by only fifty people, saving these constituents a short ferry ride. Due to the controversy, the earmark was removed, but the money still went to the Alaskan government, which may still use it for the same purpose.

Earmarking is not a sin of one party or another. Also in 2005, Democrat Senator Daniel Inouye of Hawaii earmarked $574 million for his home state, which is a paltry amount in comparison to the year's total earmarks of $19 billion, which was divvied among 13,496 approved requests, according to the White House's Office of Management and Budget. (However, the Congressional Research Service says there were 15,877 earmarks for all federal appropriations, totaling $47.4 billion, a significant disparity that may be explained by the use of different definitions of the term.) In 2005, when Republicans had the majority, 35,000 requests for appropriations were made in the House, and by mid-year 2007, 32,000 earmark requests had yet to be considered under the Democrats' control. Obviously, the party in power has the advantage in earmarking, but this does not hinder the minority party from requesting and using earmarks to get what it wants. Earmarking is an equal opportunity practice.

Earlier this year, both houses of Congress passed bills to bring modern fiscal earmarking closer to its agricultural roots. Recall that farmers or ranchers used physical marks on an animal's ear to identify it as theirs. Now congresspersons must attach their names to their earmarks and certify that they have no financial interest in the measure. The law requires members of Congress to own up to their pork!

Earmarks are a touchy political issue. First of all, neither party wants to touch earmarking because doing so would, , eliminate an individual politician's ability to "bring home the bacon" for his district, making reelection more difficult. Second, restricting earmarks would diminish the majority party's arsenal of power-politics weaponry. Thirdly, despite stating that they receive no financial benefits from their earmarks—and perhaps they personally do not receive any—their families often do. In his "Evans-Novak Political Report" on July 25, 2007, Robert Novak exposes the dirty little secret:

In fact, family members of senators and congressmen from both parties and in all regions of the country have for years benefited directly from the "Washington economy" of lobbying firms and government contractors, many of which would not even exist without the infusions of taxpayer money that earmarks provide each year. . . . This has never been considered improper, but few Americans know that a very small number of Washington-connected families negotiate, appropriate and benefit from large expenditures of taxpayer money on a small number of companies through the earmarking process.

Hence the reluctance on the part of most members of Congress to support any kind of earmark reform. South Carolina Senator Jim DeMint, a Republican, is probably fighting a losing battle to make earmarking more transparent, as even his party leadership has decided to let him go it alone. DeMint wants full identification and disclosure of spending requests, the detailed posting of earmarks on the Internet, and the elimination of secret committee earmarks that cannot be challenged in open session. His party leaders, however, are willing to let Democrats—who want these restrictions no more than Republicans do—take the public heat for failing to pass meaningful reform legislation.

What is earmarking then? It is legal plundering of the public treasury for both public and private purposes, a kind of above-the-board payola that Congressmen and –women can use at their discretion to remain in office and to fund their pet projects. As Novak writes, "This has never been considered improper," but only because the Constitution "allows" it and everyone does it. The morality or ethicality of the way this Congressional power is used is rarely discussed.

Scottish jurist and historian Alexander Fraser Tytler is credited with observing:

A democracy . . . can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.

This, along with God's promise of coming with a rod against those who gain "treasures of wickedness" (Micah 6:9-16), should brace us for a tumultuous future.

Business as Usual

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Columnist Robert Novak, perhaps best known these days for his involvement in revealing the identity of Valerie Plame (Wilson) as a CIA operative, has uncovered another fetid example of "business as usual" in the halls of Congress. As he writes in his "Evans-Novak Political Report" for December 6, 2006, his latest exposé concerns, "a patent measure that looks like a technical change to an obscure section of the U.S. Code . . ., but it is an illustration of how Washington works at its worst."

The measure involves giving a solitary business, the Medicines Company, the ability to extend its patent retroactively. This hardly seems important. The firm's lawyers were one day too late in 2001 in filing the patent extension paperwork for its heart drug, AngioMax, so what? However, the error could end up costing the company $500 million in profits after the original patent expires in 2010. The extension, if granted, would allow the Medicines Company to monopolize the manufacture and sale of AngioMax until 2014 or 2015. Once the patent expires, whether earlier or later, other drug companies will be able to produce a cheaper, generic version.

One would think that the Medicines Company would sue its lawyers for their delinquency in filing the paperwork, but instead, it has hired high-priced Washington lobbyists to get Congress to grant them a retroactive, five-day extension of the deadline by adding it as a measure to another bill. As Novak writes, "But the blatant wheeling and dealing in order to get special treatment offers a rare window into the disturbing bipartisan self-dealing that goes on in Washignton [sic]."

The measure is being sponsored by two Republicans from Tennessee and two Democrats from Massachusetts, a wondrous bipartisan achievement in itself. On September 14, the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on this measure, which one objector snidely named the "Sorry-I'm-Late-the-Dog-Ate-My-Homework Act." Testimony clearly revealed that the bill was designed to benefit only one company—and solely because this company had the good fortune of hiring the best lobbyists money could buy. Nevertheless, the measure was not blocked.

Presently, its backers want to attach the measure to a bill concerning designs for ship hulls, one authored by Texas Senator John Cornyn, a Republican. The lobbyists and sponsors have chosen Cornyn's bill because he is one of only a handful of senators that would likely object to the patent measure, and he would not want to hold up his bill just to stymie the passage of the one provision. Thus, it will probably pass into American law.

Except in terms of the dollar amounts involved, how is the Medicines Company's lawyers' error any different from Joe Citizen's failure to postmark his tax return before midnight on April 15? What right does he have to lobby Congress to erase his delinquency? None. He is required by law to pay whatever fine or interest that accrues due to his error. Why should this business, though it undoubtedly generates millions of dollars of commerce each year, be able to both rectify and profit from its own error?

But despite what our founding documents might say, there is no equality under the law in the United States of America. Using plenty of money, connections, and power as lubricants, a corporation can slip its preferences into the law to the exclusion of all others. This is nothing new. It has been happening in this country since its earliest days, but it is disheartening to see such pandering and peddling of influence being done so brazenly and matter-of-factly.

Such a thing is a fulfillment of the prophecies of Amos, which deal largely with matters of social injustice and corruption. The prophet rails against the wealthy and powerful "sell[ing] the righteous for silver, and the poor for a pair of sandals" (Amos 2:6), and "afflicting the just and taking bribes; diverting the poor from justice at the gate" (Amos 5:12). He paints a picture of a people groaning under the oppression and corruption of its own leaders, "notable persons in the chief nation" (Amos 6:1). The leadership lives luxuriously, seemingly unaware and unconcerned that the nation is disintegrating under them and that the common people are suffering. Why should they worry? They have everything they want, and no calamity can touch them.

Yet, they leave God out of the picture because they have forgotten Him. Seeing how they afflict and take advantage of their own people, He promises:

For behold, the LORD gives a command: He will break the great house into bits, and the little house into pieces. . . . "I will raise up a nation against you, O house of Israel," says the LORD God of hosts; "and they will afflict you from the entrance of Hamath to the Valley of the Arabah [from north to south]" (Amos 6:11, 14).

Notice that He promises to "break . . . the little house into pieces" too, which might seem unfair to the oppressed and afflicted who lived in those little houses. However, God is just, and He sees the hearts of all. Evidently, He discerns that the sins of both high and low, wealthy and poor, are merely matters of degree. Were the poor and downtrodden in the same positions as the wealthy and powerful, they would commit the same sins and crimes. As Isaiah puts it, the whole nation is sick—full of sin—from head to toe (Isaiah 1:5-6).

Would we do the same as the Medicines Company if we were in its place? Psalm 15 says that a person who will be allowed to dwell in God's holy hill "swears to his own hurt and does not change" (verse 4). This is a principle of godly character, applicable in this situation. In other words, a Christian takes his lumps, as it were, when he makes a mistake, even if it hurts. He does not try to work against or around the law to benefit himself at the expense of others. This is an attitude that imitates that of Jesus, who "when He suffered, He did not threaten, but committed Himself to Him who judges righteously" (I Peter 2:23).

In Washington, it will unfortunately continue to be business as usual. What will it be in our house?