In a Wall Street Journal op-ed a couple of weeks ago, Bob Livingston, a Republican House leader in the 90s, made a surprisingly strong case for earmarks.  The main thrust of it, as I recall, was that earmarks are a way of protecting Congress’ power of the purse, which is one of the major devices in the Constitution for preserving the power of Congress against the Executive.  Yet everyone agrees that earmarks as they currently operate are widely abused (or, at least, serve parochial rather than general interests) and that there is strong political demand for their abolition.  As Rick’s blog post this morning noted, this is probably the leading divisive issue for the new Republican majority in the House, though of course the Democratic majority in the Senate will also have to take this on.

 

          I believe there is more or less a consensus that earmarks should be transparent, that is that it should be easy, for anyone who wants to, to find out what earmarks any individual Member is responsible for and to find out what Member is responsible for any particular earmark.  However, many believe this is desirable but not sufficient, because a typical parochial earmark is likely to be an electoral benefit rather than a cost for the Member in his district or state.  Thus, disclosure is not likely to be a significant deterrent in many and probably most cases.

 

            Not that I think the following idea has a prayer of going anywhere, but it seems to me at first blush to be a good way on the merits of reconciling the different worthy considerations.  I put it forth to see if others can show why at second, third, or fourth blush it’s really a pretty stupid idea.

 

            The rule would be that no Member could sponsor an earmark if it is foreseeable that more than a certain percentage of the direct or indirect expenditures called for by the earmark would occur in the Member’s district or (for Senators) state.  I don’t know what the percentage should be, but let’s say 25% for House members and 40% for Senators, though maybe they should be lower.  That way, there would be no impediments to earmarks that Congress (or some substantial group in Congress) wants to impose in order to assert its control over the Executive, but it would be difficult to use earmarks in the traditional way for pork barrel simply or primarily to benefit one’s district. 

 

            Theoretically, Members could get around this with a little logrolling.  You sponsor the earmark for a new bridge in my district and I sponsor a large grant to the university in your district.  But the proposal assumes an effective disclosure system.  You’d have to explain why you sponsored the bridge in my district, which your constituents no doubt regard as nowhere.  You could explain that it was a part of a logroll that secured the university grant, but usually that will probably be an electoral loser.

 

 

Best,

 

Daniel Lowenstein

Director

UCLA Center for the Liberal Arts and Free Institutions (CLAFI)

310-825-5148

lowenstein@law.ucla.edu