I don't disagree with what Craig writes (other than on the likely deterrent on logrolling), so much as believe he is presenting one side of a two-sided argument. Edmund Burke, in his famous Speech to the Electors of Bristol, presented with great eloquence the view that even in a parliament elected from geographic constituencies, the members represent the whole country, not only their own districts. Burke's perspective explains why there is so much agitation to curtail earmarks. Craig's (and Bob Livingston's) perspective explains why this is not such an easy matter.
Trevor Potter and Craig Holman are right that the problem in its contemporary form is not solely one of parochial serving of a member's district or state. If earmarks are not banned, something along the lines of the proposal Craig H. posted would be desirable. By the way, I find it more comfortable having Trevor Potter as an ally in one of these discussions rather than as an adversary, as has been the case in one or two recent go-rounds.
Best,
Daniel Lowenstein
Director
UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
310-825-5148
lowenstein@law.ucla.edu
-----Original Message-----
From: Craig Oren [mailto:oren@camden.rutgers.edu]
Sent: Wednesday, November 10, 2010 1:30 PM
To: Lowenstein, Daniel
Cc: Election Law; legislation@mailman.lls.edu
Subject: Re: [Leg] Earmarks
I am not as exercised about earmarks as a lot of other people are. One of
the great things about America (cue up the national anthem) is that,
unlike several European nations like France, we have geographic
constituencies, and so folks at the local level can be heard in
Washington. (Contrast the alienation between Paris and non-Paris France.)
A congressman getting money for his/her district is, in our system, doing
the job; he or she is not permitting some faceless bureaurucrat in
Washington to make all the decisions about which projects to support, and
where. True, the ear-marked projects may not be the ones that rank highest
on technical criteria, but there is more to the world than technical
criteria. If my congressman wants to get money for my law school, I am all
in favor of that. If Senator Robert Byrd wants to get money for the
poverty-stricken state of West Virginia, he's doing exactly what he was
elected to do, and exactly what he should do. If he asks every agency that
comes before him, "have you considered putting your new facility in West
Virginia," he is representing his constuents in a way we ought to applaud,
not condemn.
Beside, I think, as Dan himself suggested, his proposal suffers from the
logrolling deficiency. It may be that Congressman #2 sponsors the
legislation that Congressman #1 wants, but don't worry, Congressman #1
will be able to make clear to his or her district that he or she is
responsible for the boon.
On Wed, 10 Nov 2010, Lowenstein, Daniel wrote:
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<mailto:lowenstein@law.ucla.edu>
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Professor Craig N. Oren telephone 856-225-6365
Rutgers School of Law-Camden fax 856-969-7921
Rutgers-The State University of New Jersey
217 N. 5th Street
Camden, N.J. 08102-1203 oren@camden.rutgers.edu
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