Subject: Re: [EL] [Leg] Earmarks
From: Craig Holman
Date: 11/10/2010, 2:37 PM
To: "legislation@mailman.lls.edu" <legislation@mailman.lls.edu>, "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

An unlikely group of K Street lobbyists and nonprofit organizations -- from both the conservative and liberal wings of the political spectrum -- started meeting in DC over the summer to see if some consensus on earmark reform could be found. Much to our surprise, we did reach a consensus on five basic principles. This group consists of individual lobbyists from Holland & Knight and KL Gates (who speak on behalf of themselves, not the firms) as well as Citizens Against Government Waste, Taxpayers for Common Sense, American League of Lobbyists, CREW and Public Citizen.

The first principle for meaningful reform of the earmark process specifically addresses the concerns expressed by Trevor Potter: the potentially corrupting relationship between campaign contributions and earmarks. The gravest problem that taints the earmarking process is when earmarks are rewarded to major campaign contributors -- this relationship is what stirs the accusations, true or false, that earmarks are carved out not on merit but as self-serving rewards for both the grantor and the grantee.

The "unlikely group" has not argued for banning earmarks (though some members of the group would be glad to see a ban). But it has proposed a modified version of state pay-to-play laws designed to clean up the earmarking process. Existing state pay-to-play laws restrict campaign contributions from government contractors and have been effectively working for years. Pay-to-play laws are not designed as campaign finance laws, but rather narrowly tailored to clean up a particularly problematic relationship -- in this case, the awarding of earmarks. The proposal can be found at: http://www.citizen.org/documents/Earmark-Reform-Proposal.pdf

Most of the other principles upon which we agree are focused on disclosure. A brief description of the five principles is available at: http://www.citizen.org/documents/Principles-of-Earmark-Reform.pdf



Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue NE
Washington, D.C. 20003
TEL: (202) 454-5182
CEL: (202) 905-7413
FAX: (202) 547-7392


-----Original Message-----
From: Trevor Potter <TP@capdale.com>
To: Craig Oren <oren@camden.rutgers.edu>; Lowenstein, Daniel <lowenstein@law.ucla.edu>
Cc: legislation <legislation@mailman.lls.edu>; Election Law <election-law@mailman.lls.edu>
Sent: Wed, Nov 10, 2010 4:44 pm
Subject: Re: [EL] [Leg] Earmarks




An aspect of ermarking that, in my view, needs to be addressed because of the  


corruption potential is the circle that has developed between lobbying firms 


(often populted by former committee or personal staff)  specializing in 


particular types of earmarks (defense-the Murtha investigation) and campaign 


fundraising and contributions . This part of the earmark system,  it seems to 


me, cannot be justified on geographic or constituent service grounds.


Trevor Potter 





Sent by Good Messaging (www.good.com)








 -----Original Message-----


From: 	Craig Oren [mailto:oren@camden.rutgers.edu]


Sent:	Wednesday, November 10, 2010 04:31 PM Eastern Standard Time


To:	Lowenstein, Daniel


Cc:	legislation@mailman.lls.edu; Election Law


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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