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The Secret New Way of Earmarks

By Kimberley Strassel

This budget week, there was one thing on which Democrats and Republicans agreed: It's time to do something about earmarks. And in a nod to voter disapproval with these special-interest projects, this year Congress will do its pork spending in secret.

Welcome to Congress's new and dirtier earmark game, in which the big spenders are setting all the rules. In front of the cameras, both parties claim to have found earmark religion, and are talking up a bill that would reform the way Congress asks for billions in goodies for lawmakers' home districts. Behind the scenes, they're working feverishly to keep the earmarks rolling, this time using a technique outside of the legislative process and hidden from public view.

The gears on this new underground earmarking machine started whirring late last year, when Republicans failed in a lame-duck session to pass the 2007 spending bills. The GOP pork crowd wanted to use its last weeks in power to push through 12,000 more bridges to nowhere. Saner heads noted that the party had just lost an election in part due to these corrupting payoffs and urged restraint. The standoff resulted in Republicans punting the 2007 spending responsibility to the Democrats.

That put the new House appropriations chief, Wisconsin's David Obey--a spender for our time--in the distasteful position of having to live up to his party's election promises to fix the earmark boondoggle. He begrudgingly promised a "moratorium." And last week, when Mr. Obey celebrated the passage of his $464 billion 2007 spending bill, he bragged that Democrats had fulfilled their promise and "stripped all earmarks from the measure."

"This decision doesn't come without pain," intoned Mr. Obey. "Many worthwhile earmarks are not funded in this measure, but we had to take this step to clear the decks, clean up the process and start over."

The key language here is "not funded in this measure," and it explains why Mr. Obey is still smiling through his pain. Congressional members, led by appropriators and an army of staff, have already figured out a new way to keep their favors in the money, and it might as well be called 1-800-EARMARKS (which unfortunately is already taken). All across Washington, members are at this moment phoning budget officers at federal agencies--Interior, Defense, HUD, you name it--privately demanding that earmarks in previous legislation be fully renewed again this year. There might not be a single official earmark in the 2007 spending bill, but thousands are in the works all the same.

And getting far less scrutiny than before--if that's even possible. Under this new regime, members don't even have to go to the trouble of slipping an earmark into a committee report, where it might later (once the voting is over) come in for criticism. All the profligates need now to keep the money flowing is a quiet office and a cellphone.

Despite a congressional desire to keep this quiet, the evidence of marathon dialing is mounting. Lobbyists, thrilled their clients are still getting earmark handouts, are now publicly crowing about this underground program. Sens. John McCain and Tom Coburn--anti-earmark warriors--sent a letter to the Department of Energy last week wanting to know how that agency was handling the demands. On the same day, DOE chief of staff Jeffrey Kupfer delivered an internal memo to agency officers acknowledging that "offices have begun to receive requests from some Congressional offices, asking that the Department continue to fund programs or activities that received earmarked funds in prior years," and laying out a procedure for handling such orders.

The big question now is how aggressively the Bush administration intends to respond to this latest earmark insult. The president has made earmarks a priority, calling in his State of the Union for Congress to cut these special projects in half, and also for a more transparent process in which all earmarks are analyzed and debated. In a Manassas, Va., speech this week, President Bush complained again about how shady earmarks are, and referred to a stack of congressional committee reports (a favorite place for legislators to hide their pork) to make his point.

But by today's secret telephone standards, even conference reports look fulsome. This new practice also brings the added complication that the administration's own agencies could be complicit in this underground funding. Agency staffs understand they are dependent on Congress for funding, and that the 2008 budget process is now underway. Thumbing their noses at appropriators is an invitation for retribution. Which is why one appropriations lobbyist was gleefully quoted this week as noting that congressional calls were so far being answered by agencies wholly in "the affirmative."

The administration has taken some steps to follow up on its earmark demands. In January, Office of Management and Budget Director Rob Portman sent a memo to every department and agency announcing new earmark requirements. From now on, the government will be required to identify and catalog earmarks in most spending bills, including earmarks hidden in committee reports. The memo also provided agencies with a tight definition of just what counts as an earmark, to make it harder for Congress to disguise its pork under another name.

That's useful for upcoming spending debates, but it doesn't shut down the current dial-a-thon. In last week's Energy Department memo, Mr. Kupfer noted that Mr. Obey's 2007 spending bill does not include earmarks, and that the agency is also not legally bound to honor prior projects. He directs the staff to carefully review any requests to renew earmarks and then decrees that "only those with meritorious proposals or programs that effectively support and advance the Department's missions and objectives . . . should receive FY 2007 funding." This is probably easier said than done, but it's a start. No word yet if other agencies are following suit.

If President Bush is serious about earmark reform, it would seem clear he's going to have to shame legislators into better behavior. This latest escapade shows how determined some in Congress are to keep their pork in place, regardless of what they tell the public. It's time to blow the whistle on those who would preach an earmark "moratorium" on the one hand, while reaching for the speed-dial with the other.

Ms. Strassel is a member of The Wall Street Journal's editorial board.

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