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Take a Peek Into the Sausage Factory's Pork Division

It is often said, "If you like your laws and your sausages, you shouldn't watch while either is being made." That holds doubly true for watching the production of pork-stuffed laws.

Pork spending, or earmarks, are funds specially designated for projects in a Member's state or district. And pork futures is a growth industry. According to Citizens Against Government Waste, in 1996 there were 958 earmarked projects in appropriations bills, costing $12.5 billion. By contrast, in fiscal 2006, there were 9,963 projects costing $29 billion. This staggering increase, coupled with revelations from recent lobbying scandals, has focused renewed attention on just how such projects make it into law and ways of containing or reversing their growth.

Most Members concede things have gotten out of hand and that some curbs are needed, especially with annual deficits running more than $300 billion a year for the foreseeable future. Yet, one man's pork is another man's bacon, and "bringing home the bacon" is what Members do to help their districts, please their constituents and get re-elected. Therein lies the rub: How do you forswear a pork-prone appetite while still retaining sufficient bacon bits to flavor your constituents' baked potatoes?

The procedural fixes offered in the House and Senate lobby reform bills are similar up to a point. Both bills require that earmarks originating in committee bills and conference committee, as well as their sponsors, be listed in the accompanying reports. If the list is not included, a point of order can be raised against considering the measure. The House bill allows a majority to decide the point of order by voting on a motion to consider the measure anyway.
The Senate bill defines earmarks much more broadly than the House, going not only to budget authority in appropriations bills, but to contract authority (think highway authorization), loan authority and "other expenditures," and "tax expenditures or other revenue items" aimed at a specific, nonfederal entity.

But where the Senate bill really puts teeth into the process, and where the House bill is silent, is in clamping down on individual earmarks that appear for the first time in conference reports. These are called "scope violations" because the provisions are beyond anything committed to conference by either chamber. The "wait until conference" ploy for originating earmarks has been used increasingly in recent years because it avoids motions to strike during the initial consideration of a bill. It's practically a "Pass Go and Collect $200" card since conference reports cannot be amended. While both bodies already have rules prohibiting consideration of conference reports that contain scope violations, these are routinely waived to avoid killing the entire report outright on a single point of order.
What the Senate lobby reform bill does to avoid such a drastic remedy is to adapt an approach from House rules that prohibits the inclusion in conference reports of Senate provisions that would have been nongermane if offered to that bill in the House. And therein lies a story.

In 1970, and again in 1972, a special subcommittee of the House Rules Committee, chaired by then-Rep. Bernice Sisk (D-Calif.), labored for months to devise a foolproof system to discourage the Senate practice of sticking all manner of nongermane amendments onto House bills and then insisting on their amendments in conference. What they finally produced was a House rule that allowed for separate points of order on any and all nongermane Senate provisions in a conference report. Each valid point of order would trigger a separate 40-minute debate and vote on deleting the offensive provision. If any nongermane provision was rejected, the conference report was considered defeated, and the underlying bill would be brought up and amended by the language of the conference report, minus the stricken provisions. That would be sent back to the Senate for further action.

This carefully crafted House procedure was eventually abandoned as the Rules Committee increasingly waived all points of order against conference reports, no matter how many scope, germaneness or other violations might be involved.
The proposed Senate lobby reform bill allows points of order against any and all earmarks in a conference report that are beyond scope. The provisions are automatically stricken unless three-fifths of the Senate membership votes to spare an earmark by waiving or suspending the rule for that project, or by overriding the chair's ruling on the point of order. This is similar to the House rule on nongermane amendments except it does not allow for a separate debate and vote on the merits of the offending provision. Everything else is the same, including keeping the process alive if any provision is stricken.

It would indeed be ironic if the Senate prevails in reviving a procedure for scope-violating earmarks originally devised by the House to counter the Senate's freewheeling ways. In the parlance of nuclear arms strategy, the House should similarly arm itself to ensure parity when it comes to dealing with the other chamber's proclivity to pack its conference nose-cones with pesky, multiple-targeted earmarks. The super-majority waiver of the rule should serve as an effective anti-MTE system for each chamber to check the other.

While some might object to the super-majority waiver requirement, it is instructive to note that in 1970 the House Rules Committee originally recommended a two-thirds vote requirement to waive the rule against nongermane Senate amendments in conference reports. It was dropped by House amendment due to Senate objections. The Senate can hardly object today if the House adopts its three-fifths waiver.

The ultimate effect of this tough enforcement mechanism should be to force earmarks back to a bill's original stage of consideration for separate debates and votes. Perhaps this time the ban on making new law in conference committees will not be abandoned or forgotten for the convenience of Members and the concealment of earmarks.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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