Since the current leadership "ban" on earmarks went into effect at the beginning of this Congress, there has been an enormous amount of media coverage on how this ban will likely be evaded by appropriators. Appropriators are basically saying that they can still earmark, but that they'll simply contact agencies directly, apparently completely out the the public view.
There's one problem with this story, as told by the lawmakers quoted in these stories: there is an Executive Order (EO) from President Bush that is supposed to make this sort of involvement impossible.
Executive Order 13457 requires that agencies make spending decisions based on "transparent, statutory criteria." It mandates that agencies ignore congressional input unless it's offered in writing, and even requires all written attempts by Congress to influence executive spending decisions to be posted on the Internet.
I don't know of a single instance in which an agency posted correspondence from an appropriator online as a result of this EO. If anyone has one, I'd love to see it.
This order is still on the books, and, despite being an EO from President Bush, should be something that President Obama supports. It looks like something Obama's OMB could have written, all about protecting merit-based decision making, and requiring online transparency.
Unfortunately, there has been no pressure on agencies to follow this Executive Order and post congressional correspondence about spending decisions online. It's also unclear whether OMB has issued any exemptions to the requirements, as the EO allows.
If Congress and the President are going to walk away from earmark transparency in Congress for now (by instituting a "ban"), then the least they can do is make sure the process that replaces it follows the transparency requirements that already exist.
CRS covered this Executive Order when it came out, but mostly from a separation of powers perspective, saying that it was a legitimate move from the President. It's time for some attention to the online transparency aspects of the Order, and for the current debate about earmark accountability to take this EO into account.
For comprehensive earmark transparency context, see this page on transparencyhub.