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.

Eliza Newlin Carney has an interesting article in today's National Journal about the fall of earmarks and how that will affect the internal bargaining involved in passing appropriations bills this year. In the past, earmarks were used as bargaining chips by the majority to secure needed votes from straying members and as local prizes to tout to constituents back home. In a post-Tea Party environment the notion of bargaining chips for lawmakers or constituents is toxic and earmarks have gone underground.

While I found that section of Carney's article to be interesting, I have to point out that her article also helps to disprove the notion of an earmark moratorium.

Here's some relevant text from Carney:

Lawmakers who want to steer money toward their states and districts can still put in requests to federal agencies, a process called “phone-marking” or “letter-marking.”

They also can write bills that fail to name a pet project but that apply narrowly to only one funding recipient. Some lawmakers will also fight to preserve money for highways, water resources projects, and controversial weapons systems such as the F-35 Joint Strike Fighter alternate engine—battles that will now move to the fore.

Let's start with the second paragraph. This is just describing earmarks. These could easily be viewed as earmarks by definition, so I don't see how this circumvents the supposed earmark moratorium. If they do not qualify as earmarks--particularly, "bills that fail to name a pet project but that apply narrowly to only one funding recipient"--then there is no real moratorium.

The first paragraph describes the attempts of a lawmaker to try to influence the appropriations process once an agency has received the money from Congress and is deciding where to spend it. Now the lawmakers may be doing this at the behest of a lobbyist or a local company, but it is also possible that the lawmaker believes that the company in their district could do the best job or that their district deserves the money. Isn't this the job of a lawmaker? Aren't they supposed to represent their district?

People may want an appropriations process that exists in a vacuum, but none exists. Lawmakers can and do try to influence agency decisions on spending. There may even be lobbyists pushing lawmakers to do this. What is needed is not the elimination of one form of directed spending, but disclosure of all forms of directed spending.

The truth is that Congress chose the easy route on dealing with earmarks. The moratorium is temporary and cosmetic. Lawmakers will still direct spending as it is their prerogative to do so. Only now they won't disclose how they are doing it.

The real route of reform would start with the creation of a permanent, centralized earmark database, including both earmarks approved and earmarks requested. They could follow this by approving the disclosure of lobbying contacts. This would allow the public to see the contacts between lawmakers and earmark lobbyists to discourage bad behavior.

Even further, the House Ethics Committee could have ceased shielding lawmakers from ethical complaints by having properly reviewed and taken action in the PMA Group earmark investigation. The committee received numerous e-mails showing lobbyists tying the receipt of earmarks directly to their campaign contributions to lawmakers, but decided to take no action. An honest reading of the documents in this case could have led Congress to real earmark reform before the enactment of a pandering earmark moratorium that appears to be riddled with loopholes.

Late last week, PMA lobbyist Paul Magliocchetti was sentenced to 27 months in prison and a $75,000 fine after pleading guilty to making illegal campaign contributions. For five years, Magliocchetti illegally used corporate funds from the once powerful PMA lobbying firm to reimburse friends and colleagues who made contributions to political candidates. Magliocchetti’s illicit generosity helped him secure earmarks from Members of Congress for many of his clients.

Some small measure of justice is served by Magliocchetti’s sentence, but if there were real time online reporting of lobbyists’ activities, perhaps it wouldn’t have taken five years to detect his scheme. Or, perhaps the scrutiny that comes with more frequent, detailed disclosures would have had a deterrent effect—Magliocchetti might have been less likely to commit a crime had he thought he risked being caught.

Sunlight is embarking on a campaign to improve lobbyists’ disclosures. (Check it out here, and sign up if you want to learn more.) Among the changes we propose is a requirement that lobbyists identify, in real time, who they are meeting with and what they are asking for. Such disclosures will, we believe, improve the democratic process and the ongoing policy dialogue by providing the public a clear idea of the issues that are hot on Capitol Hill and the interests that are lobbying in support or opposition to them. In the Magliocchetti case, such disclosures might also have quickly uncovered, or even prevented, the corrupting influence of Magliocchetti’s money laundering scheme.

Slate's Dave Weigel has a really interesting take on why the omnibus spending bill just stalled in the Senate:

The omnibus spending bill died in the Senate last night, and the death was a long time coming. It started to bleed in 2006, when a series of rule changes and the Federal Funding Accountability and Transparency Act were passed, opening up the process by which bills were marked up to public scrutiny. ... The increasing transparency of the earmark process was going to make it tougher for Republicans to support this bill and get away with it. There is nothing -- literally, nothing -- that currently motivates most Republicans to send money back home.

The more transparent the process became the more difficult it has become for critics of government to lob their bombs at spending while simultaneously bringing home the bacon for their state. It becomes a whole lot more clear as to why Sens. Ted Stevens and Robert Byrd put a secret hold on the Federal Funding Accountability and Transparency Act after seeing what transparency hath wrought. Weigel also gives a good explanation as to why transparency is important in this instance:

It's extremely important that earmarking has become a more transparent process, and that it's now easy to call out members for their requests before bills are voted on. Look at the context, though. Earmarks are only the easiest way to nail members for doing what has never really been controversial -- appropriating.

Of course, the irony in this whole story is that the Obama administration is now in a pickle over funding the government--Secretary Gates went so far as to state that a defeat of the omnibus would harm national security--brought about by a federal spending transparency bill that was one of the chief accomplishments of Obama's short Senate career. The Federal Funding Accountability and Transparency Act is also popularly known as the Coburn-Obama bill.

The Washington Examiner's Tim Carney had an amusing and mostly accurate run-down on where the retiring and defeated senators of 2010 will wind up in the future. One of his predictions was that Sen. Bob Bennett, defeated in a Republican primary, will end up as an earmark lobbyist. This one is coming close to being true:

Outgoing Sen. Bob Bennett will launch the Bennett Consulting Group on Jan. 6, the day after the Senators of the 112th Congress will be sworn in, according to Tim Stewart, a former staffer who will join the venture.

While Bennett will be barred from lobbying for two years, his partner Stewart will not. Stewart is already a lobbyist for firms seeking earmarks in Congress.

Some of Stewart's clients receiving earmarks include the Cache Valley Transit District, City of Logan, UT, Kaysville City, Syracuse City, UT and the University of Utah. Many of these earmarks were provided by Sen. Bennett.

Stewart also helped Bennett raise money for his final reelection bid. Party Time shows two fundraisers for Bennett that were hosted by Stewart. You can view them here.

Bennett just voted today against a ban on earmarks.

As Paul just noted, the Senate just rejected a ban on earmarks.

In the absence of an outright, Congress-wide ban on earmarks, tracking earmarks and earmark requests becomes far more important. Regardless of who else abstains from earmarks, we're still going to see earmarking in the Senate, and without effective disclosure of earmark information, new leadership-driven earmark policies in the House will be very difficult to evaluate.

Will House members ply Senators for earmarks? Will the total amounts requested stay the same, even in the House bans earmarks? Will House members request by proxy through Senators?

Even if the House and Senate had both changed their rules to ban earmarks, we would have seen Members of Congress influencing spending decisions on behalf of their interests. Now that a broad ban has failed, we can be sure that the influence brokering that earmarks create is still going to flourish.

There is broad consensus about only one aspect of earmark policy. They should be more transparent. The best way to achieve earmark transparency is through online disclosure.

It's time for the House and Senate to act, and to create a single, searchable database of earmarks and earmark requests, as described in the Earmark Transparency Act, or H.R. 5258 and S. 3335.

Update: We’ll be hosting a Twitter chat tomorrow at 3 PM to discuss issues around earmarks, the earmark ban and earmark transparency. Just follow @SunFoundation or track the #sunchat hastag.

In a fairly unsurprising vote, the Senate just rejected a two year ban on earmarks by a 39-56 vote. While the vote largely went down party lines, eightseven Republicans voted against the ban and seven Democrats voted for it.

Here are the Republicans voting no:

Bob Bennett (R-UT) - defeated for reelection, Appropriations Committee Thad Cochran (R-MS) - Ranking Member, Appropriations Committee Susan Collins (R-ME) - Appropriations Committee James Inhofe (R-OK) Richard Lugar (R-IN) Lisa Murkowski (R-AK) - Appropriations Committee Richard Shelby (R-AL) - Appropriations Committee George Voinovich (R-OH) - retiring, Appropriations Committee

Here are the Democrats voting yes:

Evan Bayh (D-IN) - retiring Michael Bennet (D-CO) - freshman Russ Feingold (D-WI) - defeated for reelection Claire McCaskill (D-MO) - freshman, up for reelection in 2012 Bill Nelson (D-FL) - up for reelection in 2012 Mark Udall (D-CO) - freshman Mark Warner (D-VA) - freshman

The trends here for those not voting the party line are clear. Republicans voting no are largely Appropriations Committee members and Democrats voting yes are largely first term members.

Update: We'll be hosting a Twitter chat tomorrow at 3 PM to discuss issues around earmarks, the earmark ban and earmark transparency. Just follow @SunFoundation or track the #sunchat hashtag.

In what are otherwise reasonable commentaries on earmarks, a certain meme has emerged in the editorial pages across the land that I’d like to squash: it’s easy to track earmarks. It’s not.

It took hundreds of hours to input the 9,499 earmarks from this past year into the database maintained by Taxpayers for Common Sense, according to Steve Ellis, the organization’s vice president. And that database doesn’t have all of the information that you would need to put earmark information into context, such as identifying all the beneficiaries, but it's not for a lack of trying. Doing so would take much more time and money.

Jim Harper, who crowd-sourced a database for WashingtonWatch.com that tracked 37,000 earmark requests this past year, told me “It sure ain’t easy to track earmarks.” If it takes 90 seconds for a volunteer to enter an earmark into the database, that’s 38 days of non-stop data entry.

The truth is, earmark information is spread throughout more than 500 congressional websites in difficult-to-use formats. This is an improvement over having to scour all legislation to find earmarks in a budgetary game of cat-and-mouse, but there's much more to be done. That’s why the Sunlight Foundation supports the Earmark Transparency Act (HR 5258 and S 3335), which would require Congress to make all earmark information available in one central location with all of the data that we need to figure out what’s going on. (The House and Senate Appropriations Committees already track all earmarks, but that info isn't publicly available.)

If you’re interested in learning more about earmarks, watch this video from Monday with Steve, Jim, and me on the future on earmark transparency, or check out this timeline of earmark reforms and list of bills introduced this past Congress to reform the earmarking process.

Whether you think Congress should ban or embrace earmarks, we shouldn't pretend it's easy to track the money.