Late last year, the Obama administration floated a draft Executive memo that would have brought transparency to the currently opaque earmark process. The document appeared to build upon Executive Order 13457, issued by President George W. Bush, that would have put written earmark requests online. Unfortunately, the Obama administration still hasn't enforced EO 13457 or taken further action on their own memo.

With Congress slowly working its way through appropriations and other spending bills, and the future of the earmark ban unclear, now is the time to act on, not forget about, earmark transparency.

Earmarks have been under constant attack for the better part of the past decade.  But, despite a Congressional ban, they have not been eradicated entirely. Instead, earmarks have retreated to the shadows, becoming harder to track than ever before.

Before the ban earmarks in legislation had some small level of transparency baked into their creation process. After a series of reforms they appeared in appropriations packages or committee reports and could often be tracked, albeit with great difficulty.

Under the current "ban", it is more difficult than ever to track earmarks. It has been widely reported that savvy lawmakers have figured out how to steer funding towards their favored projects, appealing directly to executive agencies. We have been keeping track of such reports.

Executive Order 13457, if enforced, would have instructed agencies to ignore earmark requests that were not put in writing. When requests were issued in writing agencies would have to put relevant documents online within 30 days of receipt. The Obama memo aimed to enforce and build on EO 13457, including stronger reporting requirements and searchable online formats.

The Sunlight Foundation has been calling for enforcement of the Bush Executive order since March, 2011, came out in favor of the Obama memo when it was circulated last November, and has been advocating for earmark transparency for even longer.

Earmarks haven't gone away, they've just disappeared from view. The Obama administration should make the memo a reality and ensure that members of Congress have to stand up for their pet priorities all the time, not just when it's politically expedient for them. If Congress moves to lift their self-imposed earmark ban they should also pass the Earmark Transparency Act, which would create a single searchable, sortable database of earmark requests.

Senate Republican Leader Mitch McConnell, after stating his support for earmarks, has come out to back a moratorium on earmarks among the Senate Republican caucus.

“Today, I am announcing that I will join the Republican leadership in the House in support of a moratorium on earmarks in the 112th Congress,” he said. Mr. McConnell said he still had doubts about any step that might increase the authority of the executive branch over federal spending. The Constitution, of course, bestows the power of the purse upon Congress. “I’m not wild about turning over more spending authority to the executive branch,” Mr. McConnell said. “But I have come to share the view of most Americans that our nation is at a crossroads; that we will not be able to secure the kind of future we want for our children and grandchildren unless we act, and act quickly.”

McConnell is joining the House Republicans who have an earmark moratorium in place for their caucus already and intend on extending it to the full House when they ascend to the majority in January, 2011.

There are some in McConnell's caucus who have strongly backed earmarks and he may face some division when he brings the moratorium to a vote in his caucus. Sen. Jim Inhofe has publicly backed earmarks and Sen. Lisa Murkowski, who looks set to win her write-in bid in Alaska, has made a living off of them. Appropriations Ranking Member Thad Cochran is also a die-hard earmarker.

The next question is what the Senate Democrats do next. With no earmarks coming out of the House, the Senate Democratic caucus will be the only group originating earmarks. Does President Obama, who recently reiterated his criticism of earmarks, side with the Republicans and support a moratorium? There isn't much of an anti-earmark sentiment within the Democratic base, unlike on the Republican side, to push the lawmakers who love earmarks to act.

The Sunlight Foundation has always supported more transparency in earmarking and we continue to worry that a moratorium could push the practice of congressionally directed spending into less transparent venues.

Presumptive Speaker Boehner has now come out in favor of a full earmark moratorium in the House.

There will be an earmark moratorium, that’s clear...

We don't know yet what such a moratorium would look like when it's imposed by the Speaker of the House. Here are some of the questions this raises for me. Would such a ban be a House Rule, a Republican Conference rule, or an informal policy set by the Speaker? Will it apply to House Democrats, and will the Senate be participating? If the Senate passes bills with earmarks, will the House (under Speaker Boehner) vote to approve those bills, approving Senate earmarks? Will House Members request earmarks of Senators, and will those who receive perennial earmarks just look to the Senate?

In every one of the above scenarios, transparency around earmark requests becomes more important. The success or failure of an earmark moratorium will come from just how it affects how earmarks are requested and rewarded. Since we don't have a clear picture of earmark requests, it will be difficult to tell just how such a moratorium is working.

Earmark transparency has grown in fits and starts over the last few years, and each development has its own loopholes and complications. Here is a brief timeline of earmark reforms, along with broader context and analysis.

If House Republicans choose to continue a moratorium on earmarks, everyone should agree that increased transparency for earmarks should come as part of the package. The Earmark Transparency Act, a bill introduced in the House (HR 5258)and passed out of Senate committee (S 3335), should serve as the framework with which to open earmarking to online transparency.

Earmark reform has developed through incremental commitments from political leadership separately in each chamber. If each of these steps has been difficult to evaluate, prone to loopholes, and often contentious, then it makes sense to adopt the one measure that makes earmarks easier to evaluate, will help identify loopholes, and has a broad consensus supporting it: the single searchable database of earmark information laid out in the Earmark Transparency Act.

The Senate Homeland Security and Governmental Affairs Committee voted out S. 3335, the Earmark Transparency Act today, but not without objections. The bill would create a single searchable, sortable database of earmark requests, providing one-stop shopping for valuable, detailed information about congressional earmarks.

An effort to move the bill forward last month was delayed when Sen. Levin raised concerns about the cost and technical feasibility of the bill. We understand the need for caution before mandating the Secretary of the Senate and Clerk of the House undertake a new responsibility, but the smart folks over in Sunlight Labs, who create these kinds of databases for a living, assure me that most of the Senators’ concerns can be addressed.

At today’s markup, Senator Levin suggested that it would be difficult to sort data by the various data elements required by the Earmark Transparency Act. Projects we’ve worked on, such as Subsidyscope and Elena’s Inbox, belie any claim that such a requirement is too technologically cumbersome for the Secretary of the Senate and Clerk of the House. Technological “hurdles” should not be used as an excuse to water down the bill. We would be disappointed if, as has been suggested, the earmark database were limited to the five data-points listed in Senate Rule XLIV. There is a great deal more information about earmarks that should be made publicly available and easily accessible.

On the other hand, Senator Levin raised some points that deserve a second look. He is concerned that the bill does not adequately protect proprietary information and that it requires information—such as cost estimates and percentage of federal funds used for a project—that Members simply don’t have access to at the time they make an earmark request.

These seem like issues that could and should be easily remedied—and we would urge all parties resolve them before this bill comes to the floor of the Senate. Time is running out this Congress, and unfortunately, the Earmark Transparency Act probably won’t get a week of floor time to hammer out differences through debate and amendments. (Of course, after negotiation, we would want to see the revised bill online for 72 hours prior to floor consideration.)

A single database of earmark requests is an idea whose time has come. The technology is there and the public deserves to know the who, what, when, where, why and how much behind the earmark requests that are being made by their elected officials. We urge the leaders on this issue to continue working to resolve their differences so that a strong earmark database bill can be voted on this Congress.

Update 2:30 pm by John Wonderlich --

Here's the text of the letter we sent Monday to the same effect, explaining details on the technical feasibility of the bill:

7/26/2010 The Honorable Senator Carl Levin 269 Russell Senate Office Building Washington, D.C. 20510 cc: Dr. Tom Coburn Dear Senator Levin: The Sunlight Foundation is advocating for passage of S. 3335, the Earmark Transparency Act. By centralizing all earmark requests in a single database, the bill vastly improves the way in which information about earmarks is disclosed. We understand that you strongly support the goal of making earmark information more transparent and accessible to the public, but are concerned about the feasibility of this particular bill. The Sunlight Foundation has a great deal of expertise creating databases that enable the public to sort and search diffuse and complicated government data. We hope to address many of your concerns based on our experience. We understand that you are concerned that it may not be technically feasible to satisfythe bill’s requirement to create a website that allows the public to search and aggregateearmarks by any of more than twenty data-points listed in the legislation, especially data-points that include lengthy and non-standardized information such as justification for the project and supplemental documents. In fact, it is possible to aggregate calculations by values derived from fields that include attachments or lengthy text descriptions by sorting by phrases contained in those fields. For example, a query for all the earmarks with the phrase "ethanol", binned by congressman, is certainly achievable. There are several free and open source search engines for a variety of programming languages that support this kind of free text search and aggregation. Our Subsidyscope and Elena’s Inbox projects required searches to be performed on non-standard text fields in a manner similar to what would be required by the Earmark Transparency Act. For those projects, we had a choice of versatile, free software options to perform the advanced query, filter and aggregation operations we required. The software we chose used a standards-based web interface that allowed it to communicate with any programming language. The Earmark Transparency Act calls for the website to be put in place within six months of enactment, and we understand you are concerned that may not be sufficient time for the Clerk of the House and the Secretary of the Senate to create the website and the earmark database. Based on our own experience, we believe the six-month time frame should be adequate. At Sunlight, we built a searchable database of subsidy related transactions from the data that drives USASpending.gov in less than two months.The Clerk of the House and the Secretary of the Senate may have somewhat less staff availability and expertise than Sunlight, so a slight cushion in terms of timing may bereasonable. Nevertheless, it is important that public availability of this crucial database not be unnecessarily delayed. Finally, you have raised questions about the cost to create this website. Sunlight believes the costs would be relatively small, encompassing the costs staff needed to develop the database and relatively inexpensive web hosting costs. We would strongly encourage dedicated funding to ensure this project has the resources to be successfully launched and maintained. In addition to addressing some of the concerns you have raised, we would be remiss if we did not take this opportunity to recommend that a unique identifier for Members of Congress be added to the required data elements in the bill. Bioguide ID is an identifier Congress assigns to each Member and has become the de facto identifier for congressional datasets including OpenSecrets, govtrack and our own Congress API. Including bioguide ID would allow for very easy cross-referencing with other data about Congress, furthering the bill’s goals. The Earmark Transparency Act is important legislation that would create a powerful new resource for American citizens. We hope we have addressed some of your concerns and would be happy to answer any follow up questions you have. Sincerely, Ellen S. Miller

The Sunlight Foundation recently sent a letter seeking cosponsors for H.R. 5258 and S. 3335, both known as the Earmark Transparency Act. The bill would require the creation of a centralized database of earmarks and earmark requests.

In light of the New York Times article detailing ways in which companies are circumventing the House Appropriation Committee's ban on for-profit earmarks, I thought I'd repost what I wrote when the ban was implemented. The end of the post has been altered to reflect the introduction of the Earmark Transparency Act. Originally posted on March 15, 2010:

The recent policies imposed by the House Appropriations Committee and the House Republican Caucus to ban for-profit earmarks and all earmarks respectively will reduce the ability of the public to track directed spending and do little to stem this type of spending. Perhaps this is counter-intuitive to some people, but, as the late, great Bill Hicks would say, "I know this is not a very popular idea. You don't hear it too often any more … but it's the truth."

First of all, the obvious, the for-profit earmark ban and the House Republican earmark ban both only apply to the House of Representatives. The Senate refuses to follow suit. With the Senate earmarking precious appropriations dollars, House members will take to lobbying their state's senators for earmarks in their respective districts. The money isn't drying up, so why not try to get some.

Second, tons of not-for-profit earmarks go to colleges, universities, non-profits and state and local governments that then contract out to for-profit firms. Here are some examples:

Twice in recent years, House Appropriations Committee Chairman David R. Obey (D-Wis.) helped obtain earmarks totaling $3.2 million for a home-state university to study how to make military jet fuel from plants. Standing behind that nonprofit work, however, is a for-profit Chicago firm that often partners with universities to reap part of their earmark benefits. (Washington Post) Another example of controversial earmarks the new reform would not touch is a nonprofit defense research center at Pennsylvania State University that collected nearly $250 million in earmarks through Murtha, then channeled a significant portion of the funds to companies that were among Murtha’s campaign supporters. According to a report in the Washington Post, officials at the center regularly consulted with two “handlers” close to Murtha, one of whom was a lobbyist for the PMA Group, a firm that recently disbanded in the wake of an FBI raid on its offices. (The Hill)

The above-linked Washington Post article rightly notes that, "[the] new rule was widely touted as a crackdown, but in reality it could leave untouched almost 90 percent of typical earmarks."

Third, there are a variety of other ways for lawmakers to secure earmarked funds outside of the appropriations committee. One such example are the earmarks included in the transportation reauthorization bill. Unlike the Appropriations Committee, the House Transportation & Infrastructure Committee does not post online the requests they receive from members nor does it require members to post their transportation earmarks to their official web sites. Transportation earmarks only come up every four years. If a ban remains in effect, lawmakers will certainly look for other ways to direct spending to their district. By going through Transportation Committee they would be circumventing transparency rules set up by the Appropriations Committee.

Even more troubling could be the increase in "phone-marks" in place of earmarks. "Phone-marks" are the practice of lawmakers lobbying executive agencies to give money to particular organizations. Lawmaker lobbying could easily be instigated by an outside lobbyist or campaign contributor seeking funding for a project. And, of course, there is no transparency in this process.

What Congress really needs to do is pass real earmark reform. Earmark reform that makes the process totally transparent and encoded in rules or laws. Committee imposed rules or bans can easily be changed or circumvented -- this includes the committee's imposed rules on earmark transparency.

Passing the Earmark Transparency Act would allow people to actually see the earmarking process before their eyes, instead of head-faking with a ban and then taking the process underground.

Nearly 30 ideologically diverse organizations joined the Sunlight Foundation on a letter urging Members of Congress to cosponsor the Earmark Transparency Act, S. 3335 in the Senate and H.R. 5258 in the House. The bipartisan bill would require Congress to create an online, searchable database for all earmark requests, strengthening the public’s ability to know how lawmakers are directing federal spending.

Currently, information on earmarks is scattered across more than 559 websites. To remedy that, the Earmark Transparency Act would require Congress to post a public searchable website that lists all earmark requests, including detailed information such as the bill in which the request is made, who originally asked the lawmaker to make the spending request, the amount of the earmark request and more. This allows anyone to search, sort, aggregate, and download all available earmark to better determine for themselves the value of an earmark.

Sunlight has long advocated for technological solutions to make earmarks more transparent. We first proposed an online, searchable database of earmark request disclosures in March of 2008 and we worked to ensure that an earmark database provision was included in the Transparency in Government Act.

The Earmark Transparency Act improves upon measures taken last year by Congressional leadership that required lawmakers requesting earmarks to post their requests on their official websites. Because these requests were not disclosed in a standard method or location, they were difficult to track.

The Earmark Transparency Act will provide an increased level of accountability and public access to the earmark process, and is another example of a legislative fix to ensure that Public=Online. If you agree, you should join us by signing the pledge here and calling your Senators and Representatives and asking them to cosponsor the Earmark Transparency Act.

I'm really sick of these deceptively named front groups that try to pretend to be the opposite of what they are. In this case, we have a bunch of lobbyists who are employed in obtaining earmarks for clients banding together to create some kind of earmark transparency group. They want to extoll the benefits of earmarks and support transparency for earmarks. Or something.

Here's a very quick idea. If you are a lobbyist and you support more transparency for earmarks then endorse and lobby for these earmark transparency bills. That's it. Okay.

Save the money that you're going to spend to create some campaign about earmark idolatry. Just help pass the two bills titled "Earmark Transparency Act."

Unless, that isn't what you really want.