Is Earmark Reform Legal?

Earmarks: the solution in search of a problem.

While signing the “flawed” omnibus bill, President Obama announced a series of “earmark reforms,” once again elevating the proverbial solution in search of a problem:

These principles begin with a simple concept: Earmarks must have a legitimate and worthy public purpose. Earmarks that members do seek must be aired on those members’ websites in advance, so the public and the press can examine them and judge their merits for themselves. Each earmark must be open to scrutiny at public hearings, where members will have to justify their expense to the taxpayer.

Next, any earmark for a for-profit private company should be subject to the same competitive bidding requirements as other federal contracts.

Furthermore, it should go without saying that an earmark must never be traded for political favors.

Let’s assume that these are all good ideas (and I’m not sure that they are): how would you enforce these rules, assuming that they are even intelligible (e.g. one person’s pork is another’s legitimate public purpose). Say Congress enacts an appropriations bill with earmarks that haven’t had public hearings, or been on the member’s website (assuming that these are even deterrents). The earmarks are now “the law:” unless they are unconstitutional, you can’t say that they are illegal. And given standing rules, I don’t know who could sue in any event.

I suspect that the way they are enforced is through enactment of congressional rules. If there is an earmark that has not been marked up through a hearing, then a member could raise a point of order and remove the earmark. And since you would only need one member to do so, it wouldn’t be hard to do.

But to some extent, it shows how empty the whole exercise is. The President is announcing a set of reforms that will be implemented through Congressional rules, so he really doesn’t have any say in whole process anyway. One big principle of these rules (public purpose) is unintelligible; another (not in exchange for political favors) is already illegal; two others (website and public hearings) might actually be favored by members of the legislature so that they can take credit for it.

Can we get back to some real issues now?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.