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Republicans are decrying what they say are changes to newly enacted Senate earmark rules eliminating a ban on new earmarks being inserted into authorizing bills during conference. And they complain that key disclosure requirements that mandate Members publicly disclose who their earmarks will benefit and what the purpose of the spending is have been seriously weakened.

During closed-door talks with Speaker Nancy Pelosi (D-Calif.) on this year’s ethics bill, Senate Majority Leader Harry Reid (D-Nev.) eliminated language in the earmark disclosure rules that required lawmakers to make public the recipient and purpose of their earmarks. However, they are required to provide that information to the Appropriations Committee, and lawmakers still are required to publicly disclose which earmarks are theirs and to certify that they and their immediate family have no financial gain at stake.

Additionally, Reid has indicated that he is interpreting the new earmark rules — and that the Senate Parliamentarian will back up his reading of the rules — to not ban Members from including new earmarks into authorization bills during conference talks with the House.

Sen. Jim DeMint (R-S.C.), the chief architect of the language barring new earmarks during conference, had intended it to cover both appropriations and authorization bills. But in a Sept. 24 letter to DeMint, Reid informed DeMint that because of a second provision — also written by DeMint that was added to the bill, which does not explicitly include authorization bills in the ban — the provisions only will apply to appropriations measures.

Sen. Tom Coburn (R-Okla.) — one of the chamber’s most outspoken critics of earmarking and a leader of the chamber’s fiscal conservatives — argued that the changes amount to a breach of trust with the public and warned that he and his allies will be in no mood to compromise on upcoming spending measures.

“What we told the American people is totally untrue now ... we’ve winked and nodded again and been very dishonest with the American people. ... It just makes it impossible this year to do appropriations bills. We’re not going to stop pointing out the problems with earmarks to the American people,” Coburn said, adding, “We’re going to keep offering amendments and they’re going to be germane,” which ultimately could stall work on spending bills.

Democrats, however, dismissed conservatives complaints. A Democratic Appropriations Committee aide points out that Members are complying with the provisions in the bill by limiting disclosures to naming their earmarks and certifying they have no financial stake in them. The source also points out that all the information conservatives want disclosed already is publicly available, since the committee is required to list all the earmarks in its bills as well as where the funding will go.

Earmark information is in “the committee report ... [and] identifies the earmark recipient, the amount of the earmark, and the Senator who made the request,” the aide said, explaining that “if an individual wants to know who got earmarks, for what and how much, they look at the report. Then, if they look at the certification letters, they will know if the Member they are interested in certified that they have no financial interest in such earmarks. We did not include earmarks unless we had a certification of no financial interest.”

But one GOP aide familiar with the issue said that while in many cases it is possible to determine who will benefit from an earmark, in many cases it is nearly impossible. For instance, the aide noted that most Defense Department earmarks only reference military programs and not the intended contractors, while in other bills the earmarks only refer to previous legislation that has been passed by Congress.

As for the ban on adding earmarks during a conference, Reid provides a detailed history of the legislative debate on the language as well as a Congressional Research Service memo on the issue to bolster his decision to limit the ban only to appropriations bills.

Reid also argues that there is a fundamental difference between authorization bills and spending measures, and that earmark abuse is limited to actual funding rather than authorized spending.

“When earmark abuse occurs, it involves the unjustified use of taxpayer money — not the setting of authorization levels. It is appropriate to require full disclosure of all items that involve specific member-requested projects, including authorizations, but only those items that actually spend taxpayer money should be subject to the extraordinary procedure of allowing a point of order to strike a provision that is within the scope of conference from a conference report,” Reid said in the letter.

But Republicans remained unmoved. One GOP aide questioned Reid’s decision to use a provision with weaker language to trump the DeMint amendment, setting up a complete ban on earmarks in conference, and charged that Democrats are simply using creative ways to avoid the rules.

“It’s business as usual,” the aide said, adding: “Obviously the Democrats want all the headlines and public recognition for earmark reform with none of the restrictions of having to live by it.”


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