Senate leaders invoked cloture on the defense authorization bill Tuesday afternoon, setting up a showdown Wednesday on whether earmarks in the bill should be in the legislative text or in a committee report attached to the bill.
This battle is an arcane fight over legislative procedure, but it has consequences for how the Senate handles earmarks in the future. This is the first major challenge to an executive order issued by President Bush in January, which allows executive agencies to ignore earmarks in report language. Earmarks included in report language cannot be amended or challenged on the Senate floor and are not included in the bill when presented to the president for his signature.
Committee reports currently do not have the force of law, but legislators use implicit and explicit threats to executive agencies that ensure most, if not all, projects are funded according to their guidelines. Earmark defenders note that this allows agencies to reprogram funds for projects of greater urgency or to divert money from failed projects (although that rarely happens).
Sen. Carl Levin (D-Mich.) circumvented the executive order by inserting a provision in the bill (Section 1002) that incorporates the report language into the bill by reference — essentially giving the earmarks the force of law even though they're absent from the statutory language.
Majority Leader Harry Reid (D-Nev.) used a parliamentary procedure called "filling the tree" to limit the amendments offered in order to thwart an amendment by Sen. Jim DeMint (R-S.C.) to strike the section of the bill that incorporates the earmarks. DeMint's staff is hopeful he can offer the amendment Wednesday on the Senate floor.
Earmark critics like DeMint, Sen. Tom Coburn (R-Okla.) and Russ Feingold (D-Wis.) charge that this end run foils earmark transparency because earmarks included in the report language rather than the bill text are not subject to debate, amendment or other Senate points of order.
Advocacy group Citizens Against Government Waste blasted Levin in a release today:
This provision continues a practice of using committee reports to hide earmarks and make them difficult to eliminate by offering amendments to authorization and appropriations bills. It certainly does not qualify as “reform” of the earmarking process. It would prevent open debate and votes on earmarks and reduce transparency and accountability. The “incorporation” language sets a precedent for other fiscal year 2009 legislation. If it is not removed from the bill, it would demonstrate that the Democratic leadership of Congress has no intent of ever getting earmarks under control.
Sen. John Warner (R-Va.) also tried to offer an amendment that would shift the earmark language to the bill's text, rather than the committee report. In a stunning display of hubris, Levin has told staffers that the Government Printing Office does not have the software to incorporate the earmark tables into the bill, according to Senate Republican staffers. Levin also told CongressDailyPM today ($) that adding the earmarks to the bill would take too long and would prevent the bill from sailing through Congress:
Levin said today that the process of adding the tables to the printed bill would take four days and could ultimately jeopardize efforts to quickly reach a conference agreement with the House and pass a final bill by the end of the month.
Cutting and pasting takes four days?
Last week, the White House issued a veto threat to the bill if the provision remains intact. The White House also expressed concerns about several other sections in the bill.
The legislation is S. 3001, the National Defense Authorization Act for Fiscal Year 2009. The earmarks in the bill total $5.9 billion. If Levin gets his way, it will set a terrible precedent for future authorization and appropriations bills. If that happens, defense funding will likely continue to be doled out based on seniority, geography of important members and lobbying clout instead of a merit-based test of what's best for national priorities.