Are ‘lettermarks’ Congress’ new end-around on the earmarks ban?

capitol
In the wake of 2010’s earmark reform, members of Congress are using other methods to ensure funding for their favorite projects.

Which members of Minnesota’s congressional delegation bring home the most bacon?

Except for the bragging that lawmakers do when running for re-election about getting this or that project, the public had no way of knowing.

In 2008,  however, Congress began to disclose earmarks — federal dollars directed to local projects favored by lawmakers — in major pieces of legislation. OpenSecrets.org, a website operated by the Center for Responsive Politics, then catalogued earmarks by legislator, making it pretty simple to learn that Sen. Bigwig had slid $3 million into a water bill for a dam in his state or that Rep. Screechy had won $500,000 for bus station improvements in her district. 

Among members of the 111th Congress, for example, the Minnesota delegation proved to be among the less grasping — or less effective, depending on your view.

Rep. James Oberstar, a Democrat and leader on the House Transportation and Infrastructure Committee who was defeated in 2010, was the biggest bacon-bringer but racked up far less than Mazie Hirono, a Hawaii Democrat who sent $149 million home to Aloha Land. Reps. Michele Bachmann and John Kline held to conservative Republican principles and put their names on no earmarks. In the Senate, Amy Klobuchar’s requests put her smack-dab in the middle of the pack and far from the chamber’s top earmarker, Thad Cochran, R-Miss., whose takings that year came to $497 million.

Earmarks for 2009-10 Minnesota Congressional Delegation

Number of
earmarks
CostEarmark Rank1
House
James Oberstar35$72,700,00024
Keith Ellison1823,100,000184
Collin Peterson1213,700,000N.R.2
Tim Walz139,700,000330
Betty McCollum148,700,000336
Erik Paulsen107,500,000N.R.2
John Kline00
Michele Bachmann00
Senate
Amy Klobuchar88117,86010052
Al Franken198,600,000N.R.2

1Within his/her chamber for total $ value

2Open secrets did not rank all legislators, but given the dollar amounts, Collin Peterson would have been around 277th of those requesting earmarks, Erik Paulsen around 349th and Al Franken below the lowest ranked, Senator Michael Bennett (D-Colorado) who took home $44 million. Also, not every legislator reaped the full amount of boodle on his or her own; most joined with others in sponsoring earmarks for their states or districts.

Over the years, earmarks developed a somewhat sordid reputation. For starters, neither the full House nor the Senate vetted such requests — or held hearings on them. Instead, the goodies were tucked into legislation during the conference committee phase when leaders met to reconcile House and Senate versions of a bill. The final measure returned to the Senate and House for approval, and, at that point, few members of Congress (or the president) were likely to hold up a vast appropriations bill because they didn’t like some dinky little road project in Tennessee or Rhode Island.

And, of course, earmarks were a huge generator of I’ll-scratch-your-back appropriations. Sen. Bigwig would grudgingly agree to support a bill he didn’t much love as long as his projects were included. The result was legislation packed with special requests. The 2005 highway bill, for example, contained 6,300 earmarks, and a 2007 water resources act, ushered to passage by Oberstar contained 900.

The most notorious of all earmarks was the proposed $230 million “Bridge to Nowhere,” connecting Alaska’s mainland to sparsely populated Gravina Island. Congress removed the earmark in 2005, but the latest transportation measure still allocates $180 million to the project.

Although anti-tax groups dismissed earmarks as “pork,” many of the projects were worthwhile — though it was hard for a layperson to tell. Commentators scoffed at allocations for termite control or beaver management, but upon closer examination, they often came with decent rationales. (One estimate pegs the annual cost of termite damage to homeowners at $5 billion.)

In any case, Republicans ramped up public outrage in 2010 when Senate Democrats passed a $1.2 trillion spending bill that contained 6,000 earmarks worth $8 billion—even though GOP lawmakers had packed in plenty of their own lard — and earmarks came to less than 1 percent of the budget. 

What ensued (circa 2010) was earmark reform.

First, House Democrats said that they would no longer accept earmarks for for-profits. House Republicans responded with a one-year ban on earmarks. Then came a proposal to make an earmark database open to public scrutiny. That got nowhere, even though Oberstar released a database of transportation earmarks. Finally, Republicans extended the moratorium on earmarks, and Democrats went along. The moratorium seems likely to continue indefinitely.

So no more earmarks, right?

Well, not quite. According to Taxpayers for Common Sense, a nonpartisan budget watchdog, lawmakers have worked out an end run.

In a practice called “lettermarking,” they now write executive branch officials asking them to fund their pet projects. Or they beseech them through phone calls — or “phonemarking.” According to Steve Ellis, vice president of the group, legislators may even set aside slush funds in laws they pass to accommodate requests they plan to make of various agencies.     

Such requests, he concedes, are not as powerful as earmarks, which were included in law. And, agency heads aren’t required to listen — although if a member is powerful enough, like Barbara Mikulski, D-Md., who chairs the Senate Appropriations Committee, they are likely to pay heed ($126.8 million in 2010).

But such requests occur in the dark. As Ellis points out, “They are a lot less traceable than earmarks.” They are not public. To see lettermarks, you have to file a Freedom of Information Act (FOIA) request with a particular federal agency. According to Josh Israel, an investigator who’s dug into the matter for the Center for American Progress, a left-leaning think tank, agencies may take months to respond. When the lettermarks come, they are redacted like this one [PDF].

Unwilling to petition dozens of federal agencies only to wait months for heavily censored letters, I decided simply to request lettermarks from Minnesota’s congressional delegation. I asked them, in the interest of transparency, to release information on how much was requested, for what projects and whether the agency accommodated them. After all, the public ought to know what our reps are looking to win for constituents and why the projects are important. If they are crucial enough, maybe constituents would be compelled to send “citizen lettermarks” to agencies.

Seventeen days have now elapsed. Bachmann, Kline and Reps. Rick Nolan, Erik Paulsen and Tim Walz never answered — though Bachmann’s letter-writing on behalf of projects has been well documented.

Rep. Keith Ellison’s rep pleaded that they were busy, busy, busy with the Syria crisis and would get back to me but then didn’t.

A statement came from Peterson saying that he “frequently sends letters of support when constituents have requested them but unfortunately we do not keep a database of such requests. That being said, he has been outspoken and supportive of a transparent earmarking process, and when the House of Representatives had such a system, Mr. Peterson went above and beyond in reporting by posting on his website the constituent’s request letter for a project.”

Rep. Betty McCollum rejected the whole notion of lettermarks: “Every letter to the executive branch sent by a Member(s) of Congress is expressing a view on a policy issue or making a request for specific action on behalf of an issue.  There is no such thing as ‘lettermarks’ — it is a fabricated concept propagated by an ideological think tank.” I don’t know if Taxpayers for Common Sense is a think tank, but its ideology seems to be a rather nonpartisan grumpiness about unwise government spending.

Klobuchar took a less accusatory stance. An assistant sent an email saying that she “travels the state and visits every county, every year, and hears directly from Minnesotans about their needs and ideas. She has always made it a priority to help people in Minnesota have access to their government, including their federal agencies, and she will continue to do that.”

Only Sen. Al Franken’s office gave a full (or almost full) answer. In addition to providing an unredacted version of the letter (noted above) that was written to Energy Secretary Steven Chu on behalf of Cima Nanotech Inc. of St. Paul, asking for support for a grant to study advance cell efficiency, he provided four other letters. They went to the Transportation secretary (for a study of vehicle crashes on tribal reservations), to assistant secretary of the Army (for Great Lakes Navigation projects), to the commissioner of the Bureau of Reclamation (for help with a regional water system) and to the Army Corps of Engineers (for a flood-control project for Roseau). All except the Cima letter were co-signed by other senators.

Franken’s office added:  “It’s fairly routine for Senators to write letters like these to ensure that constituents receive due attention and consideration when they apply for federal grants. Because grants have always been awarded at the discretion of individual agencies, Senators have been sending letters like this since long before the earmark ban.” Such letters, he added, “are by no means a replacement for earmarks.” 

That all sounds well and fine. Given the squishy nature of such requests, however, it’s hard to know whether they are simple pleas or slightly muffled electric cattle prods to agency heads. The sense is that they lean a bit toward the latter because in 2011, the Obama administration began to consider a proposal to require federal departments and agencies to make such letters public in a searchable database. So far, no results on that front. 

In the meantime, maybe it would improve Congress’ performance if they returned to   earmarks. If such special requests are disclosed early on, made subject to debate and put in an accessible website, constituents would have a prayer of knowing what’s going on. And maybe, if some horse-trading were added back to the legislative system, our reps could finally pass some laws.

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