Washington Gridlock: Earmarks Are An Answer

To keep traffic moving during rush hour the District of Columbia placed signs at several major intersections, including several crossing lobbyists’ K Street, that simply read, “NO GRIDLOCK.”  The irony is sublime.

Despite the road signs, there is still gridlock every morning and every evening.  Amazingly, however, there are never any reports of commuters languishing on downtown streets for days or weeks.  Everyone always makes it to work and everyone always makes it home.

We fret about “gridlock in Washington, DC” and lament the threat of government shut downs. Our country’s infrastructure is deteriorating and desperately needs repair.  The immigration issue creates more divisiveness every day and budget debates seem to overlook opportunities to bolster what works and fix what does not.  Pundits decry the federal government’s inability to get anything done and yet the nation functions. Issues are being addressed.  No one is fiddling and Rome is not burning. At the end of each day, everyone makes it home.

So what’s the big deal?

The big deal is opportunity cost.  Even though we make it home every day, there are some pretty big problems that still need solutions and as strong as our country is, Washington’s partisan bickering creates a huge and growing opportunity cost.  By not solving issues like transportation infrastructure and immigration, lawmakers are leaving proverbial dollars on the table.  The country functions but is not reaching its potential.

There are many clear compromise solutions, but most seem too far out of reach, too simplistic, even far fetched, at least for now.  Do you really think the President will relent his opposition to building the Keystone XL Pipeline in exchange for Congressional Republicans relenting their opposition to his executive orders on immigration?  Me neither.

Bridging that chasm seems like walking a bridge to nowhere, but I have an idea.  Give Congress a boost and ease gridlock by bringing back the cursed earmarks.  Allow heathen special interests to have their say. Allow taxpayer dollars to spill and fund projects like Ft. Worth’s Cowgirl Hall of Fame and Ketchikan’s insipid bridge to nowhere.

For those unaware, an “earmark” is a federally funded special project written into and having the force of law.  In years past, during the annual legislative appropriation process wherein Congress allocates funding to each of the federal agencies, Members of Congress inserted language into the “appropriations bills” or their accompanying explanatory reports that required a federal agency to spend a portion of the money Congress gives it on a special project, i.e. a new toll booth, parking garage, bike lane, hospital equipment, job training program, environmental study, etc. etc. etc.  These special projects generally inured to the direct benefit of one Congressional District or one state.  How grotesque!  If the project happens to be in your neighborhood, however, it is clearly a matter of national significance.  What bike rack or spillway would not be?

Admittedly, at some point the earmarking process ran amok.  Members in power, such as Appropriation Committee members, would quietly “air-drop” these projects into appropriations bills in their eleventh hour.  No one knew about them until the bill was law and federal agencies found themselves required by law to underwrite new cancer research, sewage treatment plants, or Everglades education initiatives.

Each project’s value will always be a matter of debate.  Its simply a matter of perspective.  The process, however, for delivering these projects should be at least as transparent as the rest of the legislative process.  As the partisan sniping sharpened and more and more budget hawks landed in Congress, in an effort to correct the despicable earmarking process, Congress overreacted.  It eliminated earmarks altogether.  Some of the reasoning was to save taxpayer money.  Some of the reasoning was to make Congress more accountable.

Bunk.

Eliminating earmarks does not save any money whatsoever.  The funding set aside for legislatively constructed special projects is NOT returned to the Treasury, let alone the taxpayer.  It’s simply folded into the balance of each federal agencies’ piece of the federal budget pie allowing the agencies to spend it; sometimes wisely.  And if you think that eliminating earmarks has made Congress more accountable, responsible, or responsive you need to peek a bit further out from under your sleepy little rock.  Congress has done nothing for which to be accountable!

Congress is in gridlock, despite its magnanimous gesture of eliminating research projects, job training programs, infrastructure improvements, and yes – bridges to nowhere.

Pragmatism is an unsung element of what makes our country so successful.  Americans’ ability to take good with bad as long as we have more of the former and less of the latter creates balance.  Pragmatism keeps us moving forward and maintains the optimism that makes America different and special and there is nothing more pragmatic; no more useful legislative tool than an earmark.

So what if a few chumps pull one over on Congress and the taxpayers, finding a way for Uncle Sam pay for a drawbridge you’ll never use or commercialize a product you’ll never see?  What we get in return is priceless and it just may ease some gridlock and get us all home a little quicker.

When Congress postured, “No more special interests!” they committed the classic public policy gaff. They threw the baby out with the bathwater only the bathwater was relatively clean and warm and the baby was perhaps the best leverage lawmakers had to unhinge legislative gridlock.

Earmarks not only fund special projects (most of which, by the way, offer great benefits, e.g. job training for the disabled, energy research to improve fuel economy, better armor for our troops, etc.), earmarks are political chits.  They are bargaining tools in the classic art of democracy’s legislative compromise game.

If the chairman of the House Transportation Committee needs 125 more votes to pass her highway bill reauthorization, what can she offer her stalwart opponents to sway their opinions?  If negotiating on the bill itself yielded the best possible compromise; the best possible policy to help reconstitute our bridges and highways, what else can she do to remove enough of the remaining road blocks and finally pass a transportation bill?

Hold your “ears” and perhaps your nose, but what about an appropriation earmark to build a bridge that 99.9% of the country will never see?  In exchange for that special interest “gift” she receives five votes to help pass a badly needed bill.

The pragmatic (the American) evaluation is simple. Determine if that special interest earmark and others like it will cost more than allowing our infrastructure to crumble.

I can tell which way I’d go; which way I think would get us all home a bit quicker!

So the next time you’re up-in-arms about Washington’s gridlock, take heart.  You’ll get home sooner or later and Congress has it within its means to open things up even more.  The gridlock will ease, bills will get passed, and we may even benefit from more than a few productive special projects; get home a little faster when earmarks are reinstated.

by Aaron Grau

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If you have questions please contact Michelle Vezzani at MVezzani@cohenlaw.com or the public affairs professional with whom you work.

Congressional Flerovium: Republicans, Small Business, & Earmarks

Creating public policy is as much a science as an art. It requires creativity, trial and error, finesse, and sometimes bull-headed determination.  On January 3rd a “refreshed” group of artisan/scientists will commence the country’s 114th Congress but sadly the rhetoric still seems more like Pollock’s Autumn Rhythm than Mendeleev’s methodical chart.

Our $64,000 question, however, is how the rhetoric will impact small businesses?

Republicans’ ascension means renewed efforts on pro-business issues.  For example, the House of Representative’s current Budget Committee Chairman, Paul Ryan (R-WI) will likely receive the Ways and Means Committee’s gavel giving him the runway he’s wanted to write tax overhaul legislation.  On the Senate side, Orin Hatch (R-UT) will lead the Finance Committee.  In addition to patent reform, Chairman Hatch will quickly move to repeal the medical device tax and later take up larger matters like the Highway Trust Fund.

House and Senate Small Business Committees preside over matters including commercial lending declines, rural small businesses access to resources, and level playing fields for small businesses’ access to federal contracts.

Senators Risch (Idaho,) Vitter (Louisiana,) and Rubio (Florida) are considering the Senate Committee’s chair while Representatives Graves (Missouri) Chabot (Ohio) Tipton (Colorado) and New Yorkers Richard Hanna and Chris Collins consider the House gavel.

As these pieces fall into place and Congress tries to accomplish…anything, one critical tool is missing: earmarks.  A new Congress gives leadership an opportunity to create new operational rules.  (US Const. Art. I, Sec. V, Clause 2)

In the name of fiscal responsibility, Republicans foolishly banned earmarking. Plainly, the decision stymies legislation.

Eliminating earmarks did not save taxpayer dollars.  The small amount reserved for earmarks simply shifted from Congress’s control to the administration.  Meanwhile, Congressional Members sacrificed a valuable trading tool.

It’s impossible to predict whether the 114th Congress can finally pass a transportation bill, but the process will be easier if Members who dig in their oppositional heels over some obscure provision can be persuaded to vote for the bill in exchange for a new bridge, bike path, or on-ramp.

Small businesses in Iowa who benefit from new highway construction will not take issue if a transportation bill finally passes in exchange for a new emergency room in Georgia.

The earmark ban, however, remains radioactive. No one touches it and consequently, legislation languishes. So, as the 114th Congress settles into its routine, appointing new chairmen and addressing issues for the country and small businesses, the question remains whether anything will actually get done. It’s been a long time since anyone has seen that happen.

Congressional progress, it seems, is like Flerovium: extremely radioactive, rarely, observed, and each with the atomic number 114!

This article originally appeared in SMC Business Council‘s December 17, 2014 edition of Government News.

by Aaron Grau

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If you have questions please contact Michelle Vezzani at MVezzani@cohenlaw.com or the public affairs professional with whom you work.