Around Thanksgiving, the Republican

members of the United States House of Representatives and Senate

met and voted to ban earmarks in the Congress that began this past

week.

For those unfamiliar with earmarks, they

are spending provisions enacted by Congress to finance specific

projects. These funds are the “pork” legislators bring home for the

economic benefit of their districts.

Despite the billions of dollars spent on

earmark projects, often considered wasteful by everyone except the

people in whose district they are constructed, the earmarking

process is a highly important function of

Congress. 

First, earmarks ensure congressional

oversight of the executive and serve to increase its

accountability. 

The presidency, as demonstrated

repeatedly, cannot be trusted to monitor the executive’s own

activities. President Nixon famously used executive privileges to

conceal the criminal conspiracies and activities of himself and the

men working for him. The bureaucracy, those nebulous undefined

institutions that make you fill out forms and run from building to

building to collect simple government benefits, is the executive

branch. Because the executive enforces the laws of this country,

and because all but its chief officer is unelected, it is the most

immediately dangerous to our liberties and

freedoms. 

Governmental, particularly executive,

powers were further restricted after the close of the Civil War.

The 14th Amendment did not only impose upon the states a

restriction which had long bound the federal government — that “No

person shall … be deprived of life, liberty, or property, without

due process of law.” This amendment also ensured that arbitrary, ad

hoc, administration of the laws by the executive was

constitutionally unacceptable: “No State shall … deny to any

person within its jurisdiction the equal protection of the laws.”

Legal problems featuring the same events are now to be treated with

the same results, regardless of individual differences between the

criminals. 

Some of you may object to my negative

characterization of executive power by asking: Couldn’t Congress

run roughshod over the rights of American citizens as well? Of

course an elected assembly can. During the ratification debates,

anti-federalist essayists objected to the Constitution on — among

others — the grounds that it contained no Bill of Rights.

Federalist writers responded to this charge by saying that

assemblies elected by the people and accountable to them would not

sacrifice their liberties and freedoms. Nevertheless, a Bill of

Rights was adopted. Since the very early days of our Republic, we

have had the good fortune to possess both solutions — enumerated

rights, and an elected legislature. Freedoms and liberties can no

longer be so easily abridged. 

Article I, Section 9 of the Constitution

places many limits on the powers of government. Among them is the

requirement that “No money shall be drawn from the treasury,

but in consequence of appropriations made by law.” Congress

makes laws. It is the duty of the executive to enforce them. If

Congress cannot compel the executive to act in a certain way — if

executive actions are decided internally by appointed officers who

are not accountable to American citizens — what happened to

Congress’ oversight function?If accountability in government

disappears, if government activities are shrouded in secrecy, what

happened to the open government on which freedoms and liberties

depend? 

In eliminating earmarks from government,

one legislative mechanism for controlling the executive is removed,

and a step backward is taken into

arbitrariness. 

Second, earmarks preserve the republican

government of our Constitution by keeping power in the hands of

officeholders exposed to regular elections, instead of transferring

power to individuals in their personal capacities. Earmarks protect

against intra-government lobbying, keeping such lobbying practices

that exist out of the framework of our

institutions. 

The answer to a ban on earmarks, as

described by NPR and The New York Times, is letter-marking and

phone-marking, the quality of which is determined by the influence

held by individual legislators. But this influence is completely

personal. It does not go with a representative or senator’s seat,

as his voting power and privileges on the floor of his House do.

Instead the influence necessary to procure funds, absent

earmarking, is the prestige which a legislator has built up over

the course of his career. 

It takes little effort to note that,

generally, representatives and senators whose careers have been

longer are regarded more highly than newer members. And while

considerations of prestige may be taken into account while votes

are being cast on earmark spending measures, it by no means goes

without saying. Legislative earmarks are all open to debate,

regardless of the seniority of the sponsoring

member. 

But in requiring personally-held

influence to generate results lies unconstitutionality. In the 1997

case Raines v. Byrd, the U.S. Supreme Court found that six

legislators lacked standing to sue for a determination of the

constitutionality of the Line Item Veto Act because the injury was

to the legislators’ seats, not their persons. The suing

legislators’ “claim … is based on a loss of political

power, not loss of any private right, which would make the injury

more concrete. The injury claimed by the members of Congress

here is not claimed in any private capacity but solely because they

are members of Congress.” 

The court indicated that a

legislator’s personal life and his political life are separate. In

forbidding earmarks, then, there is no recourse for legislators

whose individual influence with executive agencies is insufficient

to award grants and other discretionary funds. Now that the

Republican caucus has adopted a ban on earmarks, their members risk

losing their party positions if they request them. If earmarks were

permitted, the matter would be a simple vote, open to debate on its

merits. 

The use of personal influence in a

public government instead of political deliberation is simply

corrupt.