"I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." - Thomas Jefferson (appears in the Jefferson Memorial)

Invisible earmark ink

Mike Crapo

Mike Crapo

We will say up top that singling out Idaho Senator Mike Crapo on the question of earmark information release, as the Anderson Cooper show did last night on CNN, isn’t fair, on two grounds. One is that the bulk of U.S. senators of both parties take the same position – or at least hold the same bottom line – as Crapo does. The other reason is that Crapo picked up the notoriety because his press secretary was trying to helpful and explanatory, which shouldn’t have earned a ding.

The larger point the program was making, though, is another matter, largely undiminished after we went through it this morning with Susan Wheeler, the press secretary. Let’s run through this, and see whether most of the Senate (not Crapo alone) are right or wrong.

“Earmarks” are budget items specified for a particular purpose. A county, for example, might seek an earmark for federal funding for a park, or maybe a state seeks one for a health building. Or whatever. Certainly, private parties are interested in earmarks too.

For our purposes here, you can fit the earmarking process into three parts. There’s the request from someone in-state to a member of Congress that their request be included for federal funding. The second stage comes as members of Congress and their staffs sift through these requests, and propose some of them to an appropriations committee or subcommittee for action. The third stage is the formal, public action by the committee to approve some of those requests (extending, of course, into further floor and committee action on the way to ultimate bill signing).

The third part of the earmarking process, at the committee level and beyond, is public, and there’s no dispute about it. The first part of the process, which involves constituent communications (a category that also includes such things as constituent negotiations over Social Security payments), is commonly taken as a confidential communication, and there’s not much dispute about that either (though we’ll partially asterisk that and return to it below). The dispute concerns the second area – the work that the member of Congress and staff do before the committee acts on the proposal: Most senators, including Crapo, say information about what earmarks they propose to the committees should not be released to the public.

What gets left out of the process is any information about earmarks proposed but rejected by the committee, and about which senators proposed any of the earmarks at all.

The CNN program Anderson Cooper 360 (thanks to a correspondent for the tip) got into this last night, directing interns to call the offices of the senators for information about what earmarks the senators had proposed. From a transcript:

GRIFFIN: Here are the results. Just these six senators said yes and gave us their earmark requests. Just six. These five senators actually didn’t ask for any earmarks. Nineteen U.S. senators flat-out told us no. Here they are, the 19 senators who told us their earmark requests were none of our business. But just like in the House, the majority in the Senate didn’t even bother to answer our question by our deadline. Seventy Senate offices did not provide us any answer, after four days of calling.

(on camera) One senator’s office had a most creative response to our request. Republican Senator Mike Crapo’s press secretary told us that to release the senator’s earmark requests to us would violate federal privacy laws.

According to Senator Crapo, telling the American people how he wants to spend your money is against the law. Of course, we did immediately ask for an interview. And his press secretary declined, saying they saw no benefit in explaining that.

TIM PHILLIPS, AMERICANS FOR PROSPERITY: For a senator, a sitting U.S. senator to say, “Well, I’m not going to tell you how I’m going to spend taxpayer dollars, because somehow it might violate the Privacy Act,” it’s ludicrous. I mean, it’s — it would be laughable, were it not so serious.

Wheeler, Crapo’s press secretary, told us the depiction was unfair, and in some ways it was; and she was singled out largely because she provided a fuller explanation of her senator’s views than did some of her counterparts. Crapo (and other senators) are perfectly happy to talk about committee-approved earmarks – in fact, references to them often show up in press releases. The AC program leaves you with the impression of a cloak of secrecy, which isn’t there, over actual spending.

That doesn’t resolve this, though. Why shouldn’t senators (and representatives), and their staffs, working under the public authority on the public dime using public resources, account for their actions – their decisions about what to propose, and what not to propose, to committees for earmarking?

Wheeler’s (and Crapo’s) explanation tied it back to constituent service, which traditionally has some confidentiality involved: “Those remain in the senator’s view privileged communications.”

Our take is that once a senator and staff moves beyond communicating with the constituent, and into the realm of legislating – actively proposing how money should be spent – that privilege goes (or should go) away.

We’re not in the business of reading minds, and we won’t try to read Crapo’s (or any other senator’s). But we can easily understand why a senator might not want to release the early-stage information. If constituents knew which proposals a senator decided to endorse, and which (by process of elimination) he rejected, a number of constituents (in addition to learning a lot about his thinking processes) might become upset with the senator. And if the voters knew which proposals by the senator succeed and which fail at the committee level, which can relate to how hard the senator pushes for them, they would have a useful additional metric for assessing the senator’s work – another measure most senators probably would rather they not have.

Constituents – that is, the boss – who would like to have this information, might be well advised to so inform their employees in the Congress.

THE ASTERISK During our conversation, Wheeler asked if we thought in-state public agencies – such as local governments, universities and others seeking earmarks – should have to disclose their requests. Our answer: Yes. The presumption on public activity should always be in favor of disclosure and transparency unless there’s a compelling reason to the contrary. And barring the odd occasional exception, we see none here.

Share on Facebook

One Comment

  1. Jim Hansen said:

    Good Analysis. CNN and others often lose sight of the forest for the trees. Perhaps Sen. Crapo will now become an advocate for genuine openness. Earmarks are public funds. The process of sorting through the many needs should be public. Local governments are particularly undermined because with one hand they get hit with mandates (like No Child Left Behind, PATRIOT ACT, and the like) and are left to master the maze of passages and personalities to get support for critical local needs. Local government officials are also silenced because the first time they complain about the process their requests will mysteriously disappear in the process. State and Local governments do not appropriate public resources this way. Congress should not either.

    July 2, 2007

Comments are closed.