A three-word rule change quietly made to Congress’s newly-enacted lobby reform package was recently discovered that significantly reduces disclosure requirements for the earmarks each senator requests.
The new ethics bill, which was signed into law in September, purported to require members of both the House and Senate to make public a signed letter that included the name and address of the intended recipient, or location of any requested earmark.
The final bill, however, contained an exception for members of the Senate. Instead, senators who request earmarks are only required to make public a letter that verifies he or she has “no pecuniary interest” their request.
Steve Ellis, vice president of Taxpayers for Common Sense, said he caught the change when he met opposition from Senate Appropriation staff when he tried to obtain the public letters with the earmark information—they weren’t there. Instead, there were only “no pecuniary interest” letters on file. When he protested, he was told the law was being followed.
“So, there was a discrepancy between what the Appropriations committee was saying and what was supposed to be done,” Ellis said in a phone interview. This is what prompted Ellis to investigate.
Ellis later found that the law had been followed, but it wasn’t the law that had been touted to promote transparency in the earmarking process.
The only thing a senator is now required by law to do is to verify he or she has no financial interest in the earmarks he or she seeks. Ellis sarcastically called this an “I’m not a crook” statement.
Upon making this finding, Ellis published a detailed explanation of the rule change on his website on September 25.
Bill Allison, senior fellow of the Sunlight Foundation, said the change was a “disappointment that no one knew about until the last minute.” His organization utilizes the Internet to make government more transparent and has worked with Taxpayers for Common Sense to publish all earmarks in a free online, searchable database at
Originally, when House and Senate versions of the bill passed from their separate chambers, both contained identical language regarding earmark reform. During negotiations between the House and Senate to work out differences between their bills-- called a “conference report”—a change was made to the Senate disclosure requirements.
“It was such a subtle change with huge ramifications. Just a couple words,” Ellis said. The conference process for this bill was not done in public view. This was largely because earmark-reform champions Republican Sens. Tom Coburn (Okla.) and Jim DeMint (S.C.) refused to participate due to suspicions that their reforms would be gutted.
As a result, differences were worked out and new rules were inserted in a back and forth negotiation process between the House and Senate that staffers call “ping-ponging.” Then the final version was signed by the President on September 14.
A senior Republican staffer said those primarily involved in the negotiations were Democratic Majority Leader Harry Reid (Nev.), House Speaker Rep. Nancy Pelosi (Calif.), Sen. Russ Feingold (D-Wisc.), Sen. Dianne Feinstein (D-Calif.) and other members of the Senate Rules Committee.
DeMint’s press secretary Wesley Denton laid the blame on both parties for letting this change slip by. “Democrats and Republicans alike want to give the appearance of earmark reform, but they don’t want to live by it.”
Senators have even been resistant to submitting the “no pecuniary interest” letters. On October 1, Chairman of the Armed Services Committee Sen. Carl Levin (D-Mich.) and Sen. John McCain (R-Ariz.) issued a joint letter to remind their colleagues there were “certifications” missing for earmark requests made in the defense authorization bill. The original deadline to turn the “no pecuniary interest” statements was September 14. It was extended to October 5.
Coburn’s spokesmen Jon Hart noted the change would also give House members a way to hide their earmarks. It “essentially creates a secret chamber for earmarking,” Hart said. “All the questionable earmarks now can easily be shuttled from the House to the Senate” to escape disclosure requirements.
“You might as well call it the Abramoff Corridor,” Hart joked.