Paul Jacob
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The Democrats took over Congress pledging to curb the practice of earmarks.

They didn't quite succeed.

The omnibus spending bill they produced in December was filled with spending projects of a less-than-national character, most seen by no congressperson but the original politician who placed it in the bill. How many of these earmarks? Nine thousand or more, hitting over 11,000 for the year.

So, just another sad story of fiscal irresponsibility?

No. The story doesn't end when Congress cooks up a bill and sends it to the White House. And this time out there's a wrinkle in the politics of it all.

Sometime back Senator Jim DeMint asked Congress's research organization to prepare a report on the legality of these earmarks, and on the legality of the Executive Branch just ignoring them.

The researchers' verdict? Since most of this pork barrel spending is placed not in the bill itself, but in subsidiary explanatory reports, their status as law falls way short of constitutionality.

So the president could easily issue an Executive Order instructing his underlings simply to ignore the earmarks. They weren't placed in the omnibus bill as real laws, so it would be just fine to disregard them as the extra-legal finaglings they are.

This is not a veto. According to this line of research, most earmarks do not rise to the level of legality to require a veto. The proper response to off-the-books faux-authorizations to spend? A studied snubbing of each offending earmark.

It's not just DeMint's office that has counseled this course. A coalition of taxpayer organizations has urged the president to work up a little backbone and stand up to the spendthrifts in Congress. The groups sent a letter to the president, demanding . . . er, asking that he

follow through by issuing an executive order formally directing all Federal agencies to ignore non-legislative earmarks tucked into committee reports and statements of managers. Such an action is within your Constitutional powers, and would strike a blow for fiscal responsibility now while setting a valuable precedent for the future.

This became a big issue in late December. Mark Tapscott, editorial page editor of The Washington Examiner, alerted his readers to the issue repeatedly; there was great Internet buzz. But the buzz didn't yield an immediate and unequivocal response from the White House.

What the president is thinking, I don't know. He's played mum. But there's certainly been talk about this behind the scenes. A lot of people hope to hear something from Jim Nussle, Director of the Office of Management and Budget, "any day now."

Though anti-pork activists hailed the idea, Democrats have described it as all-out war between the branches of government.

And they have a point. The president, with his rash and too-frequent use of "signing statements," has not put himself in an ideal position to take on Congress, should congressional Democrats actually decide to defend their spending prerogatives, as they conceive them.

Further, the whole situation is eerily reminiscent of Nixon's latter days. Nixon also faced a Democratic Congress. And that Congress also spent money like a house afire. So he did the only responsible thing: he impounded increasing amounts of money that Congress directed be spent.

Impoundment seems ancient history now. In Nixon's time it was tradition and a live option. Thomas Jefferson had used it (he refused to spend money on building a navy, for instance; waste of money, he thought). And presidents had taken it as their duty from those days onward. If Congress couldn't control itself, and authorized money to be spent on this or that, the president, within his rights, simply didn't spend the money, "impounding" it, sending it back to Treasury coffers.

So the Democrats of Nixon's day cooked up a response. Nixon was weak, because of his extralegal activities vis-à-vis Watergate, and the Democrats concocted, as a cruel revenge, one of the worst bits of legislation in the history of the republic: 1974's Congressional Budget and Impoundment Control Act. Congress basically stripped the Executive Branch of the power to not spend money. And then, in the budget portion of the act, fixed the books with Enronesque flair, just so they could get away with spending money at an even greater clip.

Thus was sealed the fate of fiscal responsibility in the United States.

The Republicans never bothered, in their 1994 Contract-With-America heyday, to repeal the awful 1974 act, which would have given back the president something like a line-item veto on spending, and which would have brought honesty back into accounting.

And so they lost their grip. And now they gripe.

And offer council of political war.

If it's war, the first casualty would be wasteful spending, and on that subject, I am a hawk.

But I am curious what the second and third casualties would be.

Taking a larger view, the best thing to happen would for Congress to come clean, no longer earmark bills for spending projects, and go back to fiscal responsibility and full disclosure as the only honorable way to conduct the affairs of state.

But it didn't happen when the GOP got its taste for power, and the Democrats don't seem inclined to do the right thing, either.

So, will this president dare write up the Executive Order to ignore Congress's hidden, shameful spending?

Perhaps more importantly, would any of the Wannabes currently running for the office take up the cause?

It might be worth asking them.

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Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.