Academic journal article Case Western Reserve Law Review

Jimmy Carter's and James Miller's Revenge: The Reasons and the Consequences for Presidential and Congressional Power of Measures to Ban Congressional "Earmarks"

Academic journal article Case Western Reserve Law Review

Jimmy Carter's and James Miller's Revenge: The Reasons and the Consequences for Presidential and Congressional Power of Measures to Ban Congressional "Earmarks"

Article excerpt

ABSTRACT

At the end of 2010, the United States Senate and House of Representatives appeared to abandon a fundamental aspect of Congress's power of the purse. By adopting a "moratorium" on "earmarks" in appropriations bills, as well as on analogous specific details in tax and other legislation, both chambers appeared to give the President, or at least the presidential branch represented by White House staff and OMB, dominance over policy decisions that long have been considered central to Congress's role. Is this change substantive or cosmetic, why did it occur, and will this be the new normal? This Article recounts how the politics of distributing benefits to individual states and districts developed over the past half century. What from the perspective of Congress seemed like presidential imperialism was rebuffed. But the executive branch's strategies forced Congress to make the politics of distribution more visible. That in turn activated attitudes in U.S. politics that view Congress as inherently corrupt and that inherently disadvantage Congress in a battle for public opinion. Congressional minority parties sought to mobilize this sentiment against the majority party. After they captured the House and Senate in 2006, congressional Democrats sought to blunt the criticism with procedural reforms. Both opposition to the Democrats and opposition to government per se then united congressional Republicans around the more radical measures adopted in 2010. Now, although some Republicans with experience in budgeting believe the moratorium is damaging Congress, they also cannot see a way to return to previous practice.

CONTENTS

INTRODUCTION
I.   THE NEW RULES
II.  LEGISLATIVE POWER AND DISTRIBUTIVE BENEFITS
III. IMPLEMENTING THE NEW RULES
IV.  WHY CONGRESS CEDED POWER
V.   "REFORM," OR, THE ANTI-EARMARK BIDDING WAR
CONCLUSION: PROSPECTS FOR REVERSAL

INTRODUCTION

"Shortly after he took office," Scott Frisch and Sean Kelly wrote, "Jimmy Carter announced his intention to launch a comprehensive review of the design and funding of water projects and declared his intention to request--via the FY 1978 Supplemental Appropriations Bill--that Congress not fund nearly twenty water projects that had been authorized by Congress." (1) This set off a pitched battle with his own party in Congress, with a temporary compromise in 1977 succeeded by a veto when Congress funded the projects again in the next year's Energy and Water Appropriations bill. President Carter vetoed the bill, and although he won his fight against congressional efforts to override the veto, the battle was widely viewed as nearly irreparably damaging his relationships with Congress. The distinguished presidency scholar Charles O. Jones wrote that "no action is more frequently cited as typifying the problems that the president had with Congress." (2)

In 1988, Office of Management and Budget (OMB) Director James C. Miller III, as part of a Reagan administration campaign against "pork," issued a directive that agency leaders ignore report language that instructed them to spend on projects not included in the President's budget. (3) He "failed dramatically." (4) Congressional responses were typified by a Republican Senate Appropriations aide who said, "No one liked what Miller did ... He was bringing a questionable constitutional judgment into the appropriations process. Even if he were right, we would just write it into the law. That's just more work for us." (5) Miller withdrew his order to the agencies after congressional threats of retaliation. (6)

If President Obama wanted to eliminate a similar list of water projects, he could do it, and Congress would have no recourse. He would not need to veto; he could simply not include the projects in his own proposed budget. This is the result of the policies against "earmarks" that were adopted by congressional Republicans after the 2010 election. Under these rules, much of the report language that Director Miller wanted agencies to ignore should not exist. …

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