On September 24, the House of Representatives passed the fiscal year 2009 Defense Authorization Act by a vote of 392-39.  The Senate will approve the legislation as well.  It includes more than $600 billion for national security programs in the Energy and Defense departments.

One of the most controversial aspects of the bill (aside from the billions of dollars in pork barrel-items it contains) is a provision that would give earmarks that are included in committee reports the force of law.  On January 29^th, 2008, President Bush signed an Executive Order instructing government agencies not to fund any earmarks contained in report language, or contained in any non-statutory source, such as phone calls from members of Congress.  The Congressional Research Service opined in February 2008 that earmarks listed in committee or conference reports do not have the force of law; only those included in the statutory language have that status.  Traditionally, members of Congress had included earmarks in committee reports knowing they are not legally binding, but had come to expect federal agencies to treat those spending items as if they were. 

The debate over where to list earmarks is important.  If they are included in the statutory language, lawmakers have an opportunity to offer amendments during debate to strike them and the money associated with them.  In the run-up to the passage of this year’s Defense Authorization bill, Senate Armed Services Committee Chairman Carl Levin (D-Mich.) wrote a provision into the bill stating that any earmarks listed in the bill’s committee reports would have the force of law.  Sen. Jim DeMint (R-S.C.) tried to block that language and was rebuffed.  When the President signs the Defense Authorization bill, Sen. Levin’s language will also become law, essentially in direct contradiction to the Executive Order, at least for the Defense Authorization bill for this fiscal year.

Despite the fact that the Executive Order occurred at the beginning of 2008 and was intended to be applied to fiscal year 2009 spending bills, many porkers in Congress complained that they needed the last minute “incorporation” language because they simply had not had enough time to write the bills to include earmarks in the statutory language.  In fact, Congress had eight months to do its constitutional duty and pass all of its spending bills, including earmarks, had it wanted to. 

In the final hours before Congress recessed for the fall campaign season, it jammed through a series of bills, including the Defense Authorization bill, as well as a massive continuing resolution (CR) that combined the Defense, Homeland Security, and Military Construction/Veterans Affairs appropriation bills into one bill and also funds the remainder of the appropriations bills at current levels through March 6, 2009. 

According to a September 24, 2008 Congressional Quarterly report, the three security-related bills bundled into the CR total $600.6 billion:  $487.7 billion for the Defense Department, $72.9 billion in the Military Construction/Veterans Affairs appropriation, and $40 billion for Homeland Security.

The CR also includes authority for $50 billion in loan guarantees for Detroit’s’ “Big Three” automakers, $23 billion in disaster assistance, $2 billion for Pell grants, and billions of dollars in earmarks.  Noticeably absent is a ban on offshore drilling, which will for the first time in 23 years mean that the United States can begin the process of developing its own off-shore energy resources and reduce its dependence on foreign oil.

Congressional leaders have justifiably been criticized for the manner in which the CR was passed.  Asked by Bloomberg News on September 23 whether the process has been secretive, House Appropriations Committee Chairman David Obey (D-Wis.) stated, “You're damn right it has because if it’s done in the public it would never get done.”  In the same article, Obey went on to say that he wanted to avoid Congress’ “pontificating” on the content of the legislation, and “that’s what politicians do when this stuff is done in full view of the press.  We’ve done this the old fashioned way by brokering agreements in order to get things done and I make no apology for it.”

It is not surprising that taxpayers hold Congress in such abysmal regard.  At this fragile time, when taxpayers are facing unprecedented economic pressures and uncertainty, Congress has made a mockery of the federal budget process and should no longer be taken seriously when they preen about accountability and transparency.