Wednesday, August 17, 2005

Fighting Pork: What Can Be Done?

I have been railing about the state of overspending and fiscal indiscipline from Congress and the White House for months. I am ashamed to say that aside from urging the president to get serious and follow through on his threats to veto spending bills that represent budgetary irresponsibility, I have not offered enough in the way of concrete solutions. That is not because there aren't any reasonable solutions, so I want to outline some of those here. Obviously the best solution would be for American voters to hold drunken-sailor-spending legislators and presidents accountable at the voting booth, but so far we haven't seen any evidence that's going to happen anytime soon. So what can be done?

1. Increasing Threshold for Legislative Riders and Earmarks. Several times in the last few years, most notably in mid-2003, Senator McCain and others (then Kyl, Sessions and Feingold) have introduced amendments to the Senate's rules which would have done much to tighten spending discipline in that chamber (similar efforts have been made in the House). Their proposal called for a change to Senate Rule 16, which governs amendments to appropriations bills. Currently, a senator may make a point of order against any legislative rider or unauthorized appropriation contained in a spending bill or a conference report - but it only takes a simple majority of senators to kill that procedural move and allow the rider or earmark to proceed unchecked (so often I suspect such points are not even bothered with since their fruitlessness is recognized: no senator, not even McCain, is willing to be "that guy" all the time by holding up every bill on multiple points of order). McCain's plan (which he outlines in a speech here in much greater depth), would raise that threshold to 60 votes, a three-fifths majority. Unanimous consent might be a more effective approach but I'd take 60 over the status quo.

2. Ending Conference Committee Shenanigans. Another portion of several versions of McCain's plan would have amended Senate Rule 28, which covers the Senate's handling of conference committee reports. At present, the Rule states that no provision may be inserted into a conference report which was not passed by either the Senate or the House during the original appropriations process. As before, however, only 51 votes are needed to overturn a point of order against extraneous insertions (and again, usually the points of order aren't even made). Conferees regularly insert huge numbers of provisions into their reports, many of which have absolutely nothing to do with the underlying legislation (see the partial list in McCain's recent floor statement on the highway bill). I'm sorry to be linking almost solely to McCain items here, but since he's one of the very few in Congress actually concerned with such things I don't really have any other options. As with Rule 16, McCain has proposed raising the threshold for this point of order to 60 votes, which would certainly do something to improve things.

3. Allow Time for Scrutiny of Conference Reports. Currently a provision of Rule 28 allows the Senate leadership to bring a conference report up for debate as soon as the report is made available at the desk of all senators. That means that if the conference committee finishes debate and copies are made and distributed, a report can be debated and voted on literally within hours. Senators and representatives (i.e. their staffs) can (and often do) have very little time to read and absorb the provisions of the conference reports (many of which, as stated above, have been slipped in by the conferees unbeknownst to all those outside the conference) before they are asked to vote. Many of these reports amount to thousands of pages, and while it is too much to expect that our representatives would actually examine what they're voting on, I think we deserve at the very least the security in knowing that they were given the option. I would propose an amendment to Rule 28 mandating a two or three day 'waiting period' between the completion of any conference report and when senators and reps are asked to vote on it. Violating that waiting period should require a two-thirds majority vote. The House already has a three-day rule, but it does not apply during the last six days of a Congressional session and it is regularly waived at all other times. It too should be strengthened.

In all cases of Senate rule changes, it would be necessary to require a roll call vote on the points of order, so that all senators would have to go on the record as voting to allow extra material in the spending bills rather than just sliding it through.

Changes to the Senate rules can be filibustered (and usually are), which means reform proponents would have to garner 67 votes for these amendments. Pragmatically speaking, the likelihood of that happening is probably pretty close to nil right now ... but that's where we come in. We should urge our representatives and senators to propose these rules changes during the 109th Congress and move the debate forward. I read somewhere a few weeks ago that Senators McCain and Durbin were planning to propose a waiting period but have been unable to find anything concrete. All senators should be encouraged not only to propose but also to support these rules changes, and similar efforts to beef up the rules should be undertaken in the House.

4. Impose term limits for appropriators. Not surprisingly, large percentages of the pork spending in appropriations bills goes to those writing the bills - the members who sit on the House and Senate committees of jurisdiction. Members of those committees should be rotated through every six years or so (as the watchdog group Citizens Against Government Waste has suggested) so that they don't become entrenched and addicted to the spending power that the appropriations committees offer.

5. Enact a constitutional line-item veto power. With all the legal and political acumen around this country, there has got to be a way to come up with a line-item veto law that would pass Supreme Court muster. A line-item veto would allow a president (though probably not this one, since he's shown little inclination to rein in spending in any way) to strike out extraneous material from spending bills without vetoing entire bills and possibly wreaking havoc on many good and necessary programs. [Update: We've been having a great discussion about this specific step down in the comments, make sure to check that out. Basically the concern, which I have been persuaded by, is that while theoretically a line-item veto power would be an effective way for a president to cut pork out of spending bills, today's presidents - acting as they are in a generally partisan way - would not be even-handed enough with their slicing. A serious concern, to be sure, and one that probably undercuts the practical usefulness of a line-item veto, even if one could be construced and approved by a future Supreme Court.]

These are just a few possibilities for fighting the battle against pork-barrel spending. None of them, not one, will be easy to implement; acceptance of any of these would require a serious shift in perception by our current political leaders, which will only be brought about through a wide-ranging effort by us to make them understand that we don't want our government to operate this way.

Ending wasteful government spending doesn't begin or end with either Congress, the executive, or the public alone. It will require the commitment of all, which makes any immediate change quite unlikely. It's not going to happen in a day, or even in a year, but sooner or later, these steps or some others like them will have to be taken in order to right our fiscal ship of state.

I'd invite you to offer your own suggestions for decreasing excessive spending in the comments, and I'll provide updates if we see any movement on any of these.


At 9:35 PM, Blogger Phil S said...

Great suggestions! The best being time for scrutiny, and raising the vote threshold on add-ons. I can't agree on the line-item veto though. There gives the president (ANY president) too much leverage to pick off only his enemies pork!!
This all will require a tsunami change in both houses--not likely to happen soon, unfortunately.

At 9:35 PM, Blogger "A Brown" said...

Its hard to see how line items veto per say could be constitutional. However, the same effect could be achieved by Congress simply breaking up the omnibus bills into smaller individual bills.

At 9:45 PM, Blogger JBD said...

Phil - that's a good point, one I hadn't considered and should have (sometimes my idealism gets ahead of me; I'd like to think - hah - that presidents would be evenhanded about such things but clearly that would take much more intestinal fortitude than we're likely to see anytime soon).

a - I think there could be an acceptable version of the lmv, but yes, that would become largely unnecessary if other steps were taken. Breaking omnibus bills up still doesn't solve the earmark and extraneous insertions problems though - so long as there's a conference, and appropriators, they'll happen. Hence the need for higher approval thresholds in Congress and the theoretical (if not practical, as Phil points out usefully) use of a line-item veto.

At 10:14 PM, Blogger Adam said...

Recently at Centerfield, we discussed dealing with pork. One idea was to pass a balanced budget amendment to reduce the amount of money they had to blow. Another was having newpaper editors take their own congresspersons to task.

At 12:22 AM, Blogger amba said...

Worth cross-posting on TYL? Or is pork too universal a beef to be just centrist?

At 1:18 AM, Blogger "A Brown" said...

It has been awhile since I looked at Clinton v. City of New York but I remember the opinion by Stevens being clear. From the syllabus of the court (non-binding but still by the author of the opinion):

Under the Presentment Clause, after a bill has passed both Houses, but "before it becomes a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it," i.e., "veto" it, if he does not. There are important differences between such a "return" and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part… if there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures...

Furthermore, so far when comparing states with and without a line item veto provision, there is no relationship between giving an executive the line item veto and a reduction in pork (I apologize but my old notes on this are lacking a citation). This makes sense conceptually. Individuals add pork because it helps their district but politics are why all of Congress goes along with it. There is no reason to assume that a President would be more immune to those political considerations.

At 7:47 AM, Blogger JBD said...

A - I recognize the holding in Clinton v. City of NY, and clearly at that moment in time the Court was not favorable toward that specific version of the line-item veto. We're on two different topics here now but I would say as regards the potential for lmv, it exists, and could potentially be drafted so as to pass constitutional muster. See the opinion of Justice Breyer in Clinton for a basic constitutional underpinning, and Scalia's opinion also offers some excellent background as well (yes I just praised Scalia - an extremely rare occurrence). I prefer Breyer's opinion, which I think is very well-drafted and captures the issue quite effectively. All those can be found here.

However! I think Phil's practical point above overrides other concerns - as you and he have both said, there is nothing to suggest that a president would be magnanimous enough to cut the fat equally and not use an lmv power (even assuming one could be constructed and approved by some future Court) to his or her party's political advantage. Unfortunately.

At 10:29 AM, Blogger Chris in Boston said...

I'm interested in your ideas, as I've recently read a local MA blogger proposing a line-item veto amendment. But I can't help but feeling there's a major chicken-and-egg problem here. To enact any of the measures you list, Congress would have to decide to reduce spending. But if there was will for that in the legislature, we already could have had spending restraint, even if in the form of Gramm-Rudman like rules. Yet the deficit's not an accident, or simply the result of dysfunctional rules, it's a conscious choice of the GOP to spend more than current revenues in order to be able to keep popular spending at the same time as it gives tax cuts.

To that end, a lot (not all) of them seem aimed at reducing excessive pork. Fine. But ultimately, our current budget shortfall owes first and foremost to declining revenue (substantial tax cuts + effects of recession) and to rising budgets oulays (Iraq/Afghanistan wars, homeland security, rising health costs).

At 10:37 AM, Blogger JBD said...

Chris - absolutely right. Pork is just one element of getting America's fiscal house back in order. Some of the more important elements in that effort are exactly those you mention, and a comprehensive effort to improve the state of things would have to include steps to combat each problem.

At 12:39 PM, Blogger vw said...

Could a line-item veto be pushed through that limited what/how much the pres removes. I.E. the pres says no to a max of 2-4 items (2 from the minority and 2 from the majority of equal monetary value). Then the majority and minority leaders figure out which ones to accept, but they must accept at least one from each side of the aisle? Essentially saying the majority leader gets to decide one minority item to remove, and vice versa. I know its not a HUGE amount, but imagine removing the Alaskan bridge we're about to build for 50 people. baby steps.

At 12:39 AM, Blogger The Duke said...

As you may know, I have a slightly different take on the overall level of spending. But you make several good suggestions about the process which deserve serious consideration. My thoughts:

1 & 2. 60 vote threshhold: Since this moves the opposite direction from the "nuclear option", I'm doubtful this has much chance right now, and it actually further weakens the Senate vis-a-vis the House. But I think you achieve the same effect with ...

#3. More time: Sunshine is the best disinfectant. Some of the most egregious provisions that were actually stricken came about solely because Rep. Oberstar or a few others discovered them at the last minute. More time means more scrutiny -- this is your best suggestion.

4. Appropriator term limits: I'm against term limits in principle because they empower unelected staff. A better course would be to consolidate the authorizing and appropriating process and shifting to a two-year budget/appropriations cycle, as many states do. See this for the last serious, bipartisan effort to reform Congress.

5. Line-item veto: A standard line-item veto, as commonly understood, would in my view shift far too much power to an already too powerful Presidency. However, I am receptive to giving the President the power to single out items for a separate majority vote, if for no other reason than #3 -- sunshine is the best disinfectant. If the President called a parochial project unnecessary, it would be very difficult to pass on a standalone vote.

One final observation -- in my view, the "project" quotient in this bill increased the longer it was delayed by the tussle between the President and Congress over the total spending. With less total spending than we need (in my view) members got more and more nervous that their district would be left behind.

So here's the question for you anti-porkers. Taking Rino's 10% pork figure, Would you prefer a ~$300B bill with $30B in specific projects, or a $350B bill with $20B in projects? in the latter scenario, you'd have $330B allocated by relatively objective formulas and competitive criteria. In the former, just $270B. The total bill to the (motor fuel) taxpayers is higher in the $350B bill, but I think we'd get better bang for the buck.

Bottom line: The President would have done the taxpayers a service if he focused on the $$ for specific projects rather than the overall price tag -- particularly in light of our overall non-motor fuel tax budget deficit.
-- The Duke,


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