How about if Mr. Bush now demonstrates that he meant what he said by making the Members live up to their applause? The President has the opportunity to do this as part of the $516 billion omnibus spending bill that Congress passed this week. That bill contains 8,993 special-interest earmarks, but most of them aren't even in the language of the law itself. Instead, they are part of an accompanying 500-page "committee report" compiled by the House and Senate Appropriations Committees and staff. We doubt most Members have even seen the report.
Mr. Bush has said he'll sign the actual spending bill, but that doesn't mean he and his executive branch must spend that money on the earmarks in the committee report. A December 18 legal analysis by attorney Todd Tatelman for the Congressional Research Service concludes that "because the language of committee reports do not meet the procedural requirements of Article I of the Constitution -- specifically, bicameralism and presentment -- they are not laws and, therefore, are not legally binding on executive agencies." In plainer English, this means committee reports have not been formally passed by both houses and "presented" to the President for signing.
This means Mr. Bush has the legal authority not to fund these projects, which lack the force of law. Mr. Bush's own budget office has asserted this authority before. Earlier this year, then budget director Rob Portman instructed federal agencies that they could disregard committee report language on earmarks. "Unless a project or activity is specifically identified in statutory text, agencies should not obligate funds on the basis of earmarks contained in Congressional reports or documents," Mr. Portman wrote. That's why there were fewer earmarks last year.
Federal agencies would still be obligated to spend the money appropriated by Congress. But they could choose to spend those dollars on higher priorities that would benefit all taxpayers, rather than on favors for special interests or political donors. For example, the $700,000 for a bike trail in Minneapolis could be used to rebuild the collapsed bridge in that city and to strengthen others.