Yesterday, the House of Representative passed the Honest Leadership and Open Government Act of 2007(S.1EAH), trumpeting the bill as “landmark legislation” (Senate Majority Leader Harry Reid, as quoted in the Washington Post) that will “drain the swamp that is Washington, D.C., to let sunshine disinfect the Congress” (from Speaker of the House Nancy Pelosi’s press release). Even critics are calling this bill “‘big-time’ fundamental reforms” (Democracy21 president Fred Wertheimer) and saying that the legislation “should go a long way toward changing the way business is done in Congress” (Common Cause). And if the Act were just about lobbying reform, I’d agree. But the Act also includes earmark reform, and these reforms leave a great deal to be desired.

Subtitle B of the Act is all about “Congressionally Directed Spending,” aka earmarks or pork. The actual language for paragraph 1 says (in legalese, I’m afraid)

1. (a) It shall not be in order to vote on a motion to proceed to consider a bill or joint resolution reported by any committee unless the chairman of the committee of jurisdiction or the Majority Leader or his or her designee certifies–

(1) that each congressionally directed spending item, limited tax benefit, and limited tariff benefit, if any, in the bill or joint resolution, or in the committee report accompanying the bill or joint resolution, has been identified through lists, charts, or other similar means including the name of each Senator who submitted a request to the committee for each item so identified; and

(2) that the information in clause (1) has been available on a publicly accessible congressional website in a searchable format at least 48 hours before such vote.

(b) If a point of order is sustained under this paragraph, the motion to proceed shall be suspended until the sponsor of the motion or his or her designee has requested resumption and compliance with this paragraph has been achieved.

Paragraphs 2 and 3 are the same except that they apply to different kinds of bills, so I will not reproduce them here.

In plain language, the legalese means that every earmark is supposed to be identified and that list is supposed to be posted 2 days before any vote is taken. It also means that the committee chairman, Majority Leader, or a person designated by the Majority Leader is responsible for making sure that this rule is followed. Unfortunately, there’s a few loopholes here.

First off, there are a lot of “ors” in the list of who can certify that the earmark list is complete and accurate – committee chairmen, the Majority Leader him/herself, or the Majority Leader’s designee. And there’s no provision to handle disagreements between committee chairmen and the Majority Leader if one refuses to certify the list of earmarks when the other chooses to do so. In practice, this means that the Majority Leader will probably be able to overrule the committee chairman.

Second, this bill originally had the Senate parliamentarian as the alternate to the committee chairman, but the more politically motivated Majority Leader replaced the more objective parliamentarian. The Majority Leader is fundamentally a political figure, so this change does nothing to reverse the public’s perception that Congress is a swamp of ineffective, self-serving aristocrats.

Third, there is a loophole for classified programs in paragraph 7: “the committee of jurisdiction shall, to the greatest extent practicable, consistent with the need to protect national security (including intelligence sources and methods), include on the list required by paragraph 1, 2, or 3 as the case may be, a general program description in unclassified language, funding level, and the name of the sponsor of that congressionally directed spending item.” This is a huge loophole because some of the most expensive earmarks in the government are for defense and intelligence-related projects. Unfortunately, protection of our nation’s secrets means that some amount of exception to the earmark disclosure is necessary. I’m not sure how to close this loophole without potentially compromising our national authority, but until some method is developed, this loophole will be a problem.

Fourth, bills that have unidentified earmarks may still be forced through. It takes a 3/5ths majority to do waive any points of order, so it’s not necessarily easy to do, but it is possible.

Finally, paragraph 9 says that Senators cannot introduce earmarks that benefit only the Senator, only his/her immediate family, only his/her financial interests and holding, or only a specific class when the Senator/family/interests are members of that specific class. In other words, if the earmark benefits the Senator’s financial interests but also benefits the interests of a sub-class of his/her constituents, the earmark is OK. Weasel language like this doesn’t exactly inspire confidence in Congress’ ability to reform itself.

On the other hand, this rule does require that earmarks inserted by the joint House/Senate conference committee be listed and identified in the same fashion as all other earmarks. Hopefully this will put a brake on inserting earmarks in the conference committees. However, given that the Majority Leaders of both Houses can declare that there are no earmarks even if there are, how this rule will actually operate is presently unknown.

This bill is a good starting point, and some limits on earmarks are better than no limits. Baby steps and all that. But these loopholes will be utilized eventually, and the give the appearance that the House Democratic leadership was more interested in keeping up appearances of reform rather than producing real reform. The earmark reform is hazy at best, obscuring the very sunlight that needs to be shown full glare on the Congress. That glare is the only thing that will restore confidence that our government can be effective. Until then the announcements of reform will sound more like the blat of a tuba than the crisp tone of a trumpet.