Senate Passes New Rules on Earmark Disclosure

The Senate on Jan. 18 passed a comprehensive lobbying and ethics reform bill — S. 1, the Legislative Transparency and Accountability Act of 2007 — that included an overhauled earmark disclosure rule. After nearly two weeks of floor debate featuring reversals, stalemates, and a brief filibuster, the Senate voted 96-2 to pass the bill, widening the definition of earmarks and increasing their public disclosure requirements. S. 1 must be passed by the House and signed by the president before any of it, including the Senate rules changes, can take effect. Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) initially introduced an earmarks package modeled on the House disclosure rules adopted last fall. They did, however, add a key provision, requiring that prior to consideration of any bill, amendment, or conference report, a separate list identifying all earmarks must be made available to all Senators and be posted on the Internet at least 48 hours in advance. The Senate version is perceived as far weaker than the earmark rules changes adopted by the House in early January. In response, Sen. Jim DeMint (R-SC) offered an amendment to expand the scope of earmarks subject to disclosure rules. Reid suffered a setback on the bill on Jan. 11, when he lost a vote to bypass consideration of the DeMint amendment. DeMint's proposal, nearly identical to House Speaker Nancy Pelosi’s (D-CA) language in the House rules package, survived by a 51-46 margin (60 votes were needed to set the amendment aside). Reid then used parliamentary strong-arm tactics to not hold a final vote, giving the perception he was going to lobby his own caucus to vote against the DeMint provision. In a surprise reversal the next day, Reid endorsed the DeMint amendment, after Sen. Dick Durbin (D-IL) made minor changes to the original DeMint language. In the end, the Senate supported a much stronger earmark disclosure requirement than what was originally in the bill. While it seemed this agreement freed the bill from gridlock and ensured its passage, another amendment, unrelated to the underlying bill, almost derailed the entire effort. The GOP filibustered a vote to limit debate on the bill when Sen. Robert Byrd (D-WV) objected to a line-item veto or “enhanced rescission” proposal offered by Sen. Judd Gregg (R-NH). Byrd objected briefly even after Gregg agreed to pull his measure and re-introduce it at a later date. The final bill included several significant provisions, including another DeMint amendment to allow the Senate to strike from conference reports earmarks that had not been included in either chamber's version of the bill. Though little noted, this amendment creates a special point of order for Senators to surgically remove such earmarks and send the bill back to the House otherwise intact. Originally part of last year's Senate ethics and lobbying bill that was adopted but never enacted, the DeMint amendment would halt the longstanding congressional practice of “air-dropping” items into legislation on the verge of being cleared for the president’s signature. Under S. 1, disclosure rules also kick in earlier in the legislative process than before, at the point where earmarks are formally added to a bill at the committee level. At that point, the committee is directed to disclose the sponsoring lawmaker, the intended recipient, the earmark’s purpose, and include a certification that it will not yield a financial benefit to the sponsor or the sponsor's family. This information must be made available online in a searchable format on the committee's website. An amendment by Majority Whip Richard Durbin (D-IL) that mandates disclosure of earmarks contained not only in the language of a bill proper but also in prints or reports accompanying the legislation passed unanimously. A proposal by Sen. Tom Coburn (R-OK) to prevent lawmakers' immediate family members from benefiting from earmarks was adopted by voice vote. Like the corresponding House provision, the bill handles tax expenditures by defining earmarks as tax deductions, credits, exclusions or preferences to ten or fewer beneficiaries. S. 1 also made other reforms to the daily legislative processes that will open up Congress to more public scrutiny. Among these changes are a requirement that all conference reports be made available to all members and online to the general public for a period of 48 hours before consideration, and a requirement that all committees and subcommittees have to release a transcript, video, or audio recording of all meetings within 14 days. S. 1 also expressed the sense of the Senate that conference committees should hold regular, formal meetings of all conferees that are also open to the public, give adequate notice of the time and place of those meetings, and allow full and complete debates of the matters before conference committees. The debate on S. 1 saw a temporary dissolution of the bipartisan mood that prevailed in the Senate at the opening of the session, especially during the GOP filibuster and the impasse when Byrd opposed future Senate consideration of the Gregg amendment. But Reid broke the logjam, clearing the way for what he grandly called the "most significant legislation in ethics and lobbying reform we've had in the history of this country." Others compared it to the most significant changes since Watergate. The fate of the bill is not yet clear, as many of the provisions affect the House, which has yet to consider such legislation. Democrats were able to quickly enact rules changes in the House, but moving legislative changes on earmarks may be more difficult. House leaders have not yet said when they might consider the Senate bill or what the scope of the House version would include.
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