House Adopts Changes in New Rules Package

The 111th Congress began work on Jan. 5 when the House approved a new rules package, including further earmark reforms and a modification of pay-as-you-go (PAYGO) rules. According to a fact sheet released by Majority Leader Steny Hoyer's (D-MD) office, the new rules package would further "strengthen the integrity of the institution," and help to "restore accountability to the House." Among the many changes covered in the rules package are:

  • Extension of the disclosure requirement for members negotiating post-House employment from the date a successor is elected to the date the member completes his or her service
  • Elimination of term limits for committee chairs
  • Modification to the motion to recommit rule often used by the minority to amend legislation being debated or send bills back to committee for major overhauls
  • Including a prohibition on inserting earmarks in conference committee deliberations that have not first appeared in either the House or Senate version of the bill
  • Enhancing PAYGO rules to bring them in line with the Senate rule to facilitate use of the same Congressional Budget Office (CBO) baseline

There are three distinct changes to the House PAYGO rules enacted during the previous Congress. The first is a technical change in how PAYGO rules operate in the House. Because the House and Senate did not institute identical PAYGO rules during the 110th Congress, each chamber had to reference a different baseline used by the CBO to calculate compliance with their PAYGO rules. The House has now modified its PAYGO rule to bring it into alignment with the Senate rule. This is a straightforward change intended to expedite negotiations between the House and Senate during conference committees.

The next change is the addition of an emergency exception to the House PAYGO rule. PAYGO has long had an exception for legislation developed to respond to an "emergency," and this change allows for such an exception in the case of "an act of war, an act of terrorism, a natural disaster, or a period of sustained low economic growth." The rule uses a widely accepted definition of "emergency" developed by the Office of Management and Budget in 1991 that states the spending or tax change must be (1) necessary, essential or vital; (2) sudden; (3) urgent or pressing; (4) unforeseen; and (5) temporary in nature.

The final change to the House PAYGO rule allows for additional flexibility in complying with the deficit-neutral nature of PAYGO. During the 110th Congress, each individual bill passed by the House was required to be deficit-neutral over both a one-year and five-year window. The change made in the rules for the 111th Congress allow for one House-passed bill to offset the cost of a separate House-passed bill if the two are linked together during the engrossment stage — or when legislation has been voted on and approved by the House and is being prepared to be sent to the Senate. Supporters of the change asserted that it will not weaken PAYGO rules to allow for legislation that increases the deficit, but it should make it easier overall to pass legislation that is also deficit-neutral.

The addition of an emergency designation and the added flexibility of being able to link bills after passage to comply with PAYGO rules angered certain members on both sides of the aisle, who feel these changes open the door to pass any legislation without worrying about long-term budget impacts.

In addition to PAYGO, the new rules package makes a small change to earmark reforms that were also instituted at the start of the previous Congress. The change would allow a point of order to be raised against an "airlifted" earmark, which occurs when an earmark is added to a conference report being negotiated between the House and Senate, even though that specific provision is not included in either the House-passed or Senate-passed bill. This one change, however, falls short of instituting more aggressive earmark transparency rules.

There are other efforts underway, however, that will strengthen the disclosure requirements for earmarks in the 111th Congress. First, House Appropriations Committee Chairman David Obey (D-WI) and new Senate Appropriations Chairman Daniel Inouye (D-HI) announced new rules on earmark disclosure on Jan. 6. The two major reforms come close to embracing a proposal that Sen. Jim DeMint (R-SC) introduced during the 110th Congress that would require the posting of information on earmarks online before votes on legislation, not after as has happened in the past. Specifically, Obey and Inouye are calling for:

  • Posting Requests Online: To offer more opportunity for public scrutiny of member requests, members will be required to post information on their earmark requests on their websites at the time the request is made, explaining the purpose of the earmark and why it is a valuable use of taxpayer funds.

  • Early Public Disclosure: To increase public scrutiny of committee decisions, earmark disclosure tables will be made publically available the same day as the House or Senate Subcommittee (rather than Full Committee) reports its bill or 24 hours before Full Committee consideration of appropriations legislation that has not been marked up by a Senate Subcommittee.

The proposal from Obey and Inouye does not make clear exactly how these new online disclosure rules will work or how much good they will do. By requiring that each member of the House post earmark requests on his or her own website, the rule spreads information across 435 different websites. Obey and Inouye also do not standardize the type of information to be posted or where or how it should appear on each member's website. Bill Allison posted a succinct explanation on the Sunlight Foundation's blog about why this system of disclosure is problematic, at best. It would be better for public access and easier for lawmakers if earmark requests were posted in a central online database that was fully searchable and open to the public.

In addition to the Obey/Inouye rule, a bipartisan group of senators introduced legislation on Jan. 7 to improve earmark transparency and make it easier to block individual earmarks in legislation. Sens. John McCain (R-AZ), Russ Feingold (D-WI), Claire McCaskill (D-MO), Tom Coburn (R-OK), and Lindsay Graham (R-SC) are cosponsoring a bill that would let senators raise points of order against unauthorized earmarks in appropriations bills. Sixty votes would be required to waive the point of order and retain the unauthorized earmark.

The Senate bill also requires appropriations and authorizing conference reports to be available online in a searchable form at least 48 hours before the Senate considers the legislation and requires that recipients of federal funds disclose payments to registered lobbyists.

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