[Senate Report 111-365]
[From the U.S. Government Publishing Office]
Calendar No. 692
111th Congress Report
SENATE
2d Session 111-365
======================================================================
EARMARK TRANSPARENCY ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 3335
together with
ADDITIONAL VIEWS
TO REQUIRE CONGRESS TO ESTABLISH A UNIFIED AND SEARCHABLE DATABASE ON A
PUBLIC WEBSITE FOR CONGRESSIONAL EARMARKS AS CALLED FOR BY THE
PRESIDENT IN HIS 2010 STATE OF THE UNION ADDRESS TO CONGRESS
December 14, 2010.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENGSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware MARK KIRK, Illinois
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Troy H. Cribb, Counsel
Jonathan M. Kraden, Counsel
Adam R. Sedgewick, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Chip Kennett, Minority Professional Staff Member
Christopher J. Barkley, Minority Staff Director, Permanent Subcommittee
on Investigations
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................1
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................8
V. Evaluation of Regulatory Impact.................................10
VI. Congressional Budget Office Cost Estimate.......................10
VII. [Changes in Existing Law Made by the Bill, as Reported].........11
VIII.Additional Views................................................12
Calendar No. 692
111th Congress Report
SENATE
2d Session 111-365
======================================================================
EARMARK TRANSPARENCY ACT
_______
December 14, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 3335]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 3335) to require
Congress to establish a unified and searchable database on a
public website for congressional earmarks as called for by the
President in his 2010 State of the Union Address to Congress,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
I. PURPOSE AND SUMMARY
S. 3335, the Earmark Transparency Act aims to improve
congressional and public oversight of federal spending by
creating a single database and central website to house and
provide comprehensive information on congressional earmarks.
II. BACKGROUND AND NEED FOR THE LEGISLATION
The growth of the Internet has revolutionized efforts to
bring increased transparency to government finances, providing
Americans with real-time, comprehensive information about their
government. With a click of a computer mouse, anybody can
easily obtain the voting records of his or her representatives,
the budgets of every federal agency and, in some cases, entire
federal contracts. Technology has made it cheaper and easier
for the government not only to collect, but to present in a
simple and searchable format, enormous quantities of data that
would have previously been unavailable to taxpayers. The
Committee has strongly supported this trend and has pressed
forward numerous proposals in recent years to disseminate
information on government finances and the legislative process
to the public.
In 1995, for example, the Committee originated critical
provisions of the Lobbying Disclosure Act of 1995, which
requires lobbyists to register and make public information on
the interests they represent.\1\ It revisited that law in 2006
and 2007, authoring even broader disclosure requirements--
including a mandate for a searchable electronic database--that
became part of the Honest Leadership and Open Government Act of
2007 (HLOGA).\2\
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\1\Public Law 104-65, which incorporated provisions of S. 1060, the
bill considered by the Committee.
\2\Public Law 110-81. HLOGA incorporated provisions of a bill (S.
2128) reported a year earlier by the Committee during the 109th
Congress.
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As the Supreme Court recognized in upholding a predecessor
to the 1995 Act, making information about the legislative
process available to the public is critical to the proper
functioning of our Republic:
[F]ull realization of the American ideal of
government by elected representatives depends to no
small extent on their ability to properly evaluate such
pressures. Otherwise the voice of the people may all
too easily be drowned out by the voice of special
interest groups seeking favored treatment while
masquerading as proponents of the public weal.\3\
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\3\United States v. Harris, 347 U.S. 612, 625; 74 S.Ct. 808, 816
(1954).
The Committee has pursued its interest in ensuring
accountability through increased transparency in other areas
within its jurisdiction as well. In 2006, the Committee passed
and the President signed the Federal Funding Accountability and
Transparency Act of 2006,\4\ which created a public website,
USAspending.gov, to provide information on all recipients of
federal grants and contracts. Prior to the launch of
USAspending.gov, taxpayers seeking complete information on
federal spending found it necessary to search through multiple
federal websites, some of which were password protected. Since
the implementation of the 2006 law, anyone can access one
central website to search for federal funding information,
using a simple search engine modeled on popular websites such
as Yahoo! and Google.
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\4\Public Law 109-282.
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S. 3335, the Earmark Transparency Act, would further the
Committee's transparency efforts by creating a comprehensive
public website offering detailed information on every
congressional earmark, and every request for an earmark.
Although Congress has made some initial efforts to make
information regarding a Member's earmark requests more publicly
available, additional information could be provided and
advances in technology could further improve transparency. Like
a Member's voting record, the earmark record is an important
source of information for voters, revealing the kind of work
the Member has performed on behalf of his or her district or
State.
Earmarks are projects that receive federal funding,
primarily at the request of one or more Members of Congress,
typically for work done inside a requesting Member's district
or State. Earmarks may direct spending to a particular entity,
or may take the form of a targeted tax or tariff measure that
benefits one or a few entities. According to the non-partisan
Taxpayers for Common Sense, there were 9,499 appropriations
earmarks worth $15.9 billion in Fiscal Year 2010 and 11,286
earmarks worth $19.9 billion allocated in 2009.\5\
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\5\Information provided by Taxpayers for Common Sense, ``TCS FY2010
Earmark Analysis: Apples-to-Apples Increase in Earmarks,'' February 17,
2010, http://taxpayer.net/
search_by_category.php?action=view&proj_id=3192&category=Earmarks&type=P
roject.
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Because earmarks can benefit only one or a narrow range of
beneficiaries, they are seldom the subject of Congressional
hearings or debate as bills move through the Congressional
process, and therefore the legislative record for most earmarks
is sparse. While most earmark requests are submitted by
requesting Members to the relevant committees of jurisdiction
early in the legislative process, House and Senate Rules only
require certain information on earmark requests to be made
available to the public, and it can be difficult even for
Members of Congress to examine each project before votes are
cast on bills that authorize or appropriate earmarks.
Incremental gains have been made in recent years to
increase the amount of earmark information available to the
public. In 2007, the HLOGA added a new Rule XLIV to the
Standing Rules of the Senate, requiring every bill coming
before the full Senate to be accompanied by a list describing
all earmarks in the bill. The list has to include: (1) the name
of the sponsoring Member of Congress; (2) the name and location
of the intended recipient, or the location of the activity; (3)
the purpose of the earmark; and (4) a certification that
neither the sponsoring Members nor their family members would
benefit financially from the earmark.\6\ The House of
Representatives adopted similar rules for earmark disclosure in
the 110th Congress, now incorporated into House Rule XXI.
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\6\Senate Report 111-229, pages 150 and 171
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But even with the new Senate and House rules, important
information on earmarks can be difficult to obtain or to
examine in a timely fashion. For example, some descriptions
only contain the mere name of a project and recipient. A
detailed justification is needed. Earmarks can provide funding
to important projects in states and localities, but more
information should be provided to the public as to how federal
dollars are being spent.
Additionally, while the rules require disclosure of
committee-approved earmarks, information on requested earmarks
is ad hoc and incomplete. For example, the Senate
Appropriations Committee requires Members requesting earmarks
to post information on their earmark requests on the websites
of their personal offices.\7\ However, disclosure rules vary
across committees, and data made available is scattered across
hundreds of web sites.
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\7\See Joint Press Release from House and Senate Appropriations
Committee Chairmen, House and Senate Appropriations Committees Announce
Additional Reforms in Committee Earmark Policy; January 6, 2009,
available at http://appropriations.senate.gov/news.cfm?method=
news.view&id=c0413de1-f04e-4bb9-801d-987bab16f7ac0.
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S. 3335 would fix these problems by establishing a
bicameral system of disclosure of all earmark requests. Five
days after any request is made, the requesting Member would be
required to fill out an electronic form describing the earmark
and providing other basic information. Relevant committees
would then fill in any remaining gaps, providing information
pertaining to the earmark's passage through that committee.
This information would go on a publicly accessible and fully
searchable website and be made available in bulk for
researchers and others. Bulk data allows anyone interested in
examining the raw data to download all of it at once, and to
manipulate it in ways not provided for on the website. The
website would also make all key documents accompanying each
request available, providing taxpayers with unprecedented
access to information on earmarks.
There are several reasons why this legislation is urgently
needed.
To begin with, many earmarks have no records associated
with them beyond the minimal information offered in committee
reports. As for those about which information is available, the
records are currently decentralized and lacking in any
uniformity; those looking for earmark data currently must
search through more than 550 different websites administered by
435 Members of the House of Representatives, 100 Senators and
numerous committees in both chambers. Some of these websites
prominently post earmark information, while others remain
silent on the issue. As a result, even if the average person
wanted to attempt it, obtaining a comprehensive set of earmark
data from public sources would be virtually impossible.
There is likewise no uniform process for permanently
archiving information on earmarks, creating an ad hoc and
incomplete historical record. While many committee records
remain accessible to the public, those of individual Members--
which, under current practice, contain much of the available
earmark data--can disappear from public view when a Member
leaves office if the Member does not individually decide to
make the records available in a public place.
The difficulty of finding earmark data was illustrated in a
recent study by Scott Frisch and Sean Kelly of California State
University Channel Islands.\8\ When information on request data
proved difficult to uncover, researchers were forced to dig
through the archives of former subcommittee chairmen of the
Appropriations Committee. Only after an intensive research
effort did they discover memoranda and charts outlining the
request process for certain congressional committees. The
difficulty these researchers encountered in retrieving
information on earmarks underscores the near impossibility of
the same task for the average citizen.
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\8\Frisch, Scott A., and Sean Q. Kelly, California State University
Channel Islands, ``Inside the Earmark Favor Factory: Exploring Earmark
Requests,'' A paper prepared for the Politics of Federal Spending
Conference, University of California, Merced, May 27-29, 2010.
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The American public is entitled to understand the entire
earmark process, and not simply view the end result. Complete
earmark records should include information on requests, whereas
the current system provides only a final list of approved
earmarks. Just as all legislative bills are made publicly
available immediately after they are introduced, all earmark
requests should be made public as well. Opening up the process
in such a way encourages public involvement, bringing increased
accountability to the system.
In his State of the Union Address on January 27, 2010,
President Obama called on Congress to do just this. He asked
for legislation to not only create an earmark transparency
website, but for one that includes earmark request information:
Tonight, I'm calling on Congress to publish all
earmark requests on a single website before there's a
vote, so that the American people can see how their
money is being spent.\9\
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\9\Remarks by President Barack Obama in his State of the Union
address, January 27, 2010, available at http://www.whitehouse.gov/the-
press-office/remarks-president-state-union-address.
Making the case further, the White House provided a fact
sheet to accompany the speech providing additional details on
why earmark transparency is so important. Among its
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observations:
Many Members and others disclose earmarks on various
individual websites. That has helped contribute to a
significant drop in earmarks since 2008, but the
practice is far from uniform across Congress, and often
too difficult to access prior to votes. It's time for a
comprehensive, bipartisan, state-of-the-art disclosure
database that allows Americans to examine the details
of every proposed earmark before a vote is taken--one
that is fully searchable and otherwise user-
friendly.\10\
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\10\Fact sheet distributed by the White House to accompany the
State of the Union Address, ``Rescue, Rebuild, Restore--A New
Foundation for Prosperity: Cracking Down on Special Interests,''
January 27, 2010.
Detailed financial information is essential in a democracy
because it provides citizens with a means to hold their
government accountable. An informed electorate can direct how
their taxes are spent or not spent, and help prevent abuses.
But the absence of spending information concentrates power in
the hands of federal officials, away from public view. For this
reason, the founders required in the Constitution that Congress
make financial statements publicly available. Article 1,
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Section 9, lays out the governing principle:
No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time.
The Earmark Transparency Act builds upon this principle by
extending transparency into the area of earmarks, both for
proposed and approved projects. Taxpayers have the right to see
where their money is being spent. Transparency requirements
were built into the fabric of the Constitution to protect
against the urge by government officials to spend public money
in secret, which can lead to waste, fraud, abuse and
mismanagement. S. 3335 would be consistent with the spirit of
this constitutional responsibility by requiring that all data
be published within five days of an earmark request. This near
real-time information would give citizens more information on
earmarks than has ever been available.
During Committee consideration of S. 3335, some Members
raised concerns about some of the bill's mandates.
First, some suggested that a bill to create an earmark
transparency website constitutes a change in the Standing Rules
of the Senate, and therefore should officially be handled as a
rules change. According to this objection, because rule XLIV
already requires disclosure of some earmark information, any
additional requirements for disclosure should amend current
practice.
However, the disclosure required by S. 3335 is not a
change, actually or effectively, in Senate Rules, but rather a
complement to Rule XLIV. The primary reason for this lies in
the way that each affects the legislative process. Rule XLIV is
designed not only to ensure earmark transparency, but to
control the legislative process governing any bills that
contain one or more earmarks. If a bill does not contain the
required disclosures, any Member may raise a procedural point
of order against the provision of a bill containing undisclosed
earmarks, and have the provision stricken. The Senate is
allowed to waive the disclosure rules only by a vote of 60
Senators.
Unlike rule XLIV, S. 3335 would not have any direct impact
on the legislative process. It would simply increase the
disclosure requirements, requiring that the additional
information be made public within five days of a Member's
earmark request. Legislation would be allowed to proceed on
both the floor of the Senate or the House of Representatives in
the exact manner it would without the passage of S. 3335.
Therefore, it is unnecessary to amend Senate Rules since the
purpose of the legislation is merely to disclose additional
information and compile it onto a public website.
Further, since this bill was designed to bring
comprehensive transparency to the earmarking process in both
houses of Congress, the Committee believes it best to address
the matter as a change in law rather than as separate changes
to the rules of both chambers. Transparency would suffer if the
House of Representatives and the Senate disclosed earmark data
in different ways, and so the disclosure practices of both
should be governed by a single legislative solution.
Second, some have raised concerns about the technical
feasibility of creating a website capable of displaying
information on earmarks according to the requirements of S.
3335. These concerns have included questions about the ease in
which a website can ``aggregate'' non-numeric data fields and
the possibility of storing earmark data for periods of time
longer than three years.
The Committee has concluded that the technical requirements
of this bill are feasible and fall well within the capabilities
of current technology. The Office of the Secretary of the
Senate--which would be responsible for administering the
provisions of S. 3335 within the Senate--agreed with this
assessment, in a letter dated June 22, 2010, stating that the
requirements of the bill were not beyond its technical
capability as long as appropriate resources were provided to
fulfill the bill's mandates. The letter read: ``Although this
is a complex technical system with several broadly defined
requirements, it is technically feasible to implement the
requirements of S. 3335.''\11\ Since the letter was written,
the Committee has revised the bill to eliminate several of the
most complicated technical requirements referenced in the
letter.
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\11\Letter from Nancy Erickson, Secretary of the Senate, to the
Honorable Robert F. Bennett, Ranking Member, Senate Committee on Rules
and Administration regarding comments on S. 3335, June 22, 2010. This
letter is available upon request at the Senate Committee on Homeland
Security and Governmental Affairs.
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This view was also shared by the Sunlight Foundation, a
non-profit organization dedicated to government transparency.
In a letter dated July 26, 2010, the Sunlight Foundation
discussed the absence of any technical barriers to implementing
the bill, citing the organization's success in creating similar
websites at a low cost.
We understand that you are concerned that it may not
be technically feasible to satisfy the bill's
requirement to create a website that allows the public
to search and aggregate earmarks by any of more than
twenty data-points listed in the legislation,
especially data-points that include lengthy and non-
standardized information such as justification for the
project and supplemental documents. In fact, it is
possible to aggregate calculations by values derived
from fields that include attachments or lengthy text
descriptions by sorting by phrases contained in those
fields. For example, a query for all the earmarks with
the phrase ``ethanol'', binned by congressman, is
certainly achievable. There are several free and open
source search engines for a variety of programming
languages that support this kind of free text search
and aggregation. Our Subsidyscope and Elena's Inbox
projects required searches to be performed on non-
standard text fields in a manner similar to what would
be required by the Earmark Transparency Act. For those
projects, we had a choice of versatile, free software
options to perform the advanced query, filter and
aggregation operations we required. The software we
chose used a standards-based web interface that allowed
it to communicate with any programming language.\12\
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\12\Full text of the Sunlight Foundation's letter can be found on
its website at http://blog.sunlightfoundation.com/2010/07/28/baby-
steps-on-the-earmark-transparency-act/.
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III. LEGISLATIVE HISTORY
On May 11, 2010, Senators Coburn, Gillibrand, McCain,
Bennet, Ensign, Feingold, Corker and Udall (Colorado),
introduced S. 3335, which was referred to the Senate Committee
on Homeland Security and Governmental Affairs. The Committee
considered the bill on July 28, 2010. The Committee adopted by
voice vote a substitute amendment offered by Senators Coburn
and McCain, and then ordered the bill favorably reported by a
roll call vote of 11-5. The vote for the record only, including
votes by proxy, was favorable by a vote of 12-5.
Senators Lieberman, Carper, Landrieu, McCaskill, Kaufman,
Collins, Coburn, Brown, McCain, Voinovich, and Ensign voted in
favor of reporting the bill. Senators Levin, Akaka, Pryor,
Tester, and Burris voted against reporting the bill. Senator
Graham asked to be recorded in favor of the bill by proxy.
Members present for the vote on the substitute amendment
were Senators Lieberman, Levin, Akaka, Carper, Pryor, Landrieu,
McCaskill, Tester, Burris, Kaufman, Collins, Coburn, Brown,
McCain, Voinovich, and Ensign.
The substitute amendment makes several changes to the
original bill.
First, the substitute expands the timeline available to the
Secretary of the Senate for implementation of S. 3335,
increasing the time from six months to 18 months after
enactment. In addition, it would provide an additional six-
month extension to the Secretary to implement several highly
technical provisions.
Second, the substitute streamlines the number of data
elements required to be disclosed for each earmark, reducing
the number from 23 to 16.
Third, the substitute clarifies the responsibilities of
committees to provide data to the Office of the Secretary of
the Senate for use on the website. It requires individual
Members to provide 13 of the 16 data elements, leaving three
elements for committee chairmen. This change responds to the
criticism raised by some Members that the bill as introduced
put too much of the burden for information collection on
committees, when in fact much of the information resides with
the individual Members making the earmark requests.
Fourth, the substitute removes the word ``aggregate'' and
replaces it with ``sort.'' This clarifies the intent of the
legislation to require that the website allow users to sort
information by any data element, eliminating confusion over the
term ``aggregate.''
Finally, the substitute provides for a source of funding by
authorizing, at a Member's discretion, any Senate personnel
office with a surplus budget allotment in his or her Official
Personnel and Office Expense Account to transfer those funds to
the Office of the Secretary of the Senate for use in
implementing S. 3335.
IV. SECTION-BY-SECTION ANALYSIS
Section 1--Short title
Section 1 establishes the short title of the Act as the
``Earmark Transparency Act.''
Section 2--Definitions
Section 2 defines the following key terms used throughout
the bill.
``Earmark'' is any congressionally directed spending item,
limited tax benefit or limited tariff benefit. This definition
is identical to the definition used in current Senate Rule
XLIV, paragraph 5, as established by P.L. 110-81, the Honest
Leadership and Open Government Act.
``Request,'' is a formal request from a Member of Congress
to a committee for an earmark, irrespective of the form in
which the request is made or whether the request is actually
granted.
``Requestor'' is a Member of Congress who submits a
request. The Committee intends that, in cases in which the same
earmark has more than one requestor, each Member's request will
be treated as a separate request.
``Searchable website'' is a website that is fully
searchable across the data elements required by section 3 and
provides both simple and advanced search capabilities, as well
as bulk access to earmark data. This means allowing anyone so
interested to download all earmark data at once and permitting
that data to be manipulated according to the various elements.
The website would have the web address of earmarks.congress.gov
and would be prominently displayed on the official websites of
the Senate and the House of Representatives.
Section 3--Congressional earmark database
As reported, section 3(a) requires the Secretary of the
Senate, the Senate Sergeant at Arms, and the Clerk of the House
to develop a single searchable website containing 16 data
elements on each earmark, much of which is already provided
under current disclosure arrangements. The database must be
available to the public at no cost to access and will include
the following information about each earmark:
1. the fiscal year in which the earmark would be
funded;
2. the bill number on which the request is made;
3. the amount of the initial request made by
requestor;
4. the amount approved by the committee to which the
request was made;
5. the amount approved in final legislation (if
approved);
6. the name of the federal department or agency
through which the entity will receive the funding;
7. the name of the requestor or requestors;
8. the requestor's State or District;
9. the name of any beneficiary designated to receive
appropriations;
10. the type of organization (public, private non-
profit, or private for-profit entity);
11. the address of any beneficiary;
12. the project name;
13. the project description;
14. the justification explaining how the
congressionally directed spending item would benefit
taxpayers;
15. the percentage of the project's total funding
derived from non-Federal sources; and
16. a copy of all documents provided by the requestor
to a committee of Congress relevant to each request.
Section 3(b) requires that the website include all
information beginning with earmarks requested one year after
the enactment of the Act.
Section 3(c) further details search capability requirements
of the website. Specifically, the website shall: provide a
permanent and unique identification number for each request and
for each requestor; provide that all search results return
permanent web links; and include information from all relevant
sources including bills, conference reports, amendments,
manager's amendments, and committee reports. This final
requirement should be construed to mean that all earmarks
contained within any bill, conference report, amendment,
manager's amendment or committee report should be reported on
the website. It is not intended to mean that information
related to an earmark, and required in the bill, should be
collected from ``all relevant sources.''
In addition to a unique identification number for each
request, a unique identification number for each awarded
earmark will almost certainly be necessary. Multiple earmark
requests are often credited for a single earmark award, and
earmark awards may differ from requests in terms of project
name, project description, named entity receiving funding, and
so on. A field added to each earmark request can indicate its
relationship to any awarded earmark by the awarded earmark's
number, and a field for each awarded earmark can indicate its
relationship to the earmark requests that produced it, each by
its number.
The use of standard identifiers, such as for Members of
Congress-requestors, beneficiaries, address information, and so
on, is encouraged. Providing regularly updated bulk access to
data in machine processable formats will maximize the
accessibility of earmark information to the public and
Congress.
Section 3(d) also requires requests to be made available on
the website no later than five days after submission by a
requestor to a committee of Congress.
Under section 3(e), the responsibility to provide the
required information to the Secretary of the Senate and the
Clerk of the House rests with the individual Member requesting
the earmark, with the exception of the following information,
which must be submitted by the chair of each committee to which
a request is made: the amount approved by the committee, the
amount approved in the final legislation (if any), and the name
of the federal department or agency that will receive the
funding.
Section 3(f) provides, in general, that the Act shall be
implemented not later than 18 months after the date of
enactment of this Act. However, section 3 also allows for
implementation of the search capabilities of the website
required by section 3(c) not later than two years after the
date of enactment. Section 3(f) also provides that any funds
that remain unobligated or unspent at the end of fiscal year
2010 or 2011 from the Official Personnel and Office Expense
Account of any Senator who agrees to a transfer may be
transferred from such account to the Secretary of the Senate
for purposes of paying for the costs associated with the
website established by this Act.
V. REGULATORY IMPACT AND EVALUATION
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office states that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandate Reform Act and would not affect the budgets of
state, local, or tribal governments. The enactment of this
legislation will not have significant regulatory impact.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
September 2, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3335, the Earmark
Transparency Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 3335--Earmark Transparency Act
S. 3335 would require the Clerk of the House and the
Secretary of the Senate to create a Web site within 18 months
that would include all Congressionally directed spending items,
limited tax benefits, and limited tariff benefits. The
legislation also would establish many uniform reporting
requirements for this information, including the name of the
beneficiary, the amount requested, and the amount approved in
the final bill. Finally, the legislation would allow any
Senator to transfer unspent funds from fiscal years 2010 and
2011 from Official Personnel and Office Expense Accounts to the
office of the Secretary of the Senate to pay for the cost of
the Web site.
Based on information from the House and Senate as well as
the experiences of other agencies and the Office of Management
and Budget in creating similar information systems, CBO
estimates that this effort would cost $4 million over the 2011-
2015 period, assuming appropriation of the necessary amounts.
Most of the initial costs would be for coordinating consistent
procedures for collecting information by the House and the
Senate. Additional personnel or contract support would be
needed to process and verify information, respond to inquiries,
resolve data errors, enhance system capabilities, and explain
how to use the system. Enacting the bill would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
S. 3335 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman).
The bill does not repeal or amend any statute or part
thereof.
VIII. ADDITIONAL VIEWS
SENATOR CARL LEVIN AND SENATOR DANIEL K. AKAKA
S. 3335, the Earmark Transparency Act proposes to create a
single database and central website to provide information on
congressional earmarks. While the intent of the act is laudable
and transparency in government is a goal we should all share,
the bill as written is far too complex and burdensome.
The Bill requires that 16 data points be collected and made
available on a publically accessible website in a searchable
format. The Federal Funding Accountability and Transparency Act
of 2006, on which this bill was modeled, required a database
that only included five basic data points for each federal
contract or grant. As a result of that act, the Office of
Management and Budget created the usaspending.gov website. Even
with just five required data points, there are serious
questions as to the validity of information available on the
website. According to a September 8, 2010 press release from
the Sunlight Foundation, ``more than $1.3 trillion in federal
reporting data from 2009 is broken.'' These inaccuracies
represent 70% of the data reported that year.
Currently, Senate Rule XLIV provides for the disclosure of
each congressionally directed spending item, limited tax
benefit, and limited tariff benefit on a publicly accessible
congressional website in a searchable format. The Senate
Appropriations Committee additionally requires that Senators
post each request they make on their publically accessible
websites. In a July 16th letter, the Chairman and Ranking
Member of the Rules Committee wrote a joint letter to the
Homeland Security and Governmental Affairs Committee suggesting
that S. 3335 be modified to keep the data required ``to a
workable set'' based on the disclosure requirements of the
existing Senate rules. S. 3335 goes far beyond the existing
disclosure requirements.
Some of the disclosure items required by this bill would be
particularly difficult to administer. In a July 27, 2010
letter, the Secretary of the Senate indicated that ``it is not
possible to meaningfully sum or aggregate non-numeric data or
non-quantitative numeric data.'' While the bill has been
revised to require that the public be able to ``sort'' these
data elements, it is uncertain how this addresses the problem.
The letter goes on to state that if the statute is enacted ``we
would work with our oversight committees to interpret the
requirement'' to mean something else entirely.
One of the required items to be searchable under this bill
are copies ``of all documents provided by the requestor to a
committee of Congress relevant to each request.'' In the July
27 letter, the Secretary of the Senate asserts that while ``any
documents that do not exist in electronic format could be
scanned,'' but then states that ``it does not appear possible
that these documents would be fully searchable'' as required by
the bill. Additionally, some of the documentation which would
be required to be provided may contain sensitive information
which is prohibited from public disclosure. The Secretary
states that she has no role, expertise or capacity to screen
out information which is prohibited from public disclosure.
This legislation places a legal burden on the Secretary of
the Senate, the Sergeant of Arms and the Clerk of the House to
create a website without ensuring they have the resources
necessary to do so. According to the CBO, the bill is estimated
to cost $4 million between 2011 and 2015. The bill provides
that it would be funded by ``any funds that remain unobligated
or unspent at the end of fiscal year 2010 or 2011'' from the
office expense accounts of Senators. As it is unknown how many
Senators may have unobligated funds or may use them for this
purpose. In fact, unobligated funds would not be available
until 6 months after the database is supposed to be fully
implemented.
There are also a number of technical problems remaining in
the language of the act. For example:
The bill would require the disclosure of the bill
number within 5 days of the time that the request is made. In
the case of the National Defense Authorization Act, the bill
number is not known until the bill is reported out of
committee, some weeks or months after requests have been made.
The bill would require the disclosure of the
percentage of non-Federal funding for the project. The
percentage of non-Federal funding depends on the amount of
Federal funding, an amount that cannot be known until after
Congress has acted on the funding request.
The bill states that the system must include
information from all relevant sources, including bills,
conference reports, amendments, managers' amendments, and
committee reports. However, it doesn't say who is responsible
for providing such information.
For these reasons we believe further revisions are needed
for this bill. In the next Congress, the bill should be
referred concurrently to the Committee on Homeland Security and
Governmental Affairs as well as the Committee on Rules and
Administration to ensure that these issues can be resolved
before bringing this bill to the floor.
Carl Levin.
Daniel K. Akaka.