Sunlight Foundation Reporting Group

Must everything be earmarked?

Columnist George Will argues that the Emergency Economic Stabilization Act of 2008 -- the bailout bill that set up TARP, is unconstitutional because it delegates legislative power to the executive branch:

Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money -- even, say, subsidize automobile companies -- well, whatever."

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure -- particularly the separation of powers -- imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere.

Will includes this bit of history about the dangers of allowing the Executive Branch too much discretion in how money shall be spent:

Writing in the New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: "The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money." But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers, which, as Justice Louis Brandeis said, was adopted "not to promote efficiency but to preclude the exercise of arbitrary power."

This seems to be remarkably close to how some members of Congress defend their earmarks. Via Instapundit, here's John Murtha's response to charges he wasted a lot of taxpayer money on projects that were vetted, not by a rigorous procurement process with competitive bids, but rather through some backroom process known only to Murtha, his staff and lobbyists:

U.S. Rep. John Murtha, D-Johnstown, responded by waving the Constitution at the camera, saying: What it says is the Congress of the United States appropriates the money. Got that?

It seems that no matter where one vests the power to make such decisions, there is a risk of corruption and fraud. It might be more profitable to insist on greater transparency in the process (flip a coin? throw a dart at a list of Fortune 500 companies?) Treasury officials use to decide who gets TARP funds, as well as greater transparency in how members like Murtha mysteriously direct so many earmarks to firms and clients of firms that shower them with campaign contributors.