WASHINGTON — In the more than two years since earmarks were banned to make congressional spending more transparent, lawmakers have fallen back on an age-old practice of writing letters to request money from agencies for projects back home.
And that, critics charge, has made the process less transparent — though the letters themselves seem to be having minimal influence with agencies.
“We’re in the dark again,” said Bill Allison, editorial director of the Sunlight Foundation, a nonprofit watchdog group.
According to documents obtained by The Courier-Journal under the Freedom of Information Act, the Department of Transportation alone received 1,078 congressional letters of support for funding of various projects in 2011, the first year without earmarks.
The projects included street repairs and improvements, bridge replacements, new transit centers, upgrades to rail lines and new facilities at ports and airports.
The only way the public could find the requests — which critics call “letter marks” — would be by filing an FOIA request to the agency, a long and sometimes frustrating process, said Lisa Gilbert, director of Congress Watch, another watchdog group.
Allison agreed, noting that anyone wanting to extract details of congressional letters has to navigate through myriad federal agencies, since Congress itself is exempt from FOIA requests.
And there are no guarantees all the letters will be disclosed. Allison said Sunlight tried to pry such information from a host of federal departments and agencies but found the records system was haphazard.
“There’s no way to find every request from every single agency,” he said.
Indeed, while The Courier-Journal’s FOIA request to the Transportation Department resulted in copies of 29 letters from Kentucky and Indiana lawmakers, at least one was missing from the agency’s response.
Rep. Ed Whitfield, a Republican from Kentucky’s 1st District, renewed a request for a grant for the KenTenn Railroad, according to a letter dated March 14, 2012, that the congressman’s office released to the newspaper. But the Transportation Department correspondence record obtained under the FOIA did not include that letter.
The correspondence records also do not always reflect the outcome of a congressional request.
Letters a longtime practice
Earmarking was a decades-old practice in which lawmakers inserted binding language into spending bills that directed federal money to specific state and local projects. That could be a highway project, medical equipment for a hospital, work for a federal contractor, research for a university or a new airport runway.
Critics of congressional spending targeted earmarks for elimination because of many well-publicized abuses, including Alaskan lawmakers’ efforts in 2005 to funnel $223 million to build a bridge connecting Ketchikan to a thinly populated island, a project dubbed “the bridge to nowhere.”
Also in 2005, then-Rep. Randy “Duke” Cunningham, R-Calif., was convicted of taking bribes in exchange for sponsoring earmarks for defense contractors.
Congressional reforms in 2007 and 2009 required lawmakers to put their names on each request and post them on their office websites. Spending bills also were required to include the authorship of every earmark passed by Congress.
In 2010, Republicans took over the House and, encouraged by the new wave of younger members who had campaigned on congressional reform, banned earmarks starting in January 2011. The Senate followed.
At that point, lawmakers’ best opportunity to make their wishes known on projects was to write letters to the agencies allocating funds.
The federal government annually approves about $537 billion in grants, and even before the earmark ban took effect, lawmakers regularly corresponded with federal agencies about allocating those funds.
For example, a Courier-Journal review of the “significant mail summary” kept by the Transportation Department for 2010 — the year before the earmarks ban took effect — shows hundreds of congressional letters backing state and local requests for money from Washington.
Robert Steurer, spokesman for Senate Minority Leader Mitch McConnell, R-Ky., said the senator believes such letters are an appropriate way to convey a community’s needs.
“Letters of support merely ensure that a Kentucky applicant is not lost at the bottom of the pile and receives appropriate consideration,” Steurer said in an e-mail.
But John Hart, spokesman for Sen. Tom Coburn, R-Okla., who has repeatedly lampooned government waste, said Congress should stop writing letters to agencies supporting spending and take a closer look at the grants process.
“Federal grants … represent an enormous (potential) reservoir of savings,” Hart said in an e-mail.
Steve Ellis, vice president of Taxpayers for Common Sense, a non-partisan, non-profit budget watchdog organization, agreed with Allison that there is no dependable way of tracking congressional letters requesting spending for specific projects.
Ellis said his group has been waiting a year to get congressional letters requested under a Freedom of Information request to the Army Corps of Engineers.
That agency created 26 funds last year to pay for construction and other work, then announced which projects it was going to finance. The accounts added up to almost the same amount as the last year of congressional earmarks for the corps, budget watchdogs noted.
“If (a letter) is about federal funding and about what would typically be considered an earmark, it should be posted on a lawmaker’s website and on the agency’s website,” Ellis said.
In fact, then-President George W. Bush issued an executive order in January 2008 requiring that “all written communications” requesting funds “on any earmark” be published on the Internet by the receiving agency within 30 days of the request.
But while agencies have posted their communications with Congress on rule-making and policy matters, the funding requests have remained out of sight.
White House officials did not directly respond to a question about why the correspondence is not being posted, instead issuing a statement touting its “great transparency on government spending generally.”
The administration isn’t doing enough, critics say.
“In order to get agencies to comply with the order, it will take a clear signal from the Obama administration that they think making the letters available is a priority, and that they will be following up to make sure agencies are complying,” said Amy Bennett, assistant director of OpenTheGovernment.org, a non-partisan coalition of organizations that advocate openness and accountability in government.
Angela Canterbury, director of public policy for the non-partisan Project on Government Oversight, told the House Oversight and Government Reform Committee on March 13 that to boost transparency, Congress should make itself subject to Freedom of Information requests.
Barring that, advocates for open government say that congressional letters to federal agencies simply need to be made public.
Still, Gilbert, of Congress Watch, said that even with easy access, the letters are a small part of how Congress tries to flex its muscles with agencies.
There are other, even less-trackable forms of communication between lawmakers and federal agencies: the telephone, emails and in-person conversations, she said.
“If somebody calls an agency, there is no record of that call,” Allison said.
Earmarks preferred by some
Transparency issues aside, letter marks may be proving less effective than earmarks in securing federal dollars — if area lawmakers’ correspondence with Transportation Department records are any indication.
Letters from Kentucky and Southern Indiana lawmakers and Transportation Department responses during 2011 and the first three quarters of 2012, obtained by The Courier-Journal under FOIA, revealed that all but one of 28 spending requests were unsuccessful.
For example, between March 8, 2011, and March 19, 2012, federal transportation officials received three separate requests for grants and loans for the Ohio River Bridges Project, according to correspondence logs and letters obtained by The Courier-Journal.
The letters were either separately or jointly signed by McConnell, Rep. John Yarmuth, D-Louisville, Sen. Rand Paul, R-Ky., former Sen. Richard Lugar, R-Ind., or Rep. Todd Young, a Republican who represents Southern Indiana. But the bridges requests fell short each time.
Lugar was the only letter writer to have any success, when funds were approved to help the Evansville-Vanderburgh Airport obtain a new airline.
Such a poor overall showing for past “letter marks” has reinforced Yarmuth’s belief that lifting the earmark ban, with proper disclosure, would be a better way to help his district.
“As long as everything is transparent, your name is on every one of them and they are vetted properly by the (relevant) committee, I don’t see any problem with it,” the Louisville Democratic congressman said. “And it doesn’t cost the taxpayers any more money.”
In an interview last month on C-SPAN, Rogers indicated that he too, wouldn’t mind restoring earmarks. Rogers, the chairman of the House Appropriations Committee, said lawmakers talk to him about earmarks almost every day.
“I would be in favor of being allowed … to present a request from a city or a county or a state or a political subdivision,” he said.
But McConnell, who over the years used the earmark process to funnel hundreds of millions of dollars to Kentucky for education, research and other projects, is standing by the ban.
“We voted to ban earmarks in our conference and that rule stands,” Steurer said.