Senate rules referee is put on the hot seat

The Senate parliamentarian, usually a quiet referee of the chamber’s everyday business, has found himself at the center of a hot dispute over earmarks.

Republicans claim that Senate Majority Leader Harry Reid (D-Nev.) is dismantling reform Congress passed last month by persuading the parliamentarian to adopt an unexpected interpretation of how to classify certain earmarks.

{mosads}Sen. Jim DeMint (R-S.C.), the chairman of the conservative Senate Republican Steering Committee, said in an interview this week that Reid’s staff successfully has convinced the parliamentarian to exempt earmarks in authorization bills from new rules.

Specifically, DeMint and Reid’s staffs are wrangling behind the scenes over whether earmarks added at the eleventh hour to legislation authorizing water projects should be subject to new rules in the Honest Leadership and Open Government Act of 2007, which President Bush signed into law last week. The issue is heating up because the Water Resources Development Act (WRDA) may reach the Senate floor Monday.

Reid’s staff has told the parliamentarian that lawmakers should not be allowed to object to earmarks added in conference negotiations to authorization bills, say Senate sources. Reid’s aides have told the parliamentarian that Reid never intended that to be possible. The majority leader’s opinion is relevant to interpreting the new rules because he was the main sponsor of the ethics bill.

Reid’s office did not respond to a request for comment.

At stake are millions of dollars worth of spending authorization. The biggest potential loser: Sen. Barbara Boxer (D-Calif.) who managed to add $685 million in extra funding to a dam renovation on the Santa Ana River in her home state.

The new ethics law changes Senate rules to allow any lawmaker to raise a point of order objection to any “new directed spending provision” added in conference. The law defines such a provision as “any item that consists of a specific provision containing a specific level of funding for any specific account, specific program, specific project or specific activity.”

Howard Gantman, the Democratic staff director of the Senate Rules Committee, which worked with Reid, the parliamentarian, and Minority Leader Mitch McConnell (R-Ky.), told The Hill in an interview Thursday that he believed that new rules enabled lawmakers to object to earmarks added in conference to authorization bills.

  “It actually applies to both,” he said. “Appropriations and authorizations bills, yes.”

Gantman acknowledged, however, that the final call will be made by the parliamentarian.

“It’s ultimately the parliamentarian who is going to rule,” he said. “[But] it is our understanding this definition and section does not limit directed spending to appropriations bills.”

The growing debate recalls other times the parliamentarian’s office has become embroiled in political controversy. The parliamentarian knows that his predecessor lost his job by angering the majority leader.

In 2001, then-Senate Majority Leader Trent Lott (R-Miss.) fired parliamentarian Bob Dove after he made two rulings that made it more difficult for Republicans to push President Bush’s package of tax cuts through the Senate.

The move sparked an uproar among Democrats. Lott mollified his critics by replacing Dove with the current parliamentarian, Alan Frumin. Lott’s decision was surprising and conciliatory because Frumin had served as chief parliamentarian when Democrats controlled the Senate from 1987 to 1994.

DeMint on Thursday called for Reid to overrule his staff and tell the parliamentarian that earmark reform should apply to authorization bills such as WRDA.

“I was saddened to learn that the Senate parliamentarian’s understanding of your intent is now different than your earlier statements on the matter during the debate on the Senate floor,” DeMint wrote in a letter to Reid and Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Rules Committee. “It is his understanding that you now believe this important earmark reform provision should only apply to appropriations earmarks added in conference, not to authorization earmarks.

DeMint asked Reid to contact the parliamentarian and “clarify your intention” that the rule should apply to all earmarks, “not just those added to appropriations bills.”

“The parliamentarian has informed us that if you clarify your intent he will take it into serious consideration when ruling on the matter,” DeMint wrote.

DeMint said in an interview that he hoped that Reid’s staff had miscommunicated with the parliamentarian.

“It’s clear from our floor debate that the earmark rules, particularly the ‘airdrop rule,’ applied to earmarks whether in appropriations or authorization bills,” he said. “It sounds like the parliamentarian asked the question about the intent of the [majority] leader and the staff has answered it just applies to appropriations, which is completely out of the context of the debate.”

DeMint said his staff had counted nearly 30 earmarks added to the water bill in conference.

Steve Ellis, vice president of Taxpayers for Common Sense, a non-partisan group that often criticizes earmarks, sided with DeMint’s interpretation of reform.

Ellis noted that the earmark reform provision of the ethics law included two definitions of earmarks. The first, which applies to earmarks subject to disclosure regulations, clearly refers to authorization and appropriations bills, Ellis said. The second, which applies to earmarks added or “airdropped” in conference negotiations, is more vague. But Ellis said because the second definition does not specifically limit itself to appropriations bills, it must be assumed to apply to earmarks in authorization bills.

Ellis also said it would make no sense for the authors of reform to worry about the corrupting potential of earmarks inserted in the dead of night into appropriations bills but leave similar provisions added to authorization bills unregulated.

Republican senators took a similar view.

Sen. John McCain (R-Ariz.), an early author of earmark reform, said there should be no distinction between earmarks subject to disclosure rules and earmarks subject to point-of-order objections for being added in conference.

He said earmarks in both authorization and appropriations bills should be subject to ethics reform.