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How To Get Around The Ban On Earmarks

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When the 112th Congress convenes next week, one thing it won’t be doing is “earmarking.” No more spending federal money on projects singled out by individual lawmakers. Or at least that’s the plan.

At the watchdog group Taxpayers for Common Sense, Vice President Steve Ellis is ready to say the group has won a major battle in its war against earmarks.

“Earmarking as we know it is done,” he says. But notice that “as we know it.”

Ellis knows what an overpowering impulse it is for lawmakers to take federal money and spend it back home. Just one example: Even as Senate Republican leader Mitch McConnell came out against the practice of earmarks last month, he continued to defend his own.

“Make no mistake,” he said. “I know the good that has come from the projects that I have helped support throughout my state.”

So as Congress vows to crack down on earmarks in spending bills, the search intensifies for other ways to legislate the flow of federal dollars to suit the individual agendas of powerful lawmakers.

And the lobbyists who specialize in earmarks aren’t going out of business. Some of them are diversifying -- picking up other kinds of clients. But they are also retuning their methods, so they will be ready as a new process takes shape -- one that might be called earmarking by another name.

Lobbying For Grants

Patrick Mitchell has lobbied on earmarks for more than 20 years. His clients currently include local governments, nonprofits and homeland security contractors.

“As cities and universities and transportation agencies, among others, around the country come to their members of Congress with legitimate needs, I think those members are going to want to do something about it,” he says.

So what kinds of things might they do?

Bill Ferguson of The Ferguson Group, another veteran of earmarks lobbying, explains his approach: “What we do is go into a local government that we represent, and we ask them to sit down with us and decide what they want to do in the coming year.” So there’s a wish list. It has to be approved by the local officials. And then Ferguson’s lobbyist takes it to the relevant members of Congress.

Ferguson says everyone likes this approach, even now.

“A lot of the members that we deal with have already asked us to continue to do that, even though there are no earmarks,” he says.

In other words, there’s an expectation the money is going to come from somewhere. One likely source: competitive grants awarded by agencies in the executive branch.

Ferguson says he’s ready for it. “We’ve created a separate grant operation that works with local governments in a systematic way to help them better compete for grants.”

This means lobbying the executive branch, instead of Congress. In fact, the lawmakers could help with the lobbying.

Already, some on Capitol Hill are bypassing the existing agency process with behind-the-scenes communication. That’s called phone-marking or letter-marking.

“The process of making grants is anything but transparent,” says Diana Evans, a political scientist at Trinity College in Connecticut who studies the politics of earmarking. “There’s certainly evidence that well-placed members of Congress do better in the grant-making process than less well-placed members.”

Targeted Tax Breaks

Evans predicts another trend, too: a rise in tax breaks targeted for specific beneficiaries -- what are known as tax earmarks.

Unlike spending earmarks, they haven’t been banned, and they don’t need to be disclosed.

“They’re always disguised in such a way that you have to really be on the inside to know who’s getting that tax provision,” she says. “I think any tax bill is fair game for that kind of legislation.”

And that may be true for other kinds of bills as well. Copyright 2010 National Public Radio. To see more, visit


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