Earmark ban facing a fight over definition

The Senate this week could face a showdown over exactly what is an earmark, after one senator vowed to challenge money set aside in the pending transportation bill by the chamber’s top lawmaker, Sen. Harry Reid.

At stake is a broader battle over old, unused earmarks and what should happen to them once it becomes clear the projects they were meant to fund will not happen.

In this case, the earmark stems from the 2005 transportation bill, when Mr. Reid, Nevada Democrat, secured $45 million in funding to aid building a magnetic levitation train from Las Vegas to Southern California. That money was never spent — and now Mr. Reid is backing language in the new transportation bill that would give that money to Nevada to spend on other transportation projects.

Sen. Mike Johanns, Nebraska Republican, spotted the language in the middle of the 632-page bill and introduced an amendment to block it, saying that reserving the money for Nevada alone amounts to an earmark.

Both chambers of Congress have imposed temporary bans on earmarks.

“It’s a matter of trust,” Mr. Johanns said in a statement. “The president said he would not sign any legislation containing an earmark, and Congress has promised the American people a highway bill without earmarks. I won’t break that promise.”

Senate rules define an earmark as a project that was requested by a lawmaker and that directs money to a specific state or locality outside of the regular competitive award or formula-driven methods that usually govern how money is distributed among the states.

Mr. Reid’s office didn’t return messages, but his spokeswoman told the Las Vegas Sun that the new provision doesn’t violate the earmark rule because the money already was given to Nevada in the 2005 law, and this new bill redirects it: “There is no new spending in this provision,” spokeswoman Kirsten Orthman said.

Oddly enough, Mr. Reid already claims to have redirected this money once before. In 2010, he issued a press release saying he had “reprogrammed the full $45 million” to go to widening roads around McCarran Airport. But Mr. Johanns’ office said their research shows the money is still available.

Watchdogs said Congress should be careful about allowing money to be redirected like this.

“This is a situation where he played the game. He got burned,” said Steve Ellis, a vice president at Taxpayers for Common Sense, who said Mr. Reid secured $45 million on the belief it would go to a specific project. “He argued, justified [and] got this money on the basis that [the train] was this important thing. Well, that’s what Congress voted on, not just to provide a general amount of money to Nevada.”

Congress has revoked unused earmarks in the past. Sometimes it has let states claim the money, while in other instances, Congress has voted to recapture the funding at the federal level.

The last major transportation bill came in 2005.

This time, lawmakers had vowed to exclude earmarks, as part of their temporary moratorium.

Emil H. Frankel, a visiting scholar at the Bipartisan Policy Center and former Bush administration transportation official, said earmarking had become a way to “grease the skids” and get these bills passed — leaders would set aside money in each bill that they promised to lawmakers in exchange for supporting the bill itself.

Mr. Frankel said that turned the process from a debate about national transportation goals into just another public works spending bill.

Both the House and Senate are working on transportation bills, but House GOP leaders have struggled. Late last week, they signaled they would send their version back to be revamped.

Mr. Frankel said the Senate version was headed in a better direction anyway, with senators making some long-needed adjustments and doing so on a bipartisan basis.

“I say this as a Republican — the real problem with the House bill is that for the first time in over 50 years, there was no effort to make it a bipartisan bill, unlike the Senate,” he said.