Tonight, the Senate passed the $612.5 billion Fiscal Year 2009 defense authorization bill. Virtually all the amendments to the legislation, including the manager's package of a reported 100 amendments were not considered after the Chairman of the Senate Armed Services Committee, Sen. Carl Levin (D-MI), refused to allow debate and a vote on a Sen. Jim DeMint (R-SC) amendment regarding the 425 earmarks worth $5.2 billion in the bill.

Last January, the President issued an Executive Order (EO) that instructed government agencies to not give deference to earmarks that were not explicitly included in the actual text of legislation. The vast majority of earmarks are in committee reports that provide amplifying instruction regarding the intent of legislation, but do not have the force of law. To get around the EO, Congress has been inserting brief language into the bill text that incorporates the earmarks by reference. This provision was what the DeMint amendment sought to strike.

Incredibly, the reasoning for not including earmarks in the bill was supposed problems with printing the legislative text. However, more than 6,000 earmarks were included in the text of the 2005 highway bill so the capability seems to exist. But even more concerning was Senate leadership's refusal to even debate and allow a vote on such an important issue.