Lawmakers have already exploited a loophole in the new transparency rules that appear to allow ‘immaculate conception’ earmarks.

Let me explain:

One of the provisions that TCS identified early on as an earmark in the House Supplemental Appropriations bill was $35 million for a risk mitigation project at the Stennis Space Center in Mississippi (Title II, Chapter 2 of the bill under NASA “Exploration Capabilities). Here’s the definition of earmarks from the recently adopted House rule:

“(d) For the purpose of this clause, the term ‘congressional earmark’ means a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process.”

So it clearly is an expenditure ($35 million) for an entity (NASA’s Stennis Space Center in Mississippi), and there was no formula or competitive process. And it is right in Rep. Taylor’s (D-MS) district (who – despite this provision and few others benefiting his district – voted against this bill). Rep. Flake (R-AZ) sought to clarify why this particular earmark wasn’t listed separately in the report with the name of the sponsoring member.

But according to Rep. Obey (D-WI), Chairman of the Appropriations Committee on the House Floor today:

“The fact is, that an earmark is something that is requested by an individual member. This item was not requested by any individual member. It was put in the bill by me.”

This reveals a gaping loophole. Rep. Obey put the provision in the bill, yet it is not an earmark? How can that be? He is a member of Congress. And how can they stipulate that there are no earmarks in this bill, when this provision clearly is? If all a Committee Chairman has to do to avoid transparency is insert earmarks himself and stipulate that no one asked him for them, then the most infamous earmark of all, the “Bridge to Nowhere” wouldn’t be an earmark, because then-Transportation and Infrastructure Chairman Don Young put it in the bill himself!

This makes a mockery of the new House rules, We applauded the rules change when it was adopted, but if House leadership doesn’t close these loopholes, the new rules are worth less than my totally busted NCAA basketball bracket.