WASHINGTON — A ban on earmarks won't take hold in Congress for another two months, if it happens at all, but already lawmakers are looking for ways around it.
A $430,000 request from Rep. William L. Owens, D-Plattsburgh, for the Fort Drum Regional Health Planning Organization is not an earmark at all, but a "programmatic" funding request.
Tens of millions of dollars to dredge harbors around the Great Lakes isn't an earmark because the money comes from the Harbor Maintenance Trust Fund, created by taxes imposed on shippers.
Those are just two examples of how lawmakers in both parties may try to preserve home-state projects potentially threatened by the rush to eliminate earmarks. Despite growing consensus among Republicans and an agreement by President Barack Obama that earmarks should go, evidence is beginning to grow that the ban may not be as airtight as government watchdogs or tea party enthusiasts have urged.
Even a champion of the tea party, Rep. Michele Bachmann, R-Minn., said this week that transportation projects — one of the biggest sources of member-sponsored items — should not be considered earmarks and ought to be exempt from the ban. Others have suggested that defense-related projects should be spared as well, following a rule congressional Republicans imposed on themselves this year. A defense exemption would protect Mr. Owens's construction requests tied to Fort Drum and some research at Clarkson University, as well as the health organization earmark he secured in pending legislation.
"I expect some kind of weasel words," said Leslie K. Paige, a spokeswoman for Citizens Against Government Waste, which has called for an earmark ban for years and wants Congress to adopt a strict definition with no exceptions. She said she also expects lawmakers to try to write their pet projects into legislative language, rather than list them in bills.
The annual defense bills are one big test of the anti-earmark promise, but bigger ones await as well. A few big authorization bills — which outline program funding levels but don't actually spend any money — are on the agenda for next year, including a five-year farm bill that directs many research projects and other initiatives at states and specific universities, and the Water Resources Development Act, which details harbor dredging and port projects conducted by the U.S. Army Corps of Engineers.
Lawmakers may well decide that items included in authorization bills are not earmarks because the money comes through separate spending bills. But watchdog groups generally consider these bills territory for earmarks as well because they make the spending possible. On Fort Drum construction projects, for instance, the north country congressman generally sponsors projects in the authorizing bill, then asks a New Yorker on the Appropriations Committee to make sure they appear in the spending bill as well.
On the authorization bill items, "I suppose the best way to describe it is that it's an earmark that costs $0," said Sean Magers, a spokesman for Rep. William L. Owens, D-Plattsburgh.
The wiggling over earmarks is beginning to show in deliberations over the water resources. At a hearing this week, the chairwoman of the Senate Environment and Public Works Committee, Sen. Barbara Boxer, D-Calif., and its ranking Republican, Sen. James M. Inhofe, R-Okla., agreed on an approach that the committee said would "reduce the need for earmarks": ending the practice of using the Harbor Maintenance Trust Fund for deficit reduction.
If the fund were used exclusively for harbor projects, fewer earmarks would be needed, lawmakers argue — suggesting that money paid from the fund would not be considered earmarks even if it met the definition in other ways.
The trust fund collected $1.3 billion in 2009 but expended just $808 million.
Shipping industry groups welcome the possible change. The Great Lakes, for instance, have a backlog of harbor dredging projects that would cost around $200 million to clear, said James H.I. Weakley, president of the Lake Carriers' Association, at the Senate hearing. An earmarks ban could put a damper on that work, unless lawmakers find a way around it.
"I think the ban on earmarks makes this fix more important," Mr. Weakley said after testifying. The measure, he said, would create a balance between expenditures and revenue.
Mr. Inhofe is among the handful of remaining Republicans in the Senate who oppose an earmark ban. He and Mrs. Boxer agreed they can pass the bill next year.
But the ban appears more likely each week as pressure grows on Republicans to keep promises made on the campaign trail.
On the defense authorization measure, the ranking Republican on the House Armed Services Committee, Rep. Howard P. "Buck" McKeon, has not pledged to bar all member requests. As long as they are in the authorization bill, Congress may find ways to pay for them that bypass an earmark ban — or the Pentagon can move money within its budget to cover them, which is where supporters of the Fort Drum Regional Health Planning Organization may pin their hopes. But the item has to survive the defense authorization for that to happen — and that measure seems likely to wait until next year.