This Has All the Earmarks of a Massive Separation of Powers Violation

The OpinionJournal.com’s Kimberly Strassel was on this last week (HT Porkopolis), but she didn’t catch the really big problem:

Welcome to Congress’s new and dirtier earmark game, in which the big spenders are setting all the rules. In front of the cameras, both parties claim to have found earmark religion, and are talking up a bill that would reform the way Congress asks for billions in goodies for lawmakers’ home districts. Behind the scenes, they’re working feverishly to keep the earmarks rolling, this time using a technique outside of the legislative process and hidden from public view…

…Congressional members, led by appropriators and an army of staff, have already figured out a new way to keep their favors in the money, and it might as well be called 1-800-EARMARKS (which unfortunately is already taken). All across Washington, members are at this moment phoning budget officers at federal agencies — Interior, Defense, HUD, you name it — privately demanding that earmarks in previous legislation be fully renewed again this year. There might not be a single official earmark in the 2007 spending bill, but thousands are in the works all the same.

And getting far less scrutiny than before — if that’s even possible. Under this new regime, members don’t even have to go to the trouble of slipping an earmark into a committee report, where it might later (once the voting is over) come in for criticism. All the profligates need now to keep the money flowing is a quiet office and a cellphone.

Despite a congressional desire to keep this quiet, the evidence of marathon dialing is mounting. Lobbyists, thrilled their clients are still getting earmark handouts, are now publicly crowing about this underground program.

Lobbyists, congresspersons, and senators can crow ’til the cows (or pigs) come home, but under our Constitution, the Executive Branch spends the money that the Legislative branch specifically permits it to spend. Contact between legislators and federal agencies for the express purpose of demanding that money be spent in a way that is NOT specifically identified in enacted legislation appears from here to be blatantly illegal and unconstitutional — and I daresay possibly prosecutable under laws that have surely been passed over the years to prevent legislative tampering with federal agency operations.

If this were a Republican-controlled Congress attempting an end run around a Democratic president, we’d never hear the end of it from the formerly Mainstream Media.