[Senate Report 111-365]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 692
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-365

======================================================================

                        EARMARK TRANSPARENCY ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3335

                             together with

                            ADDITIONAL VIEWS

TO REQUIRE CONGRESS TO ESTABLISH A UNIFIED AND SEARCHABLE DATABASE ON A 
    PUBLIC WEBSITE FOR CONGRESSIONAL EARMARKS AS CALLED FOR BY THE 
      PRESIDENT IN HIS 2010 STATE OF THE UNION ADDRESS TO CONGRESS




               December 14, 2010.--Ordered to be printed


        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri           JOHN ENGSIGN, Nevada
JON TESTER, Montana                  LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware       MARK KIRK, Illinois
                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
                         Troy H. Cribb, Counsel
                      Jonathan M. Kraden, Counsel
              Adam R. Sedgewick, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
            Chip Kennett, Minority Professional Staff Member
Christopher J. Barkley, Minority Staff Director, Permanent Subcommittee 
                           on Investigations
                  Trina Driessnack Tyrer, Chief Clerk



                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................7
 IV. Section-by-Section Analysis......................................8
  V. Evaluation of Regulatory Impact.................................10
 VI. Congressional Budget Office Cost Estimate.......................10
VII. [Changes in Existing Law Made by the Bill, as Reported].........11
VIII.Additional Views................................................12




                                                       Calendar No. 692
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-365

======================================================================



 
                        EARMARK TRANSPARENCY ACT

                                _______
                                

               December 14, 2010.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 3335]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3335) to require 
Congress to establish a unified and searchable database on a 
public website for congressional earmarks as called for by the 
President in his 2010 State of the Union Address to Congress, 
having considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill, as amended, do pass.

                         I. PURPOSE AND SUMMARY

    S. 3335, the Earmark Transparency Act aims to improve 
congressional and public oversight of federal spending by 
creating a single database and central website to house and 
provide comprehensive information on congressional earmarks.

              II. BACKGROUND AND NEED FOR THE LEGISLATION

    The growth of the Internet has revolutionized efforts to 
bring increased transparency to government finances, providing 
Americans with real-time, comprehensive information about their 
government. With a click of a computer mouse, anybody can 
easily obtain the voting records of his or her representatives, 
the budgets of every federal agency and, in some cases, entire 
federal contracts. Technology has made it cheaper and easier 
for the government not only to collect, but to present in a 
simple and searchable format, enormous quantities of data that 
would have previously been unavailable to taxpayers. The 
Committee has strongly supported this trend and has pressed 
forward numerous proposals in recent years to disseminate 
information on government finances and the legislative process 
to the public.
    In 1995, for example, the Committee originated critical 
provisions of the Lobbying Disclosure Act of 1995, which 
requires lobbyists to register and make public information on 
the interests they represent.\1\ It revisited that law in 2006 
and 2007, authoring even broader disclosure requirements--
including a mandate for a searchable electronic database--that 
became part of the Honest Leadership and Open Government Act of 
2007 (HLOGA).\2\
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    \1\Public Law 104-65, which incorporated provisions of S. 1060, the 
bill considered by the Committee.
    \2\Public Law 110-81. HLOGA incorporated provisions of a bill (S. 
2128) reported a year earlier by the Committee during the 109th 
Congress.
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    As the Supreme Court recognized in upholding a predecessor 
to the 1995 Act, making information about the legislative 
process available to the public is critical to the proper 
functioning of our Republic:

          [F]ull realization of the American ideal of 
        government by elected representatives depends to no 
        small extent on their ability to properly evaluate such 
        pressures. Otherwise the voice of the people may all 
        too easily be drowned out by the voice of special 
        interest groups seeking favored treatment while 
        masquerading as proponents of the public weal.\3\
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    \3\United States v. Harris, 347 U.S. 612, 625; 74 S.Ct. 808, 816 
(1954).

    The Committee has pursued its interest in ensuring 
accountability through increased transparency in other areas 
within its jurisdiction as well. In 2006, the Committee passed 
and the President signed the Federal Funding Accountability and 
Transparency Act of 2006,\4\ which created a public website, 
USAspending.gov, to provide information on all recipients of 
federal grants and contracts. Prior to the launch of 
USAspending.gov, taxpayers seeking complete information on 
federal spending found it necessary to search through multiple 
federal websites, some of which were password protected. Since 
the implementation of the 2006 law, anyone can access one 
central website to search for federal funding information, 
using a simple search engine modeled on popular websites such 
as Yahoo! and Google.
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    \4\Public Law 109-282.
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    S. 3335, the Earmark Transparency Act, would further the 
Committee's transparency efforts by creating a comprehensive 
public website offering detailed information on every 
congressional earmark, and every request for an earmark. 
Although Congress has made some initial efforts to make 
information regarding a Member's earmark requests more publicly 
available, additional information could be provided and 
advances in technology could further improve transparency. Like 
a Member's voting record, the earmark record is an important 
source of information for voters, revealing the kind of work 
the Member has performed on behalf of his or her district or 
State.
    Earmarks are projects that receive federal funding, 
primarily at the request of one or more Members of Congress, 
typically for work done inside a requesting Member's district 
or State. Earmarks may direct spending to a particular entity, 
or may take the form of a targeted tax or tariff measure that 
benefits one or a few entities. According to the non-partisan 
Taxpayers for Common Sense, there were 9,499 appropriations 
earmarks worth $15.9 billion in Fiscal Year 2010 and 11,286 
earmarks worth $19.9 billion allocated in 2009.\5\
---------------------------------------------------------------------------
    \5\Information provided by Taxpayers for Common Sense, ``TCS FY2010 
Earmark Analysis: Apples-to-Apples Increase in Earmarks,'' February 17, 
2010, http://taxpayer.net/
search_by_category.php?action=view&proj_id=3192&category=Earmarks&type=P
roject.
---------------------------------------------------------------------------
    Because earmarks can benefit only one or a narrow range of 
beneficiaries, they are seldom the subject of Congressional 
hearings or debate as bills move through the Congressional 
process, and therefore the legislative record for most earmarks 
is sparse. While most earmark requests are submitted by 
requesting Members to the relevant committees of jurisdiction 
early in the legislative process, House and Senate Rules only 
require certain information on earmark requests to be made 
available to the public, and it can be difficult even for 
Members of Congress to examine each project before votes are 
cast on bills that authorize or appropriate earmarks.
    Incremental gains have been made in recent years to 
increase the amount of earmark information available to the 
public. In 2007, the HLOGA added a new Rule XLIV to the 
Standing Rules of the Senate, requiring every bill coming 
before the full Senate to be accompanied by a list describing 
all earmarks in the bill. The list has to include: (1) the name 
of the sponsoring Member of Congress; (2) the name and location 
of the intended recipient, or the location of the activity; (3) 
the purpose of the earmark; and (4) a certification that 
neither the sponsoring Members nor their family members would 
benefit financially from the earmark.\6\ The House of 
Representatives adopted similar rules for earmark disclosure in 
the 110th Congress, now incorporated into House Rule XXI.
---------------------------------------------------------------------------
    \6\Senate Report 111-229, pages 150 and 171
---------------------------------------------------------------------------
    But even with the new Senate and House rules, important 
information on earmarks can be difficult to obtain or to 
examine in a timely fashion. For example, some descriptions 
only contain the mere name of a project and recipient. A 
detailed justification is needed. Earmarks can provide funding 
to important projects in states and localities, but more 
information should be provided to the public as to how federal 
dollars are being spent.
    Additionally, while the rules require disclosure of 
committee-approved earmarks, information on requested earmarks 
is ad hoc and incomplete. For example, the Senate 
Appropriations Committee requires Members requesting earmarks 
to post information on their earmark requests on the websites 
of their personal offices.\7\ However, disclosure rules vary 
across committees, and data made available is scattered across 
hundreds of web sites.
---------------------------------------------------------------------------
    \7\See Joint Press Release from House and Senate Appropriations 
Committee Chairmen, House and Senate Appropriations Committees Announce 
Additional Reforms in Committee Earmark Policy; January 6, 2009, 
available at http://appropriations.senate.gov/news.cfm?method= 
news.view&id=c0413de1-f04e-4bb9-801d-987bab16f7ac0.
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    S. 3335 would fix these problems by establishing a 
bicameral system of disclosure of all earmark requests. Five 
days after any request is made, the requesting Member would be 
required to fill out an electronic form describing the earmark 
and providing other basic information. Relevant committees 
would then fill in any remaining gaps, providing information 
pertaining to the earmark's passage through that committee. 
This information would go on a publicly accessible and fully 
searchable website and be made available in bulk for 
researchers and others. Bulk data allows anyone interested in 
examining the raw data to download all of it at once, and to 
manipulate it in ways not provided for on the website. The 
website would also make all key documents accompanying each 
request available, providing taxpayers with unprecedented 
access to information on earmarks.
    There are several reasons why this legislation is urgently 
needed.
    To begin with, many earmarks have no records associated 
with them beyond the minimal information offered in committee 
reports. As for those about which information is available, the 
records are currently decentralized and lacking in any 
uniformity; those looking for earmark data currently must 
search through more than 550 different websites administered by 
435 Members of the House of Representatives, 100 Senators and 
numerous committees in both chambers. Some of these websites 
prominently post earmark information, while others remain 
silent on the issue. As a result, even if the average person 
wanted to attempt it, obtaining a comprehensive set of earmark 
data from public sources would be virtually impossible.
    There is likewise no uniform process for permanently 
archiving information on earmarks, creating an ad hoc and 
incomplete historical record. While many committee records 
remain accessible to the public, those of individual Members--
which, under current practice, contain much of the available 
earmark data--can disappear from public view when a Member 
leaves office if the Member does not individually decide to 
make the records available in a public place.
    The difficulty of finding earmark data was illustrated in a 
recent study by Scott Frisch and Sean Kelly of California State 
University Channel Islands.\8\ When information on request data 
proved difficult to uncover, researchers were forced to dig 
through the archives of former subcommittee chairmen of the 
Appropriations Committee. Only after an intensive research 
effort did they discover memoranda and charts outlining the 
request process for certain congressional committees. The 
difficulty these researchers encountered in retrieving 
information on earmarks underscores the near impossibility of 
the same task for the average citizen.
---------------------------------------------------------------------------
    \8\Frisch, Scott A., and Sean Q. Kelly, California State University 
Channel Islands, ``Inside the Earmark Favor Factory: Exploring Earmark 
Requests,'' A paper prepared for the Politics of Federal Spending 
Conference, University of California, Merced, May 27-29, 2010.
---------------------------------------------------------------------------
    The American public is entitled to understand the entire 
earmark process, and not simply view the end result. Complete 
earmark records should include information on requests, whereas 
the current system provides only a final list of approved 
earmarks. Just as all legislative bills are made publicly 
available immediately after they are introduced, all earmark 
requests should be made public as well. Opening up the process 
in such a way encourages public involvement, bringing increased 
accountability to the system.
    In his State of the Union Address on January 27, 2010, 
President Obama called on Congress to do just this. He asked 
for legislation to not only create an earmark transparency 
website, but for one that includes earmark request information:

          Tonight, I'm calling on Congress to publish all 
        earmark requests on a single website before there's a 
        vote, so that the American people can see how their 
        money is being spent.\9\
---------------------------------------------------------------------------
    \9\Remarks by President Barack Obama in his State of the Union 
address, January 27, 2010, available at http://www.whitehouse.gov/the-
press-office/remarks-president-state-union-address.

     Making the case further, the White House provided a fact 
sheet to accompany the speech providing additional details on 
why earmark transparency is so important. Among its 
---------------------------------------------------------------------------
observations:

          Many Members and others disclose earmarks on various 
        individual websites. That has helped contribute to a 
        significant drop in earmarks since 2008, but the 
        practice is far from uniform across Congress, and often 
        too difficult to access prior to votes. It's time for a 
        comprehensive, bipartisan, state-of-the-art disclosure 
        database that allows Americans to examine the details 
        of every proposed earmark before a vote is taken--one 
        that is fully searchable and otherwise user-
        friendly.\10\
---------------------------------------------------------------------------
    \10\Fact sheet distributed by the White House to accompany the 
State of the Union Address, ``Rescue, Rebuild, Restore--A New 
Foundation for Prosperity: Cracking Down on Special Interests,'' 
January 27, 2010.

    Detailed financial information is essential in a democracy 
because it provides citizens with a means to hold their 
government accountable. An informed electorate can direct how 
their taxes are spent or not spent, and help prevent abuses. 
But the absence of spending information concentrates power in 
the hands of federal officials, away from public view. For this 
reason, the founders required in the Constitution that Congress 
make financial statements publicly available. Article 1, 
---------------------------------------------------------------------------
Section 9, lays out the governing principle:

          No Money shall be drawn from the Treasury, but in 
        Consequence of Appropriations made by Law; and a 
        regular Statement and Account of the Receipts and 
        Expenditures of all public Money shall be published 
        from time to time.

    The Earmark Transparency Act builds upon this principle by 
extending transparency into the area of earmarks, both for 
proposed and approved projects. Taxpayers have the right to see 
where their money is being spent. Transparency requirements 
were built into the fabric of the Constitution to protect 
against the urge by government officials to spend public money 
in secret, which can lead to waste, fraud, abuse and 
mismanagement. S. 3335 would be consistent with the spirit of 
this constitutional responsibility by requiring that all data 
be published within five days of an earmark request. This near 
real-time information would give citizens more information on 
earmarks than has ever been available.
    During Committee consideration of S. 3335, some Members 
raised concerns about some of the bill's mandates.
    First, some suggested that a bill to create an earmark 
transparency website constitutes a change in the Standing Rules 
of the Senate, and therefore should officially be handled as a 
rules change. According to this objection, because rule XLIV 
already requires disclosure of some earmark information, any 
additional requirements for disclosure should amend current 
practice.
    However, the disclosure required by S. 3335 is not a 
change, actually or effectively, in Senate Rules, but rather a 
complement to Rule XLIV. The primary reason for this lies in 
the way that each affects the legislative process. Rule XLIV is 
designed not only to ensure earmark transparency, but to 
control the legislative process governing any bills that 
contain one or more earmarks. If a bill does not contain the 
required disclosures, any Member may raise a procedural point 
of order against the provision of a bill containing undisclosed 
earmarks, and have the provision stricken. The Senate is 
allowed to waive the disclosure rules only by a vote of 60 
Senators.
    Unlike rule XLIV, S. 3335 would not have any direct impact 
on the legislative process. It would simply increase the 
disclosure requirements, requiring that the additional 
information be made public within five days of a Member's 
earmark request. Legislation would be allowed to proceed on 
both the floor of the Senate or the House of Representatives in 
the exact manner it would without the passage of S. 3335. 
Therefore, it is unnecessary to amend Senate Rules since the 
purpose of the legislation is merely to disclose additional 
information and compile it onto a public website.
    Further, since this bill was designed to bring 
comprehensive transparency to the earmarking process in both 
houses of Congress, the Committee believes it best to address 
the matter as a change in law rather than as separate changes 
to the rules of both chambers. Transparency would suffer if the 
House of Representatives and the Senate disclosed earmark data 
in different ways, and so the disclosure practices of both 
should be governed by a single legislative solution.
    Second, some have raised concerns about the technical 
feasibility of creating a website capable of displaying 
information on earmarks according to the requirements of S. 
3335. These concerns have included questions about the ease in 
which a website can ``aggregate'' non-numeric data fields and 
the possibility of storing earmark data for periods of time 
longer than three years.
    The Committee has concluded that the technical requirements 
of this bill are feasible and fall well within the capabilities 
of current technology. The Office of the Secretary of the 
Senate--which would be responsible for administering the 
provisions of S. 3335 within the Senate--agreed with this 
assessment, in a letter dated June 22, 2010, stating that the 
requirements of the bill were not beyond its technical 
capability as long as appropriate resources were provided to 
fulfill the bill's mandates. The letter read: ``Although this 
is a complex technical system with several broadly defined 
requirements, it is technically feasible to implement the 
requirements of S. 3335.''\11\ Since the letter was written, 
the Committee has revised the bill to eliminate several of the 
most complicated technical requirements referenced in the 
letter.
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    \11\Letter from Nancy Erickson, Secretary of the Senate, to the 
Honorable Robert F. Bennett, Ranking Member, Senate Committee on Rules 
and Administration regarding comments on S. 3335, June 22, 2010. This 
letter is available upon request at the Senate Committee on Homeland 
Security and Governmental Affairs.
---------------------------------------------------------------------------
    This view was also shared by the Sunlight Foundation, a 
non-profit organization dedicated to government transparency. 
In a letter dated July 26, 2010, the Sunlight Foundation 
discussed the absence of any technical barriers to implementing 
the bill, citing the organization's success in creating similar 
websites at a low cost.

          We understand that you are concerned that it may not 
        be technically feasible to satisfy the bill's 
        requirement to create a website that allows the public 
        to search and aggregate earmarks by any of more than 
        twenty data-points listed in the legislation, 
        especially data-points that include lengthy and non-
        standardized information such as justification for the 
        project and supplemental documents. In fact, it is 
        possible to aggregate calculations by values derived 
        from fields that include attachments or lengthy text 
        descriptions by sorting by phrases contained in those 
        fields. For example, a query for all the earmarks with 
        the phrase ``ethanol'', binned by congressman, is 
        certainly achievable. There are several free and open 
        source search engines for a variety of programming 
        languages that support this kind of free text search 
        and aggregation. Our Subsidyscope and Elena's Inbox 
        projects required searches to be performed on non-
        standard text fields in a manner similar to what would 
        be required by the Earmark Transparency Act. For those 
        projects, we had a choice of versatile, free software 
        options to perform the advanced query, filter and 
        aggregation operations we required. The software we 
        chose used a standards-based web interface that allowed 
        it to communicate with any programming language.\12\
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    \12\Full text of the Sunlight Foundation's letter can be found on 
its website at http://blog.sunlightfoundation.com/2010/07/28/baby-
steps-on-the-earmark-transparency-act/.
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                        III. LEGISLATIVE HISTORY

    On May 11, 2010, Senators Coburn, Gillibrand, McCain, 
Bennet, Ensign, Feingold, Corker and Udall (Colorado), 
introduced S. 3335, which was referred to the Senate Committee 
on Homeland Security and Governmental Affairs. The Committee 
considered the bill on July 28, 2010. The Committee adopted by 
voice vote a substitute amendment offered by Senators Coburn 
and McCain, and then ordered the bill favorably reported by a 
roll call vote of 11-5. The vote for the record only, including 
votes by proxy, was favorable by a vote of 12-5.
    Senators Lieberman, Carper, Landrieu, McCaskill, Kaufman, 
Collins, Coburn, Brown, McCain, Voinovich, and Ensign voted in 
favor of reporting the bill. Senators Levin, Akaka, Pryor, 
Tester, and Burris voted against reporting the bill. Senator 
Graham asked to be recorded in favor of the bill by proxy.
    Members present for the vote on the substitute amendment 
were Senators Lieberman, Levin, Akaka, Carper, Pryor, Landrieu, 
McCaskill, Tester, Burris, Kaufman, Collins, Coburn, Brown, 
McCain, Voinovich, and Ensign.
    The substitute amendment makes several changes to the 
original bill.
    First, the substitute expands the timeline available to the 
Secretary of the Senate for implementation of S. 3335, 
increasing the time from six months to 18 months after 
enactment. In addition, it would provide an additional six-
month extension to the Secretary to implement several highly 
technical provisions.
    Second, the substitute streamlines the number of data 
elements required to be disclosed for each earmark, reducing 
the number from 23 to 16.
    Third, the substitute clarifies the responsibilities of 
committees to provide data to the Office of the Secretary of 
the Senate for use on the website. It requires individual 
Members to provide 13 of the 16 data elements, leaving three 
elements for committee chairmen. This change responds to the 
criticism raised by some Members that the bill as introduced 
put too much of the burden for information collection on 
committees, when in fact much of the information resides with 
the individual Members making the earmark requests.
    Fourth, the substitute removes the word ``aggregate'' and 
replaces it with ``sort.'' This clarifies the intent of the 
legislation to require that the website allow users to sort 
information by any data element, eliminating confusion over the 
term ``aggregate.''
    Finally, the substitute provides for a source of funding by 
authorizing, at a Member's discretion, any Senate personnel 
office with a surplus budget allotment in his or her Official 
Personnel and Office Expense Account to transfer those funds to 
the Office of the Secretary of the Senate for use in 
implementing S. 3335.

                    IV. SECTION-BY-SECTION ANALYSIS

Section 1--Short title

    Section 1 establishes the short title of the Act as the 
``Earmark Transparency Act.''

Section 2--Definitions

    Section 2 defines the following key terms used throughout 
the bill.
    ``Earmark'' is any congressionally directed spending item, 
limited tax benefit or limited tariff benefit. This definition 
is identical to the definition used in current Senate Rule 
XLIV, paragraph 5, as established by P.L. 110-81, the Honest 
Leadership and Open Government Act.
    ``Request,'' is a formal request from a Member of Congress 
to a committee for an earmark, irrespective of the form in 
which the request is made or whether the request is actually 
granted.
    ``Requestor'' is a Member of Congress who submits a 
request. The Committee intends that, in cases in which the same 
earmark has more than one requestor, each Member's request will 
be treated as a separate request.
    ``Searchable website'' is a website that is fully 
searchable across the data elements required by section 3 and 
provides both simple and advanced search capabilities, as well 
as bulk access to earmark data. This means allowing anyone so 
interested to download all earmark data at once and permitting 
that data to be manipulated according to the various elements. 
The website would have the web address of earmarks.congress.gov 
and would be prominently displayed on the official websites of 
the Senate and the House of Representatives.

Section 3--Congressional earmark database

    As reported, section 3(a) requires the Secretary of the 
Senate, the Senate Sergeant at Arms, and the Clerk of the House 
to develop a single searchable website containing 16 data 
elements on each earmark, much of which is already provided 
under current disclosure arrangements. The database must be 
available to the public at no cost to access and will include 
the following information about each earmark:
          1. the fiscal year in which the earmark would be 
        funded;
          2. the bill number on which the request is made;
          3. the amount of the initial request made by 
        requestor;
          4. the amount approved by the committee to which the 
        request was made;
          5. the amount approved in final legislation (if 
        approved);
          6. the name of the federal department or agency 
        through which the entity will receive the funding;
          7. the name of the requestor or requestors;
          8. the requestor's State or District;
          9. the name of any beneficiary designated to receive 
        appropriations;
          10. the type of organization (public, private non-
        profit, or private for-profit entity);
          11. the address of any beneficiary;
          12. the project name;
          13. the project description;
          14. the justification explaining how the 
        congressionally directed spending item would benefit 
        taxpayers;
          15. the percentage of the project's total funding 
        derived from non-Federal sources; and
          16. a copy of all documents provided by the requestor 
        to a committee of Congress relevant to each request.
    Section 3(b) requires that the website include all 
information beginning with earmarks requested one year after 
the enactment of the Act.
    Section 3(c) further details search capability requirements 
of the website. Specifically, the website shall: provide a 
permanent and unique identification number for each request and 
for each requestor; provide that all search results return 
permanent web links; and include information from all relevant 
sources including bills, conference reports, amendments, 
manager's amendments, and committee reports. This final 
requirement should be construed to mean that all earmarks 
contained within any bill, conference report, amendment, 
manager's amendment or committee report should be reported on 
the website. It is not intended to mean that information 
related to an earmark, and required in the bill, should be 
collected from ``all relevant sources.''
    In addition to a unique identification number for each 
request, a unique identification number for each awarded 
earmark will almost certainly be necessary. Multiple earmark 
requests are often credited for a single earmark award, and 
earmark awards may differ from requests in terms of project 
name, project description, named entity receiving funding, and 
so on. A field added to each earmark request can indicate its 
relationship to any awarded earmark by the awarded earmark's 
number, and a field for each awarded earmark can indicate its 
relationship to the earmark requests that produced it, each by 
its number.
    The use of standard identifiers, such as for Members of 
Congress-requestors, beneficiaries, address information, and so 
on, is encouraged. Providing regularly updated bulk access to 
data in machine processable formats will maximize the 
accessibility of earmark information to the public and 
Congress.
    Section 3(d) also requires requests to be made available on 
the website no later than five days after submission by a 
requestor to a committee of Congress.
    Under section 3(e), the responsibility to provide the 
required information to the Secretary of the Senate and the 
Clerk of the House rests with the individual Member requesting 
the earmark, with the exception of the following information, 
which must be submitted by the chair of each committee to which 
a request is made: the amount approved by the committee, the 
amount approved in the final legislation (if any), and the name 
of the federal department or agency that will receive the 
funding.
    Section 3(f) provides, in general, that the Act shall be 
implemented not later than 18 months after the date of 
enactment of this Act. However, section 3 also allows for 
implementation of the search capabilities of the website 
required by section 3(c) not later than two years after the 
date of enactment. Section 3(f) also provides that any funds 
that remain unobligated or unspent at the end of fiscal year 
2010 or 2011 from the Official Personnel and Office Expense 
Account of any Senator who agrees to a transfer may be 
transferred from such account to the Secretary of the Senate 
for purposes of paying for the costs associated with the 
website established by this Act.

                  V. REGULATORY IMPACT AND EVALUATION

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. The 
Congressional Budget Office states that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandate Reform Act and would not affect the budgets of 
state, local, or tribal governments. The enactment of this 
legislation will not have significant regulatory impact.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                                 September 2, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3335, the Earmark 
Transparency Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 3335--Earmark Transparency Act

    S. 3335 would require the Clerk of the House and the 
Secretary of the Senate to create a Web site within 18 months 
that would include all Congressionally directed spending items, 
limited tax benefits, and limited tariff benefits. The 
legislation also would establish many uniform reporting 
requirements for this information, including the name of the 
beneficiary, the amount requested, and the amount approved in 
the final bill. Finally, the legislation would allow any 
Senator to transfer unspent funds from fiscal years 2010 and 
2011 from Official Personnel and Office Expense Accounts to the 
office of the Secretary of the Senate to pay for the cost of 
the Web site.
    Based on information from the House and Senate as well as 
the experiences of other agencies and the Office of Management 
and Budget in creating similar information systems, CBO 
estimates that this effort would cost $4 million over the 2011-
2015 period, assuming appropriation of the necessary amounts. 
Most of the initial costs would be for coordinating consistent 
procedures for collecting information by the House and the 
Senate. Additional personnel or contract support would be 
needed to process and verify information, respond to inquiries, 
resolve data errors, enhance system capabilities, and explain 
how to use the system. Enacting the bill would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    S. 3335 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      VII. CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the following changes in existing 
law made by the bill, as reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman).
    The bill does not repeal or amend any statute or part 
thereof.

                         VIII. ADDITIONAL VIEWS

             SENATOR CARL LEVIN AND SENATOR DANIEL K. AKAKA

    S. 3335, the Earmark Transparency Act proposes to create a 
single database and central website to provide information on 
congressional earmarks. While the intent of the act is laudable 
and transparency in government is a goal we should all share, 
the bill as written is far too complex and burdensome.
    The Bill requires that 16 data points be collected and made 
available on a publically accessible website in a searchable 
format. The Federal Funding Accountability and Transparency Act 
of 2006, on which this bill was modeled, required a database 
that only included five basic data points for each federal 
contract or grant. As a result of that act, the Office of 
Management and Budget created the usaspending.gov website. Even 
with just five required data points, there are serious 
questions as to the validity of information available on the 
website. According to a September 8, 2010 press release from 
the Sunlight Foundation, ``more than $1.3 trillion in federal 
reporting data from 2009 is broken.'' These inaccuracies 
represent 70% of the data reported that year.
    Currently, Senate Rule XLIV provides for the disclosure of 
each congressionally directed spending item, limited tax 
benefit, and limited tariff benefit on a publicly accessible 
congressional website in a searchable format. The Senate 
Appropriations Committee additionally requires that Senators 
post each request they make on their publically accessible 
websites. In a July 16th letter, the Chairman and Ranking 
Member of the Rules Committee wrote a joint letter to the 
Homeland Security and Governmental Affairs Committee suggesting 
that S. 3335 be modified to keep the data required ``to a 
workable set'' based on the disclosure requirements of the 
existing Senate rules. S. 3335 goes far beyond the existing 
disclosure requirements.
    Some of the disclosure items required by this bill would be 
particularly difficult to administer. In a July 27, 2010 
letter, the Secretary of the Senate indicated that ``it is not 
possible to meaningfully sum or aggregate non-numeric data or 
non-quantitative numeric data.'' While the bill has been 
revised to require that the public be able to ``sort'' these 
data elements, it is uncertain how this addresses the problem. 
The letter goes on to state that if the statute is enacted ``we 
would work with our oversight committees to interpret the 
requirement'' to mean something else entirely.
    One of the required items to be searchable under this bill 
are copies ``of all documents provided by the requestor to a 
committee of Congress relevant to each request.'' In the July 
27 letter, the Secretary of the Senate asserts that while ``any 
documents that do not exist in electronic format could be 
scanned,'' but then states that ``it does not appear possible 
that these documents would be fully searchable'' as required by 
the bill. Additionally, some of the documentation which would 
be required to be provided may contain sensitive information 
which is prohibited from public disclosure. The Secretary 
states that she has no role, expertise or capacity to screen 
out information which is prohibited from public disclosure.
    This legislation places a legal burden on the Secretary of 
the Senate, the Sergeant of Arms and the Clerk of the House to 
create a website without ensuring they have the resources 
necessary to do so. According to the CBO, the bill is estimated 
to cost $4 million between 2011 and 2015. The bill provides 
that it would be funded by ``any funds that remain unobligated 
or unspent at the end of fiscal year 2010 or 2011'' from the 
office expense accounts of Senators. As it is unknown how many 
Senators may have unobligated funds or may use them for this 
purpose. In fact, unobligated funds would not be available 
until 6 months after the database is supposed to be fully 
implemented.
    There are also a number of technical problems remaining in 
the language of the act. For example:
     The bill would require the disclosure of the bill 
number within 5 days of the time that the request is made. In 
the case of the National Defense Authorization Act, the bill 
number is not known until the bill is reported out of 
committee, some weeks or months after requests have been made.
     The bill would require the disclosure of the 
percentage of non-Federal funding for the project. The 
percentage of non-Federal funding depends on the amount of 
Federal funding, an amount that cannot be known until after 
Congress has acted on the funding request.
     The bill states that the system must include 
information from all relevant sources, including bills, 
conference reports, amendments, managers' amendments, and 
committee reports. However, it doesn't say who is responsible 
for providing such information.
    For these reasons we believe further revisions are needed 
for this bill. In the next Congress, the bill should be 
referred concurrently to the Committee on Homeland Security and 
Governmental Affairs as well as the Committee on Rules and 
Administration to ensure that these issues can be resolved 
before bringing this bill to the floor.
                                   Carl Levin.
                                   Daniel K. Akaka.

                                  
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