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^' ACADEMIC EARMARKS—PART III Y 4. SCI 2: 103/174 Acadenic Earnarks-Papt 3> (Ho. 174)... HEARINGS BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OF REPRESENTATIVES U.S. ONE HUNDRED THIRD CONGRESS SECOND SESSION SEPTEMBER 21, 22; OCTOBER 6, 1994 [No. 174] Printed for the use of the Committee on Science, Space, and Technology ^^^Ut3^, ACADEMIC EARMARKS—PART III HEARINGS BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OP REPRESENTATIVES U.S. ONE HUNDRED THIRD CONGRESS SECOND SESSION SEPTEMBER 21, 22; OCTOBER 6, 1994 [No. 174] Printed for the use of the Committee on Science, Space, and Technology U.S. GOVERNMENT PRINTING OFFICE 85-087 WASHINGTON : 1995 ForsalebytheU.S.GovernmentPrintingOffice SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC 20402 ISBN 0-16-047303-9 COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY GEORGE E. BROWN, Jr., California, Chairman MARILYN LLOYD, Tennessee ROBERT S. WALKER, Pennsylvania* DAN GLICKMAN, Kansas F. JAMES SENSENBRENNER, Jr., HRAALRPOHLDM.L.HVALOLL,KMTEexRa,sMissouri SHWiEsRcoWnOsOinD L. BOEHLERT, New York DAVE McCURDY, Oklahoma TOM LEWIS, Florida TRIOMBEVRATLEGN.TTIONRER,ICNEorLtLhI,CaNroelwinJaersey HCAORNRSITSANW.CEFAAWEMLOLR,ELIlLUAno,isMaryland RICK BOUCHER, Virginia DANA ROHRABACHER, CaUfomia JAMES A TRAFICANT, Jr., Ohio STEVEN H. SCHIFF, New Mexico JAMES A. HAYES, Louisiana JOE BARTON, Texas JOHN S. TANNER, Tennessee DICK ZIMMER, New Jersey PETE GEREN, Texas SAM JOHNSON, Texas JIM BACCHUS, Florida KEN CALVERT, CaUfomia TIM ROEMER, Indiana MARTIN R. HOKE, Ohio RDIOCBKERSTWEET.T(,BUNDe)wCHRaAmMpsEhRi,reJR., Alabama NEIDCWKARSMDITRH,ROMiYcChEi,gaCnalifornia JAMES A. BARCIA Michigan ROD GRAMS, Minnesota HERBERT C. KLEIN, New Jersey JOHN LINDER, Georgia ERIC FINGERHUT, Ohio PETER BLUTE, Massachusetts PAUL McHALE, Pennsylvania JENNIFER DUNN, Washington JANE HARMAN, California BILL BAKER, CaUfomia DON JOHNSON, Georgia ROSCOE G. BARTLETT, Maryland SAM COPPERSMITH, Arizona VERNON J. EHLERS, Michigan ANNA G. ESCHOO, California JAY INSLEE, Washington EDDIE BERNICE JOHNSON, Texas DAVID MINGE, Minnesota NATHAN DEAL, Georgia ROBERT C. SCOTT, Virginia XAVIER BECERRA, California PETERW. BARCA, Wisconsin BOBBY L. RUSH, IlUnois Robert E. Palmer, ChiefofStaff Michael Rodemeyer, ChiefCounsel Kathryn Holmes,Administrator David D. Clement, Republican ChiefofStaff *RankingRepubUcanMember. (a) CONTENTS WITNESSES Page September21, 1994: Martha A. Krebs, Ph.D., Director of Energy Research, U.S. Department ofEnergy, Washington, DC; M.R.C. Greenwood, Ph.D., Associate Direc- tor for Science, Office of Science and Technology Policy, Washington, DC; and Jonatiian Z. Cannon, Assistant Administrator, Office of Ad- ministration and Resource Management, Environmental Protection Agency, Washington, DC, accompanied by Robert J. Huggett, Ph.D., AssistantAdministrator, Office ofResearch and Development 9 William Ihlanfeldt, Ph.D., vice president for institutional relations and chairman of Research Park, Inc., Northwestern University, Evanston, IL; Joseph D. Bloom, Ph.D., dean. School of Medicine, Oregon Health Sciences University, Portland, OR; Carol A. Aschenbrener, Ph.D., chan- cellor, UniversityofNebraska Medical Center, LincolnNE 78 APPENDDC A Item 1. Letter from Department ofEnergy requesting changes to Dr. Martha Krebstestimony 125 Item 2. Additional information requested for the record from Dr. Martha Krebs: (a) Law containing authority to fund research facilities, laboratories, etc. atuniversities 129 (b) Copies of proposed earmark rescissions submitted to Congress for FY 1987 130 (c) Reasoning for diverting congressionally approved funds for earmarks included in report language, without a formal reprogramming re- quest 138 Item 3. Listof1994 DOE Earmarks 141 Item 4. Oregon Health SciencesUniversity 1994 Earmark Budget 144 Item 5. Letter from Environmental Protection Agency, Mr. Robert W. Hickmott for Mr. Jonathan Cannon, along with requested changes to his testimony and additional informationrequested forpage 38 oftherecord .... 156 Item 6. Letter from Dr. William Ihlanfeldt, Northwestern University, re- questingchangestohistestimony 169 Item 7. Responses to additional questions submitted to Dr. Ihlanfeldt for therecord 188 September22, 1994: John R. Silber, Ph.D., president, Boston University, Boston MA; Sister Mary Reap, president, Marywood College, Scranton, PA; Billy C. Cov- ington, Ph.D., associate vice president for research and sponsored programs, Sam Houston State University, Huntsville, TX; R. Scott Beasley, Ph.D., dean, College of Forestry, Stephen F. Austin State University, Nacogdoches,TX 220 APPENDIX B Item 1. Chairman Brown's August 9, 1993 Interim Report on Academic Ear- marks 301 Item 2. Letterfrom Dr. John Silber, Boston University, alongwith requested changes tohis testimony 344 Item 3. Responses to additional questions (with attachments) submitted to Dr.John Silberfortherecord 359 (lU) IV Page Item 4. BostonUniversityDocuments 593 Item 5. Letter from Sister Mary Reap, Marywood College, requesting changestohertestimony 533 Item 6. Letter from Dr. Billy C. Covington, Sam Houston State University^ alongwith requestedchangestohis testimony 684 [ October6, 1994: Hon. John Deutch, Deputy Secretary of Defense, U.S. Department of Defense, Washington, DC, accompanied by Anita Jones, Director, De- fense Research andEngineering 695 Joseph F. Vivona, Chief Financial Officer, U.S. Department of Energy^ Washington, DC, accompanied by Elizabeth E. Smedley, Controller, OfficeofChiefFinancial Officer 735 APPENDIX C IItteemm 21.. TIrnafnosrcmraitpitonedpirtosvriedqeudefsotredthbeyrtehceorDdebpyartthmeeDnetpaofrtDmeefenntsoefDefense .... 774559 Item 3. Transcript edits and information requested by the Department of Energy 809 ACADEMIC EARMARKS—PART IH WEDNESDAY, SEPTEMBER 21, 1994 House of Representatives, Committee on Science, Space, and Technology, Washington, DC. The committee met, pursuant to call, at 10:45 a.m. in room 2318, Rayburn House Office Building, Hon. George E. Brown, Jr. (chairman ofthe committee) presiding. The Chairman. The committee will come to order. I'm going to ask unanimous consent that today's hearing be open to coverage by print and broadcast media, including still and video photography. Hearing no objection, that will be the order. There is a note in front ofeach member, at least up at this stage, as to the existence of C-Span microphones attached to the regular mics, and I hope that all the members will read that. It will help them to avoid incautious remarks they might otherwise make. I have an opening statement, which I usually don't read, but because ofthe situation this morning in which a number ofmembers are engaged in other meetings and will be here shortly, I am going to take up a little time by reading my opening statement. I hope you'll all forgive me. Today's hearing marks the third in a series on academic earmarks. This committee has a longstanding interest in this issue based on our concern that the increased reliance on earmarking to distribute Federal funds to our Nation's colleges and universities will undermine legally established programs of peer and merit review. Further, relying on earmarks to distribute Federal research dollars means that those dollars are awarded not on the basis of merit, not on the basis of need, but on the basis of political muscle and personal relations. I might interject that ofcourse many Members of Congress think this is the best way to allocate money, but we do have some dispute over that. Finally, as witnesses this morning will attest, earmarks play havoc with priority setting at Federal agencies and crowd out other researchers who lose their funding or lose the opportunity to pursue funding because ofthe earmarks. As most of you know, my objections to such earmarks rests on the process by which the money is allocated rather than on the merits of a particular project. Whether those merits are judged to be outside the scope of a funding agency or when evaluations of projects are critical and yet the funds are awarded anyway, I may (1) be more inclined to ask hard questions about why an agency is pro- viding such funds. During the last year members of this committee have worked with me to try to put a lid on academic earmarks. We've seen some progress. Overall, academic earmarks appear to be down from al- most $800 million in fiscal year 1993 to approximately 600 million in fiscal year 1994. We have also lost some ground, as last week's vote on earmarks in the VA-HUD appropriations bill demonstrates. Those earmarks included $68 million that was set aside for academic institutions. Soon the House will take up consideration of the Defense Appro- priations conference report. In recent years, the Defense Appropria- tion has had the lion's share ofall academic earmarks. In fiscal year 1993, academic earmarks at Defense accounted for approximately one-third of all earmarks at $275 million. In fiscal year 1994 academic earmarks at Defense accounted for approximately 45 percent ofall earmarks at $281 milHon. Even as Congress closes out this session with a rush to move out appropriation bills, executive agencies will be reviewing those bills and the accompanying reports for earmarks. As many of you are aware, I have been attempting to get the attention of executive agencies on a crucial point, that point being that report language earmarks are advisory in nature, they are not the law of the land, they do not represent the intent of Congress, and you do not have to fund every suggestion that comes out of a closed-door conference meeting. Samuel Johnson noted that when a man knows he is to be hanged in a fortnight it concentrates his mind wonderfully. I hope that this hearing will provide an opportunity for our agencies to pay more heed to this issue. For all these reasons, this hearing and the testimony we will re- ceive today and tomorrow is coming at a very important time. I an- ticipate hearing three arguments this morning: that agencies are merely doing what Congress tells them to do; that earmarks are a way of leveling the playing field so that have-not schools get their share of funds; and that Congress, in reality, members of the Ap- propriations Committee, has as much right to specify how funds are spent as does some bureaucrat in an office on the other end of Pennsylvania Avenue. The first argument is accurate as it applies to legislative earmarks. When an earmark is included in a bill that is subject to de- bate, amendment and approval by both houses of Congress and signed into law by the President, then yes. Congress is telling an agency how to spend its funds. However, when a subcommittee writes a report to accompany a bill or when conferees come back from conference with report language, that language is not in any way, shape or form an expres- sion of congressional intent. Such language is purely advisory in nature and represents the views of the handful of members who were party to the conference. This interpretation of the status of report language is not mine alone. The principle has recently been reiterated by the Supreme Court in Lincoln v. Vigil and American Hospital Association v. NLRB. Judge, now Justice, Scalia, succinctly stated the rule as fol- lows, and I quote: The issue here is not how Congress expected orintended the Secretary to behave, but how it required him to behave through the only means it can, the only means it can require anything, through the enactment oflegislation. I understand the de- sire of agencies to maintain good relations with Congress, both appropriators and authorizers. However, this cannot be done at the expense ofsound administration ofpublic fiinds. Yet that isjust what is being sacrificed when an agency that has no mandate or interest in, say, a hospital beside that it will provide millions of dollars for such a project on the say-so of a handful of members. The second argument that peer review is the revenge of the have-not schools hinges on a mix offictions. The first fiction is that peer review is nothing but an "old boy" network that guarantees that the rich will stay—rich and the poor will stay down. As the GAO report review ofpeer review demonstrates, peer review panels at NSF are disproportionately composed of scholars who are not from elite institutions. While that review of peer review raise good questions about the process, it disconfirms the old saw that the Harvards and Stanfords of the world sit down every year to decide how to carve up the pie. The second fiction in this second argument is that earmarks are done to make sure that have-not schools get their fair share ofFed- eral support. Among the have-not schools that have been singled out for earmarks in recent years are the University of California at Berkeley, Harvard, M.I.T., the University of Michigan, Penn- sylvania State, the University of Pittsburgh, Johns Hopkins, and the University of Washington. These schools all rank among the top 20 in total Federal support for research and development. These are hardly have-not schools, but once the dam on earmarking is broken down and the money is flowing, pretty soon everyone is tempted to dip their bucket into the stream. The final fiction is that earmarking is the only way to redress unfairness in the distribution ofFederal research dollars. The process of earmarking relies on an Appropriation Committee patron in the House or Senate to make an earmark for a school. Without that an earmark will not be made. This highlights the tenuous nature of earmarking as a funding source. Ifone's patron dies or retires or is defeated, one's cash flow is likely to slow to a trickle or even dry up. Any system of equity that depends on an individual will fail. To systematically redress imbalances in Federal funding, we need systematic programs that will allocate dollars fairly. That is what the EPSCOR program is about. That is what the special programs which have been authorized to support institutions serving historically disadvantaged populations are about. Equity and fairness is a matter for law, not for closed-door deal- making and political favoritism. These half truths that peer review is unfair, that earmarks go to have-not schools, and that earmarks provide a fairer way to redress unfairness become the cloak behind which a powerful set of members make some pretty strange rec- ommendations about how Federal tax dollars should be spent. The final argument we are likely to hear is that Congress is sim- ply exercising its prerogative to direct spending by the executive branch, and that members of the Appropriations Committee has as much right or more as any civil servant to make funding decisions. I accept this argument so far as Congress acts to direct that spending by including particular authorized projects in appropriations bills. I do not believe this claim can hold when it comes to report language directing expenditures for unauthorized programs. In the case of earmarks actually included in bills, and these are very rare, obviously the Constitution grants Congress power over executive expenditures. However, I do not believe that the drafters ofthe Constitution expected Members to use that as theirjustifica- tion for parochial spending in their home States and district. In fact, Hamilton specifically condemned such spending in his report on manufacturers in which he wrote, and I quote Hamilton at length: It is therefore ofnecessity left to the discretion ofthe national legislature to pro- nounceuponthe objects whichconcern the general welfare and forwhichunderthat description an appropriation ofmoney is requisite and proper, and there seems to be no room for a doubt that whatever concerns the general interests oflearning, of agriculture, ofmanufacturers and ofcommerce are within the sphere ofthe national councils as far as regards an application ofmoney. The only qualification ofthegen- erality ofthe phrase in question, which seems to be admissible, is this: that the ob- ject to which an appropriation of money is to be made be general, and not local; its operation extending in fact orby possibility throughout the Union, and notbeing confined to a particular spot. Of course, appropriations confined to a particular spot is what distinguishes earmarks. Every recipient of an earmark is going to swear up and down that their project does have national importance. But the truth is that if a project is that important, if the need for the research is that pressing, the project should be able to compete and win its fair share of research dollars which are made available to executive agencies to meet real national needs. Further, if it is a truly national need there should be an authorization which represents congressional recognition ofthat need. I'm going to shorten this a little bit, if I may. And I do expect that over the next few years more of my colleagues will join me in working to reduce academic earmarking. I also expect the executive departments to be held accountable for their funding decisions, and that is why we have invited some ofthem to be here this morning. Some of my friends in the executive branch say earmarking is a congressional problem that needs to be solved in-house. I agree in part, and I will continue to pursue the kinds of reforms that will bring this under control. But regardless of the fate of those reforms, executive agencies are not offthe hook for how they manage Federal dollars. I welcome our witnesses this morning and thank them forjoining us. Before recognizing our first panel, I would like to recognize the distinguished gentleman from Wisconsin, the ranking member present, for any remarks he may have. . Mr. Sensenbrenner. Today, the gentleman from Wisconsin is a man offew words, and I yield back the balance ofmy time.