For reporters, getting information about earmarks prior to 2007 generally involved asking Members or staff if they knew who had sought a particular provision in a bill. As key staff leave the Hill, they may take with them the only institutional memory about earmarks from a particular bill.
When Roll Call inquired in June about a 2005 earmark requested by Rep. John Murtha (D-Pa.), his office said only that no one there had any recollection of the language.
And Members are not required to maintain paperwork on old earmarks.
For most earmarks prior to 2007, the only public records are press releases or news accounts that were issued at the time, in which the Member claims credit for the earmark. Even those may be unreliable because a Member may publicly claim credit for an earmark that they had no role in obtaining from the Appropriations Committee.
Kyle Anderson, spokesman for the House Administration Committee, said in an
e-mail to Roll Call, There is no official policy or requirement for Members to save documents. The Clerk has advocated for standards and has proposed resources for supporting Members document archiving efforts, but there are no requirements that Members retain documents.
Elliot Berke, former counsel to then- Speaker Dennis Hastert (R-Ill.) and then-Majority Leader Tom DeLay (R-Texas) in their cases before the ethics panel, said Members literally own their own paper and can dispose of documents any way they please.
For the ethics committees pursuit of improprieties involving earmarks, this means that there is no central repository for old earmark request letters and that the only way to get information about an earmark is to ask the office that sponsored it or that is believed to have sponsored it what they recall about it or whether they have documentation that they will share.
The ethics panel also has the authority to subpoena Members or outside groups for documents related to the investigation, though that would likely be a last resort.
Berke said it is hard to imagine a Member refusing to cooperate with an ethics panel request for whatever documents are available, though it is also possible that Members could delay producing the document by placing a variety of nondisclosure requirements on any papers that they do provide.
The other issue that may complicate matters for the ethics panel is the fact that the Justice Department is already investigating PMA. The ethics committee has routinely declined to pursue investigations of matters that are part of an active criminal investigation by the DOJ, and it is not clear where the DOJ investigation and the ethics committee investigation might overlap.