Legislative Branch Earmark— $200,000 for the Durham Museum in Omaha, Nebraska

The Legislative Branch Appropriations Bill provides $200,000 for the Durham Museum Photo Archive Project, located in Omaha, Nebraska.

The earmark was requested by the Chairman on the Senate Legislative Branch Appropriations Subcommittee and is the only earmark included in the legislation.

Specifically, the legislation provides $200,000 to the Durham Museum in Omaha, Nebraska through the Library of Congress’ salaries and expenses account, “for the purpose of preserving, digitizing and making available historically and culturally significant materials related to the development of Nebraska and the American West.”

According to the Committee Report, the earmark is for the “Durham Museum Photo Archive Project.”

According to its website, the Durham Museum Photo Archive Project “contains nearly 500,000 images that document the fascinating history of Omaha from its early days as a young frontier town to a unique and sophisticated city. Bustling urban scenes, grand architecture, tranquil views of parks, as well as images of Omaha’s notable personages and events are well preserved on film.”

The citizens of Omaha certainly have the right to fund this photo project with state and local resources, but providing federal funding for the Nebraska project is clearly outside the scope of the Legislative Branch Appropriations bill, which is intended to fund the daily operations of Congress located here in Washington, DC.

In 2007, the Durham Museum reported to the IRS that it had nearly $11 million ($10.917 million) in net assets at the end of the year. It is unclear why the federal government, which is currently facing an $11 trillion national debt and a $1.8 trillion deficit in 2009, would provide $200,000 for a photo project at a museum with millions of dollars in cash on hand.

Not only does an earmark for a local museum photo archive project not belong in this particular piece of legislation, but it also violates the Constitution of the United States and should not be funded by the federal government.

Article 1, Section 8 of the Constitution, known as the enumerated power clause, lists the specific law making powers granted to Congress. Nowhere in Article 1, Section 8 does it say that Congress has the power to provide money for a photo archive benefitting only a few select individuals in a particular region of the country.

Article 1, Section 9 of the Constitution grants Congress the power to appropriate federal money. Unfortunately, many proponents of directed federal dollars to state and local projects use this clause as a justification for any and all spending approved by Congress, and fail to consider other clauses of the Constitution that restrict Congress lawmaking prerogatives.

The Tenth Amendment of the Constitution clarifies even further, that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, this document, the Constitution, does not specifically give a power to Congress, then that power is reserved for the states or the people.

The Omaha earmark is unconstitutional according to Enumerated Powers as set out in Article I, Section 8.

Article I, Section 8 limits Congress’ power by listing a select number of powers in which Congress can act. Reviewing the enumerated powers in Article I, Section 8, there is no justification for this earmark.

The predominant view of the enumerated powers during and after the ratification of the Constitution was that spending could occur for the national general welfare as qualified and limited by the enumerated powers that followed in Article I, Section 8. Madison and Jefferson were the most notable proponents of this view.

Alexander Hamilton advanced the broader and less accepted view that the General Welfare Clause could stand independently as an authorization for congressional spending as long as the spending was for nationally applicable purposes, not for purposes with a purely local or regional benefit.

Whether the Senate accepts the Madison-Jeffersonian view or the Hamiltonian view, this earmark should not be adopted.

Madison, Veto message 1817---“To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.”