Associated Press
In this 2009 file photo, Sen. Mike Enzi, R-Wyo., the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, sits amongst copies of the health care reform bill and its amendments.

The biggest piece of legislation to come before the Congress this session is the transportation bill, dealing with infrastructure spending throughout the nation. The issue is a serious one — many of our bridges and highways are well past their design age and need repair or replacement — but Congress has repeatedly pushed it off, passing temporary extensions of old authorizations rather than tackle the challenge of crafting new ones.

Both houses have acted, but the differences between the Senate and House versions are significant. The bills are now before a conference committee, made up of members of both houses, that is trying to work out a final version that can be sent to the president for signature. As they prepare themselves to vote on the conference report, members in both parties are coming to realize the consequences of their earlier decision to ban all congressional "earmarks."

After the Jack Abramoff affair, when undisclosed earmarks played a role in a bribery scandal, the media portrayed such earmarks as nothing but congressional pork, needless projects added to spending bills by members seeking to impress folks back home with their ability to bring home the bacon. "Cut out earmarks and you will reduce federal spending by so much that you can balance the budget," some said. Attacking earmarks became good campaign rhetoric.

In fact, as the dictionary makes clear, "to earmark" does not mean "to add." It means "to designate or set aside." The top spending limit for a cabinet department is set by the budget resolution, and an earmark does not add to or raise that top number at all. A congressional earmark designates which programs should be funded within the limits of the overall budget. Absent such earmarks, the administration is free to spend the money on the projects it likes.

The transportation bill highlights the impact of this. Virtually every congressional district in the nation is in need of attention to its transportation infrastructure; members of Congress who want to make sure their own constituents are not ignored now realize that their decision to forego earmarks has left them powerless to do anything to help their constituents.

Politico, a newspaper that covers the Congress, puts it this way: " … lawmakers have handed over to the Obama administration the authority to make executive decisions on which projects to fund. Some lawmakers are left in a tough spot: publicly deriding the grant programs as 'administrative earmarks' at the same time they're privately lobbying for some of the money."

The article continues, "There's now a bubbling movement on both sides of the aisle to bring back earmarks. Rep. Michelle Bachmann, R-Mich., founder of the Tea Party Caucus, has said earmarks shouldn't count when they're for transportation projects. And just last week, the Transportation panel's top Democrat, Nick Rahall of West Virginia, made a public plea that Chairman John Mica, R-Fla., join him in writing a letter asking John Boehner to bring back earmarks."

That would benefit taxpayers, who need transparency in government. After Abramoff, the earmark process was amended to require a member to disclose which projects he or she supported, something that no one will know if a deal is struck over the phone between a powerful member and the White House.

It would also conform with the Constitution, which says that the power of the purse belongs to the Congress. Turning part of it over to the executive forfeits a constitutional birthright for a mess of campaign pottage, and undermines the doctrine of separation of power. Earmarks were abused, yes, but the system was fixed and they should be reinstated.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.