Earmarks--also known as Congressional-directed spending--have an infamous reputation that led to a moratorium on their use in 2011. Nearly a decade later, interest in lifting the earmark moratorium has grown in both parties. As a result, policymakers are discussing the potential for earmarks to return in the 117th Congress. This briefing will provide background on recent discussions about lifting the earmark moratorium, an overview of what earmarks are, and an outline relevant House and Senate rules.
This briefing includes:
Lifting the Earmark Moratorium for the 117th
House Democrats are reportedly preparing to reinstitute the use of earmarks in the House of Representatives for the 117th Congress. This follows growing, though by no means universal, interest in lifting the ban on earmarks. Most importantly, the new chairs of the House and Senate Appropriations panels, Rep. Rosa DeLauro (D-Ct) and Sen. Patrick Leahy (D-Vt), are supportive of bringing back earmarks.
The “earmark ban” was instituted in 2011 after Republicans won the majority in the House. The ban was not formally adopted in the House and Senate rules, rather it is established and enforced by the parties and congressional committees. As a result, no formal congressional action is necessary to lift the earmark ban.
According to Punchbowl news, Rep. Rosa DeLauro (D-Ct) and Sen. Patrick Leahy (D-Vt) are working on an agreement to bring back earmarks limited to state and local governments and nonprofits that carry out quasi-government functions. Members of Congress would reportedly not be able to request earmarks for for-profit institutions or entities that they have financial ties with. The details of each earmark would be disclosed and the total dollar amount of earmarks for each spending bill would be limited.
It is unclear whether House and Senate Republicans will request earmarks if they are brought back as part of the legislative process. Punchbowl news reports that Senate Minority Leader Mitch McConnell will defer to Senator Shelby (R-AL), the ranking member on the Senate Appropriations Committee, who has been supportive of bringing back earmarks. House Republicans have included an earmark moratorium in their conference rules since the 112th Congress. Therefore, they would have to proactively remove this rule in order to allow requests for earmarks by party members.
For more on recent discussions about lifting the moratorium on earmarks, check out these links:
What are Earmarks
Generally, earmarks provide the ability for Congress to direct an amount of funding toward a specific entity or geographic location within larger spending legislation. Examples of past earmarks range from the mundane (funding for specific construction projects in a congressional district, such as a museum) to the infamous. Historically, earmarks have often addressed issues of concern to particular Members. One example is the “bridge to nowhere”, when, in 2005, Rep. Don Young (R-AK) directed $223 million for the construction of a bridge between a small Alaskan town and an even smaller island that housed a local airport.
The original earmarks ban was the result of the increasing belief that earmarks incentivize excessive and wasteful spending, and increase the likelihood of corrupt behavior among public officials. A number of scandals crystallized this sentiment. For example, the Jack Abramoff scandal provided an explosive story of widespread corruption. A lobbyist, Abramoff was convicted of bribing public officials in exchange for earmarks and other favors for his clients. Representative Duke Cunningham (D-CA) was similarly convicted in a scandal involving earmarks. He was sentenced to more than eight years in prison for accepting bribes and extravagant gifts from lobbyists in exchange for earmarks and his vote on legislation.
Supporters of earmarks argue that the tool incentivises legislative cooperation and compromise, and reinstating them may ease some of the gridlock that has made bipartisan agreement more difficult. Senator Patrick Leahy (D-VT) has argued that reinstating earmarks may make it easier to pass appropriations legislation on schedule, a feet that has been difficult for Congress recently.
The House and Senate both codified formal definitions of what an earmark is in the 110th Congress. The chambers’ respective definitions have small differences, but are broadly similar.
In the House, an earmark is defined in Rule XXI, Clause 9 section (e) as:
“a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula driven or competitive award process.”
In the Senate, an earmark is defined in Rule XLIV, paragraph 5 as:
“a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process
Earmark Disclosure Requirements
While the earmark ban is not a house rule, the House and Senate did institute disclosure requirements in the 110th Congress for earmarks as part of the standing rules of both chambers.
House of Representatives
In the House, Rule XXI Clause 9(a) outlines transparency standards that require legislation to be accompanied by a list of congressional earmarks. Additionally, House Rule XXIII, Clause 17(a) requires a member who requests an earmark to provide a written statement that includes:
- “(1) the name of the Member, Delegate, or Resident Commissioner;
- “(2) in the case of a congressional earmark, the name and address of the intended recipient or, if there is no specifically intended recipient, the intended location of the activity;
- “(3) in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit, to the extent known to the Member, Delegate, or Resident Commissioner;
- “(4) the purpose of such congressional earmark or limited tax or tariff benefit; and
- “(5) a certification that the Member, Delegate, or Resident Commissioner or spouse has no financial interest in such congressional earmark or limited tax or tariff benefit.”
Committees also have a responsibility to determine if a spending provision is an earmark, and collect and preserve earmark requests. A list of earmarks and their sponsors must be included in committee reports or joint explanatory statements. Under Rule XXIII, earmark requests that are included in legislation must be maintained and open for public inspection.
In the Senate, Rule XLIV governs disclosure requirements for earmarks. Senate rules prohibit a vote on a motion unless the chair of a committee or the majority leader certifies that a list of all earmarks (including the name of each Senator who made the request) has been available on a publicly accessible congressional website in a searchable format at least 48 hours before such vote.
A Senator who requests an earmark must provide a written statement to the chairman and ranking member of the committee of jurisdiction that includes:
- “the name of the Senator;
- “in the case of a congressionally directed spending item, the name and location of the intended recipient or, if there is no specifically intended recipient, the intended location of the activity;
- “in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit, to the extent known to the Senator;
- “the purpose of such congressionally directed spending item or limited tax or tariff benefit; and
- “a certification that neither the Senator nor the Senator's immediate family has a pecuniary interest in the item, consistent with the requirements of paragraph 9.”
Similar to the House, Senate committee’s must determine if a spending provision is an earmark, and collect all earmark requests. In addition, Senate committees must certify that all requirements pertaining to earmarks have been fulfilled.
For more information on earmarks, check out these links: