Since 2010 Congress has banned the use of earmarks. For a long time, the generally accepted public opinion was that earmarks were instruments that led to increases in Federal spending and a misuse of taxpayers’ money. Various Members of Congress and advocacy organizations highlighted the negative effects of using earmarks, accusing them of practically being the sole reason for government waste, deceptive politics and the increase in the national debt. In the eyes of the general public, earmarks became a tool for Members’ reelection who used earmarks “to buy” votes regardless of the viability of a project or the true necessity of a program. As a Member of Congress, John Boehner had never pursued or accepted an earmark for his district – and when he became the Speaker of the House in 2011, he led an effort to ban them altogether.
However, when considering ways to reform the congressional budget process, the idea of restoring a reformed earmarks process is mentioned frequently. As a matter of fact, during a House Rules subcommittee hearing about changes to the Rules of the House for the 115th Congress that took place on September 14th, Members from both parties agreed that restoring earmarks would be beneficial as long as they are properly vetted. Members spoke about the necessity of earmarks, as they can be tools used for the benefit of communities, responding directly to their needs.
The case for restoring earmarks should only be considered in the context of overall budget reform. Prior to the ban instituted in 2011, the excessive use of earmarks was more a symptom of a broken budget process where Congress passed appropriation bills without having first passed corresponding authorizations bills, which set policy and recommend funding levels. In effect, earmarks became an ad hoc, every-man-for-himself substitute for the authorization process that resulted in haphazard policy making. Consequently, earmark reform must be considered as part of the overall reform of the authorization and appropriation process.
There are four facts to consider when talking about earmarks. The first one is that, while earmarks have been used, there has not been a general definition of the term agreed by parties involved into the appropriation process. Often times, the practice of earmarking related to procedures that would fund a specified program, activity, institution or location, was dependent on the appropriation bill being considered. The Office of Management and Budget (OMB) defined earmarks simply as the request of funds for activities, projects or institutions, which Congress had approved despite it not being requested by the Administration – in other words, anything the President did not request is automatically considered an earmark. Ambiguous legislative language in the definition of earmarks was underlined in different Congressional Research Service (CRS) reports. A CRS memo analyzing the earmark process from 1994 – 2005 has an entire section dedicated to the explanation of what an earmark could be. Sometimes some language can be considered an earmark in one case but not in other. For instance, in an effort to confuse everyone, the CRS determined: “Funding ceilings, using terms such as ‘up to’ a specified amount, can be considered in some cases, depending on the context, as an earmark, and in other cases as a limitation.”
Additionally, the net dollar value of earmarks cannot be easily determined because it depends on which definition of earmarks is being used. The rhetoric against earmarks focused on the alarming increase of the public spending and the national debt for targeted projects, but there was no clear evidence that they represented a particularly high percentage of the growing Federal budget deficit. As Representative Tom Rooney (FL) expressed during the House Rules subcommittee hearing from September 14th, the increase in public spending is “a myth”. As a side note, the Representative mentioned, “when we had earmarks, my constituents were glad to see me when I went home”.
Regardless of the Administration’s definition, both Congress and the Administration have used earmarks to propose funding various projects. In Congress, the large majority of earmarks adopted came from both Chambers’ Appropriations Committees and were introduced separately in each Chamber in the committee-approved appropriation bill, prior to the Floor debate.[1]
A second fact to consider is the earmark disclosure rules used by both Chambers of Congress[2] prior to the ban (the rules, though unused, remain in place). An important note is that all of the rules considered are related to the outcome of the 2007 earmark reform. The House of Representatives led the efforts to make Congress Members more accountable in their earmark requests by imposing a number of requirements related to transparency. The Senate rules were amended by a section of the Honest Leadership and Open Government Act of 2007 and adopted rules similar to the House. Despite all of these new transparency requirements, there were still question marks about the efficacy of earmarks under these rules. When President George W. Bush signed the Honest Leadership and Open Government Act of 2007 into law, he praised Congress for taking further steps to ensure high ethical standards by reforming the earmark procedures to provide for more transparency and accountability. And yet, he also pointed to the bill falling:
far short of the reform that American taxpayers deserve. I am concerned that there are potential loopholes in some of the earmark reforms included in this bill that would allow earmarks to escape sufficient scrutiny. This legislation also does not address other earmark reforms I have called on Congress to implement, such as ending the practice of putting earmarks in report language.
These elements of ambiguity in the language of the rules and practices created the loopholes that led to, in certain occasions, abusive behavior.
The idea governing the disclosure rule was to require Members to clearly and publicly take responsibility for the earmarks they wanted Congress to consider. Provided with this information, constituents could then make their own determination of whether a project was in the State’s or District’s best interest.
For the disclosure requirement to be fulfilled, it was acceptable for a Member to introduce just a disclosure statement or joint statement that would accompany an appropriation bill’s committee report (all bills passed by a committee are accompanied by a committee report that explains the bill and includes various background material related to the bill). The disclosure requirements in both House and Senate required the name of the Member; the name and address of the intended recipient; in the case of a limited tax or tariff benefit, the individual or entities anticipated to benefit; the purpose of the earmark; and a certification that neither the Member nor the immediate family has a financial interest in the earmark.
The earmarks disclosure rules in the House apply to “any congressional earmark, limited tax benefit, or limited tariff benefit included in either the text of a bill or any report accompanying the measure, including a conference report and joint explanatory statement.” The House applied these rules to any earmark, regardless of them being part of an appropriation, authorizing legislation, tax measures, incorporated in committee reports or conference reports. To satisfy the rule of earmark disclosure, a Committee would publish a table of the earmarks requested in the Committee report.
In addition, the House Republicans created a voluntary process for earmark disclosure that would go above and beyond the rules required. The Congressional Record provides clear examples of Republican earmark disclosures. The full text of this kind of earmark disclosure prior to a Floor debate can be checked here. In this particular case, one can see how Representative Steve King of Iowa, presented the factual data with respect to his request of different earmarks. The opening statement starts with the link between the requested funds, the beneficiary and the justification for the federal spending. In addition, the disclosure statement points out to where the earmark can be found in the bill.
The House of Representatives defined the terms of congressional earmark, limited tax benefit, and limited tariff benefit in Rule XXI, clause 9. Under the same rule, the House implemented provisions aimed at limiting the use of earmarks.[3] A very interesting fact was that the House under Rule XXI, clause 9(a) and (c) provided for points of order against waivers introduced by the Rules Committee that would have removed the compliance with the disclosure requirements. This is because the House frequently gets around its own rules by having the Rules Committee waive any points of order against a bill in the special resolution it passes to determine the procedures for considering a bill on the Floor. This provision against waiving the disclosure requirement was Congress’ way of preventing itself from cheating.
The Senate rules stipulated that the responsibility “for providing specific written information, such as the purpose and recipient of the earmark, to the committee of jurisdiction” rested solely on the Senator who requested an earmark to be included in legislation. [4] Identical to the House’s rules provisions, the Senate’s earmark congressional disclosure requirements were widely applicable to any kind of legislation or reports. Under Rule XLIV, paragraph 5, the definitions of congressionally directed spending item, limited tax benefit, and limited tariff benefit were provided. The Senate also used the term “congressionally directed spending item” in place of earmark. Similar to the House’s rules, Senate rules attempted to limit the use of earmarks by Senators to avoid non-compliance with the purpose of the earmark, which was to prioritize existing spending, not increase it. However, if a Senator believed an earmark did not comply he could raise a point of order which required 60 votes to overcome. (Rule XLIV, clauses 8(c), 9 and 10)
Similar to the House, the Senate tried to enhance transparency regarding earmarks by requiring the content and extensive explanations on the implications of the earmark to be posted on a “publicly accessible congressional website in a searchable format”(Rule XLIV, clause 2(a)(2)). In the case of a general bill, the information related to an earmark request, had to be available 48 hours prior to the vote. However, earmarks could have been introduced via amendments offered on the Floor. In that situation, clause 4 of the same rule instructed the Senator to provide the information publicly “as soon as practicable”.
This rule’s weakness rested in vague instructions on how the information was to become publicly available in the case of an amendment, and it did not specify a concrete time frame for the disclosure to be made. In the case of a general bill or joint resolution, the Majority Leader or Committee Chairman had to certify that disclosures had been made public 48 hours prior the vote, but for amendments that Senators brought to the Floor, there wasn’t a strict timeframe for disclosure. The weaknesses in the rule arguably allowed for reasonable people to suspect that some earmarks were being used to steer public money towards projects that were hidden from the public eye.
The third thing to consider is that although earmarks have been effectively banned, they have not been repealed from the standing rules of the House and Senate. Earmarks have been banned by the rules within the different party caucuses – not the rules governing the procedure of either Chamber. After the 2010 election both the Senate and House Republican Conferences adopted rules that banned the use of earmarks. As the Republicans had retaken the majority in the House, a resolution banning earmarks was offered in the House Republican Conference, and promoted by the new Speaker John Boehner as the fulfillment of a campaign promise. The Senate Republicans adopted their policy while still in the minority, so it was essentially a symbolic gesture (since they would not be in the majority again until 2015). In 2011, the Majority Senate Democrats, agreed to ban earmarks after the House banned them and President Obama issued a statement opposing the use of earmarks.
In effect, when it comes to things like the earmark ban, party conference rules are more a statement of policy regarding how party members will handle certain provisions. They are not enforceable on the Floor of either Chamber, although congressional leaders may command adherence to them by sanctioning Members who violate Conference rules. In this case, when House Appropriations Committee subcommittee chairmen send letters requesting Member views on what should be included in spending bills, they note, “Earmarks, as defined by…the Rules of the House, will not be considered.”
Since both the earmark ban and the provisions in standing rules of both Chambers regulating earmarks remain in effect, there has been no limit to the creativity used by some Members to get funding for local projects approved while not calling them earmarks. The practice of inserting earmarks into legislation has in many cases been reinvented, circumventing the promise of never using them. So-called “zombie earmarks”, “lettermarks” or “phonemarks” are just a few of the examples of ways the party caucus rules have been abused since the “ban” went into effect. This has created unintended consequences: Before the ban, earmarks could be closely scrutinized because there was a mechanism of transparency in place – the disclosure rules – that provided a way to check what kind of project was initiated, continued or developed. Now, things are less clear, because these more creative earmarks do not go through any disclosure process, making those new forms of earmarks less transparent than before the ban. For instance, if an agency requests an earmark, or a Member makes phone calls or sends letters advising executive officials to request funding for certain projects in certain states or districts it is not considered an earmark under the current practice. Since theoretically earmarks are banned, there are no rules applied to the new practices. A good example of a “zombie earmark” that caught the attention of the press is the project Starbase. A personal favorite of the former Senator and Armed Services Committee Chairman Carl Levin, a Democrat from Michigan, since 1992, this earmark has funded a program for fifth-graders to learn about technology and science on military bases. According to Politico, this project rose to an annual cost of $25 million a year. Although the Senator retired in 2015, the program continues despite the earmark ban. Senator John McCain of Arizona expressed clear criticism of this earmark, saying: “We should leave the education of our children to our teachers and parents and not our military. (…) With a war going on and budget crisis at our doorstep, this is how we elect to spend our increasingly scarce defense dollars?”
The danger in the current practice is that control and actual oversight of “pork barrel spending” is almost impossible to do since there is no disclosure system being used. Before the ban imposed by the party conferences, different watchdog groups such as Ending Spending or Taxpayers for Common Sense provided long sets of data for any citizen to research. But their activity stopped in 2011, once the ban was in effect. With the current practice, the earmark process is more difficult to monitor, as de jure they do not exist.
A fourth element that needs proper consideration is the magnitude of earmarks as percentage of Federal spending and their implication for increasing the national debt and propelling wasteful spending. As pointed out earlier, the vague language governing the rules made the assessment of the actual value of earmarks difficult and time consuming. There is, however, a common understanding that earmarks did not represent a significant percentage out of the Federal spending. As an overall percentage of spending from recent Federal budgets, earmarks typically represented approximately 1-2 percent of the discretionary budget and less than 1 percent of the overall budget. The fiscal implications are relatively minuscule, but again, earmarks were highly visible appropriations (after all, most Members sent out press releases when they won earmarks) that people could associate with the idea of wasteful spending. Unfortunately, the two concepts overlapped and the ban on earmarks might actually be resulting in higher levels of wasteful spending, since under the current practice it is difficult to determine the fiscal impact of the new wave of creative earmarks.
What seems to be left out of any discussion about the use of earmarks is their initial role in the budget process. In both Chambers of Congress, the role of earmarks was traditionally intended as a way of prioritizing spending based on the Member’s knowledge of a district or state and their immediate concerns. It was thought that a Member elected by a district would have a much better understanding of local priorities than the bureaucracy in some Cabinet department or agency located in Washington, D.C. The initial role of an earmark was not to increase spending, but to prioritize already-authorized spending, based on a Member’s knowledge. To exemplify this statement consider Senate’s Rule XLIV clause 8(c), as it provided the ability to raise points of order if the earmark resulted in new direct spending. Put differently, the rule revealed two fundamental aspects. The first one was the concept of a budget process based on prior authorization and then the appropriation of prioritized projects. The second one was that earmarks were not meant to increase spending, only prioritize it. The rule foresaw that the instrument could become a tool for increasing the public spending to grant more support for an elected official, and guarded against it.
So, where did things go wrong? Why did the earmark process become so demonized by the general public and by analysts, so in the end it was dropped altogether? And when it was dropped did it actually produce the anticipated outcomes of lowering public spending and controlling wasteful spending? To answer these questions one must look at the root cause of the problem: the broken budget process.
It has been obvious for decades that the Federal budget process has been dysfunctional. Needless to say, all sides involved in the budget process have been playing the blame game, yet, the end result year after year still seems to remain constant: a mutation from the normal authorization and appropriation stand-alone bills to the mega constructs of omnibus appropriation bills (appropriation bills that combine multiple appropriation bills into one giant bill) and its latest iteration, the cromnibus (a combination of a continuing resolution and an omnibus appropriation bill). Members of Congress, the President and his cabinet have sought to ascribe blame or come up with a reason why it isn’t working, but all parties acknowledge that the budget process as established by law (mainly the Budget Act of 1974 with its subsequent amendments) is broken beyond repair even as the size and complexity of the government has grown and made Congress oversight of the Executive became more challenging to apply.
Over the last two decades, the budget process has shifted away from the intended sequence of procedures. Appropriation bills are often passed in the absence of authorization bills, deadlines routinely missed, and government shutdowns usually averted by continuing resolutions and omnibus appropriation bills. The more the process mutates from what was intended, the more likely the public’s fear of unaccountable and wasteful spending of tax dollars and ever-higher borrowing to finance the annual deficit becomes a reality. It is difficult to deny this fear and overlook its consequences. In fact, in a 2016 survey done on behalf of the Congressional Institute, the number one concern of citizens is a “lack of accountability” and the second greatest concern was “the way Congress spends my money.”
Within the budget process, earmarks, like other legislative tools, were instruments for funding different activities, programs, etc. But like the rest of the breakdown in the budget process, earmarks were also abused. This mostly happened because many of the authorization bills that would normally direct specific projects and would allow for the Government to enter into contracts and other obligations stopped being passed. Lawmakers, seeking to protect the interests of their districts, started using earmarks on appropriation bills to secure funding for important local projects. This did not happen overnight, but factually speaking, Congress has not passed its 12 stand-alone appropriation bills since 1994, and it has not passed all of its required authorization bills since the late 20th century.
Due to the shift in budget practice, appropriators became more than happy to take advantage of the breakdown of the authorization process. Putting specific Members’ requests in their appropriation bills was a way to ensure strong bipartisan support for passage of their bills. Congress’ vague wording in the rules for earmarks allowed for its unintended use by appropriators. However, the use of earmarks in appropriation bills became the de facto authorization process even though the formal rules of the House prohibit both the appropriation of money for a non-authorized program and legislating specific projects on an appropriation bill. A series of high profile, if dubious, spending amendments raised public awareness and opposition to earmarks as pork barrel projects designed to help reelect Members at the expense of the general interests of the nation. The snowball effect became even clearer with the breaking news stories of the Abramoff scandal. But, this was the complete embodiment of an abusive behavior. Using a budget tool to enact a project for which a Member was bribed is a criminal and ethical problem, not one of the budget procedure. In this case, it is not the earmark that needed to be sanctioned but the human behavior.
A famous example of a perfectly legal, but excessive, earmark was known as the Bridge to Nowhere. It was a highly inefficient one that spent a disproportionate amount of Federal money that benefited only a handful of people. This earmark, promoted by the Alaska delegation in 2005, would have appropriated nearly $400 million dollars to replace a ferry service and build a bridge to Gravina Island, which had a population of only 50 people. Of course, in fairness to the Alaska delegation, the opponents of this earmark did not point out that the second-largest airport in southeastern Alaska, serving 200,000 people per year, was on Gravina Island, and that the bridge had to be built high enough over the Tongass Narrows so as to not interfere with commercial shipping traffic. Still, the image of spending $8 million per person to build a bridge made for an attractive target and campaign issue for those seeking to highlight wasteful government spending, and led to a rare vote by the House to remove the earmark from an appropriation bill.
Inefficient and wasteful spending like this left Congress open to charges of “logrolling” – another old political term for Members doing favors for other Members in exchange for their support for their own projects. In fact, one of the main arguments made by Senator Ted Stevens and Congressman Don Young was that their colleagues should support their earmark, because they had always supported everyone else’s earmarks. The negative implication of Members looking out for their own interests was the disregard for the impact earmarks were having on the overall budget. If all Members ignored the overall spending implications of earmarks without consideration of their effect on the overall budget deficit, obviously things could get out of hand. But it cannot be stressed enough that these are just examples of abuse and they should be acknowledged as such, without generalizing to the idea that all earmarks are inefficient or lead to increased and wasteful spending.
There is a Catch-22 when considering public opposition to the earmarks process. Earmarks became a visible part of the budget as a consequence of the dysfunctional budget process explained earlier. The struggle for power in Congress made good use of the earmarks and the vague language governing them. The seemingly perverse effect of creating policies and implementing them based on the needs of single Members at least ensured appropriation bills passed on time, because as long as Members had earmarks in the bill, they were expected to support the overall appropriation bill on the House Floor, either as a stand-alone bill or an omnibus. Obviously, if the appropriation bill that included a Member’s project didn’t pass, the earmark remained unfunded, so there was a bipartisan incentive for passage. If the root of the problem leading to the abuse of the earmark process is acknowledged, it is hard to blame earmarks for all the negative spillover effects of the dysfunctional budget process. The excessive use of earmarks was caused by the breakdown in the authorization process, where individual Member requests were normally considered and debated. If the budget process had worked in practice, maintaining the clear balance between authorizations and appropriations, it is not likely that the traditional use of earmarks would have become distorted to the point it became a major public issue.
So, the question is, would the budget process work better if Members were able to secure vitally important local projects in a reformed authorization process? Would there be more bipartisan support for authorization and appropriation bills if individual Members of both parties were able to direct money already approved in general (for example highway funds) to local priorities that their constituents considered most important?
It is a dangerous trap to create “scapegoats” instead of addressing the true problems leading to gridlock in Congress. And it is even more disingenuous to suggest that the support for earmarks in Congress was any more or less enthusiastic based on party label. Objective observers of the earmark implications should agree that Members’ priorities are the well being of their district. This encapsulates their effort to pursue those priorities by advocating for local projects. Could those projects lead to re-election, as the constituents perceive them as a proactive behavior from their Member? Of course it can. But the objective interpretation of Members’ responsibilities towards their electorate, directly derived from the Constitution, should not be undermined.
In the art of political negotiation, the idea of successful rewards is paramount. This is why gridlock and polarization undermine public support for Congress and make it difficult for the legislature to complete its agenda. Earmarks are not, nor have they ever been entirely noxious, but in fact, may be highly justified, if they are considered in the right context. They are often tools for congressional leadership to negotiate and round up the necessary votes to achieve passage of important legislation. If all participants in the budget process would focus on the rules governing clearly defined earmarks, and the earmarks would be restricted to already-authorized spending, the negative spillover could be dramatically contained. Additionally, the Administration or any Agency could not use earmarks, if the budget process would be restored on an authorization-appropriation mechanism. A sound set of rules for earmarks would translate into a true transparency mechanism. This mechanism would further become a tool of accountability allowing the voters to decide if money were wasted or not, or if a Member tried to abuse a system. These measures would create a reformed earmark process available to all Members, providing for a true justifiable transparency mechanism.
The American Constitution provides for a system that gave significant power to individual legislators compared to lawmakers in parliamentary systems. As such, Members of Congress are supposed to exercise this power, voicing their opinions and advocating on behalf of projects affecting their voters. This is not only natural, but a clear intention of the Founders. The author of Federalist 52 writes:
As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration [the House] should have an immediate dependence on, and an intimate sympathy with, the people.
As long as a Member is fully disclosing what they are requesting, as long as the entire Congress considers the request in the context of the overall spending bill, and as long as the request is not creating unauthorized spending, where is the wrong doing? And this is the focal point of what an earmark could and should be. What is more dangerous is the current state of play. As mentioned earlier, the use of “zombie earmarks” or “lettermarks” are potentially abusive as they completely lack any form of transparency.
Correcting for current errors in congressional behavior by restoring the budget process to its original form of authorizing and then appropriating would contain the system’s incentive to abuse the earmarks. Reforming the broken budget process, and then including “congressionally directed spending” projects in the transparency of open authorization hearings, should allow for both the restoration of Member’s responsibility to their districts and leadership’s ability to pass bipartisan legislation, all weighed against whether the interests of the nation as a whole are protected.
[1] For more information please review CRS Memorandum – January 26, 2006, “Earmarks in Appropriation Acts: FY1994, FY1996, FY1998, FY2000, FY2002, FY2004, FY2005”, http://www.fas.org/sgp/crs/misc/m012606.pdf
[2]For a full explanation of the rules in both House and Senate, please review: CRS, “Earmark Disclosure Rules in the House: Member and Committee Requirements”, May 21, 2015, https://www.fas.org/sgp/crs/misc/RS22866.pdf and CRS, “Earmark Disclosure Rules in the Senate: Member and Committee Requirements” May 21, 2015, https://www.fas.org/sgp/crs/misc/RS22867.pdf
[3]Brown Holmes, Johnson Charles, Sullivan John, “House practice, a guide to the Rules, Precedents and Procedures of the House”, 112th Congress, p.212, U.S. Government Printing Office, Washington 2011, ISBN-978-016-090133-1
[4] CRS, “Earmark Disclosure Rules in the Senate: Member and Committee Requirements” May 21, 2015, https://www.fas.org/sgp/crs/misc/RS22867.pdf