How Congress Can Make the Earmark Process Work

By Strand, Mark; Lang, Timothy | Stanford Law & Policy Review, Winter 2018 | Go to article overview

How Congress Can Make the Earmark Process Work


Strand, Mark, Lang, Timothy, Stanford Law & Policy Review


INTRODUCTION

Both the House and Senate standing rules explicitly define earmarks. House Rule XXI, clause 9(e), states:

For the purpose of this clause, the term 'congressional earmark' means
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. (1)

The Senate's definition is almost exactly the same, except that an earmark is referred to as a "congressionally directed spending item." (2) Under the administration of George W. Bush, the Office of Management and Budget advised department heads:

Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or report language) circumvents the merit-based or competitive allocation process, or specifies the location or recipient, or otherwise curtails the ability of the administration to control critical aspects of the funds allocation process. (3)

Some essential elements of an earmark emerge from these definitions. First, earmarks are particular: They are intended for a specific entity or a specific location. Second, they are not merit-based: If an earmark is duly enacted, the recipient may receive the funds regardless of whether they satisfy the criteria that apply to others. Third, an earmark is at the request of a member of Congress, not the administration. Earmarks that satisfy these definitions may be found in several locations. They may be found within the text of an authorization bill or an appropriations bill. Additionally, earmarks could be found within a committee report or within a conference committee report.

I. PAST EARMARK REFORM EFFORTS

Americans have long been ambivalent about spending federal funds for local projects, but the immediate impetus for earmark reform dates to the mid-2000s, when the public learned how some members, staff and lobbyists abused the process, either for personal gain or by sponsoring earmarks of dubious merit. Following these revelations, both chambers introduced various measures to reform, but not eliminate, earmarking. In September 2006, the House adopted a resolution defining an earmark; requiring earmarks and the identity of the member who requested them in a bill be disclosed; and providing a point of order against a bill that did not meet these requirements. (4) When the Democrats took control of the chamber in 2007, similar provisions were added to the standing rules of the House on the first day of the 110th Congress. (5)

When the Congress enacted the Honest Leadership and Open Government Act of 2007, it added Rule XLIV to the Senate's standing rules, which defined an earmark, required disclosures and created a point of order against legislation that did not satisfy the rules requirements. (6) When the Republicans retook control of the House in 2011, the newly installed Speaker John Boehner led the successful effort to institute an earmark moratorium. Although the Democratic Senate Majority Leader and their Appropriations Committee Chairman supported earmarks, they acquiesced to the policy, recognizing that congressionally directed spending provisions would not pass in the House. This moratorium, however, is only informal. The House and Senate standing rules still technically permit earmarks in legislation.

Like the legislative branch, the executive branch has supported earmark reform. For instance, President George W. Bush signed Executive Order 13457 of January 29, 2008, which prohibited the administration from providing money for "earmarks included in any non-statutory source, including requests in reports of committees. …

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