Last week, House Majority Leader Steny Hoyer (D-MD) and Rep. Rosa DeLauro (D-CT), chair of the House Appropriations Committee, indicated their intent to revive earmarks. We believe this can be done in a bipartisan and bicameral way.
Many people may have ‘heard’ about earmarks or member directed projects, but for most they are still a mystery, even to members of Congress and staff. The Bipartisan Policy Center’s research shows that most current members of Congress do not have first-hand experience with the practice because it has been shunned for the last decade. Regular turnover of members and staff during that time, combined with an outsized narrative of corruption and deficit inflation, may have left Capitol Hill with an incomplete and misleading view of congressionally directed spending.
Contrary to the current zeitgeist, earmarks can help catalyze Congress’ lawmaking process, which has, perhaps not entirely coincidentally, stagnated in the same period since earmarks disappeared. Many do not realize earmarks already underwent important reforms to reduce concerns about corruption, and members of both parties actively sought them for the benefit of their constituents, in accordance with Congress’ constitutionally specified responsibilities.
Read our follow-up blog on reforming earmarks
While there are minor differences between the House and Senate on this subject, the Congressional Research Service explains that any discretionary spending from Congress, limited tax benefit, or limited tariff benefit that directly impacts a certain state or congressional district is considered an earmark. Earmarks in the past have been an avenue for members to send discretionary spending directly to their district or state for a specified project, such as funding for infrastructure, community programs, university research, hospitals, and other local initiatives. They are most often identified with federal appropriations but can also be included in authorizing legislation like water infrastructure legislation.
Earmarks garnered a negative connotation most especially from several cases of legitimate past abuses and, eventually, their use went out of practice. Critics often cite Jack Abramoff, Duke Cunningham, and the “Bridge to Nowhere” as examples of abuse. These were, in fact, serious cases while also exceptions and not the rule.
There were other substantive complaints about earmarks. Typical concerns involved the transparency of requests as well as their distribution. They were periodically hard to distinguish in legislative language. It was common to vaguely mention an earmark in a bill without knowing much about who requested it or its location. Also, there were occurrences when an earmark would be added late in the process with little time for adequate consideration. One other common complaint was that earmarks tended to be disproportionally awarded to appropriations committee members and leadership more than other rank-and-file members.
To bring accountability to member directed spending, reforms were put in place in 2007 through new statutory rules enacted by both chambers. These provisions included requirements for members to disclose publicly their requested earmark, to certify that a member or spouse did not have a financial interest, and to identify them clearly in legislative text from the start.
Despite these reforms, calls grew from voices in both parties to end the practice. New Republican majorities during the 111th Congress in 2011 put in place a moratorium, which continues through today. At the time, opponents of earmarks claimed a ban would combat fraud and abuse, but it may have had the opposite effect.
The elimination of earmarks reduced the incentives for cooperative lawmaking and bipartisanship, delegated one of Congress’ constitutional powers to the bureaucracy, and made it more difficult for local needs to be met by the public’s representatives in government. The moratorium also did not accomplish the benefits promised by its proponents.
Earmarks offer individual members a greater stake in the legislative process. Members who make these requests have “skin in the game” and incentivizes them to work with others to pass the bill. With earmarks, members had opportunities to build coalitions in appropriations and momentum for passing bipartisan legislative agendas. Without earmarks, members, especially those in the minority, do not see themselves as having a particular stake in the process. Research shows the 2011 moratorium may have done more harm than good when it comes to bipartisanship and the legislative process.
Members of Congress are elected to represent their constituents’ interests in Washington, and directed spending allows them to tangibly demonstrate their ability to benefit their community. If members are unable to show results, there is less reason to constructively participate in the appropriations and authorizing processes.
Diminishing earmarks has also inflated the power of the Executive Branch over the past decade in a way that is inconsistent with the Constitution. The framers, in Article I of the Constitution, specifically vested the power of the purse in Congress and Congress only, to ensure the executive does not have unilateral spending and taxing authority. Because of less frequent budget resolutions and a hobbled appropriations process in recent years, the executive has taken upon itself via executive order to direct funds directly to communities, such as the Army Corps of Engineers deciding which water infrastructure projects to prioritize. This is something that is not within the executive branch’s jurisdiction. It is not healthy for our system of checks and balances to have Congress cede one of its most fundamental powers.
The lack of earmarks over the last decade has further led to certain members working with agencies in the Executive Branch and even the president to help secure funds for their communities in what is known as lettermarks or phonemarks. This process not only continues the concession of Congress’ constitutional powers, but it brings with it a lack of transparency, which was one of the original complaints about earmarks.
While earmarks are not a cure-all for what ails Congress, they are also not the epitome of rampant graft and wide-spread corruption that opponents have claimed. Nor are they budget-busters that balloon our federal deficits and debt. We will explore that subject further—along with concrete ideas for achieving more bipartisan, transparent, and accountable earmark reforms—in a follow-up blog.
As members of the 117th Congress deliberate on the return of earmarks, the Bipartisan Policy Center stands ready to work with members on a process that will allow them to be utilized in an even more transparent, accountable, and fiscally responsible manner.