On January 3, 2006, lobbyist Jack Abramoff pleaded guilty to crimes related to his representation in Washington for Native American tribes, the Commonwealth of Northern Mariana Islands, and others. Among other things, Abramoff was grossly over charging one tribe for efforts to get earmarks—funding for specific projects in congressional spending bills. Later that year Representative Bob Ney (R-OH) was pleaded guilty to accepting bribes from Abramoff in exchange for acquiring earmarks for Abramoff’s clients. Earmarks were already a widely recognized problem, but the Abramoff scandal brought national attention to the practice and was a major spur to the adoption of the first regulation of earmarks within Congress.
That did not end the matter. It has been a roller coaster ride since then—and earmarks have been officially revived recently. The sequence of events since 2006 has exposed to the public view the full range of political motivations that operate on Capitol Hill. Partisan concerns dominate, but personal, committee, and institutional interests figure conspicuously in evolving regulations of earmarks. These motivations generated a serious division of opinion about earmarks has emerged among congressional Republicans.
Definitions
Budget battles dividing the two parties, and often between Congress and the president, raged during the last three decades of the 20th century. Waves of candidates for Congress, Republicans more than Democrats, ran against “fraud, waste, and abuse.” In the 1980s and 1990s, as a part of their charges against majority party Democrats, Republicans began to focus on “pork” and “earmarks.” This form of spending never exceeded two percent of the federal budget, but it grew enormously in the 1990s and 2000s and, in addition to concern about corruption in policy making, became symbolic of Congress’s struggle with budget deficits.
Politics, and certainly legislating, is full of metaphors. We have moved from “pork” to “earmarks” to “congressional mandated spending” and to “community project funding” in the last few decades.
“Pork” is taken from the phrase “pork barrel,” a place for storing meat (salt pork) from which handouts of food were given. In the 1870s, reports the Oxford English Dictionary, the term was used in a derogatory way to refer to public spending by politicians on projects in their districts and states to win support.
The term “pork” has been used less frequently in recent years as Congress has adopted the term “earmark” as a formal label for specific projects or tax breaks that legislators have included in legislation or accompanying reports to guarantee that those projects receive funding. An earmark, of course, also is a term that means a cut in the ear of livestock to identify ownership. The connection is more than coincidental. Legislators seek to get credit at home for “bringing home the bacon” in the form of earmarked projects that might not otherwise be funded and, most important, brings favorable publicity and credit to the legislators.
By the 2010s, legislators shied away from using the term earmarks, which had become badly tainted by scandal. Instead, they began using “congressionally directed spending” or “congressionally mandated spending.” These terms do not capture the idea of projects championed by individual legislators to which it was applied and instead emphasizes the important of congressional control over some spending. When House Appropriations Committee Democrats revived earmarks with the announcement of new regulations on them in mid-2021, they used the term “community project funding.” Their Senate counterparts chose “congressional mandated spending” as their label for the same thing.
Size
The controversy over earmarks generated efforts by the Congressional Research Service and outside organizations to count the number of earmarks and to total their costs. Before the 2007 rules (see below) were put in place, counting earmarks was difficult and almost surely inaccurate. For the following three fiscal years, before a ban on earmarks was imposed, the Congressional Research Service provided counts. In fiscal 2010, 11,320 earmarks were found, totaling $32.0 billion.[1] What made the numbers so shocking in the 2007-2010 period was the increase in earmarking that had been experienced over the previous decade or two. This increase has not been well documented, but it clearly was substantial and everyone on Capitol Hill recognized it.
By mid-2021, in preparation for the FY2022 appropriations bills, the House Appropriations Committee received $22 billion worth of requests—345 members for 5,402 requests. Table 11.1 lists the Appropriations Committee subcommittees to which the requests were assigned. The Transportation Committee also received earmark requests that numbered about 2,000 and are not shown here.
Total earmarks and their costs seem like a big numbers. They are, but they must be put in perspective. Proportionality is one issue: The $32 billion in fiscal 2010 represented less than one percent of federal outlays for that year (over $3.5 trillion) and less than 2.5 percent of discretionary spending ($1.3 trillion) found in appropriations bills. Responsibility is another issue: Most earmarks are proposed by members of Congress, but most of the money for projects that are individually identified in appropriations bills are proposed by the president. About a third of the spending on individually-identified projects in the fiscal 2010 appropriations bills were proposed only by legislators; the remainder were requested by the president in his budget proposals.
The Roller Coaster of Politics and Rules in the House
John Boehner, who served as Republican minority leader, 2007-2011, and speaker, 2011-2015, is closely tied to regulating and limiting earmarks. Boehner won a seat in the House in 1990 as a firebrand conservative, promising never to ask for an earmark and to fight the practice in Congress. In office, Boehner quickly became associated with Newt Gingrich, who was Republican whip when Boehner arrived and was elected speaker of the House in 1995, when Republicans became the majority party and Boehner became Republican conference chairman, the fourth ranking leadership post. The Republican majority fully exploited earmarks. In fact, Speaker Gingrich actively manipulated earmarks to assist his Republican colleagues get reelected. Under Gingrich, it appears that the cost of earmarks increased from about $7 billion in 1994 to over $13 billion four years later. Earmarks grew in number and cost incrementally for the next decade. The fight against earmarks that Boehner promised was delayed.
In 2005, a lobbying and bribery scandal involving earmarks shifted public and congressional opinion. By that time, most of the Gingrich team had left the House and Boehner sought election as majority leader. He made himself the reform candidate for the post, calling for ethics and earmark reform, and was elected by a narrow margin. The Republicans did nothing on earmark reform and two years later lost their House majority. The partisan use of earmarks in the Gingrich era influenced the new majority Democrats and their new speaker, Nancy Pelosi, to act in 2007 and then again in 2009. Led by Majority Leader Steny Hoyer (D-MD) on the issue, Democrats sought to preserve Congress’s control over federal spending while improving accountability for the earmarks placed in legislation at the request of legislators. Rather than banning earmarks, the Democrats put in place House rules that required disclosure of the names of legislators making earmark requests, certification that they had no direct financial interest in the earmark, executive agency review to ensure that the earmark is eligible to receive funds under existing law, and a competitive bidding process for any funds that would go to for-profit entities.
The Democrats’ approach did not survive the change in party control in 2011. Boehner became speaker and championed a ban on earmarks that was adopted as a Republican party rule. The Republicans, with majority control of the House and its committees, could enforce the ban, which they did somewhat sporadically through 2018, when they lost their House majority again. Not all Republicans, particularly a few Senate Republicans, were happy to see congressional freedom to act on earmarks curtailed.
The moratorium did not stop the practice. The practice, however, seemed to be more limited to powerful Republicans who inserted items in spending and tax measures during 2011-2018, years of Republican control of the House. A conservative group continued to count a wide variety of programs—for example, the F-35 fighter jet—as “pork.” There certainly was considerable looseness in the Republicans’ interpretation of their earmark ban and, lacking a House rule, there was no way to enforce it if the majority party chose to ignore their own rule, but there was a real reduction in the number of projects championed by individual legislators and tucked into spending bills.
After Democrats won a House majority in the 2018 elections and a technical Senate majority in the 2020 elections, they began to take seriously plans to return to rules similar to those in place before the 2011 ban. With the Democrats on the House Appropriations Committee announcing a new earmark policy, the readopted transparency requirements were accompanied a cap on total earmark spending—one percent of all discretionary spending (spending placed in appropriations bills)—and a limit of ten earmarks per member. Senate Democratic appropriators followed suit but without setting a limit on the number of earmarks each senator could sponsor.
Competing Visions among Republicans
It is not too far from the truth to say that Republicans continue to suffer from a split between ideological conservatives and pragmatic conservatives. Gingrich, who is known for leading the most conservative side of his party, was quite pragmatic in practice. His supervision of earmarks during his service as speaker reflected devotion to reelecting his Republican colleagues, retaining majority status for his party, and keeping himself in the speakership. His firm grip over the party in the mid-1990s left few objectors to a practice that some of them had criticized. Only years later, after most of the Gingrich team had departed and when scandals and the rise of the Tea Party put pressure on Republican leaders to be more strongly anti-earmark, did Republican pragmatists support a moratorium. Conveniently for Boehner, who never requested earmarks, the issue was ripe at the time he ran for majority leader in 2005.
In 2017, just after Donald Trump’s election to the White House, some House Republicans thought the time was ripe to loosen the ban on earmarks. The Rules Committee chairman predicted that “merit-based” earmarks would be allowed. However, Speaker Paul Ryan (R-WI) squelched the idea. He argued that, in light of Trump’s promise to “drain the swamp” of corruption in Washington, Republicans could not be seen as lowering safeguards against corruption. Pragmatic partisan interests left the ban in place.
As the Democrats were lifting the moratorium in 2021, many Republicans expressed relief. Most notable were the views of Senator Richard Shelby (R-AL), the ranking member and former chair of the Appropriations Committee. While Shelby certainly cared about the importance of reasserting congressional control over spending, Shelby and other appropriators missed the influence they could have with their colleagues by controlling the earmarks that are included in spending bills. That influence could take the form of personal influence, of course, but it also could used to encourage senators to support the committee’s appropriations bills on the floor. The committee has been struggling for years to get action on its bills, which diminished the role of Appropriations members.
After the Democrats lifted the ban in 2021, House Republicans changed their conference policy. On a vote of 102-84, with the support of their top leader, Minority Leader Kevin McCarthy, the conference dropped its moratorium and established its own disclosure requirements. McCarthy’s public statements emphasized not allowing the new Democratic president to control project spending, but the subtext of making Republicans more competitive in elections, regaining majority status, and making him speaker was not lost on anyone.
The most conservative side of the party, particularly in the House, continues to oppose earmarks. The Freedom Caucus, which organized the most conservative House Republicans into a group of about 40 members, opposed the party’s move to remove the ban and several of its members introduced measures to bar earmarks in House rules.
During their organizing meetings following the 2022 elections, Republicans, now in the majority, voted 52-158 against reinstating a ban on earmarks. Several dozen Republicans had changed their minds about the practice once the party was in the majority, perhaps because the value of criticizing pork barrel politics on the part of Democrats had diminished. More Republicans (about two-thirds of them) request earmarks in 2023, although the Appropriations Republicans reduced the cap on earmarking spending to one-half percent of discretionary spending and banned earmarks for certain kinds of projects that were popular among Democrats.
Where is the Senate?
The Senate trailed the House in regulating and banning earmarks. When the House Democrats had their chamber adopt disclosure rules in 2007, the Senate followed. When House Republicans adopted a moratorium in 2011, the Senate Appropriations Committee, under Republican control, adopted a policy of banning earmarks. A few months later, the Senate Republican Conference banned earmarks by its members, which, as the majority part, effectively barred earmarks for all senators. Once House Democratic Appropriations members adopted new earmark guidelines and the earmark spending cap, Senate Appropriations Democrats soon did the same, although, with senators representing states of varying size, they did not limit the number of earmarks per member as was done in the House.
Remarkably, the Senate Republicans have kept their party rule barring senators from requesting earmarks, but party and committee leaders made clear that no senator would be punished for violating the rule. In fact, the rule specifies no punishment. It is plain that Senate Republicans were not going to unilaterally give up a legislative option of considerable electoral value.
On the whole, Republican senators appeared less happy with the earmark ban than their House counterparts but appeared to accept the standard their House colleagues established. In 2021, many of those Republican senators endorsed a return to earmarks once Democrats seemed committed to the proposition. Still, the Senate Republicans kept their party rule barring senators from requesting earmarks, but party and committee leaders made clear that no senator would be punished for violating the rule. In fact, the rule specifies no punishment. It is plain that Senate Republicans were not going to unilaterally give up a legislative option of considerable electoral value.
The Return to Earmarks in the 117th Congress (2021-2022)
Congress failed to pass the regular appropriations bills by the start of Fiscal Year 2022, which began on October 1, 2021. Continuing resolutions (CRs) kept the government running at the last year’s spending levels, at least until the time of this writing in February 2022. No earmarks were included in the CRs, but they were included in the consolidated appropriations bill that was enacted in March 2022. While operating under the CaRs, earmark requests kept coming in, so by February 223 House Democrats and 708 House Republicans had requested earmarks for a total of 3,739 projects (not all of which would make it into an omnibus bill). In the Senate, at least 60 senators—including about 20 Republicans—were reported to have earmarks in that chamber’s draft omnibus. Senator John Thune (R-SD), for example, was seeking $30 million for a highway interchange in Sioux Falls. As Republican whip, Thune is the second-ranking Senate Republican. While the Republicans had been obstructing action on the majority Democrats’ spending bills, the possibility of enacting earmarks is creating a modest incentive for the Senate two parties to reach an agreement on an omnibus package. As predicted.
Presidential Earmarks?
Yes, presidential earmarks are a thing. A big thing. The president’s budget proposals typically include billions of dollars for specific projects of the Army Corps of Engineers. Many projects or program initiatives—ranging from education to space and science to energy technology—that take funding out of budgets that would otherwise be allocated on a merit basis are detailed in a president’s budget or listed in accompanying reports and agency justifications that are published separately. As I noted, these presidential proposals were once totaled by the Congressional Research Service and were double the cost of earmarks sponsored by legislators alone. There is no similar recent count, but the presidential earmarks are likely to be proportionately much larger as congressional earmarks have subsided and now have been capped.
Throughout the congressional wrangling over earmarks in recent decades, legislators were aware that the president would continue to propose funding for specific projects. They also knew that they would continue to try to influence what the president proposed, particularly if the president was of the same party. The concern of many legislators—of both parties—has been that under a moratorium on congressional earmarks the president can effectively veto specific projects by refusing to propose them. This is more than irksome to legislators, but it encourages them to lobby the White House and agencies for budget requests that come to them. The president gains a useful source of influence with legislators, shifting the balance of power to the president and away from Congress.
We are back to an important issue—Congress’s “power of the purse.” That’s a very old term used to describe Congress’s most fundamental power. That power rests in the constitutional provision that “no money shall be drawn from the treasury, but in consequence of appropriations made by law” (Art. I, Sec. 9). Funding some activities, refusing funding for others, or limiting or conditioning funding is, in the view of many legislators, Congress’s ultimate source of control over government action. Earmarks, seldom totaling more than one percent of federal spending, seems like small potatoes in the larger context of relations between the branches. Nevertheless, legislators of both parties have raised this issue in opposition to restrictions on legislative earmarks while others have articulated a need for Congress to police itself in the face of the temptation to enact pet projects for political gain and the necessity of exercising budget discipline. This tension remains and institutional interests remain in tension with partisan interests.
With the committee rules in place and both House parties having endorsed the process, the ship has been righted in the view of many legislators. Will it last? I bet it will.
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[1] CRS researchers use this definition of earmarks: “"Provisions associated with legislation (appropriations or general legislation) that specify certain congressional spending priorities or in revenue bills that apply to a very limited number of individuals or entities. Earmarks may appear in either the legislative text or report language (committee reports accompanying reported bills and joint explanatory statement accompanying a conference report)."