by House Majority Leader Steny Hoyer (D-MD) recently said that earmarks will return in the 117th Congress. With the appropriations cycle soon beginning, the chairs of the House and Senate appropriations committees, Rep. Rosa DeLauro (D-CT) and Sen. Patrick Leahy (D-VT), are determining what the process will look like.
Apparently, earmarks will return with bipartisan support, which really isn’t surprising considering that Republicans likely would’ve brought them back in the 115th Congress had then-Speaker Paul Ryan (R-WI) not stopped a vote in the House Republican Conference in November 2016. As part of the arrangement, the House Rules Committee, led by then-Chairman Pete Sessions (R-TX), held hearings on the return of earmarks and, not so shyly, seemed to have his own agenda to bring them back.
What’s an earmark? Well, there are different definitions. The simplest way to explain it is that an earmark is a line item in an appropriations bill that directs funding for a specific project or recipient. Because earmarks got such a bad reputation in the mid-2000s, members have taken to referring to earmarks as “congressionally directed spending.”
Let’s start with that bad reputation. In November 2005, Rep. Duke Cunningham (R-CA) pled guilty to a series of crimes stemming from a scandal involving earmarks. Three others were also prosecuted in the scandal. Cunningham was sentenced to 100 months in federal prison. In January 2006, lobbyist Jack Abramoff pled guilty to crimes related to the abuse of earmarks. In October 2006, Rep. Bob Ney (R-OH), who was implicated in the Abramoff scandal, also pled guilty to crimes connected to the scandal. Others also caught up in the scandal and served time in prison as a result.
Not only have there been actual prosecutions relating to the abuse of earmarks, but there are also plenty of examples of unethical, although legal, uses of earmarks. As the Washington Post documented in February 2012, some members have secured earmarks near property they or their families own or secured earmarks that benefitted where family members work or serve as board members.
For example, Bennie Thompson (D-MS), who currently serves as the chair of the House Homeland Security Committee, got a $900,000 earmark to resurface roads in Hinds County, Mississippi. The road on which he and his daughter live was one of the roads resurfaced. Another example is former Rep. Jack Kingston (R-GA), who got a $6.3 million earmark to protect beaches on Tybee Island, Georgia. Kingston owned a property on Tybee Island that was close to the beach, the value of which had been negatively impacted at the time because of the state of the beaches on the island.
Abramoff once called the House Appropriations Committee a “favor factory.” When he served in the House, Rep. Jeff Flake (R-AZ) wrote that earmarks are “the currency of corruption.” Sen. Tom Coburn (R-OK) called earmarks “the gateway drug to spending addiction.” Back in 2010, House Republicans put an earmark moratorium in place, and it has been renewed, although it has been endangered at times, as already noted. Senate Republicans followed suit. That moratorium in the Senate was made permanent in May 2019. These moratoria are, however, not part of the rules of either chamber.
Still, earmarks found their way into spending bills even with the moratorium in place. Although there aren’t as many earmarks as there were in FY 2005, when the numbers peaked at nearly 14,000, and the total cost hasn’t hit the FY 2009 peak of $29 billion, earmarks are rising in cost and share of discretionary spending.
| Fiscal Year | Number of Earmarks | Cost | Percentage of Discretionary Spending |
|---|---|---|---|
| 1999 | 2,838 | $12.1 Billion | 2.1% |
| 2000 | 4,326 | $17.7 Billion | 2.9% |
| 2001 | 6,333 | $18.5 Billion | 2.9% |
| 2002 | 8,341 | $20.1 Billion | 2.7% |
| 2003 | 9,362 | $22.5 Billion | 2.7% |
| 2004 | 10,656 | $22.9 Billion | 2.6% |
| 2005 | 13,997 | $27.3 Billion | 2.8% |
| 2006 | 9,963 | $29 Billion | 1.9% |
| 2007 | 5,276 | $13.2 Billion | 1.3% |
| 2008 | 11,610 | $17.2 Billion | 1.5% |
| 2009 | 10,160 | $19.6 Billion | 1.6% |
| 2010 | 58 | $16.5 Billion | 1.2% |
| 2011 | N/A | N/A | N/A |
| 2012 | 152 | $3.3 Billion | 0.3% |
| 2013 | N/A | N/A | N/A |
| 2014 | 109 | $2.7 Billion | 0.2% |
| 2015 | 105 | $4.2 Billion | 0.4% |
| 2016 | 123 | $5.1 Billion | 0.4% |
| 2017 | 163 | $6.8 Billion | 0.6% |
| 2018 | 232 | $14.7 Billion | 1.2% |
| 2019 | 282 | $15.3 Billion | 1.1% |
| 2020 | 274 | $15.9 Billion | 1.0% |
Members and pundits believe that bringing back earmarks would reduce partisanship in Congress. Reading between the lines, this effectively means that leadership and appropriators can essentially buy votes in appropriations bills. That’s unlikely. In this day of round-the-clock news and social media and advocacy groups on both sides solely interested in dividing Americans, one would be hard-pressed to find members who will suddenly vote for appropriations bills or other legislation based on the promises of an earmark.
Even if it were true that leadership and appropriators could just buy votes with earmarks, it will have an adverse impact. “[O]nce members realize that their votes can be traded for earmarks, they will start to hold back their support — resulting in a dramatic increase in requests for earmarks. This is a major reason why earmark usage increased rapidly over the course of the 1990s and into the early 2000s: The word was out that votes could be sold,” Jay Cost wrote. “Relatedly, members expect that the subcommittee chairmen of the Appropriations Committee will deny at least some earmarks, so they compensate by making more requests than are actually needed.”
The “power of the purse” argument also falls flat, although it has been repeated often enough that members truly believe it. Jim Harper of the Cato Institute explained, “The power of the purse’ [in Federalist No. 58] refers to the fact that revenue measures must originate in the popularly elected House, strengthening its hand against the Senate.” Certainly, members have a legitimate complaint that the money that would’ve been spent via earmarks is now handled by federal agencies. This is a common argument from even some conservative members. There really isn’t a great response to the argument, except to say that conservative members have some soul-searching to do when it comes to the size and scope of government.
Now, there has been talk of reforming the process. The process was reformed back in the 110th Congress when both chambers required members, when submitting a request for an earmark, to give their name, the name and address of the recipient, purpose, and certification that the requesting member or spouse has a financial interest in the earmark. That information was collected and put in a database. Of course, members openly bragged about securing pork for their state or district because of the database.
The House Select Committee on the Modernization of Congress has proposed a localized approach through the proposed Community-Focused Grant Program (CFGP). As the select committee explains it, the CFGP “is a competitive grant program intended to allow Congress to harness its unique constitutional authority to appropriate federal dollars through a congressional competitive award process, with an emphasis on supporting projects that have the broad support of local communities across the United States.”
Supposedly, this is will be a ground-up approach; one that will prohibit for-profit entities and family members of members of Congress from participating in the program. As the select committee further explains, “Public entities, including certain non-profits and including the public entity collaborating with a Member of Congress to identify a local priority, may apply for grants, and they must do so by submitting an application to at least one Member of Congress. It is up to each member to determine which projects they will support via a uniform request process to the appropriate congressional committee.”
The process would include the same pre-moratoria transparency requirements, although there are other recommendations that would heighten the level of transparency, such as a single website to house a database with all earmark information. Earmarks would be limited to 1 percent of discretionary spending, but that would exclude project-based accounts. Based on projections from the Congressional Budget Office (CBO), this would be $16.2 billion, but that figure doesn’t exclude project-based accounts. The select committee also recommends prohibiting earmarks in continuing resolutions.
A more transparent purpose, one with a cap, may seem appealing to many. However, those who purport to believe in limited government principles need to figure out how funded local projects squares with their beliefs. Remember, it was President James Madison who vetoed the Bonus Bill of 1817 because of the “insuperable difficulty…in reconciling the bill with the Constitution of the United States.” Thomas Jefferson, who preceded Madison, also wrote that the Bonus Bill of 1817 “would loosen all the bands of the constitution.”
Nothing Congress does to “fix” something ever seems to work out. For example, Congress passed the Civil Asset Forfeiture Reform Act in March 2000 to stop abuse of the practice. Yes, there were fewer forfeitures in its immediate aftermath, then abuse skyrocketed. Congress passed the Affordable Care Act in March 2010 to address rising health insurance premiums and cover more Americans. Premiums subsequently jumped dramatically.
This new proposed process won’t end corruption when it comes to earmarks. Congressional staff will find some way around the process, just like they found ways around the moratoria. At the end of it all, we’ll come back to, as John Larson explained, worried Madison about using Congress as a piggy bank for pet projects. “More than ever,” Larson wrote, “outdoor partisan behavior looked to Madison like factious combination, and special-interest issues like internal improvements inexorably corrupted the legislative process.”
