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The dead earmarks society

Congress gave up pork years ago. Now it could be making a comeback

Steny Hoyer says he’s working to restore congressionally directed spending, with “reforms to ensure transparency and accountability.” (Tom Williams/CQ Roll Call file photo)
Steny Hoyer says he’s working to restore congressionally directed spending, with “reforms to ensure transparency and accountability.” (Tom Williams/CQ Roll Call file photo)

From the outside, they looked like a collection of political misfits akin to the characters from “The Breakfast Club.” This peculiar little crew of lobbyists, ethics watchdogs and government spending hawks included the likes of Public Citizen’s Craig Holman and former House member-turned-lobbyist Jim Walsh.

Instead of serving Saturday detention, like the high schoolers of the 1985 hit movie, they spent their meetings nearly a decade ago seeking compromise on one of Congress’ most politically fraught but powerful tools: earmarks. “It was a strange group, an eclectic group,” concedes Holman, whose liberal Public Citizen is best known for taking on K Street, not working with the lobbyists and lawyers in the sector. “We identified what the real problem with earmarks is — and earmarks do pose a serious problem with corruption.”

But their efforts in 2010 flopped. Not because they couldn’t agree on a set of principles aimed at cleaning up the embarrassing corruption scandals of the mid-2000s that led to jail time for lawmakers, but because in 2011, when Republicans took control of the House, they banned the practice altogether. The Senate followed.

After that, K Street lobbyists, lawmakers and their aides, and others with a vested stake in the fate of earmarks and the functionality of Congress took their work underground. They met privately to discuss how to rebrand earmarks, which are pots of federal money that lawmakers appropriate and then direct to specific projects, typically in their congressional districts or states. It wasn’t fashionable to talk openly about such a tainted process. That seemed poised to change a year ago when the House Rules Committee held a public hearing on whether to resurrect them, but it ended there with no change in policy.

Now, however, with House Democrats eyeing a return to earmarking their chamber’s appropriations and possibly other bills, the quiet campaigns on and off the Hill are slowly emerging — as are the counterefforts to keep earmarks out. This comes at a moment when congressional partisanship and stalemate between the Hill and the executive branch have hit a fever pitch and as Democrats seek to assert the power of the legislative branch, including its full command of the nation’s wallet.

A return of earmarks could soften the edges around partisan spending disagreements and could allow lawmakers to reclaim one of the powers they voluntarily surrendered amid scandal.

Even the biggest fans of earmarks admit that new pots of money can’t solve all the dysfunction and partisanship in Congress. But securing directed spending for projects in a rank-and-file member’s district can help leaders and committee chiefs woo votes from undecided or reluctant members. On some bills, just a few votes can make the difference between passage and rejection.

Getting an earmark in an otherwise massive bill can give lawmakers a sense of investment in the measure — and potentially in the process of legislating overall.

“Members of Congress are very frustrated — we saw record numbers of them quit last year,” said Kevin Kosar, a leader of the nonpartisan Legislative Branch Capacity Working Group and vice president of policy at the R Street Institute, a think tank with libertarian roots. “Politicians like to go to ribbon cuttings, they like a sense of accomplishment. And earmarks are a way to do that. It provides a way for them to directly claim credit for making something better in their district.”

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But it won’t be an easy sell to skeptical Americans, or to some of earmarks’ biggest opponents on Capitol Hill.

Majority Leader Steny H. Hoyer, a onetime appropriator, has made clear he’d like to see lawmakers take back their power to direct money where they see fit, instead of leaving it up to administration officials.

“I am working to restore the Congress’ constitutional duty to exercise the ‘power of the purse’ through congressionally directed spending with reforms to ensure transparency and accountability,” Hoyer said in an email sent from his office. “I am discussing this issue with members on both sides of the aisle and both chambers.”

Hoyer noted previous changes that Democrats imposed, including public disclosures and a requirement that lawmakers certify that they had no personal financial stake in their funding requests.

“With those reforms in place, I am also open to additional reforms to strengthen transparency and accountability to this fundamental duty of the Congress,” he added.

House appropriators haven’t yet made a decision, but Appropriations Chairwoman Nita M. Lowey of New York favors a return of earmarking.

“Congressionally-directed spending is very important to carrying out Congress’ constitutional responsibilities and constituent service duties,” Lowey said in a statement emailed from her office. “The Appropriations Committee has a proud tradition of congressionally directed spending, and I hope that we can reach a bipartisan, bicameral agreement to restore this important practice.”

The GOP-led Senate may take its cues from the House.

The problem that led to the ban wasn’t a mystery. Too frequently lawmakers handed out earmarks to campaign contributors, and in some cases there was evidence of a quid pro quo, an earmark for donations or even personal enrichment, said Holman. Defense lobbyist Paul Magliocchetti, a onetime aide to the late defense appropriator John Murtha, a Pennsylvania Democrat, pleaded guilty to such a scheme in 2010.

Ex-Rep. Randy “Duke” Cunningham, a Republican from California, similarly went to prison after pleading guilty in 2005 to arranging earmarks and government contracts in exchange for more than $2 million in bribes.

The recommendations from Holman, Walsh and the others called for new limits on the earmarks for political donors. Others who endorsed the ideas were Melanie Sloan, then executive director of the ethics watchdog group Citizens for Responsibility and Ethics in Washington; Tom Schatz, president of Citizens Against Government Waste; Steve Ellis, vice president of Taxpayers for Common Sense; Rich Gold, who runs the lobbying practice at Holland & Knight; and Linda Morgan, then of Covington & Burling.

Holman said he’s working to persuade House Democrats to bring back earmarks but with such pay-to-play bans, and has sent along an old op-ed to Hoyer and Lowey. “It’s an ideal solution,” he said.

Back in September, in outlining his vision for a sweeping overhaul of campaign finance, ethics and voting laws, Hoyer notably included his pitch for restoring earmarks with limitations and public transparency.

“Republicans eliminated earmarks altogether, and the result has been an abdication of Congress’ power of the purse,” Hoyer said at the time. He dismissed as ineffective the current balance of power in which lawmakers now go “hat in hand” to bureaucrats in the executive branch looking for funding for projects in their congressional districts.

UNITED STATES - JANUARY 28: Rep. Mark Meadows, R-N.C., talks with reporters in the Capitol on Monday, January 28, 2019. (Photo By Tom Williams/CQ Roll Call)
“I think the Democrats want it to, but I don’t see that happening,” Rep. Mark Meadows said of restoring earmarks. The North Carolina Republican views earmarking and member-directed spending as distinct. (Tom Williams/CQ Roll Call file photo)

A bad rap

Not all of the original breakfast club members stand by the recommendations made before the earmark moratorium, which Schatz of Citizens Against Government Waste said has not eliminated such spending altogether. Schatz does not support their return, even if lawmakers adopted the recommendations that he helped draft in 2010.

“It’s legalized bribery, corruption,” said Schatz, whose group publishes an annual “Pig Book” exposing earmarked spending.

Lawmakers, too, dole out earmarks unequally, with the majority going to appropriators, House and Senate leaders and others with favored status, he said.

[When pig selfies fly: ‘Pig Book’ provides ritual railing against pork]

Rep. Mark Meadows, the North Carolina Republican who leads the conservative Freedom Caucus, said discussions are going on, including between members in his faction and Democrats, because if earmarking is “going to return, it would have to return in a bipartisan manner.”

“I think the Democrats want it to, but I don’t see that happening,” he said, though he views earmarking and member-directed spending as distinct.

“Member-directed spending and earmarks, depending on how you define it and what it really means and how you can avoid potential abuse, is a more lengthy discussion, but generally the proposals I’ve seen to date would be subject to abuse and [would] increase spending.”

Experts on Congress and the federal budget, however, say that in general the presence of earmarks in a bill does not actually increase government spending, but instead sends money to specific entities. Meadows knows where the conservative grassroots activists are on this.

The conservative FreedomWorks is mobilizing against earmarks, said the group’s Jason Pye. “We’ve already been pushing back on earmarks through our grassroots activity — and when or if, I think it’s more of a question of when, not if — they start debating earmarks, or bring them back, we’re going to activate and hopefully send a fury to Capitol Hill,” Pye said.

Still, even Pye and other foes of earmarks concede that earmarks would amount to a small portion of federal spending.

The money that would be earmarked is likely already getting spent.

Greasing the skids

Russell W. Mills and Nicole Kalaf-Hughes, political science professors at Bowling Green State University, have explored the growth of what they call “letter-marking” in the absence of earmarks: Lawmakers, as Hoyer suggests, write letters to federal agency officials urging them to send money toward a particular constituent or project.

The professors, using Freedom of Information Act requests, found that in 2007 and 2008 combined, lawmakers wrote nine letters to the Transportation Department to nudge federal grants to specific places. In 2011, that number had gone up to 128 letters from lawmakers, Mills and Kalaf-Hughes discovered. Since then, letter-marking has dipped but remains higher than it was when earmarks were routine. Lawmakers and their aides also have become more adept at writing legislation aimed at “micromanaging agency decision-making tools such as cost-benefit tools in an effort to direct grants to their districts,” said Mills. “This is much less transparent,” he added, when compared with publicly disclosed earmarks.

Letter-marking and other strategies that lawmakers have used over the decade without earmarks are often less effective replacements for steering tax dollars. It’s less a debate about how much money the federal government spends, but who decides where it goes.

“In lots of cases, like particularly federal grant programs, the money is still getting spent, it’s just that somebody else is deciding how it gets spent, not Congress,” said Molly Reynolds, a governance studies fellow at the Brookings Institution.

That exacerbates the mounting frustrations of individual members, especially those in the rank and file. “Most of what happens in Congress, you don’t have a lot of influence over,” Reynolds said. “When earmarks were around, that was something you could point to that you got done. That potentially made some members feel like they had more agency in the legislative process.”

Though it may not work as a balm for all that ails Congress, earmarks have a long history of being used to help win support for much bigger bills that specific lawmakers would otherwise be inclined to oppose.

“As a member of Congress, you’re not just voting on a $175 billion spending bill. You can say, ‘I didn’t like everything about the bill, but here’s what we got.’ Members can’t do that anymore,” said Walsh, a lobbyist at K&L Gates who served 10 terms as a GOP representative from New York.

What’s less clear is whether a return to earmarking would give rank-and-file members of Congress a new sense of empowerment, or whether it would simply give leadership, which has already consolidated much authority, yet another tool to lord over unruly members.

No matter the consequences for intraparty dynamics, the loss of earmarks has exacerbated partisan tensions, said Howard Marlowe, a longtime lobbyist.

“The absence of them clearly has had an impact on the ability of members of Congress to find opportunities to work together,” said Marlowe of the Warwick Group Consultants. “There’s no doubt that being able to do the kind of horse-trading that was done was very useful.”

Even Schatz concedes the point.

“Maybe they didn’t spend more money in one sense, but this did entice members to vote for spending bills they might not otherwise have supported but for a few million dollars in earmarks,” he said.

Many lawmakers with conservative voting records “did not hesitate to earmark and they would end up voting for some of these expensive spending bills because they were getting some money,” he added.

Those lawmakers may have felt that their districts badly needed the cash.

UNITED STATES - JULY 19: Rep. Bill Flores, R-Texas, poses with Faye, a pot belly pig, after a news conference held by Citizens Against Government Waste at the Phoenix Park Hotel to release the 2017 Congressional Pig Book which identifies pork-barrel spending in Congress on July 19, 2017. (Photo By Tom Williams/CQ Roll Call)
Rep. Bill Flores poses with Faye, a potbelly pig, after a news conference held by Citizens Against Government Waste in 2017. (Tom Williams/CQ Roll Call file photo)

Power failure

The demise of earmarks has meant fewer dollars for poorer, more rural districts that could use the investment, say some lawmakers and lobbyists.

“We here in Congress as representatives, we represent the people who elect us, we are accountable to them but we also deal with them on a daily basis. We also live with them. So we know better than any president or any bureaucrat the needs of our districts,” Louisiana Democratic Rep. Cedric L. Richmond told the House Rules Committee last year. “We represent those small towns, we are their lobbyists we’re the ones that have to come up and say this police department needs X, Y and Z, and if we can get it for them, let’s get it for them.”

Richmond’s philosophy on earmarking sounds a lot like the late Sen. Robert C. Byrd, the West Virginia Democrat who championed the practice. Citizens Against Government Waste dubbed Byrd the “King of Pork,” tabulating that he directed more than $4 billion to his state, where many bridges, buildings and highways bear the name of the former Senate Appropriations chairman.

When he died in 2010, months before lawmakers ended the era of earmarking, Schatz recalled that Byrd had once called Citizens Against Government Waste a bunch of know-nothing “peckerwoods.” Byrd’s love of earmarks, though, did not transfer to his affection for lobbyists who sought them. Byrd told The Washington Post in 1989 that he became enraged to learn that a crew of lobbyists was aiding a Mountain State university in securing earmarks — and told his constituents as much.

“I asked them: Why do you think you have to employ a lobbyist?” the Post quoted Byrd as saying at the time. “I’m on the Appropriations Committee — if I can’t do it, nobody can.” Byrd’s anger later turned into an amendment stipulating that clients couldn’t pay their lobbyists with appropriated funds.

Byrd, though an extreme example, represents a time when individual lawmakers held significant power, an era that has now faded.

The decision to eliminate earmarks “is consistent with Congress making a set of choices of weakening its role as the first branch” of government, Reynolds added.

In the absence of earmarks, lawmakers and congressional staff have sought to nudge federal dollars to specific projects — often without success.

Marlowe, a lobbyist who has long worked the Energy-Water appropriations bills, said it’s not just lobbyists and their clients who are frustrated at the loss of earmarks.

Lawmakers and their staff, he said, “are trying to do the best that they can to show preferences for how the money ought to be used.”

He has a client — the city of Solana Beach, California — that has sought funding for a project from the Army Corps of Engineers. The client has paid Marlowe’s firm $1 million since 2001, according to federal lobbying disclosures, and Marlowe said he’s helped the city win nearly $10 million in past earmarks. Appropriators in the last Congress worded a bill in such a way that they believed only Solana Beach and another California coastal community would be able to get the funding for a planned shoreline protection project two decades in the works.

Instead, it went to Norfolk, Virginia, Marlowe said, a decision of the Office of Management and Budget, which oversees the Corps’ budget.

“Congress can’t set priorities anymore. They gave away the earmarks, and they let the president continue to earmark,” he said. “It is hard to convince people that they have the power.”

The city needs a minimum of $1, yes one, from the federal government to be able to tap into state funds, the local government said.

“We are just trying to push it past this last step,” said Solana Beach Mayor Dave Zito. “When dealing with the federal government, the more options you have, the better.”

High-stakes debate

A return to regular earmarking of appropriations bills would extend well beyond the Capitol, and that, too, is part of the image problem.

Helping clients win earmarks became the backbone of business for some of K Street’s biggest firms, such as Cassidy & Associates and Van Scoyoc Associates.

Cassidy was the top grossing firm in 2000. By December 2010, on the cusp of the GOP moratorium and as earmarks had become increasingly controversial — and transparent — Cassidy laid off staff and restructured its business model. The firm bought itself back in 2017 from its former owner, Interpublic Group, an advertising and public relations conglomerate.

Cassidy wasn’t the only firm to take a hit. Total lobbying revenue, which for years had been on the ascent, declined in 2011, the year Congress scrapped earmarks, according to an analysis from the Center for Responsive Politics. There were other factors involved in the decline, including incentives for lobbyists to deregister as well as economic ripples from the financial crisis. But the loss of earmarks upended significant chunks of the lobbying business. Their return would likely be a boon.

“I’m talking to my clients about the possibility of earmarks and that they need to think about that,” said Walsh, a former appropriator. “We need to get some clarity from Congress about what they’re going to do.”

February and March were typically the deadlines for individual members to submit their funding requests.

Marlowe said his clients have continued to submit requests through lawmakers via electronic forms submitted through special portals. The Senate versions of the forms even include a disclaimer noting the ongoing ban on congressionally directed spending items.

Even with all the obvious baggage, many lobbyists say they expect that lawmakers could begin earmarking as soon as this year. But even so, they caution that the process — and potential profits for K Street — won’t look like they once did.

“We’re not getting in the DeLorean and traveling back to 2009,” said Gold, a member of the original breakfast club group. “You can’t have firms downtown that are quote-unquote earmark factories. You can’t have members determine who gets an earmark by who holds a fundraiser for them.”

Gold predicts that should earmarks resume, they would be narrow, such as mostly infrastructure projects. And the public transparency would increase.

“I’m actually delighted to see the whole issue is coming back on the agenda again,” said Holman of Public Citizen. “I am encouraging them to do so but to do so wisely — just don’t go back to the old corrupt system of earmarks.”

If resumed with increased disclosure and limits on earmarks for donors, Holman said the PR problem should solve itself, once lawmakers and constituents see funding for projects flow to their districts.

“If we can get out front on this issue and not have congressional Democrats just introduce a revival of earmarks flat out and have them introduce our proposals, I think we could win the battle over the hearts and minds of the public,” he said.

They won’t be the only ones trying.