House Democrats are officially resurrecting earmarks, ending a decadelong prohibition on congressionally directed spending and giving lawmakers new tools to “bring home the bacon.”
The announcement Friday marks a new era for congressional influence over how the federal government spends some of the $1.4 trillion in discretionary spending approved every year.
But House Democrats detailing how the process will work in that chamber is just one piece of the puzzle. The Senate has yet to announce when and how it will bring back earmarks, and Republicans in both chambers are struggling with whether to remove party rules that bar them from participating in the process.
“We are in good faith negotiations with the House and my Senate colleagues to bring back congressionally directed spending in a transparent and responsible way, and those discussions are ongoing,” Senate Appropriations Chairman Patrick J. Leahy, D-Vt., said in a statement. “I believe there is bipartisan support to restore the power of the purse to Congress and I am continuing to work toward that goal.”
House Democrats’ earmarks plan will cap the total amount of money that can be spent on earmarks to 1 percent of total discretionary spending.
For-profit entities will not be eligible for earmarks and the Government Accountability Office will audit the process by looking at a “sample” of enacted earmarks and submitting a report to Congress.
Oversight and transparency
Members will be capped at submitting 10 earmark requests per fiscal year, though members aren’t guaranteed to get those earmarks included in the annual government funding bills. Lawmakers must provide evidence their communities support the earmarks they submit. And any member submitting a request must post it online at the same time they submit their proposal to the Appropriations Committee.
The House panel plans to create a “one-stop” online portal for all House members' earmarks requests.
The House will continue to require the oversight and transparency restrictions Democrats put in place before the ban took effect in 2011 and add in new rules as well.
The pre-2011 rule changes included requiring members to make their requests and the justifications for them public, and requiring them to certify neither they nor their spouses have any financial interest in a particular earmark.
The new provisions will require the Appropriations Committee to release a list of “community project funding” 24 hours before the full committee marks up the bill. And members will have to certify that no immediate family members have any financial interest.
House Appropriations Chair Rosa DeLauro, D-Conn., has been working on the earmarks proposal with Leahy, but for now the earmarking plan is from House Democrats.
DeLauro said in a statement Friday that “Community Project Funding will allow Members to put their deep, first-hand understanding of the needs of their communities to work to help the people we represent.”
GOP party rules
Democrats' move to bring back earmarks in the House this session has set off an internal debate within the GOP about whether members should try to secure money for their districts or states through the process or sit it out.
Both House and Senate Republicans' party rules include a prohibition on earmarking.
House Majority Leader Steny H. Hoyer, D-Md., told reporters this week that he expects Republicans will participate in the process, though he declined to discuss conversations he’s had on the topic with House Minority Leader Kevin McCarthy, R-Calif.
“I’ve talked to a lot of Republicans, who I expect are going to be requesting earmarks for their districts,” Hoyer said.
Senate Minority Leader Mitch McConnell, R-Ky., is less bullish on Republicans participating, saying on Fox News on Thursday evening that “earmarks are very unpopular among Republicans.”
“I represent the entire conference and I can tell you the overwhelming majority of the Republican conference in the Senate is not in favor of going back to earmarks,” McConnell said. “I'm assuming those people — even if Democrats craft the bill so that those are permitted — will not be asking for them.”
The House Freedom Caucus is firmly opposed to a return to earmarking, while senior Republicans like Senate Appropriations ranking member Richard C. Shelby of Alabama and House Rules ranking member Tom Cole both back a controlled return to a transparent process.
“When focused on core infrastructure and community service needs, this tool can vitally help members to ensure their constituencies are not overlooked,” Cole, R-Okla., said in a statement.
A Senate Republican aide not authorized to speak publicly said Friday afternoon that the GOP is still trying to work through the proposal and determine how to address party rules.
“I wouldn’t characterize us as opposed to or supporting anything right now,” the aide said.
The aide said Republicans would like some clarity on how exactly the 1 percent of funding would be determined. For example, would Overseas Contingency Operations accounts or changes to mandatory programs be counted toward the total amount of discretionary spending or not.
House Democrats' earmarking plans end a decadelong moratorium that began in January 2011 when Republicans took control of the House. Speaker John Boehner, backed by a wave of new tea party Republicans, eliminated the practice by continuing a prohibition in GOP party rules.
In late January, President Barack Obama used his State of the Union speech to announce that he would veto any bill containing earmarks, saying “the American people deserve to know that special interests aren't larding up legislation with pet projects.”
A few days later, Senate Appropriations Chairman Daniel K. Inouye, D-Hawaii, announced a two-year earmark ban, though he defended members' constitutional right to direct federal spending “under the fiscally responsible and transparent earmarking process that” leadership had put in place.
For the next few years, Republicans and Democrats would grumble about the lack of earmarks making it more difficult to pass legislation while members supportive of the ban held the line.
Then in 2016, just days after Donald Trump was elected president, House Republicans gathered behind closed doors to debate their rules for the upcoming Congress.
Florida’s Tom Rooney offered an amendment to bring back earmarks for Army Corps of Engineers projects and Texas’ John Culberson put forward a proposal to allow congressionally directed spending for local, state and federal projects.
Both measures were on track to be adopted by House GOP lawmakers when Speaker Paul D. Ryan, R-Wis., stepped in to stop the vote.
He argued that the party should not bring back the somewhat notorious practice just a short time after Trump was elected after campaigning heavily on a “drain the swamp” message. And he pledged that if the two lawmakers withdrew their amendments, he would hold a vote during the first quarter of 2017.
That vote never happened.
Ryan instead tasked Rules Chairman Pete Sessions, R-Texas, with holding a series of hearings on “congressionally directed spending” and putting together recommendations for the Republican Conference.
Sessions told reporters throughout the process he expected to bring back “transparent, merit-based” earmarks, pushing back on frustrations from some members of his party who argued earmarks in any form went against core conservative values.
That never happened.
When Democrats took control of the chamber in January 2019, Appropriations Chairwoman Nita M. Lowey, D-N.Y., tried to bring back earmarks for the upcoming spending cycle. But she ultimately released a letter in March 2019 saying there wasn’t the “bipartisan, bicameral agreement to allow the Appropriations Committee to earmark.”
In 2020, she held a series of closed-door meetings with moderate and at-risk Democrats, later deciding against setting up a process for “community project funding.”
Now, longtime advocates of the practice are getting their wish, though how the process will work itself out as Congress begins the fiscal 2022 budget and appropriations process remains to be seen.
Since the ban took effect there has been significant turnover in Congress: Just 35 percent of current lawmakers were members before the prohibition.
The Senate holds a larger percentage of members who were in Congress during the heyday of earmarking with 56 senators, while the House includes 133 lawmakers who were sworn in before January 2011.
When broken down along party lines, Democrats have 89 House members and 33 senators while Republicans have 44 House members and 23 senators with any experience of pre-2011 earmarking practices.