Senate Republicans are in store for a heated debate next week on whether a “permanent ban” on earmarks in their conference rules actually prevents members from requesting home-state projects in spending bills.
At the heart of the confusion is whether the ban, adopted in 2019 on a 28-12 vote, is “binding” on conference members, or whether Republicans can participate in the process regardless of what party rules say.
Senate Appropriations ranking member Richard C. Shelby and other top GOP appropriators point to Rule VII of conference rules, which says "[no] action" by the conference "shall by binding in any way on members" during Senate votes.
"I think there is a rule that bans earmarks, but there's also a rule that says we're not bound by the rules," Shelley Moore Capito of West Virginia, the top Republican on Homeland Security appropriations, said Wednesday. "So I don't know that there's going to be an effort to actually overturn [the ban] or just clarify it."
The conference's earmark moratorium was a separate resolution adopted in the 115th Congress, and then renewed in 2019 under Nebraska Sen. Ben Sasse's amendment. It says GOP conference policy is that "no Member shall request" a spending, tax or tariff-related earmark as defined under standing Senate rules.
Numerous other resolutions have been added to the conference rulebook over the years, many of which have been ignored. Those include support for a balanced-budget amendment to the Constitution, cutting nondefense discretionary spending and overhauling entitlement programs like Social Security and Medicare.
Capito said she wasn't sure exactly what the conference will end up voting on April 21 when it debates internal party rules.
Capito, who represents the same state a legendary earmarker, Sen. Robert C. Byrd, D-W.Va., did for over 50 years, said she plans to insert her own projects into fiscal 2022 spending bills. And that other senators can make their own decisions.
"If people want to access and move forward with earmarks, they can. If they don't want to, they don't have to," she said.
‘No enforcement mechanism’
Shelby, R-Ala., said he doesn’t plan to offer any amendments to party rules that would change or remove the ban on earmarks. He says anyone is free to request projects during the upcoming appropriations cycle, and that he'll apply rigorous transparency rules and make sure each project has merit.
But several GOP senators said they aren’t so sure how the rules might apply to the return of earmarks, which Democrats in both chambers and House Republicans are now on board with.
Senate Minority Whip John Thune said Wednesday that whether Republicans are free to earmark will be part of the conversation next week during the conference's debate.
“I don’t know the answer to that, particularly with what the House did and what Democrats are going to do,” said Thune, R-S.D. “I think that’s what we’re trying to figure out.”
Senate Republican Conference Chairman John Barrasso avoided directly answering the question. “Currently our conference position is that we don't do earmarks,” he said.
“We have a whole set of conference rules that apply and anybody can come with an amendment to any of the rules that apply to the conference,” Barrasso, R-Wyo., continued.
John Cornyn, R-Texas, said there’s no “enforcement mechanism” requiring Senate Republicans to follow their rules. But he thinks the conference should reach some sort of agreement and remain unified.
“I don’t think it’s healthy to ignore [the moratorium in conference rules]. I think we need to address it and reach a consensus,” Cornyn said.
That could be challenging for the 50-member conference.
Several GOP senators said they don’t support earmarks and plan to do everything they can to prevent the party from using them this Congress.
“I am strongly opposed to going back to the bad old days of earmarks. It was extremely wasteful, it was often corrupting, it was the currency that was used to buy votes on bad legislation,” said Pennsylvania's Patrick J. Toomey. “So there are a lot of reasons why I think we should not go back.”
Florida's Marco Rubio, an Appropriations Committee member, said the view that Senate Republicans can ban earmarks while simultaneously allowing members to request them is “pretty convenient for the people who want to earmark.”
“I don't think … the best way to spend taxpayer money is to create these earmarks that in many cases end up severely undermining public confidence in our process and how we spend money around here,” Rubio said.
Senate Appropriations Chairman Patrick J. Leahy, D-Vt., has said if Republicans opt to participate in congressionally directed spending, he’ll dedicate half of the earmarked funds to GOP senators.
That could mean an increasingly large pot of money for a small fraction of Senate Republicans to divvy up amongst themselves — representing a huge boon for their states.