The self-imposed earmark ban instituted in Congress has removed the most important tool available to lawmakers in passing bills. The ban was implemented by then Speaker John Boehner who viewed it as making good on a campaign pledge to end “business as usual in Washington.” He was right about that, but not in the way he intended. It is no wonder that ever since, Congress has found it so difficult to move legislation of virtually any kind except what is absolutely necessary. Just passing a continuing resolution to keep the government open or extending the debt ceiling is such an onerous and difficult lift for Congress that it leaves little time, motivation or incentive for consideration of the substantive and complicated legislative actions required to pass authorizations and appropriations in regular order. Maybe Congress was too hasty to clamp down on this versatile tool. Reviving earmarks would put the House and the Senate back on track towards passing bills, budgets and following regular order.
Earmarks are the currency of the legislative process. If you remove currency from an economy, how well can you expect it to function? Earmarks serve as a vital incentive to encourage lawmakers to support broader legislation. For that reason, they’re even more critical during periods of intense partisan disagreement like the one we’re facing for the foreseeable future. As Lee Drutman recently wrote, “A politics where ideology is the only factor in considering legislative outcomes creates an impossible situation. Arguing about the allocation of resources leaves room for dealmaking, and earmarks are the coin by which those deals can be made. But intractable ideological positions leave no room for compromise.”
But aren’t earmarks bad? Not quite. Earmarks are poorly understood, heavily scrutinized and unfairly maligned. There isn’t widespread agreement on what constitutes an earmark, but generally it is a sum of money directed to a specific project by a legislator or a group of legislators to be included in a bill or committee report. That is the broadest definition of an earmark.
Earmarks are not drivers of federal debt, wastes of taxpayer dollars or indicators of corruption in our political system. Earmarks are frequently used to fund critical infrastructure or job-creating projects across the country, and under the rules in place prior to the earmark ban, public and transparent to all. At their greatest total, earmarks represented less than one percent of all discretionary spending. They account for less than 0.01% of total government spending.
Earmark opponents made their case against them largely under the banner of fiscal restraint and controlling the deficit. Yet, what lawmakers have generally come to realize following the 2010 ban is that removing earmarks didn’t reduce spending but rather transferred power of the purse from Congress to the executive agencies. The ban also made passing bills extremely difficult. This challenges the very foundation of our Constitutional system by hamstringing the Congress and creating an even more powerful executive.
But what about Jefferson, Madison and Washington? Surely they wouldn’t have approved of earmarks as the coin of the legislature. In fact, the basic innovation in government of the Founding Fathers was to understand that the ambitions of individuals and groups must be balanced against each other to create a stable and representative government, beholden to the people and governed by them. Their fear was that they might create a new monarchy, and so they gave the legislature the most significant and important powers within government, and felt safe doing so knowing that only by acting together could the legislature use its power. Earmarks are a vital element of the power enshrined in the Constitution for Congress to control spending.
The historical precedent for earmarks dates back among the very first appropriations bills signed by President George Washington in August 1789, in which money was specifically directed at a stone light house in Cape Henry, Virginia. The inclusion of this earmark created enough support for the passage of a law that expanded federal power in the regulation of lighthouses previously controlled by individual states. From the very beginning, earmarks were used to create coalitions in favor of broader legislation.
Earmarks are a fundamental activity of the US Congress, protected under the Constitution. They are a natural extension of a lawmaker’s expertise on the needs and challenges in his or her home district or state. Our nation’s creators understood that.
Earmarks are not a silver bullet to solve all our problems. Abuse of the earmark system has most certainly happened, and it must be understood that there is no system of earmarks which can be entirely perfect. “Wasteful” spending to some may be important to others, but in a federal republican democracy such as ours, people are bound to disagree about some government expenditures. This is as true when members of Congress direct spending to their own districts as it is if the departments and executive agency bureaucrats are directing that spending. The important thing is that earmarks are a tool which can be used by committee chairmen and party leadership to coax the Congress to do the things it should be doing to run a reasonably effective government. It’s that simple.
Earmarks can be improved, both as a tool for lawmakers and as a reflection of the prior concerns about earmark abuse. The contours of a reasonable earmark policy must include the following elements: First, just like the founders thought about our system of government, there must be checks and balances against abuse and corruption. The disclosure policies enacted just prior to the ban were a good start, but the committees were understaffed to give appropriate review to all of the requests and complete the associated paperwork. A revival of earmarks should, at a minimum, begin with the disclosure policies enacted in the 2007 transparency procedures. There should be an accompanying increase in funding for committee staff to manage the onerous process of reviewing earmark requests. With more staff, there is more time to understand earmark requests, consider their merits and root out the ones that are likely to be unworkable.
Second, and fundamentally, earmarks must be re-created in a way that fosters incentive for cross-party collaboration to the mutual benefit of lawmakers. Systems that are inherently antagonistic and competitive must have strong incentives for collaboration or they will cease to function as we are seeing in the 115th Congress. The best argument for revival of earmarks as a tool for Congressional action is the prospect for a return of collaboration between lawmakers of both parties.
What would such an earmark policy be? First, earmarks should be authorized. To ‘authorize’ an earmark, lawmakers would have to, in effect, get the earmark passed twice. At points during the height of earmarking, unauthorized spending was simply tacked onto appropriations bills. When earmarks are not authorized, the Appropriations committee becomes the de facto authorizers, but without the rigorous debate and oversight over proposed federal expenditures. If earmarks do indeed provide coalition builders with the tool they need to gather majorities in favor of legislation, then that same principle can apply to committee chairmen of authorizing committees as well as appropriations legislation. Give everyone in Congress the tool of earmarks, not just the appropriators.
This is how requiring authorizations for earmarks could work. Let’s say that you are a lawmaker seeking to fund a new power sub-station in your district. You would first need to get authorization for that project in an Energy and Commerce bill. Perhaps that earmark would be included in a bill that addresses the many shortfalls in our power grid, an important challenge that Congress ought to tackle. After passing that authorization, you would have to make sure the earmark for the same power grid legislation is funded in the markup of the appropriations legislation.
What is the effect of pushing for both authorization and appropriation votes? You induce members to see value in legislative activity for their home districts, and you give power to committee chairmen in both authorizing and appropriations committees to get their members to debate not only their earmark requests but also the larger, policy-setting legislation required to pass the earmarks.
All of this creates important incentives for members of Congress to talk to one another, trade promises of support for items on the agenda of their colleagues, and pass bills. By fostering collaboration and legislative activity, earmarks could help restore the balance between authorizing and appropriations committees envisioned in the Budget Act of 1974.
A word on politics, because its grasp is inescapable. While individual earmarks can be particularly popular in local contexts, the general concept of earmarks will always be the target of the media and of certain lawmakers looking to burnish their credentials as fiscal hawks. The media typically described earmarks as being “slipped into” bills or “hidden” in report language. Of course, they are referring to amendments voted on by committees and publicly available in report language, but the temptation to use this kind of “smoke-filled back room” terminology is too great in an environment where voters deeply mistrust government. Some lawmakers and watchdog organizations have an easy time attacking earmarks as wasteful, because earmarks naturally favor certain communities or regions over others. What, one might ask, is the threshold of population where an earmark for a bridge becomes a good use of taxpayer money? Certainly the fifty people living at the end of the “bridge to nowhere” learned that their interest in driving instead of taking a ferry were not worth the taxpayers’ investment.
Despite this, Republican lawmakers considered two proposals for reviving earmarks at the beginning of the 115th Congress. Congressman Thomas Rooney proposed a limited earmark policy that would exempt Army Corps of Engineers water projects from the earmark ban. He argued that because Army Corps projects are not available for competitive grants there is less room for “inappropriate behavior” and that Congress should reclaim the decision on expenditures in this area from the administration.
Congressman John Culberson’s proposal went much further and would have allowed earmarks targeted at federal, state and local projects so long as they were added to legislation in the committee process and not added to bills in last minute negotiations.
Congressman Kevin McCarthy, the House Majority Leader, was supportive at the time, saying, “We’ll continue to talk about how we deal with Article I powers, making sure that the Article I powers come back to the House and Senate and not with the administration.”
But House Speaker Paul Ryan put a stop to these votes arguing that 2016 was a “drain the swamp” election and that he would promise a vote on it during the first quarter of 2017. No vote or hearing has been scheduled.
Speaker Ryan is right, earmarks are easy to attack as profligate examples of legislative backroom dealings and even corruption. But he missed a golden opportunity to restore a valuable tool for collaboration in Congress. This is also a unique moment in American political history. The combination of presidential bombast, the media’s oversaturation coverage of his behavior, and the unrelenting speed of the news cycle means the return of earmarks would have drawn almost no attention in the press. To put it simply, if the House and Senate voted to bring back earmarks on Tuesday, by Thursday morning the world would have moved on. President Trump himself, self-styled master negotiator, may understand intuitively that earmarks are the keystone of any dealmaking to be had in the Congress.
In their previous life, earmarks were a bad word for making good things happen. They represent an insignificant amount of federal spending, they grease the legislative pipeline in Congress, they provide crucial funding to many important projects and they represent a key part of a constitutionally important role for the Congress. People need incentives to work together now more than ever. Our politics is captured by a deep, nearly tribal ideological grip that leaves very little incentive for collaboration. Give lawmakers the tool to make laws. Bring back earmarks.