February 22, 2021

Back to the Future

Becky Weber

House and Senate Appropriations Chairs Rosa DeLauro (D-CT) and Patrick Leahy (D-VT) will reportedly announce in the coming weeks that Democrats will reinstate earmarks, or Member-directed spending, in this year’s appropriations spending bills. Democrats say they will create a public, transparent process to disclose information about each earmark request made by individual Members, specifically which entity would receive funding under the request; additionally, the process will prohibit Members from requesting earmarks to entities to which they have financial ties. Congress is likely to limit earmarks to state and local public entities, excluding private sector companies, and cap the percentage of each bill’s spending that can be earmarked.

House Transportation and Infrastructure Committee Chair Pete DeFazio (D-OR) has indicated he supports the restoration of earmarks, which will come in handy when trying to pass a surface transportation reauthorization bill due later this year. Majority Leader Steny Hoyer (D-MD) indicated that the reinstatement of earmarks will be bipartisan and while Republican internal rules currently prohibit earmarks, reportedly there are conversations amongst Republican leaders about changing those rules to allow them.

We heard a comment from a fellow lobbyist recently, “I wasn’t around when there were earmarks.” Prime Policy Group is here to say, “We were.” We have been in the rooms when earmarks were decided, and we know how to advocate for them.

Many of us worked on Congressional Committees that doled out earmarks and have also worked to help entities advocate for earmarks in legislation. Through earmarks, we helped children’s hospitals, cities, counties, states, universities, water districts, transit authorities and other non-profit and public entities secure millions of dollars in funding. We were even called out by a publication for securing the largest single earmark in a fiscal year. One of our clients’ projects was not in either the House or Senate versions of an appropriations bill, but we were ultimately able to secure the funding for our client.

Earmarks 101: Back to School

So, what exactly is an earmark? The word earmark can be traced all the way back to 1590 to mean a cut or mark in the ear of sheep and cattle, serving as a sign of ownership. It evolved from there to mean “to set aside money for a special purpose.” The Congressional Research Service (CRS) provides the mostly widely accepted definition of a Congressional earmark: “Provisions associated with legislation (appropriations or general legislation) that specify certain congressional spending priorities or in revenue bills that apply to a very limited number of individuals or entities. Earmarks may appear in either the legislative text or report language (committee reports accompanying reported bills and joint explanatory statement accompanying a conference report).” In other words, Member-directed spending aimed at a specific entity for a specific purpose.

Earmarks are clearly permitted in the U.S. Constitution, which gives the power of the purse to Congress and ensures Congress has the power to specify the objects, amounts, and timing of federal spending. It was thought that elected representatives were closest to the people they represent and their needs and therefore better placed to direct some spending within their states and districts over unelected federal bureaucrats in federal agencies. For decades, earmarking portions of appropriations and authorizing bills for specific projects directed by Members was common practice and earmarks were extremely popular. Earmarks certainly provided a unique form of “grease” to get difficult legislation passed in a bipartisan fashion. Members also enjoyed showing constituents that their tax dollars were being put to work and directly benefitting them.

Critics argue that earmarks contributed to increased spending, characterized by some as wasteful “pork-barrel projects,” and one Member famously said of earmarks, “One man’s pork is another man’s economic development.” However, when analyzed over a ten-year period, earmarks consistently averaged only about one percent of total federal spending.

So why did earmarks disappear? Many point to a controversial $200 million earmark in the 2005 highway bill as the bullet that killed earmarks – the funding was for a project in Alaska to replace a ferry from a town to an island of only 50 people. The project received high-profile attention and became known as the “Bridge to Nowhere.” Ultimately the bridge was never built, the funds were rescinded and an improved ferry at much lower cost was put in place; nevertheless, the project became the poster child for wasteful pork-barrel spending. Despite reforms instituted afterward to make the earmark process more transparent, they were swept off the table in 2011 and have remained unfashionable ever since.

Now, in a “Back to the Future” move, it looks like earmarks may be making a comeback. With a few exceptions, most Members of Congress on both sides of the aisle are giddy with delight at this prospect. With all the rancor and division in Washington, we’re willing to bet the return of earmarks might also bring a return to some long-lost comity and bipartisanship in Congress. That possibility alone makes it a welcome development.