Steny Hoyer and Nancy Pelosi
Majority Leader Steny Hoyer, D-Md., meets with reporters before the House votes to pass a $1.9 trillion pandemic relief package, during a news conference at the Capitol in Washington, Friday, Feb. 26, 2021. Hoyer is joined by Speaker of the House Nancy Pelosi, D-Calif., left, Majority Whip James Clyburn, D-S.C., second from right, and House Budget Committee Chairman John Yarmuth, D-Ky., third from left. (AP Photo/J. Scott Applewhite)

It is official: Earmarks are returning to Congress. The House Appropriations Committee will soon unveil the new process by which individual legislators can direct spending to projects in their home districts.

Both parties swore off earmarking a decade ago after each had members get caught in scandals, some going so far as to barter earmarks for campaign contributions and lavish trips.

This bad history was clearly on Democrats’ mind. The new regime for “community project funding” will look a lot different from the dodgy, old way of doing business. Lawmakers’ requests for funds must be posted online, and they will be vetted by committees. Earmarks may not go to for-profit companies and may not benefit for-profit companies or lawmakers or members of their families. The Government Accountability Office will audit a sample of the projects.

The restoration of legislative-directed spending was no surprise. Democrats have been talking about it for the past few years. Their plans got a boost last October when the bipartisan Select Committee on the Modernization of Congress recommended re-empowering legislators to direct funds but with strong safeguards in place. Democrats plans kicked into high gear shortly after the November election. At that time, Rep. Steny Hoyer (D-Md.), the second most powerful Democrat in the chamber, announced that all three of the legislators angling to chair the House Appropriations Committee supported bringing back earmarks.

Earlier this week, the revival of legislative-directed spending became all but a fait accompli. Both House Ways & Means Chairman Richard Neal (D-Mass.) and Transportation Committee Chairman Peter DeFazio (D-Ore.) shared word that legislators would be allowed to request projects in an infrastructure bill they hope to move in the spring.

The Republican response has been mixed. This week, the House Freedom Caucus decried earmarks as “the currency of corruption.” The Republican Study Committee, which includes most GOP House members, also condemned earmarks as wasteful and contrary to the principles of federalism. “[L]ocal projects—over which earmark advocates would prefer funding control—perhaps should not be funded at the federal level at all.” The GOP generally has made denouncing earmarks as “waste, fraud, and abuse” as part of their brand.

But not all Republicans agree with the moratorium. “Earmarks never really went away,” noted Garret Graves (R-La.). “They just moved from Congress to the administration, I think, with less scrutiny and transparency.” Rep. Tom Cole (R-Okla.), who has represented Oklahoma since 2003, has forthrightly defended earmarking. When “focused on core infrastructure and community service needs, this tool can vitally help members to ensure their constituencies are not overlooked.” Other conservatives have reasoned that if Republicans are not trying to direct where the money gets spent, Biden’s appointees will. With his party divided, Minority Leader Kevin McCarthy (R-Calif.) has not taken a position.

A similar scene is occurring in the Senate. Some GOP senators are coyly amenable to earmarking. Sen. Richard Shelby (R-Ala.) signaled he was fine with earmarks so long as they were “meritorious.” Of course, for him, they never went away. As chairman of the Appropriations Committee, he had a new FBI facility built in his home state, among other things. Minority leader Mitch McConnell of Kentucky, who has directed lots of federal spending to his home state of Kentucky, has suggested his fellow partisans might forgo earmarks.

Political noise aside, the return of earmarks heralds a restoration of Congress’s constitutional authority and realism in governance.

Earmarks have been around since the dawn of the Republic. The Constitution gives Congress—not the executive—the authority to raise revenues and to expend them. The Founders were quite familiar with earmarks—they used them to erect piers, lighthouses, and publicly useful things. There was no Department of Transportation in the 19th Century to decide where to lay out interstate roads or the transcontinental railroad. From Congress’ authority to declare war and stand up an army and navy flowed its authority to choose how much to spend on shipbuilding yards and forts.

For sure, some legislators have sought earmarks to fund projects that do not pass the laugh test, like the Teapot Museum in Sparta, North Carolina and an unneeded atomic clock. (Neither project actually got funded.)

But it is not as if the executive branch has not had its share of costly boondoggles. And critics of earmarks tend to seize on the silliest examples and fail to mention the unmistakably worthy ones. (The human genome mapping project was funded by an earmark, as was AIDS research.) Most earmarks tend to be for military projects and prosaic infrastructure projects, like repairing and expanding roads.

Congress was right to revisit the 2011 earmark moratorium because it failed to live up to its promises. It did not reduce federal spending. It just shifted the decision-making authority to the executive branch and gave already powerful presidents more opportunities to do their own pork-barreling. It was one more way Congress ceded power to the executive.

Nor did the moratorium stop the practice of legislators directing how appropriated funds get spent. The most powerful members of Congress continued to steer tax and spending benefits to their home states. Other legislators got executive agencies to do their bidding by phoning and writing them letters (lettermarking and phonemarking).

Most troublingly, taking earmarks out of the legislative bargaining process increased gridlock in Congress. Polarization discourages legislators from working across the aisle. Earmarks gave them a reason to buck the party line for the sake of helping their districts. Among experts on Congress, there is little doubt that earmarks create cross-partisan incentives. It’s oil for the machine.

For sure, the return of earmarks has given congressional Republicans a dilemma. Both McCarthy and McConnell want to reclaim a majority in their chambers, and one way to do that is to keep their members unified against nearly everything Democrats try to move through Congress. The last thing they want is their own members breaking ranks to receive earmarks.

Yet, plenty of evidence suggests that conservatives can help their reelection chances by securing benefits for their constituents. The problem is that House and Senate GOP rules forbid Republicans from requesting earmarks. So, recapturing either chamber could be more difficult if Democrats are getting things done for voters back home and Republicans are not.

This leaves McConnell and McCarthy with a lousy choice: continue to refuse to let their members request earmarks and risk imperiling their reelection, or rescind the earmark ban and get blasted by the right for capitulating to the Swamp.

But perhaps they can thread the needle by reminding their voters that Donald Trump favored reviving earmarks while quietly letting their members request local projects. And if the earmarks prove to be meritorious, voters may reward them.

Kevin R. Kosar

Follow Kevin on Twitter @kevinrkosar.
Kevin R. Kosar is a resident scholar at the American Enterprise Institute and the co-editor of Congress Overwhelmed: Congressional Capacity and Prospects for Reform (2020). He is the coauthor with Zachary Courser of the recent earmarks study, “Restoring the Power of the Purse.”