Earmarks Will Not Fix A Congress That Habitually Ignores Its Own Rules

(Editor’s Note: This piece first appeared in the Daily Caller on May 20, 2021.)

Congress is getting back into the earmark business. Democrats in the House and Senate recently lifted a decade-old ban on the practice. As a result, beginning this year, lawmakers will again be able to direct executive branch officials to prioritize specific projects when they make funding decisions.

Proponents of earmarks predict that lifting the ban will make it easier for Congress to deliberate and legislate. In addition, they claim that earmarks facilitate bargaining between lawmakers and, therefore, help Democrats and Republicans compromise with one another in the current polarized environment. That is why proponents believe that lawmakers can jump-start the long-stalled appropriations process and “return Congress to its role as a functioning body” merely by getting back into the earmark business.

Yet earmark proponents overstate the impact that resuming the practice will have on the House and Senate. Admittedly, Congress’s capacity to deliberate and legislate has declined since it banned earmarks ten years ago. But lifting its ban will not reverse that decline by itself. That is, allowing lawmakers to decide which highway interchanges and water treatment facilities the government funds first each year will not improve their ability or willingness to debate controversial issues like healthcare and immigration reform. And lifting the earmark ban will not, on its own, cause Congress to pass more legislation.

Earmarks will not fix Congress because the decision to ban them did not break it. Republicans in the Senate inadvertently revealed what is really wrong with Congress when they recently decided to ignore their earmark ban instead of repealing it. Lawmakers — especially in the Senate — deliberate and legislate less today than they did ten years ago because they selectively follow the rules that make deliberation and legislation possible. In short, they follow the rules only when it is convenient for them to do so.

House Republicans led the charge to ban earmarks in 2010. At the time, they opted to ban the practice in their party rules, which applied only to Republicans, because they did not have the votes to ban earmarks in the House rules — which would have applied to all lawmakers in the chamber. And they took the same approach after winning control of the House in the 2010 midterm elections when they renewed their original ban instead of adding it to the House rules. The new Republican majority on the Appropriations Committee imposed that ban on the entire House when it refused to consider lawmakers’ earmark requests during Congress’s annual appropriations process.

The Senate was late to join the anti-earmark bandwagon. When it was apparent that the House was going to block earmarks, Senate Republicans reluctantly agreed to ban the practice. Like their colleagues in the House, Republicans in the Senate added an earmark ban to their party rules. And the Democratic majority on the Senate’s Appropriations Committee subsequently announced that their panel would not consider senators’ earmark requests for two years. Senate Democrats extended that ban for two more years in 2012. And House Democrats continued the Republican-initiated earmark ban after they regained control of that chamber in the 2018 midterm elections. House and Senate Republicans also renewed their earmark bans repeatedly. In 2019, Senate Republicans even voted to make their ban permanent.

Yet Senate Republicans reacted differently to Congress’s decision to get back into the earmark business. Whereas Democrats and House Republicans decided to change their earmark policies and, where applicable, repeal their bans, pro-earmark Republicans in the Senate voted to leave their ban in place. They decided that it was easier to ignore it. The top Republican on the Appropriations Committee, Republican Sen. Richard Shelby of Alabama, suggested that keeping the ban in the Republicans’ party rules did not matter because the prohibition was symbolic and could not be enforced. Thus, according to Shelby, Republicans in the Senate are free to request earmarks even though their party rules clearly stipulate “that it is the policy of the Republican Conference that no Member shall request [an earmark].”

This is not the first time Senate Republicans have decided to ignore their rules when following them would be inconvenient. For example, they approved a ban on new entitlement spending when they agreed to ban earmarks in 2010. And the Republicans’ party rules presently stipulate that “Congress should not enact any new entitlement (mandatory spending) programs unless accompanied by reductions in the number and size of existing entitlement programs.” But Republicans have voted to increase mandatory spending in several programs over the last ten years without reducing it elsewhere.

And Democrats and Republicans have opted to ignore the Senate’s Standing Rules in recent years. Democrats used the so-called nuclear option to eliminate the filibuster for most presidential nominations in 2013. Republicans likewise used the nuclear option in 2017 to eliminate the filibuster for Supreme Court nominations. And they used it again in 2019 to reduce the amount of time available for debate after the Senate invokes cloture on most nominees.

In all of these cases, however, senators did not change the underlying rule. They instead decided to ignore it. Senate Republicans’ party rules still include bans on earmarks and new entitlement spending. And Rule XXII of the Senate’s Standing Rules still requires “three-fifths of the Senators duly chosen and sworn” to end debate on a presidential nomination. The rule also stipulates that senators may debate presidential nominations for up to thirty hours after they vote to invoke cloture.

Instead of changing the rules, senators established a new practice in each instance that contradicts the plain-text meaning of those rules. The problem with evading the rules like this is that there is no first act of breaking the rules that legitimize all subsequent violations. So senators instead violate the rules every time they choose to ignore them. And each violation weakens the authoritative foundation on which the rules depend for legitimacy and force. 

This perspective suggests that earmarks will not fix Congress. They will not matter if lawmakers do not acknowledge that the rules that regulate their debates are mutually binding in good times and in bad. This is because Congress needs rules to function, not earmarks. The rules make it possible for lawmakers to form expectations about what will happen in the future. And that, in turn, makes it easier for them to compromise in the present. Lawmakers create new possibilities that did not exist before they pre-commit to follow the rules; when they use the rules to achieve their goals in the House and Senate.

If lawmakers really want to fix Congress, they should forget earmarks and focus instead on strengthening the rules that enable them to deliberate and legislate in the first place. They should remember Thomas Jefferson’s sage advice — that when it comes to deliberating and legislating, “it is much more material that there should be a rule to go by, than what that rule is.”