May 27, 2021
Senate Follows House With Return of Earmarks
Earmarks are continuing to make a return to Congress after a moratorium lasting a decade. Following the House’s announcement that the committee will accept Member requests for Community Project Funding in appropriations bills for the upcoming fiscal year (FY2022), the Senate followed suit. On April 26, 2021, the chair of the Senate Committee on Appropriations announced an intention to restore the use of congressionally directed spending items in appropriations bills for the upcoming fiscal year (FY2022). Such congressionally directed spending items will be subject to the Senate rules and restrictions governing earmarks.
Senate earmark disclosure rules apply to any congressional earmark included in either the text of the bill or the committee report accompanying the bill, as well as the conference report and joint explanatory statement. The disclosure requirements apply to items in authorizing legislation, appropriations legislation, and tax measures. Furthermore, they apply not only to measures reported by committees but also to unreported measures, amendments, House bills, and conference reports.
Senate Earmark Disclosure Rule
The Chair of the committee or majority leader must certify that a complete list of earmarks and the names of each Senator requesting each earmark is available on a publicly accessible congressional website in a searchable form for at least 48 hours before a vote on a motion to proceed to consider a measure or a vote on adoption of a conference report.
In the Senate, disclosure rules apply to any congressional earmark, limited tax benefit, or limited tariff benefit included in either the text of a bill or any report accompanying the measure, including a conference report and joint explanatory statement. Earmark rules explicitly defines congressionally directed spending item, limited tax benefit, and limited tariff benefit as follows:
Congressionally directed spending item - a provision or report language included primarily at the request of a Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive award process.
Limited tax benefit - any revenue provision that (A) provides a federal tax deduction, credit, exclusion, or preference to a particular beneficiary or limited group of beneficiaries under the Internal Revenue Code of 1986, and (B) contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of such provision.
Limited tariff benefit - a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities.
If the earmark certification requirements have not been met, a point of order may lie against consideration of the measure or vote on the conference report. A point of order applies only in the absence of such a certification and does not speak to the completeness or the accuracy of the certification.
Requirements for Senators Submitting Earmark Requests
A Senator requesting that a congressional earmark be included in a measure is required to provide a written statement to the chair and ranking minority member of the committee of jurisdiction that includes:
- Senator’s name;
- Name and address of the intended earmark recipient (if there is no specific recipient, the location of the intended activity should be included);
- In the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit to the extent known to the Senator;
- Purpose of the earmark; and
- Certification that neither the Senator nor the Senator’s immediate family has a financial interest in such an earmark.
It is important to note that, when submitting earmark requests, individual committees and subcommittees often have their own additional administrative requirements beyond those required by Senate rules. The committees may also establish relevant policy requirements or restrictions. In addition, committees and subcommittees often have deadlines, especially for earmark requests in appropriations legislation. For this reason, it is important to check with individual committees and subcommittees to learn of any supplemental earmark request requirements or restrictions.
Requirements for Committees
Under the Senate rule, earmark disclosure responsibilities of Senate committees and conference committees fall into three major categories: (1) determining if a spending provision is an earmark; (2) compiling earmark requests for presentation, and (3) certifying that requirements under Senate rules have been met.
Committees of jurisdiction may use their discretion to decide what constitutes an earmark. Definitions in Senate rules, as well as past earmark designations, may provide guidance in determining if a certain provision constitutes an earmark.
Senate rules state that consideration of a measure or conference report is not in order until the applicable committee chair or the majority leader “certifies” that the requirements stated above have been met. While the rule does not state what constitutes certification, it had been the practice of the committee chair to make a statement on the Senate floor or submit a written statement to be printed in the Congressional Record confirming compliance with Senate disclosure requirements.