House and Senate Procedural Rules Concerning Earmark Disclosure
Released: 2009-11-18T00:00:00

Introduction

During 2007, both the House and Senate established new earmark transparency procedures for their separate chambers. They provide for public disclosure of approved earmarks and the identification of their congressional sponsors. In addition, they require disclosure of further information from each congressional sponsor, such as a certification that the sponsor has no financial interest in the earmark. Each House has also established procedures regarding new spending earmarks added to conference reports.

The House originally established its procedures through adoption of two House resolutions. On January 5, 2007, the House completed action on H.Res. 6 (110 th Congress), adopting the 110 th Congress rules package, including new provisions in House Rule XXI to require public disclosure of approved earmarks, their sponsors, and the additional information. On June 18, 2007, the House adopted a standing order, H.Res. 491 (110 th Congress), to require transparency for new spending earmarks added to conference reports on the 12 annual regular appropriations bills. On January 6, 2009, the House adopted the rules package for the 111 th Congress, H.Res. 5 (111 th Congress), which incorporated the provisions of H.Res. 491 into House Rule XXI, clause 9.

In the Senate, Rule XLIV was adopted through the Honest Leadership and Open Government Act of 2007 ( P.L. 110-81 ), which became law on September 14, 2007. The new rule provides for public disclosure of each "congressionally directed spending item," its sponsors, and "no financial interest" certifications. It also includes a procedure to strike certain new items of spending added to conference reports.

This report describes and compares the procedures and requirements in House and Senate rules, including the House requirement regarding the use of earmarks as leverage for votes. In addition, individual House and Senate committees may have additional requirements for earmarks submitted for their consideration, but these are not covered in this report.

When submitting an earmark request, there may also be other considerations relevant to the individual Member's request, such as whether the earmark should be included in the text of the bill or the committee report accompanying the bill. Committees may make an administrative distinction between these two categories in terms of the submission of earmark requests, and there may be policy implications of an earmark's placement in either the bill text or the committee report as well.

Earmark Definition

For purposes of the procedures discussed below, both House and Senate rules provide definitions for spending earmarks, limited tax benefits, and limited tariff benefits.

Spending Earmark Definition

The spending earmark definitions in House Rule XXI, clause 9, and Senate Rule XLIV are identical, except the identification of earmark requesters.

For purposes of all the disclosure requirements above, a spending earmark is a provision in legislation or report language that meets specific criteria. First, the provision or language is primarily included at the request of a Representative, Delegate, the Resident Commissioner, or Senator under the House rule (or a Senator under the Senate rule). Second, the provision or language provides, authorizes, or recommends a specific amount of discretionary budget authority, credit authority, or other spending authority for certain purposes (1) with or to an entity, or (2) targeted to a specific state, locality, or congressional district. The purposes are a contract, grant, loan, loan guarantee, loan authority, or other expenditure. Finally, any of the above spending set asides that are selected through a statutory or administrative formula-driven or competitive-award process are excluded.

The definition is broad. It includes earmarks funded or recommended in appropriations legislation, as well as other non-appropriations legislation (such as authorizations), conference reports, and accompanying report language.

Limited Tariff Benefit Definition

The definitions in the House and Senate rules are identical. Such tariff benefits are defined as "a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities." This definition targets provisions in "miscellaneous duty suspension bills" or "miscellaneous tariff bills" (MTBs), which seek to temporarily reduce or eliminate tariffs on imports of particular commodities. The vast majority of tariff suspensions are on chemicals, raw materials, or other components used in the manufacturing process.

Limited Tax Benefit Definition

In contrast to the previous definitions, the House and Senate definitions of limited tax benefits are somewhat different. Under the Senate rule a limited tax benefit is defined as a revenue provision that provides a tax deduction, credit, exclusion, or preference to a particular beneficiary or limited group of beneficiaries under the tax code and contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of the provision.

The House rule is more specific, and uses the term limited tax benefit to apply to (1) a revenue-losing provision that provides a tax deduction, credit, exclusion, or preference to no more than 10 beneficiaries under the tax code and contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of the provision; or (2) a tax provision that provides one beneficiary with transitional relief from a change to the tax code.

Public Disclosure Procedures on Earmark Requests

Earmark List and Congressional Earmark Sponsors

The rules in both the House and Senate include parliamentary procedures regarding greater transparency of congressional sponsors of earmarks.

House Rule XXI, clause 9

This rule prohibits House consideration of legislation, certain amendments, or conference reports, unless either

a list of earmarks in such legislation, amendment, conference report, or any accompanying report language and the name of any House Member who requested an earmark(s) on the list is made available; or a statement that there are no earmarks is made available.

Only selected amendments to legislative measures are covered under this rule: amendments in committee-reported legislation and manager's amendments. A manager ' s amendment is an amendment offered at the outset of consideration for amendment by a member of a committee of initial referral, under the terms of a special rule. Major legislation is typically brought up on the House floor by a special rule, which provides the terms for consideration of the measure, and may also limit consideration of floor amendments, specify the order for consideration of specific amendments, or waive various House rules. After the House adopts a special rule, by a majority vote, Members consider the measure on the House floor. House Rule XXI, clause 9, does not cover certain forms of amendments, such as an amendment between the Houses, an amendment automatically agreed to upon adoption of a special rule, an amendment offered during floor consideration, or a committee amendment in the nature of a substitute made in order as original text for purposes of amendment.

Under the House rule, the required list of earmarks (and congressional sponsors) or statement that there are no earmarks must be disclosed in specified public documents. For committee-reported legislation and conference reports, either a list or statement must be included in the applicable report language. Regarding non-reported legislation, the chair of each committee of initial referral is required to have a list or a statement printed in the Congressional Record prior to consideration of the legislation. The proponent of a manager's amendment must also have a list or statement printed in the Congressional Record prior to consideration of the amendment.

While the House has established rules designed to provide time for Members to review the contents of committee reports, conference reports, and joint explanatory statements before floor consideration, the House may waive these requirements. In cases in which a committee provides time for review, Members have an opportunity, for example, to draft amendments striking specific earmarks in a reported bill or lobby against a conference report. Under House Rule XIII, clause 4(a), committee-reported legislation may not generally be considered on the House floor until the accompanying committee report has been available to Members for at least three calendar days. House Rule XXII, clause 8(a), provides a similar three-day availability requirement for conference reports. The conference report and attached joint explanatory statement must be available in the Congressional Record for at least three calendar days prior to consideration, and copies of the conference report and joint explanatory statement must be available for at least two hours before consideration. The House, however, typically adopts special rules providing for consideration of conference reports that waive all points of order, including these.

The earmark and sponsor disclosure requirements are not self-enforcing; a Member must raise a point of order on the House floor against consideration of the legislation, amendment, or conference report.

A point of order raised under this subsection may be based only on the failure to include a list of earmarks (and sponsors) or a statement that there are no earmarks in the report language or Congressional Record , as applicable. In response to a parliamentary inquiry, the Speaker pro tempore explained that the rule

... does not contemplate a question of order relating to the content of the statement offered in compliance with the rule. Argument concerning the adequacy of the list or the probity of a disclaimer is a matter that may be addressed by debate on the merits of the measure or by other means collateral to the review of the chair.

Each committee, therefore, is left solely responsible for determining the contents of the list.

The House rule prohibits House consideration of a special rule that waives the public disclosure requirements, and includes a special procedure to implement this prohibition. If a Member raises a point of order against considering a special rule that includes such a waiver, the presiding officer does not rule on the point of order. Instead the House decides, by majority vote, whether to consider the special rule. The House rule provides 20 minutes of debate, equally divided and controlled by the initiator of the point of order and an opponent. No other intervening motion is allowed, except one that the House adjourn. This procedure effectively allows the House to decide by a separate vote whether to allow this public disclosure requirement to be waived.

Senate Rule XLIV

This rule provides different procedures from the House, but it is also intended to improve public disclosure of earmarks including the name of each Senator who requested any identified earmark. Senate Rule XLIV prohibits a vote on a motion to proceed to consider any committee-reported legislative measure (and any amendment included in the text of the reported bill) or non-reported Senate legislative measure, unless the chair of the applicable committee or the Majority Leader (or designee) provides certain certifications. Similarly, the Senate can not vote on adoption of a conference report unless the chair or Majority Leader (or designee) makes a similar certification.

The chair or Majority Leader must certify that a list (or a chart or other similar form) of all earmarks (including those in the applicable measure, conference report, or accompanying report language, if any) and the name of each Senator who submitted a request for each item listed has been available on a publicly accessible congressional website for at least 48 hours before such vote. In the case of measures, they must also certify that the list of earmarks (and Senate sponsors) on the congressional website are in a searchable format. Lists associated with conference reports should also be in a searchable format, but only to the extent technically feasible.

If the presiding officer sustains a point of order against a vote on a motion to proceed, consideration on the motion is suspended until a certification is made and the sponsor (or designee) of the motion requests consideration to resume. Under Rule XLIV, paragraph 3, if a point of order is sustained against a conference report, it would be set aside.

These rules are not self-enforcing; a Senator must raise a point of order against the vote.

Senate Rule XLIV provides two procedures to waive these requirements and restricts appeals of the presiding officer's rulings on such points of order. Unlike the House, the Senate does not have a generally applicable mechanism to waive its rules. Although a waiver motion is available for points of order under the Budget Act and similar requirements, the Senate standing rules must typically be waived by unanimous consent (that is, no Senator objects to a unanimous consent request to waive a rule). Senate Rule XLIV, however, incorporates a waiver motion similar to that used under the Budget Act, and allows any Senator to make a motion to waive any of these points of order. An affirmative vote of three-fifths of all Senators (60, if there are no vacancies) is required to adopt the motion. Senators may debate the motion for up to one hour, with the time equally divided and controlled by the Majority and Minority Leaders (or their designees). These points of order may also be waived if the Majority and Minority Leaders jointly agree that "such a waiver is necessary as a result of a significant disruption to Senate facilities or to the availability of the Internet."

The Senate rule places restrictions on consideration of appeals of the chair's rulings on these points of order. Any Senator may appeal the presiding officer's ruling on most Senate rules. Such appeals are generally debatable, and debate may be ended by cloture (requiring three-fifths vote of all Senators to adopt the cloture motion) or by a motion to table, which would uphold the chair's ruling. The appeal procedure included in Rule XLIV allows only one appeal and limits debate to one hour.

Amendments in the reported bill or offered from the floor that include earmarks are covered under the rule, but the procedures differ. Those amendments in the text of the reported bill are subject to the same point of order described above that applies to reported measures. Regarding amendments offered from the floor, the rule recommends that the sponsor of an amendment that includes an additional earmark ensure, as soon as practicable, that (1) a list of each earmark and (2) the name of any Senator requesting each earmark on the list be printed in the Congressional Record . This includes full-substitute amendments offered from the floor. As in the House, amendments between the Houses are not covered under this rule.

Specified Information (Including Certifications) From Congressional Earmark Sponsors

Both House and Senate rules require earmark sponsors to provide similar information on each earmark to the committee of jurisdiction, but these rules include different public disclosure requirements regarding the information. Neither requirement is enforced by points of order.

These rules require each Member requesting an earmark in legislation (conference report or accompanying report language) to submit specific written information to the chair and ranking member of the committee of jurisdiction. Each sponsor shall submit in writing (1) the sponsor's name; (2) in the case of a spending earmark, the name and address of the intended recipient or, if there is no specifically intended recipient, the intended location of the activity; (3) in the case of a limited tax or tariff benefit, the sponsor must identify the individual or entities reasonably anticipated to benefit, to the extent known by the sponsor; (4) the purpose of the earmark; and (5) a certification of no pecuniary interest in such earmark.

While the House rule requires a certification that neither the Member nor the Member's spouse have any financial interest in the earmark, the Senate rule requires a certification that neither the Senator nor the Senator's immediate family have any pecuniary interest, consistent with paragraph 9 of the rule.

Regarding the differing House and Senate public availability requirements, in the House, the applicable committee is to make "open to public inspection" the Member's written statement on any earmark included in a measure or conference report. Each House committee has the discretion to determine its own public disclosure procedures. The Senate rule, on the other hand, recommends that each committee make available only the certification of "no pecuniary interest" for each earmark included in a Senate measure reported or considered by the Senate, conference report, or report language, if any. In addition, under the Senate rule, committees are to make the certifications available for public inspection on the Internet, as soon as practicable.

Classified Earmarks

The Senate rule specifically recommends that the committees of jurisdiction include on these lists applicable classified spending earmarks to the greatest extent practicable, consistent with the need to protect national security (including intelligence sources and methods). The information for each earmark identified should include an unclassified program description, spending amount, and name of Senate sponsor. The House rule does not include a specific provision on classified earmarks. Public disclosure of these earmarks and their sponsors are made under the disclosure requirements as discussed above.

Conference Report Procedures Affecting New Earmarks

House Rule XXI, clause 9(b), and Senate Rule XLIV, paragraph 8, both address certain spending earmarks, sometimes referred to as "air-drops," added in a conference report (and joint explanatory statement under the House rule) that were not specified in the House- or Senate-passed versions of the applicable bill (or in the accompanying House or Senate committee reports in the House rule). The House rule provides a public disclosure requirement for such earmark add-ons similar to the transparency requirement affecting earmarks, in general, associated with conference reports discussed above (see " House Rule XXI, clause 9 " section). The Senate rule, by contrast, provides a procedure to strike certain spending add-ons, including applicable spending earmarks.

House Rule XXI, Clause 9(b)

This rule highlights new earmarks added in conference by requiring a list and congressional sponsors. It prohibits House consideration of a conference report to a regular appropriations bills, unless either

a list of new earmarks added to the conference report or joint explanatory statement and the name of any Member who requested an earmark(s) on the list is included in the joint explanatory statement; or a statement that there are no earmarks is made available.

In response to the original version of this rule ( H.Res. 491 , 110 th Congress), the House Appropriations Committee has generally been identifying earmark add-ons in the required list of general earmarks (and sponsors) associated with conference reports to regular appropriations bills.

Clause 9(b) provides two major differences to the procedure requiring a list of earmarks, in general, and congressional earmark sponsors associated with conference reports discussed above, under the " House Rule XXI, clause 9 " section. First, the "airdropped-earmark" requirement only applies to conference reports to the 12 annual regular appropriations bills, instead of all spending measures as well as tariff and revenue measures. Second, upon a point of order, the House decides, by majority vote, whether to consider the conference report with "airdropped" earmarks; as opposed to a ruling by the chair. The House decides to consider such a conference report by the same procedures the House decides to consider a special rule waiving these points of order: up to a 20-minute debate, equally divided and controlled (see above, " House Rule XXI, clause 9 " section). Due to this provision, the House can debate and vote on whether to consider a conference report (or special rule waiving this requirement) even when the clause 9(b) may not have been violated.

Senate Rule XLIV, Paragraph 8

The Senate rule establishes a new procedure to strike certain new spending earmarks, as well as other spending, added to conference reports. It applies to provisions providing funds (both discretionary and direct (or mandatory) spending), but not provisions authorizing or re-authorizing funds. The rule also does not apply to limited tax or tariff benefits added in conference.

The provision in Senate Rule XLIV concerning conference is not directed against congressionally directed spending items, as are the provisions concerning disclosure described above, but instead allows any Senator to raise a point of order against any provision or provisions in a conference report that contain a specific spending level for a specific program, project, activity, or account when no specific funding level was provided for the applicable item in the House- or Senate-passed versions of the measure. The Presiding Officer may sustain points of order against one or more provisions in the conference report. This rule does not apply to language in joint explanatory statements, only those provisions in the legislative text of conference reports.

The rule supplements Senate Rule XXVIII, which generally prohibits conferees from including in a conference report a new matter not dealt with in either the House- or Senate-passed versions of a measure. Under current Senate practice and precedents, however, earmarks air-dropped into conference reports are not typically interpreted as new matter. Rule XXVIII provides that in cases in which one of the versions of the bill is an amendment in the nature of a substitute, which is typically the case, the conferees may include a germane modification of the subjects in disagreement. Under existing precedents, earmarks added to a conference report are often considered germane modifications. For example, regular appropriations measures provide funding to each department and large independent agency by distributing the spending among several accounts. Funding levels for programs, projects, or activities within an account, such as most earmarks included in legislative text, are generally considered germane modifications.

A Senator may raise a point of order under Rule XLIV against any provision or provisions in a conference report that contain a specific spending level for a specific program, project, activity, or account when no specific funding level was provided for the applicable item in the House- or Senate-passed versions of the measure. If a point of order is sustained, the offending provision is stricken from the conference report. After all points of order have been dealt with, the Senate decides whether to send to the House the remaining text of the conference report. The decision is debatable under the same limitations that may apply to the conference report, and no amendments are allowed. The Senate may waive this point of order with regard to a single provision or all provisions constituting new directed spending or appeal the Presiding Officer's ruling by a supermajority vote. Three-fifths of all Senators must vote to waive the rule or overrule the Presiding Officer's decision.

Under this Senate rule, any Senator may propose a motion to waive all points of order provided in this rule with respect to a pending measure or motion. A three-fifths vote of all Senators is required to adopt the motion. All motions to waive all such points of order against the pending measure or motion are collectively debatable for no more than one hour, equally divided and controlled by the Senate Majority and Minority Leaders (or their designees). Such motions are not amendable.

Earmarks and Leverage

The House rule prohibits a Member from conditioning the inclusion of an earmark in a measure, conference report, or report language on any vote cast by another Member. There is no similar Senate requirement.