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Panel Lays Down Law: Earmarks Are Over

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Facing a world without earmarks, House appropriators from both parties are telling colleagues not to request any pork projects this year and are warning that any spending request that looks like it would benefit a single recipient will be treated like an earmark and eliminated.

The new system being sketched out by appropriators provides lawmakers only with opportunities to make broad spending recommendations that cannot include requests for funding for specific entities or projects. The new system has sent Congressional aides and K Street lobbyists alike scrambling for ways to target federal funding.

According to aides, Speaker John Boehner (R-Ohio) and other leaders have made it clear that they have no interest in Members sidestepping the ban on earmarks, and appropriators have clearly taken those warnings to heart.

In a series of "Dear Colleague" letters from subcommittee chairmen and ranking members, the House Appropriations Committee last week called on Members to submit their "programmatic priorities" and bluntly warned against anything remotely resembling an earmark.

According to GOP and Democratic leadership aides, leaders in both parties appear to be taking seriously their vow to swear off earmarks, a sign of the shifting political winds in Washington, D.C., and the new reality brought on by last fall's elections.

In identical letters circulated Tuesday, subcommittee chairmen explicitly warned that, "earmarks, as defined by ... the Rules of the House, will not be considered."

The letters go on to warn, "if the activity was previously listed as a congressional earmark, the committee will continue to treat it as such. In addition, corrections to past earmarks will also be considered earmarks."

In a not-so-subtle reminder of the political consequences, Members have also been warned that if they do make requests that are deemed to be earmarks, they will be forced to disclose them publicly even though the provisions will not be considered for inclusion in the spending bills.

"As a reminder, the standing rules of the House regarding earmarks were not changed by the new Majority this year and Members should be aware that all House rules still apply," Appropriations ranking member Norm Dicks wrote in a separate letter to his Democratic colleagues.

"Members are still responsible for filing a 'financial interest' disclosure form if an earmark is requested (even if the request is informal)," the Washington state Democrat added.

In his letter, Dicks also provided more detailed parameters for making spending recommendations.

"When communicating requests to the Committee please make sure your requests will not inadvertently trigger the earmark rules and requirements," Dicks wrote, going on to provide examples of the types of requests that would not trigger the rules.

Dicks explained that Members can submit either "program" or "language" requests. Program requests are defined as recommendations for funding of specific federal programs at specific levels. Language requests are those that seek "specific bill or report language that does not direct funding to a particular entity but encourages, urges, or directs some type of action by an agency."

But "if the programmatic or report language request is intended to be for a specific non-governmental entity and not competitively awarded, or narrowly defines a competitive grant to the extent that only one entity or geographic area can apply, this is an earmark request," Dicks explained.

Members can also avoid the earmark label by directing that projects be competitively bid, Dicks said. "If Members continue to have doubt about whether or not a programmatic or language request will be considered an earmark request, language should be included in your request that explicitly states that funding should be awarded on a competitive basis and not to a specific recipient," he said.
That could be significant guidance to aides and lobbyists as they rush to complete requests for this year's appropriations cycle.

The first deadline for requests to the Subcommittee on Homeland Security and the Subcommittee on Military Construction and Veterans Affairs is May 6, and lobbyists acknowledged last week that it is still unclear how the process will work. "People are scrambling," one lobbyist said.

A second veteran of the appropriations process agreed but said it appears leaders are "doing the best they can in trying to forge a new process here." This lobbyist said Boehner and others are "walking that fine line" between providing guidance to agencies on spending while avoiding outright earmarking "because you don't want to give the administration too much authority."

Members appear to be adapting to the new rules. For instance, Assistant Leader James Clyburn will still pursue a 10-20-30 funding proposal. According to a description of the plan on the South Carolina Democrat's website, the proposal is aimed at broadly targeting funding to the nation's poorest communities.

Rather than request language or spending levels for specific agencies or programs, the proposal would require that "at least 10 percent of Rural Development investments [be directed] to communities where 20 percent or more of the population had lived below the poverty line for the last 30 years."

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