At the end of 2010, the United States Senate and House of Representatives appeared to abandon a fundamental aspect of Congress's power of the purse. By adopting a "moratorium" on "earmarks" in appropriations bills, as well as on analogous specific details in tax and other legislation, both chambers appeared to give the President, or at least the presidential branch represented by White House staff and OMB, dominance over policy decisions that long have been considered central to Congress's role. Is this change substantive or cosmetic, why did it occur, and will this be the new normal? This Article recounts how the politics of distributing benefits to individual states and districts developed over the past half century. What from the perspective of Congress seemed like presidential imperialism was rebuffed. But the executive branch's strategies forced Congress to make the politics of distribution more visible. That in turn activated attitudes in U.S. politics that view Congress as inherently corrupt and that inherently disadvantage Congress in a battle for public opinion. Congressional minority parties sought to mobilize this sentiment against the majority party. After they captured the House and Senate in 2006, congressional Democrats sought to blunt the criticism with procedural reforms. Both opposition to the Democrats and opposition to government per se then united congressional Republicans around the more radical measures adopted in 2010. Now, although some Republicans with experience in budgeting believe the moratorium is damaging Congress, they also cannot see a way to return to previous practice.
CONTENTS INTRODUCTION I. THE NEW RULES II. LEGISLATIVE POWER AND DISTRIBUTIVE BENEFITS III. IMPLEMENTING THE NEW RULES IV. WHY CONGRESS CEDED POWER V. "REFORM," OR, THE ANTI-EARMARK BIDDING WAR CONCLUSION: PROSPECTS FOR REVERSAL INTRODUCTION
"Shortly after he took office," Scott Frisch and Sean Kelly wrote, "Jimmy Carter announced his intention to launch a comprehensive review of the design and funding of water projects and declared his intention to request--via the FY 1978 Supplemental Appropriations Bill--that Congress not fund nearly twenty water projects that had been authorized by Congress." (1) This set off a pitched battle with his own party in Congress, with a temporary compromise in 1977 succeeded by a veto when Congress funded the projects again in the next year's Energy and Water Appropriations bill. President Carter vetoed the bill, and although he won his fight against congressional efforts to override the veto, the battle was widely viewed as nearly irreparably damaging his relationships with Congress. The distinguished presidency scholar Charles O. Jones wrote that "no action is more frequently cited as typifying the problems that the president had with Congress." (2)
In 1988, Office of Management and Budget (OMB) Director James C. Miller III, as part of a Reagan administration campaign against "pork," issued a directive that agency leaders ignore report language that instructed them to spend on projects not included in the President's budget. (3) He "failed dramatically." (4) Congressional responses were typified by a Republican Senate Appropriations aide who said, "No one liked what Miller did ... He was bringing a questionable constitutional judgment into the appropriations process. Even if he were right, we would just write it into the law. That's just more work for us." (5) Miller withdrew his order to the agencies after congressional threats of retaliation. (6)
If President Obama wanted to eliminate a similar list of water projects, he could do it, and Congress would have no recourse. He would not need to veto; he could simply not include the projects in his own proposed budget. This is the result of the policies against "earmarks" that were adopted by congressional Republicans after the 2010 election. Under these rules, much of the report language that Director Miller wanted agencies to ignore should not exist. It would be out of order and an ethics violation to create it.
In short, Congress has abandoned part of its power of the purse, handing it to the President. In this Article I seek to explain what happened and why it happened and suggest what that illustrates about the drift of power from Congress to the President.
THE NEW RULES
The rules of the U.S. House of Representatives Republican Conference, as adopted on November 15, 2012, concluded with the following language:
Standing Orders for the 113th Congress Earmark Moratorium It is the policy of the House Republican Conference that no Member shall request a congressional earmark, limited tax benefit, or limited tariff benefit, as such terms have been described in the Rules of the House. (7) The definition of an "earmark" in the Rules of the House is:
a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or 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 of administrative formula-driven or competitive award process. (8) This moratorium interacts with a series of other provisions that were added to the House Rules in 2007. Rule XXI Section 9(a)-(d) makes it out of order to consider any bill or joint resolution unless the accompanying report includes either a list of all earmarks and the other benefits included or a certification by the chair of the reporting committee that none are included. (9) Similar restrictions are applied to amendments and conference reports. Then Rule XXIII, the House Code of Official Conduct, says that legislators who request any of these suspect provisions must "provide a written statement to the chair and ranking minority member of the committee of jurisdiction" (10) stating their names; "in the case of a congressional earmark, the name and address of the intended recipient or, if there is no specifically intended recipient, the intended location of the activity" (11); the purpose of the provision; and "a certification that the Member, Delegate, or Resident Commissioner or spouse has no financial interest in such congressional earmark or limited tax or tariff benefit." (12) Each committee is required to maintain the record of these statements, for public inspection. (13) Moreover, the rules forbid conditioning "the inclusion of language to provide funding for a congressional earmark" or other limited benefit in any bill, resolution, etc., "on any vote cast" by the recipient. (14) In other words, it is an ethics violation for committee or party leaders to engage in quid pro quos in which they expect members to vote for their bills in return for benefits provided to their districts. (15)
The moratorium in the House Republican Conference rules is enforced not only by peer pressure on Republicans but also through the ethics provisions. Democrats could request earmarks, but the Republicans are refusing to accept the disclosure forms--thereby putting any Democrat who makes a request in technical violation of the Rules of the House. As a result, the Democratic staff and leadership of the House Appropriations Committee have advised their members not to submit requests.
The rules about "limited tax benefits" and "limited tariff benefits" may not be good public policy, (16) but they do not raise significant questions about the distribution of power between Congress and the President. Presidents do not have authority to create exceptions to tax law, so these rules do not cede power to the President. But presidents and the rest of the executive branch do have authority to decide what to spend where, within the broad terms of appropriations. The language "primarily at the request of a Member" (17) means that an item included in the President's budget request or agency congressional justifications is not out of order. Therefore, the power conceded by Congress in foregoing earmarks flows to the President.
The House rules alone would be enough to concede power to the President because they apply to conference reports. But the Senate has adopted its own, largely parallel, measures. (18) Senate Rule XLIV defines "congressionally directed spending," with the same disclosure requirements for each stage of the legislative process as in House Rule XXI. (19) This includes the requirements that senators certify their lack of pecuniary interest in a request. (20) Both Senate Republicans and Democrats have separately adopted moratoria on requests.
These developments in congressional procedure raise three logical questions. First, does this story involve powers that have historically been held by Congress and that are potentially of constitutional import? Certainly a substantial number of members and institutional staff from within Congress believe so. Second, are the changes in rules actually reflected in practice? The answer is an unqualified yes. Third, how did this happen, and could the development be reversed? The political developments toward first regulation and then the moratorium are a complicated story, which I can only sketch out in this space. The fact that the moratorium has not been included in House or Senate Rules may suggest it is especially likely to be reversed, but the path to that reversal seems quite difficult.
These changes in the ability of Congress to formally direct spending to states and districts eliminates neither congressional interest in, nor all the ways that legislators may affect, the geographic distribution of federal benefits. Almost any government activity is likely to be of more interest in certain parts of the country than others. Western legislators will pay more attention to policies about public lands, which are a...