Earmark Disclosure Rules in the House: Member and Committee Requirements

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Earmark disclosure rules in both the House and Senate establish certain administrative
responsibilities that vary by chamber. Under House rules, a Member requesting that an earmark
be included in legislation is responsible for providing specific written information, such as the
purpose and recipient of the earmark, to the committee of jurisdiction. Further, House committees
are responsible for compiling, presenting, and maintaining such requests in accord with House
rules. In the House, 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. The disclosure requirements apply
to earmarks in appropriations legislation, authorizing legislation, and tax measures. Furthermore
they apply not only to measures reported by committees, but also to measures not reported by
committees, “manager’s amendments,” and conference reports. This report will be updated as
needed.

Earmark disclosure rules in both the House and Senate were implemented with the stated
intention of bringing more transparency to congressionally-directed spending. The administrative
responsibilities associated with these rules vary by chamber. This report outlines the major
administrative responsibilities of Members and committees of the House of Representatives ¹
associated with the chamber’s earmark disclosure rules.

House Rule XXI, clause 9, generally requires that certain types of measures be accompanied by a
list of congressional earmarks, limited tax benefits or limited tariff benefits that are included in
the measure or its report, or a statement that the proposition contains no earmarks. Depending
upon the type of measure, the list or statement is to be included either in the measure’s
accompanying report, or printed in the Congressional Record.
Rule XXI, clause 9, explicitly defines congressional earmark, limited tax benefit, and limited
tariff benefit as follows:
• Congressional earmark- 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 or administrative formula driven or competitive award process.
• Limited tax benefit-(1) any revenue-losing provision that (A) provides a federal
tax deduction, credit, exclusion, or preference to 10 or fewer 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; or (2) any federal tax provision which provides one beneficiary
temporary or permanent transition relief from a change to the Internal Revenue
Code of 1986.
• Limited tariff benefit- a provision modifying the Harmonized Tariff Schedule of
the United States in a manner that benefits 10 or fewer entities.
If either the list of earmarks² or the letter stating that no earmark exists in the measure is absent, a
point of order may lie against the measure’s floor consideration. The point of order applies only

¹^T^h^is^r^e^por^t^out^line^s^t^h^e^a^d^mⁱ^nis^t^r^a^tiv^e^r^e^s^pons^ibili^tie^s^r^e^la^ting^to^e^a^r^m^a^r^k^dis^c^los^u^r^e^c^ontaⁱ^ne^dⁱⁿ^H^ous^e^r^u^le^s^.^I^t^d^o^e^s
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^Re^quir^e^m^e^nts^,^by^Me^g^a^{n Suz}^a^nne^Ly^nc^{h. For}^f^u^r^t^he^rⁱⁿ^f^o^r^m^a^{tion on t}^h^e^r^u^le^s^g^o^v^e^rⁿ^ing^c^ong^r^e^s^sⁱ^oⁿ^a^l^e^a^r^m^a^r^k^s^,^s^e^e
^C^R^S^R^e^por^t^R^L³⁴⁴^62,^H^o^us^e^an^{d Se}ⁿ^a^te^Pr^oc^e^dur^al^Ru^le^s^C^onc^e^r^ning^Ear^m^ar^k^Dⁱ^s^c^los^u^r^e^{, by}^Sa^ndy^Stre^e^t^e^r^.
²^F^o^{r t}^h^{e pu}^rpo^s^{es o}^f^t^hⁱ^s^repo^rt^,^f^r^o^m^t^hⁱ^s^p^oⁱⁿ^t^f^o^rw^ard^t^h^{e t}^e^rm^“e^ar^m^a^rk^{” i}ⁿ^cl^u^d^e^{s an}^y^coⁿ^g^ressi^oⁿ^al^ear^m^a^r^k^,
^lim^ite^{d ta}^x^be^ne^f^{it or lim}^ite^{d ta}^riff^be^ne^f^it.

in the absence of such a list or letter, and does not speak to the completeness or the accuracy of ³
either document. A point of order may lie against the consideration of any general appropriations
conference report containing earmarks that are included in conference reports but not committed
to conference by either House and not in a House or Senate committee report on the legislation.
Such a point of order would be disposed of by a question of consideration, debatable for 20 ⁴
minutes.

House 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 ⁵
reported by committees, but also to unreported measures, “manager’s amendments,” Senate bills
and conference reports.
These earmark disclosure requirements, however, do not apply to all legislation at all times. For
example, when a measure is considered, under the “suspension of the rules” procedure, House
rules are laid aside, and therefore earmark disclosure rules do not apply. Also not subject to the
rule are floor amendments (except a “manager’s amendment”), amendments between the houses,
or amendments considered as adopted under a self-executing special rule, including a committee ⁶
amendment in the nature of a substitute made in order as original text.

Under House Rule XXIII, clause 17(a), Members⁷ requesting a congressional earmark are
required to provide a written statement to the chairman and ranking minority member of the
committee of jurisdiction that includes

1. the Member’s name;

2. the name and address of the intended earmark recipient (if there is no specific recipient,

the location of the intended activity should be included);

³^U^.^{S. C}^ong^r^e^s^s^,^H^ous^e^,^C^ons^ti^tuti^{on, J}^e^ffe^r^s^o^n’^s^M^aⁿ^ual^{, a}ⁿ^d^Rule^s^{of t}^h^e^H^ous^e^{of Re}^pr^e^s^eⁿ^t^a^tiv^e^s^{of t}^h^e^Uⁿ^ite^d
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⁴^H^ous^e^R^u^le^X^X^I^,⁹⁽^c⁾^{, a}^d^o^p^te^d^u^nde^r^H^.^R^e^s^.^{5 (}¹¹¹^th^C^o^ng^r^e^s^s⁾^{, J}^a^nua^r^y^{6, 20}^09.^T^h^is^pr^ov^is^ion^ha^{d pr}^e^v^io^us^ly^be^eⁿ
^a^dopte^d^a^s^a^s^t^a^ndi^ng^or^de^r^of^the^H^ous^e^u^nde^r^H^.^R^e^s^.⁴⁹^{1 (}¹¹⁰^th^C^ong^r^e^s^s⁾^.
⁵^A^s^d^e^fⁱⁿ^e^dⁱⁿ^t^h^{e r}^u^l^e^,^and^cl^ari^fⁱ^e^dⁱⁿ^{a l}^e^t^t^{er f}^r^o^m^t^h^{e Ho}^u^s^{e P}^a^rlⁱ^a^m^eⁿ^t^ari^aⁿ^t^o^t^h^{e Ch}^ai^rm^an^o^f^t^h^{e Ho}^u^s^e
^Com^m^itte^e^{on Rule}^s⁽^C^ongr^e^s^sⁱ^o^{nal Re}^c^o^r^d^,^da^ily^e^d^ition^,^v^o^l.¹⁵^{3, Oc}^to^be^{r 3,}²⁰⁰⁷^,^pp.^H11¹⁸⁴^-^H¹¹¹⁸⁵^{.) a}
^“^m^an^ag^{er’s a}^m^en^d^m^en^t^”ⁱ^s^“an^amen^d^m^en^t^o^f^f^e^red^at^t^h^{e o}^u^t^set^o^f^coⁿ^sⁱ^d^eratⁱ^oⁿ^f^o^{r am}^en^d^m^en^t^b^y^{a me}^m^b^{er o}^f^a
^c^o^m^m^ittee^of^initia^{l re}^f^e^rra^{l unde}^r^the^te^rm^s^of^a^s^p^e^cⁱ^a^l^rule^.”
⁶^Ibid^.
⁷^Iⁿ^t^h^is^r^e^p^o^r^t^{, “}^M^e^m^be^r^”^inc^l^ude^s^Me^m^b^e^r^s^,^D^e^leg^a^te^s^or^the^R^e^sⁱ^de^{nt C}^o^m^m^is^sⁱ^one^r^.

3. 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 Member;
4. the purpose of the earmark; and

5. a certification that the Member or Member’s spouse has no financial interest in such an ⁸

earmark.
When submitting earmark requests, it is important to note that individual committees and
subcommittees often have their own additional administrative requirements beyond those
required by House rules (e.g., prioritizing requests or submitting request forms online). The
House Appropriations Committee, for example, has stated that it will require Members requesting
earmarks to post information regarding their earmark requests on their personal website. This
information must be posted at the time of the request and must include the purpose of the earmark ⁹
and why it is a valuable use of taxpayer funds.
Committees may also establish relevant policy requirements (e.g., requiring matching funds for
earmark requests) or restrictions regarding earmark requests (e.g., not considering earmark
requests for certain appropriations accounts or disallowing multi-year funding requests). 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 ¹⁰
subcommittees to learn of any supplemental earmark request requirements or restrictions.
The committee of jurisdiction is responsible for identifying earmarks in both the legislative text
and any accompanying reports. When it is not clear whether a Member request constitutes an
earmark, the committee of jurisdiction may be able to provide guidance.
When submitting an earmark request, it may be relevant whether the Member wants the earmark
to 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 ¹¹
bill text or the committee report. For example, under Executive Order 13,457 issued in January

2008, executive agencies are directed not to commit, obligate, or expend funds that were the ¹²

result of an earmark included in non-statutory language, such as a committee report.

⁸^T^h^e^C^o^m^m^itte^e^{on Sta}^nda^r^d^s^aⁿ^d^O^f^fⁱ^cⁱ^a^l^C^onduc^t^is^a^v^a^ila^ble^to^p^r^ov^ide^g^u^idaⁿ^c^e^aⁿ^{d c}^l^a^r^if^ic^a^tion^{in m}^a^kⁱ^ng^s^u^c^h^a
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^title^d,^Finaⁿ^cⁱ^a^{l Interests Un}^d^e^{r t}^h^{e New Ea}^rma^r^{k R}^u^les^{, a}^v^a^ila^ble^a^t^http^://w^w^w^.hous^e^.^g^o^v^/^e^t^hic^s^/
^m^_^fⁱ^na^nc^ia^l_inte^re^st_e^a^r^m^a^r^k^.pdf^.
⁹^A^s^s^t^a^t^e^d^{in the}^J^a^nua^r^y^{6, 2}⁰⁰⁹^j^o^int^pr^e^s^s^r^e^le^a^s^e^f^r^o^m^the^H^ous^e^a^{nd Se}^na^te^A^ppr^opr^ia^ti^ons^C^o^m^m^itte^e^s^C^h^aⁱ^r^m^eⁿ
^title^d,^H^ouse^aⁿ^d^Seⁿ^a^te^A^ppro^p^rⁱ^atio^ns^C^o^mmitte^e^s^Ann^o^uⁿ^c^e^Ad^ditio^na^{l Re}^{forms i}ⁿ^C^o^mmitte^e^E^a^rmark^Polic^y^,
^a^v^a^ila^ble^a^t^http://a^ppr^opria^ti^ons^.^hous^e^.^g^o^v^/^p^d^f^/^O^b^e^y^-Inouy^e^R^e^l^e^a^s^e^01-0⁶^-0^9.p^d^f^.
¹⁰^Of^t^eⁿ^t^h^{ese req}^uⁱ^rem^eⁿ^t^{s are co}^mm^uⁿⁱ^cat^ed^t^h^ro^u^g^h^{a “Dear Co}^l^l^eagu^{e” l}^e^t^t^e^{r o}^r^t^h^rou^g^h^t^h^{e co}^mmⁱ^t^t^ee’^s^w^e^b^sⁱ^t^e^.
¹¹^“P^r^o^t^ectⁱⁿ^{g Am}^eri^can^T^a^xp^a^y^ers^F^r^o^m^G^o^v^e^rn^men^t^al^S^p^endⁱⁿ^g^on^W^a^st^e^f^u^l^E^a^rm^ar^ks,^”^E^x^ecu^tⁱ^v^e^Ord^e^{r 1}³^,⁴⁵⁷^,
^J^a^nua^ry^{29, 20}⁰⁸^{, a}^v^a^ila^ble^a^t^htt^p^://w^w^w^.^w^hite^hous^e^.^g^o^v^/^ne^w^s^/^r^e^l^e^a^s^e^s^/²⁰^08/^01/²⁰⁰⁸⁰¹^29-^5.^htm^l^.
¹²^For^f^u^r^t^he^r^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^{t R}^L³⁴³⁷^3,^E^a^rma^r^{ks E}^xecu^tⁱ^{ve Ord}^e^{r: L}^e^g^a^l^Issu^es^{, by}^T^hom^a^s^J^.^Nⁱ^c^o^la
^an^d^T^.^J.^Hal^s^t^ead^.

Under House rules, earmark disclosure responsibilities of House committees and conference
committees fall into three major categories: (1) determining if a spending provision is an earmark;
(2) compiling earmark requests for presentation to the full chamber; and (3) preserving the
earmark requests. Individual committees may establish their own additional requirements.
Committees of jurisdiction must use their discretion to decide what constitutes an earmark. ^th
Definitions in House rules, as well as past earmark designations during the 110 Congress, may
provide guidance in determining if a certain provision constitutes an earmark.
House Rule XXIII, clause 17(b) states that in the case of any reported bill or conference report, a
list of included earmarks and their sponsors, or a statement declaring the absence of earmarks,
must be included in the corresponding committee report or joint explanatory statement. In the
case of a measure not reported by a committee, or a “manager’s amendment,” the committee of
initial referral must cause a list of earmarks and their sponsors, or letter stating the absence of
earmarks, to be printed in the Congressional Record before floor consideration is in order. The
House Appropriations Committee has stated that it will make earmark requests publically ¹³
available the same day that a subcommittee reports their bill.
A conference report to accompany a regular appropriations bill must identify congressional
earmarks in the conference report or joint explanatory statement that were not specified in the ¹⁴
legislation or report as it initially passed either chamber.
Each House committee and conference committee is responsible for “maintaining” all written
requests for earmarks received, even those not ultimately included in the measure or the
measure’s report. Furthermore, those requests which were included in any measure reported by
the committee must not only be “maintained,” but must also be “open for public inspection.” Rule
XXIII does not specify how the information shall be “maintained” and “open for public
inspec ti on.”
^M^e^ga^{n Suz}^aⁿⁿ^e^L^yⁿ^c^h
^An^al^y^s^{t on}^t^h^e^C^ong^res^s^aⁿ^{d L}^e^gⁱ^s^l^at^iv^{e P}^r^oces^s
^m^l^yⁿ^c^h@^crs^.^l^o^c.g^o^v^,^7-⁷⁸⁵³

¹³^A^s^st^at^edⁱⁿ^t^h^{e Jan}^u^a^ry⁶^,²⁰⁰⁹^j^oⁱⁿ^t^p^r^{ess rel}^ease.
¹⁴^Du^rin^g^t^h^{e 11}⁰^th^Coⁿ^g^ress,ⁱ^t^w^a^{s t}^h^{e p}^r^actⁱ^{ce t}^oⁱⁿ^cl^u^d^e^su^{ch earmark}^{s in the}^{list re}^q^u^ire^d^by^Rule^XX^{I, c}^l^a^u^se^9,
^a^{nd i}^d^eⁿ^tif^y^the^m^w^{ith a}ⁿ^a^s^te^{risk. Note}^t^h^a^t^the^Se^na^te^de^fⁱ^ne^{s ite}^m^s^re^la^te^{d to e}^a^r^m^a^r^k^disc^losure^som^e^w^h^a^t
^dif^f^e^r^eⁿ^tl^y^,^f^o^r^m^o^r^e^inf^o^r^m^a^tion,^s^e^e^C^R^S^R^e^por^{t R}^S²²⁸^67,^Ear^m^ar^k^Dⁱ^s^c^los^u^r^e^Rule^sⁱⁿ^t^h^e^Seⁿ^a^t^e^:^M^e^m^b^e^r^and
^C^o^m^m^itte^e^Re^quir^e^m^e^nts^,^by^Me^g^a^{n Suz}^a^nne^L^y^nc^h.