Earmark Disclosure Rules in the Senate: 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 Senate rules, a Senator 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, Senate committees
are responsible for compiling and presenting such information in accord with Senate rules. 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. 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,
floor amendments and conference reports. This report will be updated as needed.

Introduc tion ..................................................................................................................................... 1
Senate Earmark Disclosure Rule.....................................................................................................1
Legislation Subject to the Rule........................................................................................................2
Requirements for Senators Submitting Earmark Requests..............................................................2
Requirements for Committees.........................................................................................................3
Author Contact Information............................................................................................................5

Earmark¹ 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 new rules vary by chamber. This report outlines the major
administrative responsibilities of Senators and committees of the Senate associated with the ²
chamber’s earmark disclosure rules.

Senate Rule XLIV³ prohibits a vote on a motion to proceed to consider a measure or a vote on
adoption of a conference report, unless the chair of the committee or the Majority Leader (or
designee) certifies that a complete list of earmarks and the name of each Senator requesting each
earmark is available on a publicly accessible congressional website in a searchable website at
least 48 hours before the vote. If a Senator proposes a floor amendment containing an additional ⁴⁵
earmark, those items must be printed in the Congressional Record as soon as “practicable.”
Rule XLIV, paragraph 5, 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.

¹^In^S^eⁿ^a^t^e^ru^l^e^s,^t^h^{e t}^e^rm^“coⁿ^g^re^ssi^oⁿ^a^l^l^y^dⁱ^rect^ed^sp^en^dⁱⁿ^gⁱ^t^e^m^”ⁱ^s^u^s^edⁱⁿ^pl^{ace o}^f^ear^mark.^F^o^{r t}^h^{e p}^u^r^p^o^s^es^o^f
^th^{is rep}^o^{rt, t}^h^{e term}^s^w^{ill b}^e^u^s^edⁱⁿ^terch^aⁿ^g^eab^ly^{. Fro}^m^th^{is p}^oⁱⁿ^t^f^o^rw^ard^,^th^{e term}^“ear^mark^{” re}^f^e^rs^to^an^y
^c^ong^r^e^s^sⁱ^ona^lly^dir^e^c^t^e^d^s^p^e^ndi^ng^ite^m^,^li^m^ite^{d ta}^x^be^ne^f^{it, or}^lim^ite^{d ta}^rⁱ^f^f^be^nef^it.
²^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^Se^na^te^r^u^le^s^.^I^t^doe^s
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^dis^c^los^u^r^e^r^u^le^s^,^s^e^e^C^R^S^R^e^por^t^R^S²²⁸⁶^6,^E^a^rma^r^{k Di}^scl^o^su^{re R}^u^l^e^{s i}ⁿ^t^h^{e Hou}^s^{e: Memb}^{er a}ⁿ^d^C^o^mmi^t^t^ee
^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^.
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⁴^T^h^{e ru}^l^e^do^{es n}^o^t^ap^pl^y^t^o^al^l^{earmarks i}ⁿ^f^l^o^o^r^amen^d^m^en^t^s^,^oⁿ^l^y^t^h^o^s^{e “no}^tⁱⁿ^cl^ud^edⁱⁿ^t^h^{e b}ⁱ^l^l^o^r^j^oⁱⁿ^t^reso^l^u^tⁱ^on^as
^p^l^aced^oⁿ^th^{e calen}^d^a^{r o}^r^{as rep}^o^r^t^ed^b^y^an^y^co^{mmittee, in}^{a co}^mmⁱ^{ttee rep}^o^r^t^oⁿ^s^u^ch^a^b^ill^o^r^j^oⁱⁿ^{t r}^e^so^lu^tioⁿ^,^o^r^a
^c^o^m^m^itte^e^re^{port of}^the^Se^na^te^oⁿ^a^c^o^m^p^aⁿ^{ion m}^e^a^s^ure^,^”^a^s^sta^t^e^d^{in Ru}^le^X^L^{IV, pa}^ra^g^r^a^ph^4(a⁾^.
⁵^T^h^{e ru}^l^e^do^{es n}^o^t^d^e^fⁱⁿ^e^t^h^{e t}^e^rm^“p^ractⁱ^cab^l^e^.^”

• 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 would not apply to
floor amendments.

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.

Under Senate Rule XLIV, paragraph 6, 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

1. the Senator’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. 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;
4. the purpose of the earmark; and

5. a certification that neither the Senator or Senator’s immediate family has a financial interest in ⁶

such an 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 Senate rules (e.g., prioritizing requests or submitting request forms electronically).
The Senate Appropriations Committee, for example, has stated that it will require Members
requesting earmarks to post information regarding their earmark requests on their personal

⁶^{For m}^o^re^inf^o^rm^a^{tion o}ⁿ^the^de^fⁱ^nitioⁿ^of^“ⁱ^m^m^e^dia^t^e^f^a^mⁱ^l^y^”^se^e^De^finitioⁿ^{of “Imme}^di^ate^F^a^mily^{” for Re}^que^ste^d
^Appr^o^p^rⁱ^a^tio^ns^,^rel^eased^b^y^t^h^{e S}^eⁿ^a^t^e^S^e^l^ect^Co^mmⁱ^t^t^{ee o}ⁿ^E^t^hⁱ^cs^,^S^e^p^t^em^b^e^{r 1}²^,²⁰⁰⁷^,^avai^l^a^b^l^{e at}
^http:^//www^.e^thic^s.se^na^te^.g^ov^.

website. This information must be posted at the time of the request and must include the purpose ⁷
of the earmark and why it is a valuable use of taxpayer funds.
They may also establish relevant policy requirements (e.g., requiring matching funds for earmark
requests) or restrictions (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 subcommittees to learn of any ⁸
supplemental earmark request requirements or restrictions.
The committee of jurisdiction is responsible for identifying earmarks in the legislative text and
any accompanying reports. Therefore, when it is not clear whether a Senatorial 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 Senator 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 ⁹
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 ¹⁰

result of an earmark included in non-statutory language, such as a committee report.
If during consideration of a measure, a Senator proposes an amendment¹¹ that contains an ¹²
additional earmark, the Senator shall ensure that a list of earmarks (and the name of any Senator
who submitted a request to the Senator for each item included) is printed in the Congressional
Record as soon as “practicable.”

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; ¹³
(2) compiling earmark requests for presentation, and (3) certifying that requirements under Rule
XLIV have been met.

⁷^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^,
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^c^o^m^m^itte^e^’^{s w}^e^bsite^.
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¹⁰^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^.
¹¹^In^cl^udⁱⁿ^{g am}^en^d^m^en^t^sⁱⁿ^t^h^{e n}^a^t^u^{re o}^f^{a su}^b^s^tⁱ^t^u^t^e.
¹²^T^h^{e ru}^l^e^do^{es n}^o^t^ap^pl^y^t^o^al^l^{earmarks i}ⁿ^f^l^o^o^r^amen^d^m^en^t^s^,^oⁿ^l^y^t^h^o^s^{e “no}^tⁱⁿ^cl^ud^edⁱⁿ^t^h^{e b}ⁱ^l^l^o^r^j^oⁱⁿ^t^reso^l^u^tⁱ^on^as
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^c^o^m^m^itte^e^re^{port of}^the^Se^na^te^oⁿ^a^c^o^m^p^aⁿ^{ion m}^e^a^s^ure^,^”^a^s^sta^t^e^d^{in Ru}^le^X^L^{IV, pa}^ra^g^r^a^ph^4(a⁾^.
¹³^In^t^h^{e case o}^f^an^ear^m^a^r^kⁱⁿ^an^y^cl^assi^fⁱ^ed^p^o^r^tⁱ^oⁿ^o^f^{a rep}^o^r^t^accom^p^an^yⁱⁿ^g^a^m^e^asu^r^e,^P^a^ragrap^h^{7 S}^eⁿ^a^t^e^Ru^l^e
^X^L^IV^st^at^{es t}^h^at^t^h^{e co}^m^mⁱ^t^t^{ee o}^f^j^u^ri^sdi^c^tⁱ^oⁿ^sho^u^l^d^,^t^o^t^h^{e great}^es^t^ext^eⁿ^t^p^r^actⁱ^cab^l^e^,^con^sⁱ^s^t^eⁿ^t^wⁱ^t^h^t^h^eⁿ^eed^t^o
⁽^c^onti^nue^d.^..)

Committees of jurisdiction may use their discretion to decide what constitutes an earmark. ^th
Definitions in Senate rules, as well as past earmark designations during the 110 Congress, may
provide guidance in determining if a certain provision constitutes an earmark.
Senate Rule XLIV states that before consideration is in order on a measure or conference report, a
list of included earmarks and their sponsors must be identified through lists, charts, or some ¹⁴
means, and made available on a publicly accessible congressional website for at least 48 hours.
The Senate Appropriations Committee has stated that it will make earmark requests publically ¹⁵
available the same day that a subcommittee reports the bill. In the case of measures, the list of
earmarks (and Senate sponsors) on the congressional website must be “searchable.” Lists
associated with conference reports should also be in a searchable format, but only to the extent
technically feasible. Senate rules state that a committee report containing a list of earmarks (and
their sponsors) that is available online satisfies the disclosure requirement. The rule also requires
the applicable committee to make the certifications of no financial interest available online. The
rule does not specify how long after consideration any of these required materials must be
maintained.
The rule states that consideration of a measure or conference report is not in order until the
applicable committee chair or the Majority Leader (or designee) “certifies” that the requirements
stated above have been met. While the rule does not state what constitutes certification, it has
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 Rule
XLIV’s disclosure requirements. An example of a certification letter is provided below.
^U.S.^{SENATE, COMM}^{ITTEE O}^N^AGRICULTURE,
^{NUTRITION, AND FORESTRY,}
^{Washington, DC, Nove}^{mber 5, 2007.}
^{I certify t}^{hat the}^{information re}^q^{uired by Senate}^{Rule XLIV, related to}
^{congressionally directed spending}^{in S. 230}^{2 ha}^{s bee}^{n available on}^{a pu}^blicly
^{accessible website in a}^searc^hable^{format for at least}⁴⁸^hours^befo^{re a vote on}
^{the pe}^{nding bill.}
^{TOM HARKIN,}
^Chairman.

^Source:^{Congressional Re}^cord^{, dai}^{ly editi}^{on, vol. 153, November}^5,²⁰⁰^{7, p. S1}³⁷^51.

^(...c^on^tin^ue^d)
^prote^c^t^na^tio^na^{l se}^c^u^rity^{, inc}^l^udiⁿ^g^inte^llig^eⁿ^c^e^sourc^e^s^a^{nd m}^e^thod^{s, inc}^l^u^d^e^aⁿ^unc^la^ssifⁱ^e^d^prog^ra^m^de^sc^ription,
^f^unding^le^v^e^{l a}^nd^na^m^e^of^the^Se^na^te^s^p^oⁿ^s^o^r^.
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¹⁵^A^s^st^at^edⁱⁿ^t^h^{e Jan}^u^a^ry⁶^,²⁰⁰⁹^j^oⁱⁿ^t^p^r^{ess rel}^ease.

^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
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