Bush Administration Policy Regarding Congressionally Originated Earmarks: an Overview
Bush Administration Policy Regarding
Congressionally Originated Earmarks:
Updated November 17, 2008
Clinton T. Brass, Garrett L. Hatch, and R. Eric Petersen
Government and Finance Division
Bush Administration Policy Regarding Congressionally
Originated Earmarks: An Overview
During the 110th Congress, the House of Representatives, the Senate, and the
George W. Bush Administration have defined terms like congressional earmark,
congressionally directed spending item, and earmark, and have provided some
direction for how congressionally originated earmarks, according to these definitions,
are to be handled. This report focuses on Bush Administration policy regarding
earmarks originated by Congress and related issues. Specific definitions for the term
earmark (and related terms, like congressional earmark, presidential earmark, and
others) vary considerably and are controversial. Nevertheless, all of the terms relate
to the use of discretion to allocate particularized benefits to one or more specific
purposes, entities, or geographic areas. Some earmarks have the force of law, and
others do not. Practices like earmarking have been used for decades, if not centuries,
to make decisions regarding the allocation of public resources, but concerns also have
been expressed. At the same time, Congress, its Members, and Presidents have
asserted the prerogatives of their constitutional and statutory authorities and pursued
their budget policy preferences.
In January 2008, the President announced he would veto future appropriations
bills that did not cut the number and funding of Administration-defined earmarks by
half, relative to FY2008. The President also issued Executive Order (E.O.) 13457,
which directed that agencies “should not” fund non-statutory earmarks, except under
some conditions. OMB subsequently directed agencies on how to implement the
E.O. after enactment of FY2009 continuing and regular appropriations. These are the
latest in a series of developments that began in January 2007, when the President
proposed that Congress should (1) cut the number and funding of congressionally
originated earmarks by at least half for FY2008 appropriations, relative to FY2005,
and (2) place them only in statutory text, not report language. In January 2007, the
Administration issued its own definition of earmark, whose language (and perhaps
meaning) evolved over time in Office of Management and Budget (OMB)
memoranda. A final definition appears to have been established in E.O. 13457, but
its meaning probably is informed by the evolution and contents of previously
articulated definitions. Later, OMB established an “Earmarks” website, containing
a database of Administration-identified earmarks, to track congressional action.
Potential related issues for Congress involve, generally, roles and responsibilities for
Congress, the President, agencies, and the public in the U.S. political system;
defining, identifying, and overseeing earmarks; the executive order; the “Earmarks”
website and database; and potential representational consequences.
This report emphasizes analysis of E.O. 13457. For a legal analysis of E.O.
13457, see CRS Report RL34373, Earmarks Executive Order: Legal Issues, by
Thomas J. Nicola and T.J. Halstead. This report will be updated as warranted and
at the conclusion of the George W. Bush Administration.
In troduction ......................................................1
Conceptions About Earmarking.......................................2
Congressionally Originated Earmarks..............................3
Presidentially and Agency-Originated Earmarks......................3
“Joint” or “Hybrid” Earmarks....................................4
Definitions in the 110th Congress..................................4
Potential Explanations of Earmarking..............................7
Potential Concerns About Earmarking.............................8
Bush Administration Policy Regarding Earmarks........................10th
Prior to the 110 Congress......................................10
Bush Administration Policy During the 110th Congress...............10
Bush Administration Actions Prior to E.O. 13457...............11
FY2009 Veto Threat and Executive Order 13457................13
Analysis of E.O. 13457........................................15
Budgeting Roles of Congress and the President.................15
Extent and Manner of Earmarking............................16
White House Role in Agency Decisions.......................16
Agency Consideration of Non-statutory Earmarks...............17
Administration Definition of Earmark........................17
Potential Implications for Non-statutory Reprogramming.........18
Subsequent Implementation of E.O. 13457.........................19
Criteria for Funding Statutory Earmarks in CR..................19
Non-Statutory Earmarks and the CR..........................20
Restriction on “New Starts” in the CR........................20
Earmarks in Supplemental and Regular Appropriations Acts and
Executive Branch Disclosure............................20
Potential Issues for Congress........................................21
Budgetary Roles and Responsibilities in the U.S. Political System......21
Defining, Identifying, and Overseeing Earmarks.....................24
Earmarking by the President and Agency Officials...............25
Full or Partial Transparency?................................26
Are Congressionally Originated Earmarks Being Funded?.........26
Executive Order 13457........................................27
Potential OMB “Earmarks” Website and Database Issues.............28
Option: Status Quo........................................29
Option: A Congressional Online Database.....................29
Option: Codification of OMB Website with Different
Option: Eliminate OMB “Earmarks” Website...................30
Option: Expand the FFATA Website.........................30
Possible Representational Consequences..........................30
Table 1. Comparison of House and Senate Definitions in the 110th Congress
for Congressional Earmark and Congressionally Directed Spending Item
with Bush Administration Definitions for Earmark...................5
Bush Administration Policy Regarding
Congressionally Originated Earmarks:
Budgeting has been defined as the allocation of scarce resources.2 It involves
choices about how to raise revenues and allocate resources among alternative
purposes, locations, and recipients. These choices frequently are made in an
environment of competing views about the public interest, leading one scholar to
conclude that “conflict is endemic to budgeting.”3 Conflict may arise, for example,
because federal policy makers often have different priorities about the sources and
uses of public funds. Some priorities may be based on policy makers’ views on the
proper role of government, the offices and positions in government they hold, or the
constituencies they represent. Policy makers also may have different views on “who
decides.” In the federal budget process, one such area of budgetary conflict has
concerned “earmarking.” Specific definitions for the term earmark (and related
terms, like congressional earmark and presidential earmark) vary considerably and
are controversial.4 Nevertheless, all of the terms relate to the use of discretion to
allocate funding or other benefits to one or more specific purposes, entities, or
During the 110th Congress, the House of Representatives, the Senate, and the
George W. Bush Administration defined the terms congressional earmark,
congressionally directed spending item, and earmark, respectively. In addition, the
House, Senate, and President provided directions for how congressionally originated
earmarks are to be handled during the budget process. In January 2008, for example,
the President announced he would veto future appropriations bills that did not cut the
number and funding of Administration-defined and -identified earmarks by half,
relative to FY2008. The President also issued Executive Order (E.O.) 13457, which
directed that agencies “should not” fund non-statutory earmarks, except under some
1 Justin Murray, Information Research Specialist in the Knowledge Services Group,
provided research support for this report. Information and analysis in this report benefitted
from the input of Thomas J. Nicola, American Law Division.
2 For example, see Irene S. Rubin, The Politics of Public Budgeting: Getting and Spending,
Borrowing and Balancing, 4th ed. (New York: Chatham House, 2000), p. 3.
3 Irene S. Rubin, “Understanding the Role of Conflict in Budgeting,” in Roy T. Meyers, ed.,
Handbook of Government Budgeting (San Francisco: Jossey-Bass, 1999), p. 30.
4 For clarity, references to specific terms in this report are shown in italics.
conditions.5 OMB subsequently directed agencies on how to implement the E.O.
after enactment of FY2009 continuing and regular appropriations. These are the
latest in a series of developments that began in early 2007, when the President made
proposals regarding earmarks originated by Congress, and the Office of Management
and Budget (OMB) issued a series of memoranda and took corresponding actions to
implement the President’s policy.
This report provides an analysis of Bush Administration policy regarding
congressionally originated earmarks, focusing primarily on the veto threat and E.O.,
and related issues for Congress.6 To provide context and an analytical foundation,
the report first discusses conceptual definitions of earmark-related terms. It then
examines potential explanations of why earmarking might occur and several concerns
that have been expressed about earmarking. Because the Bush Administration
expressed interest in congressionally originated earmarks before the 110th Congress,
the report briefly reviews previous Administration policy statements and proposals.
Subsequent sections discuss and analyze the Administration’s veto threat and
executive order. The report culminates with potential issues for Congress, including
the potential for developments to affect the roles of Congress and the President in the
budget process. Because the E.O. formally will remain in effect unless it is revoked,
some of these issues may continue to be relevant after the swearing in of the next
President. Furthermore, because Bush Administration policy was articulated in some
detail, aspects of the policy may be relevant to future discussion of federal budgeting
and earmarking issues.
Conceptions About Earmarking
Any discussion of earmarks cannot escape the matter of definitions.7 As noted
earlier, specific definitions for the term earmark (and related terms, like
congressional earmark, congressional directive, presidential earmark,
administration earmark, executive branch earmark, and directed spending) vary
5 Executive Order 13457, “Protecting American Taxpayers From Government Spending on
Wasteful Earmarks,” 73 Federal Register 6417, Jan. 29, 2008.
6 Additional topics concerning Bush Administration policy regarding congressionally
originated earmarks are not addressed in detail in this report. These topics include (1) OMB
memoranda and their directions to agencies for FY2007 and FY2008; (2) agency responses
to the OMB memoranda; (3) analysis of the evolution, meanings, and potential implications
of several versions of the Administration’s definition of earmark; (4) comparison of
Administration and congressional definitions of earmark-related terms; (5) Administration
actions related to earmarks (or lack of earmarks) in FY2007 and FY2008 appropriations; (6)
creation and implementation of an OMB “Earmarks” website and database; and (7) the legal
status of congressionally originated, non-statutory earmarks.
7 Throughout this report, earmark-related terms are used in relation to spending provisions,
due to the focus of Bush Administration activities on the same subject. Some observers,
however, might use the term formally or colloquially to apply to tax or tariff benefits and
other forms of federal assistance or benefits.
considerably and are controversial.8 Nevertheless, all of the terms relate to the use
of discretion to allocate particularized benefits — subsets of funding or other
resources or benefits — through law, non-statutory direction (e.g., report language,
which is not legally binding), or administrative action (e.g., making a budget proposal
or awarding a contract or grant) to one or more specific purposes, entities, or
geographic areas. Practices like earmarking have been used for decades, if not
centuries, to make decisions regarding the allocation of public resources,9 but
concerns also have been expressed. At the same time, Congress, its Members, and
Presidents have asserted the prerogatives of their respective constitutional and
statutory authorities and pursued their budget policy preferences. Earmarks, or
similar practices that result in functionally equivalent outcomes, might be originated
by Members of Congress, the President, or agencies, or possibly jointly.
Congressionally Originated Earmarks
Earmarks may be included by the House or Senate, or at the initiative of a
Member or committee of Congress, in appropriations, authorization, or revenue bills,
which, when enacted, have the force of law. Many appropriations-related earmarks
commonly are included in report language and joint explanatory statements. The
latter documents do not have the force of law, but typically accompany legislation
and communicate to agencies congressional intent, expectations, directions,
understandings, exhortations, and warnings.10 In some instances, provisions within
report language and joint explanatory statements may be incorporated expressly, or
by reference, into the text of a statute, making them legally binding.11
Presidentially and Agency-Originated Earmarks
Presidential and agency earmarking may be less familiar than congressional
activity, yet appears to be functionally equivalent. For example, a former OMB
official reportedly said that “[a]s he recalls, presidents use earmarks much as
8 No single definition of the term earmark, or other earmark-related term, has been embraced
by all practitioners and observers of the appropriations, revenue, and budget processes. A
contributing factor to the difficulty of defining the term and its variants is that the mere act
of budgeting — allocating subsets of resources or benefits to specific purposes, entities, or
geographic areas — could be considered by some observers to be a form of earmarking,
regardless of whether the allocation is being done by Congress, the President, or an agency
official. For background on the definition issue, see CRS Report 98-518, Earmarks and
Limitations in Appropriations Bills, by Sandy Streeter.
9 For example, see U.S. Government Accountability Office, Congressional Directives:
Selected Agencies’ Processes for Responding to Funding Instructions, GAO-08-209, Jan.
2008, pp. 8-10; James Q. Wilson, Bureaucracy: What Government Agencies Do and Why
They Do It (New York: Basic Books, 1989), pp. 327-345; and Richard F. Fenno,
Congressmen in Committees (Boston: Little, Brown and Co., 1973), pp. 139-156.
10 For more information, see CRS Report 98-558, Appropriations Bills: What Is Report
Language?, by Sandy Streeter; and CRS Report 98-382, Conference Reports and Joint
Explanatory Statements, by Christopher M. Davis.
11 For discussion, see CRS Report RL34373, Earmarks Executive Order: Legal Issues, by
Thomas J. Nicola and T.J. Halstead.
members of Congress do....”12 Presidentially or agency-originated earmarks may be
(1) requested explicitly within a budget proposal to Congress; (2) embedded within
an agency’s spending plan before or after enactment of the agency’s appropriations;
(3) effected during a fiscal year by a decision to allocate and obligate funds for a
specific contract, grant, initiative, or program; or (4) facilitated by using discretion
to make entities or geographic areas eligible to receive benefits. The President,
political appointees, career civil servants, or combinations thereof may be involved
in any of these activities. During and after the FY2008 appropriations process, for
instance, some Members of Congress reportedly have viewed actions by the President
and executive agencies as amounting to earmarks.13
“Joint” or “Hybrid” Earmarks
An earmark may be included in a bill or report language at the prompting of the
White House or an agency at any point in the legislative process. Joint origination
also may occur with regard to a President’s or agency’s plans and actions for budget
execution (e.g., after discussions between Members of Congress and agency officials
or the President). Instances such as these might raise questions about whether an
earmark should then be considered congressionally or presidentially originated or,
alternatively, be considered a hybrid. The concept of a joint or hybrid earmark
suggests that it may not be a simple matter to categorize earmarking decisions
definitively as the exclusive domain of one branch of government or another.
Definitions in the 110th Congress
During the 110th Congress, the House, Senate, and Bush Administration have
defined terms like congressional earmark, congressionally directed spending item,
and earmark, and provided some direction for how congressionally originated
earmarks, according to these definitions, are to be handled in the budget process.
Various definitions developed by the House, Senate, and Bush Administration are
listed in Table 1. Some of the definitions are discussed later in this report.
12 Attributed to Barry Anderson, a former OMB official and Congressional Budget Office
deputy director. See Jackie Calmes, “In Search of Presidential Earmarks,” Wall Street
Journal, Feb. 21, 2006, p. A6.
13 For example, see Chuck Conlon and David Clarke, “‘War’ on the Floor,” Congressional
Quarterly BudgetTracker, June 12, 2007, available at [http://www.cq.com/budgettracker.do]
(subscription required). The article contains a link (listed as “[House Appropriations
Committee Chairman David] Obey’s Prepared Briefing Material”) to a PDF file (“Obey
Press Briefing,” June 11, 2007). The document reportedly provides what Rep. Obey
considered to be examples of Administration earmarks for projects, grants, and contracts.
See also Office of Republican Leader John Boehner, “Boehner Reacts to White House
Announcement on Earmark Reform; Says Congress Should Go Further By Adopting
Immediate Moratorium on All Earmarks,” press release, Jan. 28, 2008, available at
[http://republicanleader.house.gov/ News /DocumentSingl e.aspx?Docume ntID=82611].
Table 1. Comparison of House and Senate Definitions in the 110th Congress for Congressional Earmark and
Congressionally Directed Spending Item with Bush Administration Definitions for Earmark
use and Senate Rules Definitions
. 5, 2007House Rule XXI, clause 9(d);“[T]he term ‘congressional earmark’ means a provision or report language included primarily at the request of a
Sec. 404 of H.Res. 6Member, 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
iki/CRS-RL34648Congressional district, other than through a statutory or administrative formula-driven or competitive awardprocess.”
s.orpt. 14, 2007Senate Rule XLIV, clause 5(a);“[T]he term ‘congressionally directed spending item’ means a provision or report language included primarily at the
leakSec. 521 of P.L. 110-81 (S. 1)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
://wikiexpenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through
httpa statutory or administrative formula-driven or competitive award process[.]”
. 25, 2007OMB Memorandum M-07-09“Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or
report language) circumvents the merit-based or competitive allocation process, or specifies the location or recipient,a
or otherwise curtails the ability of the Administration to control critical aspects of the funds allocation process.”
ntilFirst paragraph of OMB“Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or
metime between“Earmarks” website homepage,breport language) circumvents the merit-based or competitive allocation process, or specifies the location or recipient,
ne 21 and July 11,at [http://earmarks.omb.gov]or otherwise curtails the ability of the Executive Branch to properly allocate funds.”
ministration Definitions (continued)
31, 2007OMB Memorandum M-07-17c“Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or
report language) circumvents Executive Branch merit-based or competitive allocation processes, or specifies the
location or recipient, or otherwise curtails the ability of the Executive Branch to manage critical aspects of the funds
metime betweenFirst paragraph of OMB“Earmarks are funds provided by the Congress for projects or programs where the congressional direction (in bill or
ne 21 and July 11,“Earmarks” website homepage,breport language) circumvents the merit-based or competitive allocation process, or specifies the location or recipient,d
o presentat [http://earmarks.omb.gov]or otherwise curtails the ability of the Executive Branch to properly manage funds.”
iki/CRS-RL34648. 29, 2008Executive Order 13457, Sec.“[T]he term ‘earmark’ means funds provided by the Congress for projects, programs, or grants where the purported
g/w3(b)congressional direction (whether in statutory text, report language, or other communication) circumvents otherwise
s.orapplicable merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise
leakcurtails the ability of the executive branch to manage its statutory and constitutional responsibilities pertaining to the
funds allocation process.”
httpn addition to this definition, the memorandum also provided a full page of “additional guidance to agencies on the definition of an earmark” in its Attachment B, which arguably
was an inseparable part of the Administration definition.
he OMB “Earmarks” homepage also linked to another page, available at [http://earmarks.omb.gov/earmarks_definition.html], that provided the definition of earmark from the
OMB January 2007 memorandum until sometime between May 4 and July 18, 2007, along with substantial but modified material from the memorandum’s Attachment B. After
the “earmarks_definition.html” page was changed during this May to July period, the Web page provided the definition of earmark from the OMB May 2007 memorandum
(introduced later in this report), instead of from the January 2007 memorandum.
lthough the definition provided in the May 2007 memorandum was somewhat different from the definition in the January 2007 memorandum, the May memorandum characterized
the new version as follows: “We will continue to use the definition used in the baseline 2005 data collection.” The January 2007 memorandum, which appeared to have provided
the definition to be used during OMB’s baseline effort, differed in several ways but has not been revised or rescinded.
he previous homepage definition used the term allocate instead of manage.
Potential Explanations of Earmarking
There are several potential explanations of why Congress, the President, or an
agency might earmark resources or benefits. These could include
!Members of Congress representing constituents in their electoral
!Congress fulfilling its constitutional obligation to exercise the power
of the purse and sometimes to prevent encroachment by other
branches of government;15
!Congress defining or constraining the scope of an agency’s or the
President’s ability to exercise control of the allocation of public
funds and resources;16
!Congress providing flexibility to agencies to adapt to changing
conditions by not prescribing earmarked allocations in law and
instead earmarking through report language;17
!Congress inviting and facilitating interbranch communications about
congressional intent and expectations, agency needs, etc.;18
!Congress, the President, or an agency supplementing or supplanting
funding provided by nonfederal sources for activities or projects;
!Congress, the President, or an agency accomplishing public policy
goals, either at a generalized level or with particularized benefits or
remediation for some entities or persons;19
14 For related discussion, see CRS Report RL33686, Roles and Duties of a Member of
Congress, by R. Eric Petersen; and Lee Hamilton, “What I Wish Political Scientists Would
Teach about Congress,” PS: Political Science & Politics, vol. 33, Dec. 2000, pp. 757-759.
15 The Constitution establishes the basic framework for appropriating funds (or otherwise
allocating resources and benefits) under which Congress and the President operate.
Congress’s constitutional authorities related to appropriations and budgeting include several
in Art. I, Secs. 7, 8, and 9, notably including what has been called the “power of the purse”
and also an implied power of investigation and inquiry into executive branch operations.
See CRS Report RL30240, Congressional Oversight Manual, by Frederick M. Kaiser, et al.;
and Richard F. Fenno, The Power of the Purse: Appropriations Politics in Congress
(Boston: Little, Brown, 1966). The President’s authorities include Art. II, Secs. 2 and 3,
notably including veto power and the general duty to recommend measures to Congress for
16 For related discussion, see D. Roderick Kiewiet and Mathew D. McCubbins, The Logic
of Delegation: Congressional Parties and the Appropriations Process (Chicago: University
of Chicago Press, 1991).
17 For related discussion, see Lincoln v. Vigil, 508 U.S. 182, at 192 (1993).
18 For related discussion, see CRS Report 98-558, Appropriations Bills: What Is Report
Language? by Sandy Streeter.
19 For related discussion, see James D. Savage, Funding Science in America: Congress,
Universities and the Politics of the Academic Pork Barrel (Cambridge: Cambridge
University Press, 1999); and Robert M. Stein and Kenneth N. Bickers, Perpetuating the
Pork Barrel: Policy Subsystems and American Democracy (Cambridge: Cambridge
!Congress, the President, or an agency earmarking to assist with
legislative compromise on related or unrelated issues;20
!an agency utilizing discretion provided by law to engage expertise
to help the agency accomplish its mission(s) and goals;21
!the President representing a broad or narrow interest, or pursuing his
or her policy preferences;22 and
!the President at his or her own discretion, exercising constitutional
authority to propose for Congress’s consideration measures he or she
believes to be necessary or suitable for accomplishing a given end.23
The explanations listed above are not necessarily comprehensive or mutually
exclusive. Each potential function of earmarking might be interpreted to have
advantages or disadvantages, depending on one’s views regarding the proper
definition, functions, process, and extent of earmarking.
Potential Concerns About Earmarking
Some concerns about earmarking have involved perceptions of inefficiency and
insufficient transparency and scrutiny. With regard to earmarks originated by
Congress, concerns were expressed, for example, in a hearing in 2006, during the
109th Congress. According to the views of those giving statements or providing
!“Congressional leaders and appropriators use earmarks as a leverage
to get members to vote their way — often for monstrous spending
bills that a member otherwise might oppose”;24
University Press, 1995).
20 For related discussion, see Diana Evans, Greasing the Wheels: Using Pork Barrel Projects
to Build Majority Coalitions in Congress (Cambridge: Cambridge University Press, 2004).
21 For related discussion, see D. Roderick Kiewiet and Mathew D. McCubbins, The Logic
of Delegation; and John E. Chubb, “U.S. Energy Policy: A Problem of Delegation,” in John
E. Chubb and Paul E. Peterson, eds., Can the Government Govern? (Washington:
Brookings, 1989), pp. 57-76.
22 For related discussion, see Jeffrey Tulis, “The Two Constitutional Presidencies,” in
Michael Nelson, ed., The Presidency and the Political System, 8th ed. (Washington: CQ
Press, 2006), pp. 62-66; and Louis Fisher, “A Dose of Law and Realism for Presidential
Studies,” Presidential Studies Quarterly, vol. 32 (Dec. 2002), pp. 672-692.
23 For related discussion, see Charles O. Jones, Separate But Equal Branches: Congress and
the Presidency (Chatham: Chatham House, 1995), pp. 77-81.
24 Statement of Sen. Tom Coburn, in U.S. Congress, Senate Committee on Homeland
Security and Governmental Affairs, Subcommittee on Federal Financial Management,
Government Information, and International Security, Earmark Reform: Understanding thethnd
Obligation of Funds Transparency Act, hearing, 109 Cong., 2 sess., Mar. 16, 2006
(Washington: GPO, 2006), p. 2.
!when “[Congress legislates] by report rather than actual legislation,
we [Members] have given up our ability to challenge individual
spending items”;25 and
!“[e]armarking ... is done in many instances for good and sufficient
policy reasons ... [b]ut in more recent years, the amount of
earmarking ... has virtually exploded, and the motivation behind the
earmarks, the nature of the earmarks has become more parochial and
more political, rather than based on legitimate policy differences
between the two branches of government.”26
Concerns and questions about activities that some observers see as presidential
or executive agency earmarking include
!an “explosion in contracting being engaged in by the Administration,
especially contracting that is sole-sourced or not fully
competitive,”27 and “rapid growth in no-bid and limited-competition
contracts” in recent years, reportedly from $67.5 billion in 2000 to
$206.9 billion in 2006;28
!perceived comparative lack of transparency for presidential
earmarks, because “[t]he information is hard to get. For all the talk
of bringing transparency to Congress’s work, its earmarks —
compared with the president’s — are relatively simple to find in
spending bills and their companion committee reports”;29 and
!concerns about the use of discretion to allocate funds in ways not
approved by Congress, such as House Appropriations Committee
concerns expressed about the Department of Homeland Security
(DHS) financing a facility using an “approach [that] represents a
violation of the spirit, if not the letter” of certain reprogramming
restrictions and notification requirements.30
25 Testimony of Rep. Jeff Flake, ibid., p. 7.
26 Testimony of Scott Lilly of the Center for American Progress, ibid., p. 19.
27 Chuck Conlon and David Clarke, “‘War’ on the Floor,” Congressional Quarterly
BudgetTracker, June 12, 2007, available at [http://www.cq.com/budgettracker.do]. The
article contains a link (listed as “[House Appropriations Committee Chairman] Obey’s
Prepared Briefing Material”) to a PDF file (“Obey Press Briefing,” June 11, 2007); see
section titled “Executive Earmarking Through Contracting,” p. 13.
28 U.S. Congress, House Committee on Oversight and Government Reform, Majority Staff,
More Dollars, Less Sense: Worsening Contracting Trends Under the Bush Administration,
June 2007, p. 6, available at [http://oversight.house.gov/features/moredollars/].
29 Jackie Calmes, “In Search of Presidential Earmarks,” Wall Street Journal, Feb. 21, 2006,
30 U.S. Congress, House Committee on Appropriations, Department of Homeland Security
Appropriations Bill, 2008, report to accompany H.R. 2638, 110th Cong., 1st sess., H.Rept.
Bush Administration Policy Regarding Earmarks
Prior to the 110th Congress
Prior to the 110th Congress, the Administration had shown interest in
congressionally originated earmarks. For example, the President’s budget proposal
for FY2002 proposed to “curtail congressional earmarking, especially for special
interest spending.”31 The next year, the President’s budget proposal for FY2003
devoted considerable attention to earmarks originated by Congress, stating
“congressional earmarking mars merit-based processes for distributing the American
people’s resources.”32 The Budget volume contained agency-specific discussions of
the subject. In addition, it contained general statements characterizing the
Administration’s views on the use of budgetary discretion by the President and
agency officials, on one hand, versus the use of budgetary discretion by Congress on
The Administration appeared to put less emphasis on earmarks in its budget
proposal for FY2004.33 In subsequent years, under its Program Assessment Rating
Tool (PART) initiative, the Administration focused on congressionally originated
earmarks in specific areas. In the PART’s first year, for example, an illustrative
Administration statement was that “earmarked funding will not contribute to the
[program’s] long-term goals,” as set by the Administration.34
Bush Administration Policy During the 110th Congress
During the 110th Congress, the subjects of congressionally originated earmarks
and, more generally, the use of discretion in budgetary decision making garnered
significant attention from both Congress and the Bush Administration.35 The House
of Representatives amended House Rule XXI on January 5, 2007, to define the term
congressional earmark, and the Senate established a new Rule XLIV on September
14, 2007, to define congressionally directed spending item (see Table 1). Both
chambers also adopted requirements for the disclosure of congressionally originated
earmarks. Coinciding with these congressional developments, the articulation and
evolution of Bush Administration policy began in January 2007.
31 U.S. Executive Office of the President, Office of Management and Budget, A Blueprint
for New Beginnings: A Responsible Budget for America’s Priorities (Washington: GPO,
Feb. 2001), p. 171, available at [http://www.whitehouse.gov/omb/budget/fy2002/].
32 U.S. Executive Office of the President, Office of Management and Budget, Budget of the
U.S. Government, Fiscal Year 2003 (Washington: GPO, 2002), p. 54.
33 For example, the word “earmark” appeared 121 times in the President’s Budget volume
for FY2003 and once in the volume for FY2004.
34 U.S. Executive Office of the President, Office of Management and Budget, Performance
and Management Assessments, Fiscal Year 2004 (Washington: GPO, 2003), p. 108.
35 This report focuses on the actions of the President and OMB, as well as some related
implications and issues for Congress, and does not discuss congressional efforts or
procedures in detail.
Bush Administration Actions Prior to E.O. 13457. In various forums
during January and February 2007, the President proposed that congressionally
originated earmarks should be cut by at least 50% in number and funding in FY2008
appropriations, relative to FY2005, and no longer included in non-statutory report36
language. OMB subsequently issued several memoranda to the heads of executive
branch agencies that articulated Administration policies, defined the term earmark
in several iterations, and required agencies to take certain actions.
Specifically, an OMB January 2007 memorandum provided an official
Administration definition for the term earmark (see Table 1).37 In addition to the
definition, the memorandum’s Attachment B provided a full page of “additional
guidance” on the definition, which arguably was an inseparable part of the definition.
For example, Attachment B said congressional direction that “places restrictions on
some portion of [Administration-requested] funding” would count as an earmark.38
Nevertheless, terms and expressions in the definition, including circumvents, merit-
based, competitive, otherwise curtails, and control critical aspects, were left
undefined or partially defined. The memorandum also directed agencies and OMB
to identify and publicize information about congressionally originated earmarks on
the Internet in order to call on Congress to reduce earmark numbers and funding
relative to FY2005.
Three weeks later, an OMB February 2007 memorandum instructed agencies
on how to handle non-statutory congressionally originated earmarks for the FY2007
budget, based on OMB’s interpretation of the full-year continuing resolution for
FY2007.39 According to the chairmen of the House and Senate Appropriations
36 Presidential proposals that Congress reduce the number of earmarks by 50% and cease
placing earmarks in report language were made in a Rose Garden press conference on Jan.
3, 2007; in the 2007 State of the Union Message, on Jan. 23, 2007; and in the President’s
budget proposal for FY2008, submitted to Congress on Feb. 5, 2007. For a press release and
fact sheet regarding the Rose Garden press conference, see
[http://www.whitehouse.gov/news/releases/2007/01/20070103.html]. The White House
transcript of the State of the Union speech is available at [http://www.whitehouse.gov/
news/releases/2007/01/20070123-2.html]. For the FY2008 budget proposal, see U.S.
Executive Office of the President, Office of Management and Budget, Budget of the U.S.
Government, Fiscal Year 2008 (Washington: GPO, 2007), p. 1.
37 U.S. Executive Office of the President, Office of Management and Budget, memorandum
from Rob Portman, Director, “Collection of Information on Earmarks,” M-07-09, Jan. 25,
38 A final Bush Administration definition of the term earmark was later established in E.O.
13457, but the term’s meaning probably is still informed by previous versions and
corresponding explanations of the Administration definition. In particular, the E.O.’s
definition retains significant elements of the Administration’s January 2007 definition
(released in OMB’s January 2007 memorandum). The OMB January 2007 memorandum
provided the most comprehensive explanation, to date, of the meanings of several terms and
concepts that were included in subsequent versions of the Administration definition.
39 U.S. Executive Office of the President, Office of Management and Budget, memorandum
from Rob Portman, Director, “To Provide Guidance to Departments and Agencies About
Obligating FY 2007 Funds Under a Full-year Continuing Resolution (CR) with No
Committees, the full-year measure was “free of earmarks.”40 Agencies were
instructed by Section I of OMB’s memorandum that they “should not” fund non-
statutory earmarks, but also told “the Administration welcomes input to help make
informed decisions.” In the absence of non-statutory earmarks, Section II of the
memorandum told agencies to apply “authorized discretion” using “transparent and
merit-based determinations to achieve program objectives, consistent with the
purpose of the statute and Administration policy (including the President’s Budget).”
Viewed in concert with the OMB January 2007 memorandum, the February 2007
memorandum’s use of terms may have had implications for how to understand the
Administration’s definition of earmark (in the January 2007 memorandum) and the
Administration’s characterizations of its own budgetary decision making. Among
other things, Section II appeared to leave open the possibility of overlap between the
terms merit-based and consistent with Administration policy in some contexts.
Starting in March 2007, OMB followed up on its January 2007 memorandum
by establishing an “Earmarks” website. In succeeding months, the website presented
an expanding database of Administration-defined and -identified earmarks
corresponding to FY2005 appropriations, FY2008 appropriations, FY2009
appropriations, and several past authorization measures.41 The website’s explicit
purposes were, among others, to establish a “benchmark” for measuring whether
Congress “achieve[d] the President’s cut in half goal” for FY2008, and to “encourage
and inform the debate over how taxpayers’ money is spent.”42 The homepage of the
website also included as its first paragraph a somewhat different definition of
earmark from the one published in January 2007 (see Table 1). With the posting of
individual earmarks in OMB’s database, it became possible to observe how the
Administration’s definition of earmark was implemented in practice. Many of the
Administration’s designations of items as earmarks focused on congressional
specification, in bill or report language, of a receiving entity or geographic location.
Congressionally specified items that previously had been requested by the
Administration did not appear to be included in the database. Other items in the
database fell outside the category of specifying a recipient or geographic location,
however.43 For example, the datasets of FY2005 appropriations- and authorization-
Congressional Earmarks,” M-07-10, Feb. 15, 2007, available at
[ h t t p : / / www.whi t e house.go v/ omb/ me mo r a nda/ f y2007/ m07-10.pdf ] .
40 U.S. Congress, House Committee on Appropriations, “Democrats File Joint Funding
Resolution for FY 2007,” press release, Jan. 29, 2007, available at
[http://appropriations.house.gov/ News /pr_070129.shtml ].
41 See [http://earmarks.omb.gov]. FY2008 figures were described as “estimates” until July
42 The quotations are from U.S. Executive Office of the President, Office of Management
and Budget, “OMB Director Rob Portman Statement on Initial Phase of Earmark Database,”
press release, Mar. 12, 2007; and U.S. Executive Office of the President, Office of
Management and Budget, “Earmarks Database Establishes Benchmark for Cutting Earmarks
in Half; Increases Transparency of Federal Spending,” press release, Apr. 4, 2007.
43 One of the Administration’s three criteria in the January 2007 OMB memorandum for
related earmarks include items that reportedly were made by telephone call, made
through language in the Congressional Record, and modified from bill or report
language through what OMB appears to call “congressional letters of intent.”44 It is
not clear, however, if all such instances are included in the database.
A May 2007 memorandum provided another, somewhat different
Administration definition of earmark (see Table 1).45 The May memorandum
instructed agencies to closely track earmarks during the FY2008 appropriations
process to measure whether Congress met the President’s goal.
Final action on FY2008 appropriations occurred in late 2007, with enactment
of the Department of Defense Appropriations Act, 2008 (P.L. 110-116) and the
Consolidated Appropriations Act, 2008 (P.L. 110-161). On January 29, 2008, OMB
posted a summary tally of Administration-identified FY2008 earmark numbers and46
funding: 11,737 earmarks and $16.872 billion. In July 2008, the FY2008 figures
were changed to identify 11,510 earmarks and $16.569 billion in associated47
funding. In September 2008, the FY2008 figures were changed again to identify
the OMB FY2005 tally of 13,492 earmarks and $18.944 billion.
FY2009 Veto Threat and Executive Order 13457. Following enactment
of FY2008 omnibus appropriations, the President announced in his January 2008
State of the Union Message that he would veto FY2009 appropriations bills if
Congress did not cut earmark numbers and funding by half relative to FY2008. The
President also announced he would issue an executive order directing agencies to
ignore future earmarks “not voted on [in a law] by Congress” (i.e., non-statutory
identifying an earmark was “funds provided by the Congress for projects and programs
where the congressional direction (in bill or report language) ... specifies the location or
44 See “Reference: Phone call from the Hill to the Secretary [of Energy],” available at
earmarks/earmark_88464.html]; and [http://earmarks.omb.gov/earmarks/
earma rk_162814.html ].
45 U.S. Executive Office of the President, Office of Management and Budget, memorandum
from Rob Portman, Director, “Tracking Earmarks in the 2008 Appropriations Process,” M-
07-17, May 31, 2007, available at
[ h t t p : / / www.whi t e house.go v/ omb/ me mo r a nda/ f y2007/ m07-17.pdf ] .
46 See [http://earmarks.omb.gov/resources/static_pdfs/2008_Earmarks_Summary_for_
47 The figures were posted in a PDF file that later was changed. A printout of the previous
version is available from the authors.
48 See [http://earmarks.omb.gov/resources/static_pdfs/2008_Earmarks_Summary.pdf].
OMB’s “Earmarks” website said that some 2008 data were “adjusted ... for comparability
to 2009 estimates” for certain FY2009 appropriations bills.
49 See [http://earmarks.omb.gov/appropriations_home.html]. Figures are rounded by CRS.
earmarks).50 Issued the next day, E.O. 13457 outlines what appear to be three explicit
purposes: (1) reducing the number and funding of earmarks originated by Congress;
(2) making “their origin and purposes ... transparent”; and (3) including
congressionally originated earmarks in the text of bills instead of other documents.
E.O. 13457 then instructs that agencies “should not” fund non-statutory earmarks,
“except when required by law or when an agency has itself determined a project,
program, activity, grant, or other transaction to have merit under statutory criteria or
other merit-based decisionmaking.” The order also provides a new definition of
earmark. This time, however, the definition was provided in a document with
binding force on agencies (see also Table 1):
[T]he term ‘’earmark’‘ means funds provided by the Congress for projects,
programs, or grants where the purported congressional direction (whether in
statutory text, report language, or other communication) circumvents otherwise
applicable merit-based or competitive allocation processes, or specifies the
location or recipient, or otherwise curtails the ability of the executive branch to
manage its statutory and constitutional responsibilities pertaining to the funds
For all legislation enacted after January 29, 2008, E.O. 13457 requires agency
heads to take “all necessary steps to ensure that”
!agency funding decisions for “any earmark” are “based on the text
of laws” and not based on a variety of non-statutory means,
including “any other non-statutory statement or indication of views
of the Congress, or a House, committee, Member, officer, or staff
!agency funding decisions for “any earmark” are “based on
authorized, transparent, statutory criteria and merit-based decision51
!“no oral or written communications concerning earmarks shall
supersede statutory criteria, competitive awards, or merit-based
deci si onm aki n g. ”
The executive order also outlines the process by which agency heads are required to
handle congressional communications about non-statutory earmarks.
Communications are required to be received in writing in order to be considered. In
addition, they are required to be posted on the Internet by the receiving agency within
30 days, unless “otherwise specifically directed by the head of the agency, without
delegation, after consultation with the Director of the Office of Management and
50 The transcript of the speech is available at [http://www.whitehouse.gov/news/releases/
51 The executive order requires decisions to be made according to instructions in the OMB
February 2007 memorandum, which, in the absence of congressionally originated
non-statutory earmarks, directed agency decision making to be “... consistent with the
purpose of the statute and Administration policy (including the President’s Budget)” in areas
of “authorized discretion.”
Analysis of E.O. 13457
E.O. 13457, taken in the context of other Administration action related to
earmarking policies,52 appears to reflect a comprehensive articulation of the
Administration’s (1) definition of earmark and (2) views on the appropriate roles of
Congress and the President in the allocation of resources and benefits for public
purposes.53 Among other things, it could be argued that the executive order reflects
a view that congressional allocation of resources and benefits for public purposes
“often lead[s] to wasteful spending” if it does not leave to the President and his
Administration discretion to make certain funding allocations based on its
interpretations of merit, competition, and statutory criteria.54 In this view,
congressional direction that would fully limit the President’s or an agency’s
discretion — for example, congressional specification of a location or recipient in
statute or report language — would appear to be automatically considered an
earmark. It could also be argued that the Administration’s various definitions have
used terms such as control and manage to mean the Administration’s use of
discretion to allocate funds in ways that comport with the Administration’s views of
competition and merit, without certain restrictions. Terms such as merit and
restrictions are left undefined or partially defined. However, the Administration has
not explicitly articulated its position on the appropriate roles of Congress and the
President in the allocation of resources and benefits for public purposes.
A number of more specific observations might be offered about aspects of E.O.
13457, both when viewed alone and in combination with the President’s veto threat
in the 2008 State of the Union speech.
Budgeting Roles of Congress and the President. If agencies comply
with E.O. 13457 as written, the E.O. might alter the effectiveness of non-statutory
52 It is not clear whether the various earmark definitions included in the OMB memoranda,
or on OMB’s “Earmarks” website, should be regarded as equivalent, iterative, or
authoritative expressions of Administration policy at the time they were issued. From the
available documents, however, it seems possible that the Administration might view the
different versions as being substantively equivalent. This could be the case, because the
various versions have not been explained by OMB to be different; definitions in earlier
memoranda have not been withdrawn or revised; and one memorandum issued in May 2007
indicated that OMB and agencies would continue to use a prior definition used in the
collection of data from FY2005, upon which the FY2008 50% cut goal was based.
Nevertheless, it is likely that the definition promulgated in E.O. 13457 is the final version.
For more on executive orders, see CRS Report RS20846, Executive Orders: Issuance and
Revocation, by T.J. Halstead.
53 To the extent the Administration views the definitions it has used as equivalent (i.e,
having no substantive changes in meaning; see Table 1), specific terms contained within the
definitions might have equivalent meanings (e.g., “the Administration” and “the Executive
Branch”; “control” and “manage”; “allocate” and “manage”; and “control critical aspects”
and “properly allocate”).
54 Quotation is from the White House, see “2008 Budget Fact Sheets” document, p. 3 of PDF
file, available at [http://www.whitehouse.gov/infocus/budget/BudgetFY2008.pdf]; and from
OMB, see “Fact Sheet: A Balanced Budget by 2012 & Earmark Reform,” p. 2 of PDF file,
available at [http://www.whitehouse.gov/omb/pubpress/2007/factsheet_010307.pdf].
earmarking by Congress. Agencies typically have felt an obligation to comply with
these congressional directives. In place of these practices, the E.O. could be used to
attempt to reverse roles, with Members who seek non-statutory earmarks making
formal requests of agencies, and possibly the White House. According to the E.O.,
agency funding decisions (but not necessarily White House decisions) are to be made
“in the manner set forth” in Section II of the OMB February 2007 memorandum.
Under the memorandum, decisions are required to be based on (1) “statutory criteria,
such as funding formulas, eligibility standards, and merit-based decision-making,”
which often leave considerable discretion, and (2) in areas of significant discretion,
“merit-based determinations.” The basis for “merit-based determinations” is not
further defined in the E.O. or February 2007 memorandum, except that decisions in
areas of significant discretion would be required to be consistent with the “purpose
of the statute” and “Administration policy (including the President’s Budget).”
Given various estimates of the extent of earmarking originated by Congress, the
resources involved are considerable, likely amounting to billions of dollars. At the
same time, the resources constitute only a small percentage (less than 1%) of the
annual federal budget (nearly $3 trillion in estimated outlays for FY2008).55
Extent and Manner of Earmarking. When viewing the E.O. and veto
threat in combination, one could argue that the Administration appears to be calling
on Congress to both (1) legislate in detail, in statute, when allocating resources and
benefits, instead of providing general lump sums in law and then being more specific
in report language; and at the same time, (2) not legislate in detail too much, or risk
a veto. It could also be argued that the process described in E.O. 13457 might
strengthen the President’s discretion, influence, and control over agency decision
making, which may change the relationship between Congress and the executive
agencies. In combination, the E.O. backed up by presidential vetoes, if effective,
could be used in an attempt to limit Congress’s legislative activities that concern
resource allocation to only statutory text. Such a scenario also may leave uncertain
the efficacy of many, if not most, other means that Congress has developed for
overseeing and influencing agency resource allocation activities.
White House Role in Agency Decisions. It is not possible to predict how
E.O. 13457 might be used in practice or might change interbranch dynamics, should
it be strictly implemented. The E.O.’s framework, however, appears to allow the
White House to become the arbiter of decisions about whether to honor non-statutory
earmarks, if it wished to do so. For example, OMB could influence the processes for
deciding the “merit” of non-statutory earmarks. The OMB Director has a role in
determining whether to publicly disclose congressional requests or recommendations
on the Internet and is provided the authority in the E.O. to issue additional, but
unspecified, “instructions” to agency heads.
It is conceivable that the E.O., if it increases White House influence in agency
decision making, might be used by a President as leverage at any point in the
legislative process, regarding presidential nominations, or in other realms of
interaction among Congress, agencies, the President, and perhaps also nonfederal
55 U.S. Executive Office of the President, Office of Management and Budget, Budget of the
U.S. Government, Fiscal Year 2009 (Washington: GPO, 2008), p. 139.
actors. Public disclosure or non-disclosure of non-statutory earmark requests, and
by implication, the prospect of agency or Administration decisions on the requests,
could also occur only after “consultation” with the OMB Director. As the E.O. is
implemented over time, however, experience might provide information on what
OMB’s role, or roles, will be in practice.
Agency Consideration of Non-statutory Earmarks. E.O. 13457 does
not require agencies to disregard non-statutory earmarks. Rather, the E.O. states that
agencies “should not commit, obligate, or expend funds on the basis of earmarks
included in any non-statutory source” (italics added). Even if an agency viewed a
non-statutory earmark as having no merit under two explicit circumstances —
“statutory criteria” or “other merit-based decisionmaking” — the E.O. does not
strictly prohibit the agency from funding the non-statutory earmark. Therefore, these
two explicit exceptions to the direction that agencies “should not commit, obligate,
or expend funds” would appear to be only a subset of the potential exceptions to the
Administration’s policy about whether or not to fund a non-statutory earmark. For
example, if a non-statutory earmark were considered by an agency to have no merit,
it appears that a decision to fund the earmark might still be made on the basis of
“Administration policy (including the President’s budget)” (pursuant to Section
2(a)(ii)’s citation of the OMB February 2007 memorandum), or in response to input
from OMB or the White House received under the E.O.’s Section 2(b) and 2(c)
Administration Definition of Earmark. The E.O.’s definition of earmark
is not precise. Congressional direction that “specifies the location or recipient”
appears to be clear in how it has been and would continue to be applied. Other
language in the definition, however, relies on largely undefined terms and
expressions that might allow for an expansive interpretation, if the Administration
wished to use one.56 Specifically, the E.O. definition provides two additional criteria
that would classify “purported congressional direction (whether in statutory text,
report language, or other communication)” to be an earmark. The additional criteria
are “congressional direction” that (1) “circumvents otherwise applicable merit-based
or competitive allocation processes,” or (2) “otherwise curtails the ability of the
executive branch to manage its statutory and constitutional responsibilities pertaining
to the funds allocation process.” With regard to the first, OMB has made statements
that formulation of the President’s budget proposal is a merit-based and competitive
allocation process. A statement during a press briefing by OMB Director Jim Nussle,
in which he compared Administration budget formulation with congressional
earmarking, is illustrative:
[W]e’re very transparent about all our proposals. They’re out there for the world
to see, now on the Internet especially. These proposals are justified, with a
number of detailed evidence [sic] behind them to justify exactly why we want to
spend the programs where we want to spend them. They’re also merit-based and
often competitively bid — most often, competitively bid. And they have the
ability for Congress to pick and choose. Unfortunately, Congress doesn’t always
56 For example, the order does not define the terms circumvents otherwise applicable,
merit-based, competitive, otherwise curtails, manage, and the executive branch’s statutory
and constitutional responsibilities pertaining to the funds allocation process.
do that with its earmarking process. There are many that are air-dropped in into
report language and nobody sees until the last moment, that Congress hasn’t even
voted on or doesn’t even consider in open forum or open hearing. So I think it’s
a much different situation. And we have scrubbed through our budget for those
kinds of situations and have removed them where we thought that was the case.57
But we believe that the Congress needs to change its ways on earmarking.
If the E.O. definition of earmark as “congressional direction ... [that] circumvents
otherwise applicable merit-based or competitive allocation processes” were
interpreted in light of such Administration statements, the definition might leave
open the possibility of an expansive interpretation being applied. For example, it
may be that the definition could include within its ambit congressional direction that
diverges from the President’s annual budget request. The second criterion, relating
to congressional direction that “curtails the ability of the executive branch to manage
its statutory and constitutional responsibilities pertaining to the funds allocation
process,” also is not precise and could be interpreted expansively, if the
Administration wished to do so.
Potential Implications for Non-statutory Reprogramming. It is not
clear what impact, if any, E.O. 13457 would have on non-statutory reprogramming
directions imposed by Congress on agencies. Reprogramming typically refers to an
agency shifting funds among activities within an appropriations account’s lump sum,
resulting in an allocation different from what was contemplated at the time
appropriations were enacted (e.g., based on agency budget justification documents
and other representations).58 Congressional reprogramming directions (e.g., limiting
how much can be shifted from one activity to another, requiring congressional
notification or approval) are often included in report language and, as such, may not
be legally binding. Appropriations committees have used reprogramming for
decades to maintain oversight of agency activities and ensure that agencies allocate
resources consistently with congressional intentions, while at the same time
balancing an additional priority of giving agencies flexibility to adapt to changing
circumstances rather than embed restrictions in law, which might be difficult and
cumbersome to change in a timely way.59 It is not clear whether the Administration’s
definition of earmark could be applied to reprogramming requirements and
57 Available at [http://www.whitehouse.gov/news/releases/2008/02/20080204-2.html]. See
also David Clarke, “White House, Hill Trade Charges on Earmarks,” CQ Today, June 7,
58 See U.S. Government Accountability Office, A Glossary of Terms Used in the Federal
Budget Process, GAO-05-734SP, Sept. 2005, p. 85.
59 See CRS Report RL33151, Committee Controls of Agency Decisions, by Louis Fisher.
Subsequent Implementation of E.O. 13457
On September 30, 2008, the President signed H.R. 2638, the Consolidated
Security, Disaster Assistance, and Continuing Appropriations Act, 2009, into law.60
The act included 3 of the 12 regular appropriations acts for FY2009, a long-term
continuing appropriations resolution (CR) for the remaining 9 regular appropriations
acts (providing funds through March 6, 2009), and a supplemental appropriations act
for disaster relief and recovery.61 Leading up to enactment, the President did not
make any specific veto threats to FY2009 appropriations bills in Statements of
Administration Policy (SAPs) on the basis of Administration-defined earmarks.
Three weeks after enactment of the legislation, on October 23, 2008, OMB issued
instructions to the heads of executive agencies on how to implement the FY2009
consolidated appropriations act “in accordance with” E.O. 13457.62
Criteria for Funding Statutory Earmarks in CR. OMB’s memorandum
addressed several subjects. First, the memorandum told agencies that in
implementing the Continuing Appropriations Resolution, 2009 (Division A of the
law), agencies are legally obligated to fund an earmark, as defined under the E.O.,
only under certain conditions.
[I]n implementing the Continuing Appropriations Resolution, 2009 (the “FY09
CR”) agencies are legally obligated to fund an earmark only if the project,
program, or grant is an earmark that meets all three of the following criteria:
(1) was in the statutory text of the FY08-enacted appropriation (including
earmarks that were statutorily incorporated by reference);
(2) was of a continuing nature (rather than of a one-time, non-recurring
(3) could not be carried out by funding the earmark in the remainder of
FY09 (following the expiration of the FY09 CR) if Congress ultimately decides63
to provide continued funding in FY09 for that earmark.
The memorandum explained that if an earmark does not meet all three criteria, “then
during the FY09 CR period an agency must only fund the earmark if the agency has
itself determined that it has merit under statutory criteria or other merit-based
decisionmaking.” This instruction referred to the E.O. and its incorporation, by
reference, of directions included in Section II of the OMB February 2007
60 P.L. 110-329; 122 Stat. 3574.
61 For detailed information and legislative history, see CRS Report RL34711, Consolidated
Appropriations Act for FY2009 (P.L. 110-329): An Overview, by Robert Keith.
62 U.S. Executive Office of the President, Office of Management and Budget, memorandum
from Jim Nussle, Director, “Guidance on Implementing P.L. No. 110-329 in Accordance
with Executive Order 13457 on ‘Protecting American Taxpayers From Government
Spending on Wasteful Earmarks’,” M-09-03, Oct. 23, 2008, available at
[ h t t p : / / www.whi t e house.go v/ omb/ me mo r a nda/ f y2009/ m09-03.pdf ] .
63 Ibid., p. 1 (emphasis in original).
The memorandum further explained OMB’s third criterion, which directed
agencies to be restrictive in how they fund statutory earmarks.
[S]ince Congress has directed agencies in Section 110 [of the FY2009 CR] to
implement “only the most limited funding action of that permitted,” agencies
shall not fund during the FY09 CR period those FY08 statutory earmarks that
were of a continuing nature if such earmarks could still be funded in the
remainder of FY09 (following the expiration of the FY09 CR) if Congress
ultimately decides to provide continued funding in FY09 for those
FY08-earmarked projects and activities (in other words, if an agency were to
fund such FY08 earmarks during the FY09 CR period, then the agency would be
infringing upon the prerogative of Congress in the coming months to set full-year
FY09 funding levels). In this regard, Congress in the FY09 CR did not direct64
agencies to fund the FY08 statutory earmarks during the FY09 CR period.
Non-Statutory Earmarks and the CR. For purposes of the FY2009 long-
term CR, the memorandum also addressed non-statutory earmarks “that were in the
reports and other non-statutory materials that concerned either the FY08
appropriations Acts or the (not yet enacted) full-year FY09 appropriations bills for
those activities and programs that are funded by the FY09 CR.” The memorandum
cited Supreme Court opinions that non-statutory earmarks are not legally binding.
In addition, the memorandum told agencies that in “accordance” with provisions of
both E.O. 13457 and the CR, they “shall not fund [non-statutory] earmarks during the
FY09 CR period.”65 Instead, the memorandum directed agencies to follow the
requirements of the E.O.
Restriction on “New Starts” in the CR. The memorandum concluded its
discussion of the CR by noting that the FY2009 long-term CR included language
prohibiting “new starts.” OMB suggested this prohibition would apply to some
Earmarks in Supplemental and Regular Appropriations Acts and
Executive Branch Disclosure. The memorandum also directly addressed
statutory and non-statutory earmarks contained in the supplemental and three regular
appropriations acts. Funding in these acts was not subject to the long-term CR’s
various restrictions. For statutory earmarks, OMB stated that agencies shall
implement them “in a manner consistent with applicable law,” quoting the E.O. For
non-statutory earmarks, the memorandum recited provisions of the E.O. that agencies
are required to follow. In the latter case, it is not clear how or when agencies will
work with OMB to determine which non-statutory earmarks will be made publicly
available on the Internet, per the E.O.’s requirements, and which will remain
undisclosed by the executive branch, subsequent to the E.O.’s required consultation
between an agency head and the Director of OMB.
64 Ibid., p. 3 (emphasis in original).
65 In this context, the memorandum cited the CR’s provisions that provided funding (Sec.
101) and preserved congressional prerogatives to make final full-year funding decisions by
requiring “only the most limited funding action ... in order to provide for continuation of
projects and activities” (Sec. 110).
Potential Issues for Congress
The articulation and evolution of Bush Administration policy regarding
congressionally originated earmarks may have implications for congressional
budgeting and earmarking practices, working relations between Congress and the
President, and working relations between Congress and agencies. The policy,
therefore, may raise several general and specific issues for Congress, including the
!What are the appropriate budgetary roles and responsibilities for
Congress, the President, agencies, and the public in the U.S. political
!How should earmarks be defined, identified, and overseen?
!What are the implications for Congress of the Bush Administration’s
Executive Order 13457?
!What are the implications for Congress of the OMB “Earmarks”
website and database of congressionally originated earmarks?
!Might Administration actions have consequences for congressional
Budgetary Roles and Responsibilities
in the U.S. Political System
Congress, the President, and individual agencies all have roles in the federal
budget process, sometimes working together and sometimes at cross-purposes. The
Constitution establishes a basic framework for this interaction. The Framers of the
Constitution intended for Congress, the President, and the courts to work together,
but also to jealously guard their own prerogatives, in order to better achieve the
varied purposes set forth in the preamble to the Constitution. In the words of James
Madison, there would be under the Constitution a “separation of the departments of
power.” Rather than a complete separation of these “departments,” however, the
principle called for connectedness and a blending:
[U]nless these departments be so far connected and blended as to give to each a
constitutional control over the others, the degree of separation which the maxim
[of separation of the departments of power] requires, as essential to a free66
government, can never in practice be duly maintained.
Under the Constitution, for example, Congress may use its power of the purse to
specify through law, in greater or lesser detail, the process of how resources are to be
allocated and distributed. Congress can also communicate to agencies through non-
statutory means, such as report language. For example, Congress might
communicate its intent concerning how resources are to be allocated in circumstances
when legislating in detail might become unwieldy, galvanize opposition, or constrain
the ability of agencies to adapt to changing circumstances.
66 Federalist No. 48, in James Madison, Alexander Hamilton, and John Jay, The Federalist
Papers, p. 308 (see also Federalist No. 47, p. 302).
In taking either of these actions — statutory or non-statutory — Congress may
affect the decisions that the President and individual agencies make by (1) expanding
or diminishing opportunities to use discretion; (2) increasing or decreasing
transparency of presidential decisions or actions; and (3) increasing or decreasing the
independence of federal agencies from presidential influence and policy preferences.
The congressional decisions and processes might also leave greater or lesser amounts
of discretion to agencies in executing the law and allocating resources.
The President, in turn, could potentially influence congressional decision
making through tools such as the veto power, annual spending proposals that are
required by law, arguably superior access to and control over information from
agencies, and the ability to influence public opinion. The President may also
influence decisions made by agencies through appointments of senior officials
(subject to Senate confirmation) and the use, at times, of other levers to control
agency decisions, which at times have been restricted by Congress.67 In some
respects, agencies are sometimes “caught in the middle” between Congress and the
President in their efforts to control and influence the purpose, design, and
implementation of public policy.68 From another perspective, agencies also
67 For example, during the George W. Bush Administration, these levers have included
(1) clearance of agency legislative testimony (see U.S. Executive Office of the
President, Office of Management and Budget, Circular No. A-19, “Legislative Coordination
and Clearance,” rev. Sept. 20, 1979, available at [http://www.whitehouse.gov/omb/circulars/
(2) review of regulations and guidance documents (see CRS Report RL33862, Changes
to the OMB Regulatory Review Process by Executive Order 13422, by Curtis W. Copeland);
(3) choice of performance metrics for measuring “success” in accomplishing agency
purposes and missions (see CRS Report RL32663, The Bush Administration’s Program
Assessment Rating Tool (PART), by Clinton T. Brass; and U.S. Executive Office of the
President, Office of Management and Budget, Circular No. A-11,”Preparation, Submission,
and Execution of the Budget,” part 6, “Preparation and Submission of Strategic Plans,
Annual Performance Plans, and Annual Program Performance Reports,” July 2007, available
(4) review of agency actions in the management of mandatory spending programs (see
U.S. Executive Office of the President, Office of Management and Budget, memorandum
from Joshua B. Bolten, Director, “Budget Discipline for Agency Administrative Actions,”
M-05-13, May 23, 2005, available at [http://www.whitehouse.gov/omb/memoranda/fy2005/
(5) establishment of links between Administration-chosen performance metrics and
individual employee performance appraisals (see CRS Report RS21416, The President’s
Management Agenda: A Brief Introduction, by Virginia A. McMurtry; and Bush
Administration “Standards for Success” for “Strategic Management of Human Capital,”
available at [http://www.whitehouse.gov/results/agenda/standardsforsuccess08-2007.pdf]).
68 See David H. Rosenbloom, Building a Legislative-Centered Public Administration:
Congress and the Administrative State, 1946-1999 (Tuscaloosa: University of Alabamath
Press, 2000); Louis Fisher, The Politics of Shared Power: Congress and the Executive, 4
ed. (College Station: Texas A&M University Press, 1998); Charles O. Jones, Separate butnd
Equal Branches: Congress and the Presidency; Peter Woll, American Bureaucracy, 2 ed.
(New York: W.W. Norton and Co., 1977); and Louis Fisher, Presidential Spending Power
sometimes wield influence or autonomy in constraining and helping to shape the
actions of Congress and the President, in concert with coalitions of diverse
stakeholders in the broader political system.69
The Administration has stated that “[congressionally originated] [e]armarks are
awarded through a Congressional political process, favoring those who have direct
access to elected officials or indirect access through lobbyists.”70 The Administration
has juxtaposed this perspective with a view of presidential and agency decision
making that is “subject to a competitive or merit-based process to ensure higher
priorities are funded first.”71 This raises other questions. For example, is budgetary
decision making in the White House, among political appointees, or among career
civil servants less “political” than in Congress? Or is it “political” in a different
way? What role does access to elected or appointed officials, either directly or
through lobbyists, play in budgetary decision making in the executive branch? Given
the apparent room for the exercise of discretion by Congress, the President, and
agency officials at various points in the budget process, how should constitutional
obligations and powers be reconciled with practical considerations and concerns?
How may diverse views about representation, constitutionally prescribed
responsibilities, effectiveness, efficiency, equity, transparency, ethics, and
accountability be reconciled?
In addition, the President proposed that Congress stop including earmarks in
report language and instead place them in statute. He expressed his intention to
enforce the proposal with his executive order. Congress and agencies have a long
history of using report language to guide agency decisions, facilitate communications
and accountability, and provide more specificity in expectations about actions or
funding. Interaction with agencies through report language at times may provide
flexibility to agencies that would not be available if provisions were included in
statute. Some observers see report language as allowing insufficient scrutiny in the
legislative process, as the Administration has argued. Others, however, see report
language as facilitating two-way communication between Congress and agencies.
One analyst judged that “controls” in report language have “proved to be a helpful
device in permitting the delegation of discretionary authority to the agencies while
(Princeton: Princeton University Press, 1975).
69 See Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks,
and Policy Innovation in Executive Agencies, 1862-1928 (Princeton: Princeton University
Press, 2001). In this light, some observers have viewed federal agencies as “an important
check on irresponsible actions of the President or Congress” (see Peter Woll, Americannd
Bureaucracy, 2 ed., p. 250), and others have viewed independence as a source of concern
under some circumstances (see overview of “rational choice” theory in H. George
Frederickson and Kevin B. Smith, The Public Administration Theory Primer (Boulder, CO:
Westview Press, 2002), pp. 185-206).
70 U.S. Executive Office of the President, Office of Management and Budget, “Detailed
Information on the Health Care Facilities Construction and Other Miscellaneous
Congressional Earmarks Assessment,” 2005, available at [http://www.whitehouse.gov/
omb/expectmore/detail/10003514.2005.ht ml ].
at the same time retaining close legislative review.”72 What implications does the
President’s executive order have for Congress, the President, and agencies, in terms
of control over the design and implementation of public policies? What are the
potential consequences for relations and communications between appropriations
committees and agencies? If agencies ignore expressions of congressional intent
related to earmarks under orders from the President, will that have implications for
how executive agencies respond to other communications contained in report
Defining, Identifying, and Overseeing Earmarks
Debates over earmark definitions and transparency have taken place for some
time, but no generally accepted definitions of earmark-related terms appear to have
been established.73 Over time, however, a particular definition of earmark could
become so widely used by observers that it becomes regarded as the authoritative
definition, notwithstanding other definitions.74 If a definition were broadly regarded
as authoritative, future developments and debate on earmarks might be influenced
accordingly, with resource allocation activities that fall under the definition more
likely to be subjected to discussion and public scrutiny than activities that are
excluded. From this perspective, it could be argued that if the Administration’s
definition of earmarking as a solely congressional activity is widely accepted, future
discourse and policy proposals may focus more and more on congressionally
originated earmarks as opposed to earmarking by the President, political appointees,
or career civil servants. Moreover, potential interpretations and connotations of the
definitions might also come to be viewed as widely accepted (e.g., relating to
concepts of merit and the appropriate processes for allocations of resources).75
Members of Congress, several Presidents, and interest groups have expressed
diverse views regarding (1) the perceived merit of earmarking activities and (2)
72 For discussion, see CRS Report RL33151, Committee Controls of Agency Decisions, by
73 For example, although the House and Senate have both approved essentially identical
written definitions for the terms congressional earmark and congressionally directed
spending item, the Bush Administration has used somewhat differing definitions. In
practice, there have been some instances of disagreement about how to apply definitions to
particular circumstances. See, for example, John M. Donnelly, “Critics Decry Limited
Definition of Earmarks in Defense Bill,” CQ Today, July 3, 2007, available at
[http://www.cq.com] (subscription required).
74 Examples of observers include the media, watchdog groups, academia, politicians, and the
public at large.
75 For example, the Administration has used the term circumvents in every iteration of its
definition of earmark to characterize some congressional decision making, most recently
defining earmarks (in the E.O.) as including “purported congressional direction ... [that]
circumvents otherwise applicable merit-based or competitive allocation processes.” The
word “circumvent” has been defined in two ways that might be relevant to the word’s usage
in the Administration definition: (1) “to make a circuit around”; and (2) “to manage to getth
around esp. by ingenuity or strategem.” See Merriam-Webster’s Collegiate Dictionary, 11
ed. (Springfield, MA: Merriam-Webster, 2003), p. 225.
which actors in the U.S. system of government should make decisions on how to
allocate specific funds. The definition of the term earmark has the potential to
change the terms of debate and the options considered. The evolution of the debate
over earmark definitions, therefore, may have implications for the institutional
capacities of Congress and the President to carry out their constitutional
responsibilities and advance their policy or procedural preferences. In that light,
Congress might consider the implications various definitions of earmark could have,
if they were widely accepted, for (1) affecting the institutional capacities of Congress,
the President, and agencies to function effectively in the U.S. system of government
and (2) setting the terms of debate.
Earmarking by the President and Agency Officials. The President and
agency officials can, and often do, make allocation and earmark decisions largely
outside public view. For example, decisions oftentimes are made during budget
formulation or during the budget execution process that may or may not be presented
in agency budget justifications and reports to Congress.76 Difficult issues — such as
whether any presidential or Administration decisions to restrict, link, or condition
awards of contract or grant funding to nongovernmental entities on the basis of their
compliance or cooperation with presidential or Administration policy preferences
constitutes a form of earmarking — may arise.77 With regard to resource allocation,
transparency in both decision-making processes and decision outcomes arguably
would allow for scrutiny. Scrutiny, in turn, might confer some perception of merit78
for budget allocations that are able to withstand the scrutiny.
76 The use of discretion by a President or an agency official might not be transparent outside
the White House or an agency, because decisions and their rationales might not be
specifically highlighted or justified to Congress or the public before funds are obligated.
After funds are obligated, it can often be difficult to assess (1) instances when discretion
was used by specific actors, and (2) the factors that motivated or justified decisions on how
to allocate and spend funds. In some situations, it may become difficult or impossible to
define and identify specific allocation or earmarking behaviors by the President or agencies.
If these topics were of interest, Congress might consider several oversight options. For
discussion, see CRS Report RL30240, Congressional Oversight Manual, by Frederick M.
Kaiser, et al., and Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight
Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science, pp.
77 To the extent that such activities take place in the executive branch, the activities arguably
could be considered analogous to the Administration’s characterization of congressionally
originated earmarking as placing “restrictions” on the allocation of funding (see Attachment
B to the January 2007 memorandum). For an example of allegations that the award of funds
might have been conditioned upon certain actions, see Carol D. Leonnig, “HUD Questions
Go Unanswered,” Washington Post, Mar. 16, 2008, p. A4.
78 The issue of transparency with Homeland Security Grants might illustrate this tendency.
In 2006, the Department of Homeland Security’s (DHS’s) announcement of funding
allocations under the Homeland Security Grant Program (HSGP) was reportedly greeted
with controversy due, in part, to perceptions of lack of transparency and concerns about
whether funds were allocated based on risk as opposed to political considerations. (See, for
example, Veronique de Rugy, “Is Your Town Safe From Terrorists?” reasononline, June 8,
Full or Partial Transparency? It is not clear if the Administration has
included in its online database all instances of earmarks that agencies and the White
House received through “other communication.” Pursuing that option might provide
insight into how the Administration and agencies respond to congressionally
originated earmarks that are not contained in bill or report language and whether
items were included on a selective basis. On the other hand, it would not necessarily
always be in the interest of agencies, the White House, or Members of Congress to
disclose telephone-, letter-, and in-person-directed earmarks in the context of
legislative negotiations among Congress, the President, and agencies.
Are Congressionally Originated Earmarks Being Funded? Currently,
there is no publicly available, comprehensive source of information on whether, or
the extent to which, congressionally originated earmarks are actually funded by
agencies. Some information on this topic might be forthcoming in response to a non-
statutory congressional directive to OMB that was approved in the explanatory
statement associated with the Consolidated Appropriations Act, 2008, which
provided appropriations to OMB. Specifically, in its report for the FY2008 Financial
Services and General Government appropriations bill, the Senate Appropriations
Committee directed OMB to
report to Congress no later than March 1, 2009, regarding the extent to which
executive departments and agencies that administer directed funding allocate the
designated amounts to intended recipients at a level less than the amount
specified in any enacted bill or accompanying report describing such directed79
The Senate report language was subsequently approved in the explanatory statement
corresponding to the FY2008 omnibus appropriations measure.80 Past research
DHS Secretary Michael Chertoff reportedly said he expected “fresh controversy over
whether money was allocated according to risk or political pressure.” (See Spencer S. Hsu
and Mary Beth Sheridan, “D.C., New York Get Biggest Increases in Counterterrorism Aid,”
Washington Post, July 19, 2007, p. A1.) For the next year, DHS provided a considerably
expanded description of its decision-making criteria and processes for FY2007 grants. (See
U.S. Department of Homeland Security, FY 2007 Homeland Security Grant Program
[Allocation Overview], [July 18, 2007], available at [http://www.dhs.gov/xnews/
releases/pr_1184781799950.shtm] and [http://www.dhs.gov/xgovt/grants/].)
79 U.S. Congress, Senate Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2008, report to accompany H.R. 2829, 110th Cong., 1st
sess., S.Rept. 110-129 (Washington: GPO, July 13, 2007), p. 39.
80 The Senate Appropriations Committee report language was “approved” in the explanatory
statement corresponding to most of what became the FY2008 omnibus, which said, in
relevant part, “report language included by the House (House Report 110-207) or the Senate
(Senate Report 110-129) that is not changed herein is approved. This explanatory statement,
while repeating some report language for emphasis, is not intended to negate the language
referred to above unless expressly provided herein.” (See “Explanatory Statement
Submitted by Mr. Obey, Chairman of the House Committee on Appropriations, Regarding
the Consolidated Appropriations Amendment of the House of Representatives to the Senate
suggests that, if OMB complies with the committee’s directive, the resulting
information may cite several kinds of instances in which congressionally directed
spending items, or congressional earmarks, are not provided in the full amount to a
recipient, including (1) if the President, OMB, or an agency decides not to allocate
funds to a recipient (i.e., disregards the congressional directive or earmark); (2) if the
President, OMB, or an agency decides to reduce a designated amount in light of set-
aside requirements or administrative fees;81 or (3) if the President, OMB, or an
agency is unable to identify or find a recipient or finds the recipient legally ineligible
to receive funds.
Executive Order 13457
E.O. 13457, both alone and in combination with the President’s veto threat in
the 2008 State of the Union Message, may have implications for the congressional
appropriations process and potentially other legislative activities. It is not possible
to predict how the E.O. will operate or be used in practice by the President, OMB,
and heads of agencies, or whether the Administration might seek to use the E.O.’s
framework as a source of leverage in bargaining in the legislative process. If the E.O.
were a topic of congressional interest, several general options might be explored.82
!Given the undefined nature of some terms in the Administration’s
overall definition of earmark, as well as uncertainty how some
aspects of the E.O. will operate or be used in practice, Congress
could consider holding hearings or engaging in other information
exchanges to clarify any questions of interest.
!In response to the E.O., Congress could include in statutory text
what otherwise would have been non-statutory earmarks.
Alternatively, Congress could incorporate by reference in statutory
text any items contained in non-statutory documents.
!If Congress wished to strengthen, weaken, prevent, repeal, or
otherwise alter the directions specified in the E.O. or the E.O. itself,
or influence the practices called for by the E.O., Congress could
consider legislating on the topic, possibly using approaches such as
Amendment to H.R. 2764,” Congressional Record, daily edition, vol. 153, Book II (Dec. 17,
2007), p. H16048.) Both the House and Senate Appropriations Committee websites linked
to a PDF version of the explanatory statement and called the statement a “joint explanatory
statement” (in this case, resulting from an exchange of amendments between the chambers
rather than a conference agreement; see [http://appropriations.senate.gov/amendment.cfm]
81 For background, see CRS Congressional Distribution Memorandum, To What Extent Do
Executive Departments Use Funding for Appropriations-Related Earmarks to Pay for
Administrative Expenses or Other Purposes? Jan. 26, 2007, by Clinton T. Brass.
82 For more extensive discussion of the latter two bullets, see CRS Report RL34373,
Earmarks Executive Order: Legal Issues, by Thomas J. Nicola and T.J. Halstead.
negotiation, appropriations limitations,83 revocation,84 or delay of
final action on FY2009 appropriations until after a new President
Potential OMB “Earmarks” Website and Database Issues
Two factors that may influence whether a given definition of earmark becomes
more widely accepted or used include (1) ease of access to corresponding earmark
data and (2) the extent of data that are made available. OMB’s “Earmarks” website
and database, which contain data on what the Administration views to be
congressionally originated earmarks, are publicly accessible and are frequently cited
in media stories on earmark issues. The OMB website gained further visibility after
the Administration announced that the website’s FY2005 appropriations data would
serve as the baseline for measuring progress toward the President’s goal of reducing
earmarks for FY2008, and after the Administration began to include language about
earmarks prominently in its Statements of Administration Policy regarding
appropriations legislation. The FY2008 disclosure lists of earmarks published in
House and Senate Appropriations Committee reports also have attracted considerable
media attention.85 Data from the congressional reports, however, have not been
aggregated by federal entities in a way similar to the presentation on the OMB
Separately, a searchable website of funding for federal grant, contract, and loan
awards that Congress required OMB to establish under the Federal Funding
Accountability and Transparency Act of 2006 (FFATA) became operational in
December 2007 as USAspending.gov.86 In the absence of supplementary
information, however, it is not clear that users of the FFATA-required website would
be able to determine whether an award was earmarked by Congress. The databases
that feed into the website do not contain information to separate awards
corresponding to congressionally originated earmarks (according to congressional or
Administration definitions) from awards that were originated by the President or
If the FFATA-required website does not include earmark information, then
OMB’s “Earmarks” website would appear to be the only federal government resource
providing aggregate information on congressionally originated earmarks that is
available to the public online, versus accessing individual committee reports, joint
83 See CRS Report 98-518, Earmarks and Limitations in Appropriations Bills, by Sandy
84 See CRS Report RS20846, Executive Orders: Issuance and Revocation, by T. J. Halstead.
85 For discussion of congressional disclosure requirements, see CRS Report RS22866,
Earmark Disclosure Rules in the House: Member and Committee Requirements, and CRS
Report RS22867, Earmark Disclosure Rules in the Senate: Member and Committee
Requirements, both by Megan Suzanne Lynch.
86 P.L. 109-282. For discussion, see CRS Report RL34718, The Federal Funding
Accountability and Transparency Act: Implementation and Proposed Amendments, by
Garrett L. Hatch.
explanatory statements, and managers’ statements.87 OMB may then be in a position
to set some parameters for public debate on earmarks. Because the OMB website is
the most visible federal government resource for tracking aggregated totals of
congressionally originated earmarks, many observers may regard it as the
authoritative source of information on earmarks generally, reinforcing the perception
that the Administration’s definition is the standard for public debate. If Congress
considered these matters to be of interest, it could consider several options along with
their advantages and disadvantages.
Option: Status Quo. The OMB “Earmarks” website and database
presumably would continue to provide information to the public that reflects the
Administration’s perspective on what does, and does not, constitute an earmark. In
light of Administration statements that the website’s purpose is, in part, to
“encourage and inform the debate over how taxpayers’ money is spent,” some would
view it as a means for the President to advocate his policy and budget process
preferences, and facilitate the actions of nongovernmental actors (e.g., the media and
public interest groups) to exercise scrutiny over Congress by performing additional
analysis on the earmark data.
Option: A Congressional Online Database. Congress could consider the
advantages and disadvantages of assembling its own centralized, aggregated
database. In effect, pursuing this option would present the public with an alternative
source of earmark information, in addition to the OMB “Earmarks” website, based
on congressional definitions of earmark-related terms and congressional disclosure
Option: Codification of OMB Website with Different Earmark-
Related Definitions. Congress could require OMB to adopt a different definition
of earmark for use in collecting information from agencies and posting data on the
OMB “Earmarks” website. This option could allow for establishment of a definition
more in concert with the definitions in each chamber’s rules, in order to provide
greater consistency in terms of data collection, debate, and analysis of earmarks
across branches of government. The option also might constrain the President’s
ability to use OMB and agency budget offices and personnel to advance his proposals
regarding congressionally originated earmarks. Critics of earmarking might argue
that congressional definitions and practices do not allow for adequate scrutiny of
congressional actions. Therefore, critics of earmarking might support the President’s
use of OMB and agency resources to establish the Administration’s own definition
and efforts to decrease the extent of congressionally originated earmarks. Some
observers may also raise separation of powers questions if Congress required OMB
to adopt a different definition of earmark.
87 A joint effort by Taxpayers for Common Sense and the Sunlight Foundation, however,
might become another, albeit nonfederal, resource. The two organizations developed a
website based on TCS’s designation of earmarks, available at [http://earmarkwatch.org/],
that is intended, among other purposes, to “[guide] citizen journalists to online resources on
campaign finance, lobbying and federal spending.” See [http://www.taxpayer.net/TCS/
PressReleases/2007/09-24emwatch.pdf] for TCS’s press release.
Option: Eliminate OMB “Earmarks” Website. Another option might
involve limiting or cutting off funds for the OMB website and database. Pursuing
this option might be perceived to bring advantages and disadvantages similar to the
codification option. It also might engender a negative reaction from the media and,
possibly, the public.
Option: Expand the FFATA Website. Information about congressionally
originated earmarks might be made accessible through the FFATA-required website.
For example, Congress could consider the advantages and disadvantages of amending
the FFATA to require OMB to incorporate its “Earmarks” data into
USAspending.gov. Integrating the data might address two objectives: to provide the
public with as much information as possible about federal awards, and to enable the
public to access that information from a single website. On the other hand, by
mandating that USAspending.gov include data from the OMB “Earmarks” database,
Congress might be perceived as accepting OMB’s definition of earmark.
Alternatively, Congress could consider amending the FFATA to require
incorporation of data from OMB’s “Earmarks” website, while also requiring that
OMB adopt congressional definitions of earmark-related terms. This option, with
advantages and disadvantages similar to those discussed above, might provide
Congress more control over the earmark data provided to the public through
USAspending.gov. Finally, Congress could pursue an option of requiring the
FFATA website to include congressionally defined and identified earmarks without
addressing the OMB website. This option is explicit in legislation that has been
introduced.88 Pursuit of the option would result in two federal, online sources of
earmark information that might differ in part because of different underlying
definitions. In addition, the FFATA website would not necessarily capture all
congressionally originated earmarks as defined by House and Senate rules, if any
were not associated with federal awards such as grants, contracts, or loans.
Possible Representational Consequences
Administration efforts to track congressionally originated earmarks and use the
machinery of executive agencies to publicize its policy preferences arguably might
affect Congress’s abilities to carry out representational activities that are an implicit
component of its constitutional responsibilities. The Framers believed that the
federal government needed to provide layers of representation that could incorporate
national, state level, and more localized interests, while providing institutional checks
and balances between Congress and the President. In the federal government,
Members of Congress represent localized constituencies with interests and policy
preferences that might or might not be perceived as aligned with broader, national
interests. Members of Congress also act (1) individually, (2) in their respective
chambers, and (3) between chambers, through deliberation and the legislative
process, to come together to make laws for the Nation. A President proposes his or
her preferred program of policies and takes care that laws passed by Congress are
faithfully executed. In doing so, a President may use discretion sometimes to
advance his or her policy preferences. The presidency has also been seen by many
88 S. 3077, “Strengthening Transparency and Accountability in Federal Spending Act of
as representing broad national interests. The combination of layered representation
and interbranch checks and balances arguably assures that the preferences of national
and local constituencies are addressed in the national policymaking process.
Preferences may be addressed sometimes through broad laws, and other times
through the use of specific laws, non-statutory earmarks of benefits and resources,
and administrative decisions targeted to areas of congressional or presidential policy
The requirements of E.O. 13457, and the OMB “Earmarks” website and
database, arguably subject the representational focus of Congress to greater scrutiny
than the President’s representational activities. When viewed in isolation, this might
be seen as an attempt to pursue transparency in government funding decisions, a goal
that has been advanced by some congressional and executive branch leaders.
Depending upon how one perceives the executive order and the OMB website fitting
into the larger design of checks and balances, however, one might or might not see
the long-term representational capacity of Congress as being affected or impaired if
the executive order were fully implemented, or the OMB website were continued in
its current format.