Earmark Disclosure Rules

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Senate Earmark Disclosure Rules: Summary

  • Rule XLIV, paragraph 5, defines congressionally directed spending item, limited tax benefit, and limited tariff benefit as follows–
    • Congressionally directed spending item: a provision or report language included primarily at the request of a Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive award process.
    • Limited tax benefit: any revenue provision that (A) provides a federal tax deduction, credit, exclusion, or preference to a particular beneficiary or limited group of beneficiaries under the Internal Revenue Code of 1986, and (B) contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of such provision.
    • Limited tariff benefit: a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities.
  • Disclosure Requirement: Senate Rule XLIV prohibits a vote on a motion to proceed to consider a measure or a vote on adoption of a conference report, unless the chair of the committee or the majority leader (or designee) certifies that a complete list of earmarks and the name of each Senator requesting each earmark is available on a publicly accessible congressional website in a searchable form at least 48 hours before the vote.
  • Written Statement must include:  
    • the Senator’s name;
    • the name and address of the intended earmark recipient (if there is no specific recipient, the location of the intended activity should be included);
    • in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit to the extent known to the Senator;
    • the purpose of the earmark; and
    • a certification that neither the Senator nor the Senator’s immediate family has a financial interest in such an earmark.
  • If a Senator proposes a floor amendment containing an additional earmark, those items must be printed in the Congressional Record as soon as “practicable” (although, that is not defined).
  • Disclosure requirement also applies to conference reports.
  • The disclosure requirements apply to earmarks in appropriations legislation, authorizing legislation, and tax measures.
  • Enforcement:  if the disclosure requirements are not met, a point of order may lie against consideration of the measure, amendment, or conference report.
  • Source: CRS Report, RS22867

House Earmark Disclosure Rules: Summary

  • Under House Rule XXI, clause 9, a Member requesting that an earmark be included in legislation is responsible for providing specific written information, including the purpose and recipient of the earmark, to the committee of jurisdiction.
  • House committees are responsible for compiling, presenting, and maintaining such requests in accord with House rules.
  • In the House, disclosure rules apply to any congressional earmark, limited tax benefit, or limited tariff benefit included in either the text of a bill or any report accompanying the measure, including a conference report and joint explanatory statement.
  • Congressional earmark: a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive award process.
  • Limited tax benefit: (1) any revenue-losing provision that (A) provides a federal tax deduction, credit, exclusion, or preference to 10 or fewer beneficiaries under the Internal Revenue Code of 1986, and (B) contains eligibility criteria that are not uniform in application with respect to potential beneficiaries of such provision; or (2) any federal tax provision which provides one beneficiary temporary or permanent transition relief from a change to the Internal Revenue Code of 1986.
  • Limited tariff benefit: a provision modifying the Harmonized Tariff Schedule of the United States in a manner that benefits 10 or fewer entities.
  • The disclosure requirements apply to earmarks in appropriations legislation, authorizing legislation, and tax measures.
  • Applies to measures reported by committees, “manager’s amendments,” and conference reports.
  • Written Statement must include:  
    • the Member’s name;
    • the name and address of the intended earmark recipient (if there is no specific recipient, the location of the intended activity should be included);
    • in the case of a limited tax or tariff benefit, identification of the individual or entities reasonably anticipated to benefit, to the extent known to the Member;
    • the purpose of the earmark; and
    • certification that the Member or Member’s spouse has no financial interest in such an earmark.
  • Conference Reports:  A conference report to accompany a regular appropriations bill must identify congressional earmarks in the conference report or joint explanatory statement that were not specified in the legislation or report as it initially passed either chamber.
  • Exceptions: when a measure is considered under the “suspension of the rules” procedure, House rules are laid aside, and therefore earmark disclosure rules do not apply. Also not subject to the rule are floor amendments (except a “manager’s amendment”), amendments between the houses, or amendments considered as adopted under a self-executing special rule, including a committee amendment in the nature of a substitute made in order as original text.
  • Enforcement:  If either the list of earmarks or the letter stating that no earmark exists in the measure is absent, a point of order may lie against the measure’s floor consideration.
  • Source: CRS Report, RS22866

Background Information