The case for — and against — earmarks

President Donald Trump, to the surprise of many in his own party, told a group of Republican and Democratic lawmakers this week, “Maybe all of you should start thinking about going back to a form of earmarks.”

“Our system lends itself to not getting things done, and I hear so much about earmarks — the old earmark system — how there was a great friendliness when you had earmarks,” Trump said at the bipartisan meeting on immigration on Tuesday.

The room erupted in laughter. Trump had stumbled into a contentious partisan debate in Congress, and landed on the wrong side.

Congressional pork, also known as earmarks, is money lawmakers pile on to already moving legislation for special projects in their districts, usually in exchange for a vote. They became severely unpopular in the early 2000s and have been banned since 2011, at the behest of Republicans.

For decades, earmarks were used as deal sweeteners: Lawmakers would take difficult votes with their party but be able to go home to constituents with funding for a much-needed bridge, dam, post office, or another federal project. The practice resulted in some notable scandals, including former California Republican Rep. Duke Cunningham and lobbyist Jack Abramoff going to jail for earmark-related bribes, and then there was the $223 million earmark for the “Bridge to Nowhere” to connect an 8,000-person Alaskan town to an airport.

Democrats put in ethics safeguards around earmarks in 2007, requiring members to publicly disclose requests. But in 2011, when Republicans took control of the House, they banned the practice altogether.

“Earmarks have become a symbol of a Congress that has broken faith with the people,” then-House Speaker John Boehner said at the time.

Now, after a year of experiencing Congress’s gridlock, Trump, who is no stranger to transactional relationships, wants to bring some bacon grease back to Congress. But it’s unlikely earmarks will actually solve his problems on Capitol Hill.

Earmarks are the kind of thing lawmakers publicly say are bad, and privately really like

The debate around earmarks isn’t clear-cut.

When Republicans adopted the anti-pork movement as a procedural hill to die on in 2011, it was largely driven by conservatives, who argued that the practice bloated the federal budget and only benefited “special interests.” Some GOP lawmakers, particularly those tasked with putting together contentious government spending bills, just had to grudgingly go along with it.

Trump’s openness to earmarks reignited the debate. Conservatives, who remain anti-earmark, are sounding the alarm bells.

“If Republicans bring back earmarks, then it virtually guarantees that they will lose the House,” David McIntosh, president of the conservative group Club for Growth, said in a statement. “Bringing back earmarks is the antithesis of draining the swamp.”

But it’s not lost on many Republicans that the past legislative year, jammed with difficult votes, could have been easier if members were then able to go home with millions of dollars for a desperately needed infrastructure project. It comes up “more often that you might realize,” Rep. Ryan Costello (R-PA), whose district surrounds Philadelphia, said.

“It’s something that can get people from ‘no’ to ‘yes’ or ‘maybe yes’ to ‘yes,’” he said. “Something to be able to go back to your district and say, ‘Here’s what I got, here’s what I’m doing, here’s what I did; yeah, it was a tough vote, I understand the negatives to it, here are the positives, plus I was able to get $10 million for that roundabout or bridge or airport or port or whatever else it may be.’”

Bringing pork back to the legislative process was floated at a GOP conference meeting in January 2017. But House Speaker Paul Ryan put the brakes on the discussion, citing Trump’s election.

“We just had a ‘drain the swamp’ election,” Ryan told lawmakers, according to a Republican in the room, proposing holding hearings on the subject instead. “Let’s not just turn around and bring back earmarks two weeks later.”

Ryan hasn’t changed his anti-earmark position, according to a top GOP leadership aide. Nor has Trump changed the minds of House conservatives, who, despite often doubling as Trump’s most ardent defenders, maintain “it’s a bad idea,” as Rep. David Schweikert (R-AZ) said.

“My district is not in favor of earmarks as a way to encourage voting with the establish in Washington, DC,” House Freedom Caucus Chair Rep. Mark Meadows (R-NC) said. Fellow Freedom Caucus member Rep. Dave Brat (R-VA) just shook his head at the notion.

The case for bringing back earmarks

Trump wants to make earmarks great again.
Ron Sachs-Pool/Getty Images

The case to bring back earmarks has been made by numerous political scientists and journalists (including at Vox, by now-NBC reporter Jonathan Allen).

The argument usually boils down two simple points:

  • Banning earmarks didn’t actually make them go away.
  • Earmarks could help lawmakers get out of gridlock.

John Hudak, a political scientist with the Brookings Institution who wrote a book on “pork,” argues that “banning” earmarks only shifts more power to the executive branch. In other words, if appropriators in Congress aren’t specifically noting where funds go, the president and his Cabinet appointments get to decide how to allocate the money.

Not to mention that the practice of earmarking hasn’t completely disappeared from Congress — it’s now just done without any accountability. The Republican tax bill saw several provisions written specifically as carveouts (most notably Republican Sen. Pat Toomey’s failed effort to get a tax break for the conservative Hillsdale College).

But when Trump was talking about earmarks, it wasn’t in the vein of giving more power to the legislative branch. He wanted Congress to get “rolling again.” And there’s an argument to be made that adding sweeteners to difficult must-pass spending bills can help get Congress out of gridlock.

Without them, the options to “sweeten the deal,” are limited, Josh Huder, a political scientist with Georgetown University, says.

Leaders have a lot of “stick and not a lot of carrots,” Huder said. “What they can do is say, ‘Oh, you won’t get on that committee assignment that you have been looking for’; ‘You aren’t going to be on Ways and Means. I know you wanted to do that’; ‘Hey, that bill I was going to bring forward for you next week, we can take that away.’ They have a lot of things they could do to punish, not a lot of things they can do to sweeten the bill.”

When Republicans made the case for doing away with earmarks, their arguments were twofold: that earmarks lead to unethical practices, which is valid, and that they promote unnecessary spending, an argument that even Rep. Carlos Curbelo (R-FL) called “disingenuous.”

If managed properly, earmarks don’t typically cause bloated budgets or deficit-busting spending bills. Hudak writes:

Admittedly, pet projects through earmarking can influence the bottom line of individual appropriations bills, as legislators vie for their own piece of the pie. However, appropriations bills are often large enough to accommodate these requests without a need for increasing the bottom line.

On that front, “Republicans have explicitly lied about what earmarks do,” Hudak said.

The case against earmarks: They breed corruption

When Trump suggested bringing back earmarks, he did so with an important caveat.

“We have to put better controls because it got a little bit out of hand, but maybe that brings people together,” Trump said. “Because our system right now, the way it’s set up, will never bring people together.”

He was likely acknowledging the very valid risks of this kind of practice, the reasons that famously landed California Republican Duke Cunningham in prison.

There are many reasons to keep earmarks out of legislating, as NBC’s Allen pointed out:

Black and Hispanic members got half as much money as their white counterparts; politically vulnerable Democrats and Republicans got more money than those in safe districts (so they would have more to brag about in seeking re-election); the people who sat nearest to Defense Appropriations Subcommittee Chairman Jack Murtha got more; and there was virtually no vetting process.

The process was ripe for corruption and inequality; it was defined by the people lawmakers knew and those they could get close to, and allowed lobbyists to run the show.

There are ways to manage this. Transparency in the process could tame some of the more unethical practices. In 2007, Democrats attempted this by requiring lawmakers to sign their name by their ask. But though they were supposed to fulfill this requirement, enforcement of the practice was tenuous.

Hudak had other ideas to address ethics in the earmarks process: nonpartisan or bipartisan panels that addressed public earmark demands and more strenuous disclosure requirements to ensure lawmakers weren’t personally profiting from their demands.

Should earmarks return, Hudak also predicted the current media landscape would likely play an important role in keeping those measures in check, in an investigative capacity.

But that doesn’t address another valid criticism of involving pork in legislating: that “earmark season” — when lawmakers start lining up around the relevant Appropriation Committee members on the House and Senate floor to win their money carveouts — distracts from the actual policy at hand. And how much of a blind eye lawmakers take to the bills at hand isn’t a hard science.

Trump said bringing back earmarks would allow for everyone to get along again, but the jury’s out on that point.

“We can’t risk conflating congressional functionality with earmarks. Earmarks are a limited lever that Congress can use to buy up the bill, so to speak,” Huder said. “With earmarks and without earmarks, Congress has been both functional and dysfunctional.”

This is an era of deep ideological and partisan divisions; Trump’s policies and rhetoric play a large part in that. A bridge here and a dam project there won’t bring Sen. Ted Cruz (R-TX) and Sen. Bernie Sanders (I-VT) any closer on the future of health care in America.