The topic of today’s episode is, “Are earmarks good or bad?”
My guest is Zachary Courser, a visiting assistant professor of government at Claremont McKenna College. He is the co-director of the Policy Lab at Claremont McKenna College, and the co-editor of the volume, Parchment Barriers: Political Polarization and the Limits of Constitutional Order. Zach also is the author of articles on conservatism and populism, and he is the coauthor of an American Enterprise Institute report titled, “Restoring the power of the purse: Earmarks and re-empowering legislators to deliver local benefits.”
Kevin Kosar:
Zach, welcome to the program.
Zachary Courser:
Hey, thanks Kevin, very much for having me here and also for everything that you’re doing with this podcast and in your research to help restore Congress.
Kevin Kosar:
Doing all I can. Thank you. Thank you for acknowledging that. Let’s start with a basic question today. What is an earmark?
Zachary Courser:
It sounds like a straight forward question, but believe it or not, there’s a lot of controversy about what exactly an earmark is. I guess probably the clearest simplest answer is to say something about the term congressionally directed spending. That’s something that you would hear inside Congress in describing earmarks, even though outside of Congress, you hear that term earmark. And essentially what it is, it’s something that dates to the beginning of the Republic and it’s an identification of local needs by a Congressperson or a group of Congresspersons, and their attempt to try to bring an appropriation to fund that need, it’s really dead simple. And it directly relates to article one of the constitution that talks about Congress having the power of the purse.
Zachary Courser:
If you look at the Congressional Research Service, they give a very straightforward definition as well. They say it’s money, could be a loan or a grant, and it’s targeted to a specific entity. It could be considered tax or a tariff benefits as well, but really it’s a way in which Congress exercises its article one power of the purse spending power to identify local needs and try to bring federal resources to them.
Kevin Kosar:
In your answer, you hit upon a couple of important things. One of which I want to highlight, you said the word appropriation process. There’s another process, the authorization process. And for listeners who aren’t familiar with it, the way things are supposed to work is Congress is supposed to enact laws to authorize spending for various purposes and subsequently appropriate spending for those purposes, if they see fit. In the instance of earmark, professor Courser was describing there, was the use of the appropriations process to be quite specific. So if the authorization was, we could spend money to build roads and appropriation act with an earmark might say, there shall be a certain quantity of funding for this particular road in this particular city in this particular state. Now you also hit upon something else I’m going to follow up on, earmarks, is there a universal agreement on the definition of them?
Zachary Courser:
Hardly, really it depends on who you ask. In many ways it’s like that joke about the elephant and the blind men, where the blind men in the front are feeling the trunk and the ones in the back or feeling the tail and each have a very different idea of what the thing is. For example, if you look at a group like Citizens Against Government Waste, they put out their annual Pig Book where they go through and talk about all the perceived waste there is in the federal government and earmarks were top of their list in terms of trying to alert the American people about how Congress was wasting their money and they had this and still do have this really expansive definition of what earmarking is. It’s a seven point criteria where lots of things fit in there.
Zachary Courser:
And frankly it goes, I think, well, beyond what we just described in terms of identifying a local need and Congress trying to bring resources to it. Really, I think what you find in a lot of these alternate definitions really boils down to a preference for the executive to do similar types of activities. There’s a perception somehow that the executive should have more authority to identify these needs within his or her administration. That somehow the executive is more transparent, fairer, applies formulas that somehow there’s a more rational process to the executive. You can see it also in unsurprisingly, the Office of Management and Budget, the OMB, which of course is the executive’s version of the congressional budget office.
Zachary Courser:
And they have a definition of earmarking that’s very biased towards the administration. So, looking at the differences between definitions, it really often boils down to who people think is the most legitimate branch or person to appropriate and who can do it better. And I think, those other groups, they tend to bias towards the executive. And we can talk more about the executive’s role in all this.
Kevin Kosar:
Yes, yes. When Congress puts forth money for something like fixing roads, someone has to decide exactly which roads are going to get fixed and should it be the executive branch or the legislative branch? But somebody has to do it.
Zachary Courser:
Yes, indeed.
Kevin Kosar:
Now, 2011, each chamber of Congress imposed the moratorium on earmarks. They swore them off. Why? What were the factors at work there?
Zachary Courser:
So a wonderful word, concatenation, where many things come together, though the other phrase you hear a lot is perfect storm. But in the case of earmarking, it really was, there was a period of five or so years where earmarks got a real bad reputation. They’ve never had a great reputation by the way. We should own up to the fact that the term pork barrel spending, the idea that Congress people are self-dealing, that they’re really just sort of trying to use these funds for re-election maybe in the worst cases for enriching themselves. The public has never liked this idea.
Zachary Courser:
Although really, when you think about it, this boils down to one man’s desperately important needs in his district or another man’s pork. So anyway, earmarking never been terribly popular, even though it really has been a part of the American Congress, again, since the founding really until the moratorium in 2011. So what came together to end what used to be considered essential part of Congress’s authority? Well, a few things. One, you might remember back to some scandals about 2004 or five, six, in that era, starting with Jack Abramoff, who was running a lobbying firm that essentially was trying to connect his clients to earmarks.
Zachary Courser:
And ultimately, he ended up being indicted on these charges of his role, and essentially, a pay for play scheme on earmarks. Probably the worst example would be Randy Duke Cunningham. His name came up recently because he received a pardon from President Trump over what he did, which was essentially trade earmarks within his defense appropriations committee for personal enrichment, for bribes. He was taking money in exchange for making sure that defense related industries could get an earmark. And then sort of capping things off, I can’t believe it seems like a long time ago now, it’s slightly over 10 years. But when we think back to the mortgage crisis and then to the 2009 recovery and reinvestment act of 2009, there was $800 billion that was authorized between the Democratic Congress and President Obama.
Zachary Courser:
And this created a massive deficit. At the same time, you had a strong reaction, particularly from the right and the nascent Tea Party movement that ended up winning a lot of seats in 2010. And so there became a laser-like focus on spending and deficits and earmarks, in this case, I think unfairly, suddenly became a target, became a suggestion that somehow earmarking was contributing to deficits. And then within all of this, this just happens in politics, in terms of the ways in which the journalists report about politics and the way in which people hear it, there was what became an infamous earmark inserted into legislation by Ted Stevens, who was a Republican Senator, head of the Appropriations Committee in the Senate at the time for the “bridge to nowhere.” Now we could get into the details of whether or not this bridge was worth it or not, but it was a hundred million dollar, I think or slightly more earmark that suddenly became the talk of the town.
Zachary Courser:
The whole country was inflamed with the bridge to nowhere. And the idea that earmarking was just wasteful. And really what the death nail for earmarking was when President Obama in his State of the Union speech in 2011, essentially joined with incoming Tea Party Republicans to say that if he saw earmarking in the budget that year, he would veto it. And that was it. At that point, there was a consensus, Republicans, Democrats, The Executive, Congress came together and said, let’s put a moratorium on earmarks, not a ban, but a moratorium, let’s hit the pause button. So we’ve had 10 years now without earmarking.
Kevin Kosar:
Yes, yes. It’s one of those policies that each chamber of Congress has adopted and to a degree is honored in the breach. While the average member of Congress would have a great deal of difficulty getting funds or benefit directed to his or her home district. The big dogs of Congress, those who sit on the appropriations committee like Senator Richard Shelby of Alabama, they still manage to direct funding to their home districts. Now you referenced that those who were advocating swearing off earmarks had various reasons for doing so, they thought there would be benefits, or at least they said there would be benefits. Let’s talk about the first one. Did the swearing off of earmarks reduce spending or did it end the practice of legislators trying to direct how federal funds were spent?
Zachary Courser:
Well, first, thinking about the cost of earmarking, this was perfectly clear in 2011. I think it’s just the rhetoric and the politics became so toxic that I think people forgot to even consider looking at how earmarks affected the federal budget and, looking at the history of it, the cost of earmarks was very low. On average, 1% of discretionary spending was going towards earmarks. And when you think that discretionary spending is only 30% of the overall federal budget, we’re talking about a percent of a percent, a rounding error in the overall cost of government.
Zachary Courser:
So the idea that, ending earmarks, putting a moratorium on them was going to have a noticeable effect on deficits, it didn’t make sense from the outset. And of course, looking at the evidence, it really had no effect to looking forward. Even if we put aside the recent COVID crisis and the recent spending that Congress has undertaken, the deficit and the federal debt did not slow down a wit between 2011 and now. And ending earmarking had no effect fiscally on the activities of the federal government.
Zachary Courser:
The other thing that we have to remember is look, this practice didn’t end, nature abhors a vacuum and so does politics. And this idea that no one would be directing spending, that there wouldn’t be particular needs that wouldn’t be met by the federal government, it wasn’t true. It’s just this power shifted. What ended up happening is that the executive started to take up the slack and there’s a practice that grew up almost immediately after Congress lost their right to do this, I should say, took it away from themselves called letter-marking or phone-marking. And so you had this really odd inversion of responsibilities where Congresspeople were essentially lobbying administration officials and saying, “Here’s the particular needs that we have. Can these be addressed in your spending decisions in terms of where you want to put federal dollars?” And, this introduced a couple of things.
Zachary Courser:
One I think, and I think this is pretty clear, this became actually not less of a partisan process. That is to say directed spending, but rather more, because it gave the executive more spending authority. And there was a study done during the Obama administration, looking at the labor department and seeing, where were these funds going that were letter-marked? And of the ones that could identify, it’s not very easy to, it was pretty clear that there was a bias in favor of Democratic members and Democratic priorities getting those needs because a Democrat happened to be president then. So again, this shifts into the executive and this becomes less transparent and it certainly doesn’t go away.
Kevin Kosar:
Yes, yes. So thank you for mentioning the letter-marking and the telephone-marking, which was essentially two new ways for folks to do what they were doing under earmarks, which was to pick up the phone and to call an agency and to say, please don’t close down this airport, instead direct federal funding to keep this airport open, or please fix this bridge over here. Or they would draft letters and send those over to the agencies. And some of the research I saw indicated that the members of Congress who bombed agency with the most letters and the most phone calls and made the biggest pest to themselves, they were the ones who tended to get what they wanted.
Kevin Kosar:
And all of this of course was largely invisible to the public, unlike earmarks, which you at least had to attach your name to after the reforms of the truth of 2000 odds. Now you mentioned the executive branch making decisions. John Hudak at Brookings Institution wrote a book about presidents engaging in pork barrel spending. Can you say something about that?
Zachary Courser:
It’s a good point to bring up John’s work, because it relates back to what we were talking earlier in terms of the bias that somehow the executive branch does this better, that the executive branch is somehow superior to Congress in the way in which it behaves in deciding about directed spending. Well, this just doesn’t bear the evidence because John points out that presidents work to steer benefits towards states that benefit them electorally. And we should hardly be surprised. Presidents have a strong reelection motivation, or they have a strong motivation to help their party. And so you see presidents advantaging their party, their fellow partisans, and their own electoral interests in the ways in which they use their authority and discretion to move federal monies around. And another point that you draw out, and it’s worth repeating, it’s less visible. The size and complexity of the ways in which the administration moves money is a much less visible and transparent process.
Zachary Courser:
The more that you put this into the executive’s control, the less you’re able to understand exactly how these things are working. I mean, if it’s as easy as picking up a phone, there’s no record of that. Who called, if there is, it’s very difficult to get a hold of and analyze systematically. Taxpayers and citizens are left in the dark about how these really important decisions are being made behind the scenes. And so, in addition to saying that this is really moving what is an article one responsibility into article two and giving the executive excessive authority over spending, it’s also, I think at a practical level, a much less transparent, a much more partisan process than it would have been, and than it was under earmarking before 2011.
Kevin Kosar:
Your point about partisanship is very good one. The way earmarking has historically worked in Congress is earmarks are divided up. The majority gets some and the minority gets some, and that’s the whole point, is you want to use them as a way to let people work with their districts and to help out their districts. And so there’s a peculiar irony that we got upset that members of Congress were trying to increase their chances of being reelected by earmarks and told them no, no, no, but then proceeded to give the president the power to use his own form of earmarking to help his own reelection prospects. Now, let me move on to the next question. Those who are in favor of the earmark moratorium thought Congress would work better when you didn’t have this wheeling dealing, you’d have more honest lawmaking going on. What happened? What were the effects of the earmark moratorium on Congress’s ability to pass legislation?
Zachary Courser:
It’s a great question. And of course, it’s one that you and I analyzed it in our report for the American Enterprise Institute on restoring the power of the purse. And one of the ways that we got at understanding the last 10 years of the moratorium and its effects were actually talking to members who had experienced the pre reform period of earmarking before 2007, a brief period of reform from 2007 to 2011, where Democrats put into place some rules to help make the process more transparent, and then of course the moratorium itself, and ask them, how did Congress change before, during and after the reform and then the moratorium period?
Zachary Courser:
And one of the things that we discovered that was interesting was just how much earmarking really was a bipartisan process. It really did look like an institutional activity. That is to say something where members were attached to being members of the House of Representatives in this case, that’s the chamber that we looked at primarily, and that the spending process, the budgeting process under earmarking actually was fairly, again, bipartisan, there was a sort of informal rule within the Appropriations Committee that the majority would get 60, 55% of earmarking funds and the minority would get what’s left over.
Zachary Courser:
And essentially, they would decide within their own parties how to distribute that money. And so you found that there wasn’t wrangling or control of the majority over minority preferences for earmarks, that the minority did actually get a substantial amount of money to bring their priorities. I think it’s also important to note that the parties have different priorities when it comes to earmarking. Republicans, I think most often are the ones politically against earmarking or the practice, but that’s not to say that they didn’t earmark just as much as Democrats did, whether they were in the majority or the minority, they just had different preferences and priorities. And the process inside Congress respected this idea that the parties deferred on their priorities and where these things would go.
Zachary Courser:
And so the process worked fairly well, spending bills and the spending process were actually much more bipartisan. The votes were cleaner. You didn’t have this omnibus and continuing resolution budgeting that we’ve seen recently. The other thing, the other side of this coin too, thinking about earmarks is the role that they played for the leadership. Leadership talking to members, leadership did use earmarking as a tool, denying an earmark or offering an earmark could be a tool and was sometimes a tool for the majority to try to build coalitions of votes around their priorities. And this is kind of a fundamental role that leadership plays is trying to get their priorities passed, it’s a majoritarian institution. The majority comes in with their priorities and they want to carry them out in order to get reelected, but also to uphold their promises to the electorate.
Zachary Courser:
And what we looked at is basically voting for leadership priorities before the moratorium and after the moratorium, to try to get a sense of, did the membership shift away from these more institutional votes towards a more partisan approach?
Zachary Courser:
And actually we did find that, comparing the pre and post moratorium period, that voting for leadership priorities went down by 10%. Now there’s a lot of things happening during this period. 2001 was a very fraught moment in American politics. You had the Tea Party movement, as we’ve talked at before, you had a broad recognition that Republicans were dealing with these insurgent Tea Party Republicans. There was a lot of disagreement. There were a lot of things going on in Congress. But one thing that is absolutely certain is that getting rid of earmarks did not help anything. It actually made the leadership lose, what used to be a kind of essential tool for bringing order and getting a coalition around their priorities. And I think it definitely had a hand in increasing the partisan polarization that we’ve seen in every aspect of Congress.
Kevin Kosar:
So just to review, the swearing off of earmarks did not reduce the growth of spending. It did not end the practice of legislators trying to direct how federal funds were spent. It shifted congressional authority to the executive branch, and it also made it a bit more difficult for leadership to build the majority’s in order to be passed bills in effect abetted polarization. So with all those things put out there, perhaps it’s not surprising in the year 2021, Congress brought back earmarks, but that system looks a lot different than the system of the old days, of the early 2000 aughts, the ones that brought about the moratorium in the first place. Could you highlight just a few differences between the congressional system of legislative directive benefits today versus the old days?
Zachary Courser:
Absolutely. One thing I’d like to say is I’d like to outline or highlight the work of the Select Committee on the Modernization of Congress, a bipartisan committee that was put together by speaker Pelosi to explore ways in which the institution can reform itself and improve itself, basically acknowledging that some of the perceived dysfunction and the eclipsing of Congress by the executive, these were problems that could be met through rule reform, more resources, basically rethinking the way Congress operates. And this has happened periodically, throughout the history of the Republic. But this committee has done some really good work. They took a look directly at this practice of earmarking, and as a bipartisan group, they basically tried to look at what was the good and what was the bad of earmarking. And in the end, they came out with a recommendation in favor of a new form of directed spending that had an emphasis on communities and trying to link the interests of communities to what Congress was doing in terms of identifying priorities.
Zachary Courser:
And I think largely based on their recommendation in favor of a new form of directed spending, we’ve seen very quickly that first, Democrats, particularly, chief appropriators like Rosa Deloro come in and say, “Let’s bring these things back.” Congress needs to reassert itself in the spending process and our members need to have this power again, but what they’ve done is they’ve linked it much more closely to community support. And how do they do that? Basically by saying that if you’re going to make a request for this new form of directed spending, you’ve got to demonstrate that city councils, local organizations, et cetera, basically voice their opinion and say, yes, we need this in our district. And that will go into the decision-making process that Congress undertakes to decide what to fund.
Zachary Courser:
The other part of this is they’ve basically said we’re going to limit how much we can spend to 1% of discretionary spending. So there’s now a cap. I mean, and it’s pretty much historically where it’s been all along. And I would say that there’s also some better conflict of interest rules than there were before. It’s not perfect. I would say one area that could use some help is transparency, trying to find a way in which Congress, as an institution, can essentially report on who’s asking for what and who’s getting for what. Right now that’s a little scattershot, but it’s early days. And I’ve really been impressed at how quickly the Congress has been able to roll this new reformed process out.
Kevin Kosar:
The new process looks a little bit more like a grants in aid program being run by the legislative branch than the earmark system of old, where someone could simply, a legislature could ask an appropriator or handwritten note or in person for some amount of money for some particular project, and that would just get dropped into law. So let me move to my final question. And I’m going to ask you point blank, are earmarks good or bad?
Zachary Courser:
Well, constitutionally and institutionally speaking, yes, I think they’re good. As we’ve talked about before, Congress people know the needs of their districts better than the executive branch. They’re bringing a much more transparent process than say letter-marking. I think ultimately, they will bring a much more bipartisan and fairer process than was letter-marking and what happened during the moratorium. So I think on the whole, this is definitely a reassertion of congresses article one spending powers that will benefit particularly rural areas. I mean, that’s something that came out in our interviews with members was that rural America didn’t tend to prosper in the process of federal funding because big cities and grant based formulas didn’t tend to highlight their needs. So I think that may be one area in particular of America that will benefit.
Zachary Courser:
And in the end, look, it’s still up to leadership and congresspeople to make this work. It’s an opportunity. I don’t think they’re squandering it, but there’s a lot riding on making this work because I do think this is an institutional reform. We’ve had Republicans and Democrats in the house come together and basically agree, yes, we want to bring this power back to us, ourselves as an institution. And in that way, I’m very positive and optimistic about bringing this practice back.
Kevin Kosar:
And so Zachary Courser. Thank you for helping us better understand earmarks.
Zachary Courser:
Thanks for having me, Kevin.
Kevin Kosar:
Thank you for listening to understanding Congress. A podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to understanding Congress by a Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.
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