(Editor's Note: This piece first appeared in the Washington Examiner on April 3, 2018.)
The legislative process is in shambles. Members of Congress are paralyzed by indecision. And once-mighty appropriators appear powerless, incapable of passing their bills without the intervention and active involvement of party leaders.
It’s been years since Congress completed its appropriations work before the Sept. 30 deadline. Just last month, leaders in both chambers had to resort to yet another omnibus appropriations bill to fund the government, almost six months behind schedule. To do so, party leaders had to craft the legislation behind closed doors, unveil it at the last minute, and force it through Congress with little debate and no opportunity for the rank and file to amend it.
This dismal state of affairs has prompted calls from across the political spectrum for enacting reforms to make it easier for Congress to pass appropriations bills. Of particular note are calls from Democrats and Republicans to revive the banned practice of earmarks in an effort to end the dysfunction. President Trump renewed the debate over earmarks when he suggested recently that Congress reconsider its nearly eight-year ban on the practice.
But before doing so, reformers would do well to consider the likely impact earmarks will have on the status quo. On closer inspection, it turns out that reviving the practice will not end present dysfunction. Rather, it will only make it worse.
Earmarking is the process by which members of Congress once directed departments and agencies how to allocate federal funding for specific projects. Such directives were usually included in the report that accompanies a committee-passed bill instead of the legislation itself, and thus were technically nonbinding.
Earmark opponents have long contended that the practice facilitated deficit-spending on questionable projects and created a culture of corruption. In part due to these concerns, House Republicans banned earmarks in 2011. Similarly, Senate Republicans, though still in the minority after the previous year’s election, adopted a conference rule prohibiting their members from requesting earmarks.
In contrast, proponents of earmarks assert that their elimination ushered in the current period of legislative dysfunction and fiscal brinksmanship. As evidence, they point to the breakdown in the appropriations process and the increasing frequency of government shutdowns. They also contend that eliminating earmarks empowered bureaucrats in the executive branch to make spending decisions in lieu of the people’s representatives doing so in Congress.
Proponents also believe that reviving earmarks will strengthen Congress vis-a-vis the executive branch, increase members’ ability to impact policy outcomes, and get the stalled appropriations process moving once again. For instance, former Sens. Trent Lott, R-Miss., and John Breaux, D-La., have called for restoring earmarks as a way to “return Congress to its role as a functioning body.”
But proponents’ narrow focus on earmarks as a way to make it easier to fund the government overlooks the real problem underlying today’s dysfunction: the centralization of power under party leaders in Congress.
In reality, Congress doesn’t have a problem funding the government. The ease with which it passed last month’s omnibus bill is evidence of this. Rather, today’s dysfunction arises from the way in which Congress considers legislation like the omnibus. Specifically, important decisions regarding such legislation are almost always made in secret negotiations held under the auspices of party leaders. Any legislation produced this way typically bypasses the appropriations committee and is brought directly to the House and Senate floors, where it is almost always rubber-stamped by the rank and file without debate. In addition, members are rarely given the opportunity to offer amendments because of concerns that any successful change to the underlying bill would upset the compromise agreement brokered by leaders.
The problem for earmark advocates like Lott and Breaux is that reinstating the practice will reinforce this process, thereby making it even harder to restore members’ ability to influence funding decisions on behalf of their constituents. And without that, it makes little difference whether or not Congress is functioning in the first place.
Earmarks will further empower leaders vis-a-vis the rank and file in both parties. They will serve as yet another tool with which to compel members to set aside their reservations and support bills like last month’s omnibus. With earmarks, leaders can threaten to remove funding for members’ parochial concerns in retaliation for opposing a leader-driven process that barred their involvement and precluded their ability to influence the outcome.
Given this prospect, bringing back earmarks isn’t likely to change how Congress considers controversial appropriations bills. Of course, that is precisely the outcome for which earmark proponents hope: They want to make it easier for Congress to fund the government at all costs. And that means making it harder for disgruntled members to vote “no.”
Yet in doing so, proponents overlook the costs associated with such a fix. In the current process, significant decisions are no longer made in committee or on the House and Senate floors. Consequently, the inflection points at which funding decisions can be influenced are obscured. This leads to an accountability problem to the extent that people cannot observe their claims being adjudicated in Congress, and the outcomes differ from what they were led to expect.
Admittedly, the current earmark ban makes it harder for leaders to corral the votes necessary to pass controversial spending bills. But common sense suggests that assembling legislative coalitions should be harder when the underlying issue is controversial. Using earmarks to gloss over this controversy undermines the proper functioning of the political system.
As James Madison observed in Federalist 10 and 51, the difficulty of forging majority coalitions in an extended Republic is a key bulwark against tyranny. To the extent that earmarks make it easier for leaders to pass controversial appropriations bills without adjudicating the people’s concerns, the practice erodes an important defense of liberty.
Reformers should thus be careful what they wish for. Bringing back earmarks is likely to make a dysfunctional system even worse.