A congressional earmark is a provision inserted into a discretionary spending appropriations bill that directs funds to a specific recipient while circumventing the merit-based or competitive funds allocation process. Earmarks feature in United States Congress spending policy. They are a form of political particularism. The term, “Earmark,” comes from the livestock term, where the ears of domestic animals were cut in specific ways so farmers could distinguish their stock from others grazing on public land. The term comes from earmarked hogs where, by analogy, pork-barreled legislation would be doled out among members of the local political machine.[1]

There may not be a direct connection between how members of Congress use the term and how farmers use it. In both cases, the act of earmarking a pig’s ear comes easily to mind when we think of today’s congressional debacle and yesterday’s farming habits. The thread between both activities is branding what you have or take credit for at the dining room table. Farmers take care of the animals and congressmen and women take care of their jobs by careful, constant, insistent, and action out of the public eye. We don’t want to know how the sausage is made or the ears of political gifts are marked.  

The Office of Management and Budget is the largest office within the Executive Office of the President of the United States. It’s most prominent function is to produce the president’s budget, but it also examines agency programs, policies, and procedures to see whether they comply with the president’s policies and coordinates inter-agency policy initiatives.[2] There is a direct link between the OMB and Congress. In government speak, it’s called “guidance.”

“OMB defines earmarks as funds provided by the Congress for projects or programs where the congressional direction circumvents the merit-based or competitive allocation process or specifies the location or recipient, or otherwise curtails the ability of the Administration to control critical aspects of the funds allocation process. At the broadest level, unrequested funding is any additional funding provided by Congress — in either bill or report language — for activities/projects/programs not requested by the Administration. Earmarks are a subset of unrequested funding. The distinction between earmarks and unrequested funding is programmatic control or lack thereof, in the allocation process. If the congressional direction accompanying a project/program/funding in an appropriations bill or report or other communication purports to affect the ability of the Administration to control critical aspects of the awards process for the project/program/funding, this is an earmark.

In January 2021, legislators returned earmarks after a decade-long moratorium. While members of Congress cite the legislative branch’s power of the purse as justification, the Founding Fathers opposed the practice. President James Monroe said in 1822 that federal money should be limited “to great national works only, since if it were unlimited it would be liable to abuse and might be productive of evil.”[3]

The earmark reform movement gained traction because of a number of factors, including the tireless work of members of Congress such as then-Sens. Jeff Flake (R-Ariz.) and John McCain (R-Ariz.), high-profile boondoggles like the Bridge to Nowhere, and a decade of scandals that resulted in jail terms for Reps. Randy “Duke” Cunningham (R-Calif.) Bob Ney (R-Ohio), and lobbyist Jack Abramoff.[4]

“Almost as soon as the earmark moratorium began, numerous legislators from both sides of the aisle began publicly pining for the halcyon days of uncontrolled earmarking.  A variety of justifications have been used, from the age-old excuse of congressional authority ceded to the executive branch to complaints that earmarks are a necessary contrivance to avoid gridlock and get legislation moving again. After years of threatening to bring back official earmarks, legislators finally did so in 2021.  On February 26, 2021, House Democrats revived the practice. House Republicans agreed to restore them on March 17, 2021. Senate Democrats followed suit on April 26, 2021. Senate Republicans voted to uphold the moratorium on April 21, 2021, but the agreement was nonbinding, and many of them received earmarks.”[5]

The House Appropriations Committee on Feb. 28, 2023, released the fiscal year 2024 guidance for Community Project Funding, also known as earmarks. Community project funding lets House members fund specific projects for state, local, or tribal governmental grantees and certain eligible nonprofits. In the Senate, members engage in a similar earmark process called Congressionally Directed Spending. As part of their national platform to lower federal spending, the total sum of FY 2024 earmarks in the House will not exceed one-half of 1 percent of discretionary spending. The Senate guidance remains the same as in the 117th Congress, with funding not to exceed 1 percent.”[6]

The Americans for the Arts Action Fund is a 501(c)(4) nonprofit membership organization. It is the only national arts advocacy organization dedicating 100% of its time, money, and political clout to advancing the arts in America. Its mission is to mobilize one million citizens to join us in advocating for the arts and arts education around the country.[7] It has a role in earmarking congressional funds. “Welcome to the Congressional Earmarks Resource Center. . . If you have not yet seen our “How to Guide to Securing Congressional Earmarks” webinar please do so now either in ArtsU or on this page. You’ll hear from speakers Nina Ozlu Tunceli, Nolen Bivens, Tooshar Swain, Bill Harper, and Robert Chelimsky on everything you need to be prepared to submit your application. Below are resources that our team discusses in the webinar that you can refer to as you learn about earmarks.”[8]

The House Appropriations Committee recently published its FY 2024 Community Project Funding Requests. It too is proud to announce its earmarking plans for the coming year. “In an effort to improve transparency around the appropriations process, the House Appropriations Committee recently centralized a list of Fiscal Year (FY) 2024 Community Project Funding requests. Community Project Funding, better known as earmarks, allows for members of the House of Representatives to make requests to the Appropriations Committee for funding specific projects for state, local, or tribal governments or certain nonprofits. Members often make requests to fund projects in the districts they represent.”[9]

So, whether thought of as pork, or called earmarking, Congress is back in the business of below-the-table funding a tiny portion of the budget—probably less than 1 percent. And that is why the core question needs to be asked; is earmarking ethical?

The New York Times reported on the “ethics” of earmarking thirteen years ago, on March 10, 2010. “When Democrats regained control of Congress three years ago, one first step to combat what they called the ‘culture of corruption’ in Washington was to tighten restrictions on earmarks — the notorious financial set-asides that had become a symbol of political favor trading. But a new interpretation of ethics rules is threatening to make it easier for lawmakers to give earmarks to big campaign contributors and expose the process to greater abuse than before, legal analysts and some lawmakers say. Their concerns were prompted by a report last week from the House ethics committee that cleared seven House members, all on the defense appropriations subcommittee, of allegations that they had improperly given tens of millions of dollars in earmarks to political contributors. . .  The ethics committee acknowledged that there was a ‘widespread perception’ among recipients of earmarks in the private sector that giving political donations to members increased their chances of getting earmarks.”[10]

That widespread perception hasn’t changed. The ten-year ban on earmarks didn’t work. Ethics failed in the Congress. Earmarking is back in all its glory today. In 2021, Democrats brought it back. “Democrats in Congress are pushing to revive earmarking, a process that will allow legislators to direct federal spending to their districts. They see it as a way to push policies forward. But earmarks also come with baggage.”

Now it’s back, flying First Class.[11] Baggage in the hold. Congress is as happy as a pig in the rotunda. Still dysfunctional and divided by extremes. But they get to reward those who love them. Love is never unethical, it’s just transactional.  

[1] https://en.wikipedia.org/wiki/Earmark_(politics)

[2] https://en.wikipedia.org/wiki/Office_of_Management_and_Budget

[3] https://www.cagw.org/reporting/all-about-earmarks

[4] Ibid.

[5] Ibid.

[6] https://www.hklaw.com/en/insights/publications/2023/03/house-releases-fy-2024-community-project-funding-guidance

[7] https://www.artsactionfund.org/about-arts-action-fund

[8] Ibid.

[9] https://www.crfb.org/blogs/house-appropriations-committee-publishes-fy-2024-community-project-funding-requests

[10] https://www.nytimes.com/2010/03/05/us/politics/05ethics.html

[11] https://www.cagw.org/reporting/all-about-earmarks

Gary L Stuart

I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.

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