Exit Earmarks, Enter Letter-marks

By Russell W. Mills and Nicole Kalaf-Hughes

Summary: Our recent research on letter-marking found executive agencies and the president now have wide discretion in the allocation of projects. Additionally, a recent study by John Hudak of the Brookings Institution concluded President Obama used this new authority to shift federal spending to swing states during the 2012 election and to vulnerable democratic Senate candidates during the 2014 mid-term elections.  Thus, the ban on earmarking and the emergence of letter-marking has shifted the critical responsibility of appropriating funds from the legislative to executive branch while also giving the President increased control over the electoral future of members of Congress.  

Background

House Speaker Paul Ryan (R-Wis.) recently put the brakes on a proposal by House Republicans to bring back “earmarks” or congressionally directed spending for specific projects in their states and districts.  The proposal, led by Rep. Mike Rogers (R., Ala.) enjoyed significant support among the GOP caucus and came on the heels of a proposal by Rep. Tom Rooney (R., Fla.) that would have allowed lawmakers to request funding for U.S. Army Corps of Engineers Bureau of Reclamation projects.  Mr. Ryan agreed to establish a task force to look into the issue further with a vote expected early next year.

Congress passed the ban on earmarks in early 2011 after members of the Tea Party caucus and progressives gained seats in the midterms by running against excessive government spending on  “pork” projects such as the infamous Bridge to Nowhere in Alaska and the oft-cited $3 million bear DNA study in Montana.  Although earmarks represented only $16.5 billion of the total $3.8 trillion in spending in 2010, lawmakers felt compelled to respond to the will of the voters.  While they are often an easy target of those looking to reduce government spending, earmarks are critical to not only effective governance but also to transparency and democratic accountability.  

Why Earmarks

First and foremost, earmarks provide a solution to a critical collective action problem: how to persuade lawmakers to compromise on general interest legislation that does not directly benefit their state or district.  The long-standing practice of earmarking allowed members of Congress to insert provisions into bills, which provided targeted federal funds for projects in their districts.  Despite a largely negative perception by the American public, earmarks and distributive policies are a way for members of Congress to bring tax dollars in the form of infrastructure projects, technical grants, and other funds back to their states and districts to create jobs and improve the local economy. Without earmarks, the executive branch decides where the money goes. Additionally, these projects provide legislators with opportunities for credit claiming and self-promotion during trips to their home states or districts (Mayhew 1974).  Critically, earmarks and pork projects provide powerful incentives for legislative leaders to engage in coalition building for general purpose legislation while overcoming partisan gridlock in the chambers (Arnold 1990; Evans 2004; Frisch and Kelly 2007). 

The ban on earmarks removes one of the critical incentives (committee assignments being the other) congressional leaders offer lawmakers to buy votes on legislation and to encourage loyalty to the party.  Former Senate majority leader Trent Lott lamented the earmark ban by saying, “Trying to be a leader where you have no sticks and very few carrots is dang near impossible.  Members don’t get anything from you and leaders don’t give you anything.  They don’t feel like you can reward them”.   While there is no doubt that factors such as polarization and gerrymandering have also eroded the ability of Congress to function, the loss of the “carrot” of earmarks makes compromise even more difficult. 

Despite the ban on earmarks, political scientists would argue that lawmakers still face electoral pressure to secure federal funding for their districts.  One of the great ironies of earmarks is that voters support specific projects contained in earmarks for their districts, but oppose them generally. (Similarly, voters reelected their member of Congress in 96% of the 2016 congressional races while the institution as a whole enjoys an approval rating around 20%).  Therefore, earmarks and pork barrel projects present members of Congress with an interesting dilemma: how to engage in an electorally beneficial behavior that constituents perceive both as a negative and positive depending upon the context and do so in the most subtle and least transparent way possible. 

The ban on earmarks removes one of the critical incentives (committee assignments being the other) congressional leaders offer lawmakers to buy votes on legislation and to encourage loyalty to the party.  Former Senate majority leader Trent Lott lamented the earmark ban by saying, “Trying to be a leader where you have no sticks and very few carrots is dang near impossible.  Members don’t get anything from you and leaders don’t give you anything.  They don’t feel like you can reward them”.   While there is no doubt that factors such as polarization and gerrymandering have also eroded the ability of Congress to function, the loss of the “carrot” of earmarks makes compromise even more difficult.  

Despite the ban on earmarks, political scientists would argue that lawmakers still face electoral pressure to secure federal funding for their districts.  One of the great ironies of earmarks is that voters support specific projects contained in earmarks for their districts, but oppose them generally. (Similarly, voters reelected their member of Congress in 96% of the 2016 congressional races while the institution as a whole enjoys an approval rating around 20%).  Therefore, earmarks and pork barrel projects present members of Congress with an interesting dilemma: how to engage in an electorally beneficial behavior that constituents perceive both as a negative and positive depending upon the context and do so in the most subtle and least transparent way possible.  

For decades, members of Congress were able to obscure and obfuscate their direct linkage to project requests through earmarks as part of the complex appropriations process.  Members of Congress routinely wrote letters to appropriations subcommittee chairs (known as cardinals) for earmarks to be included in appropriations legislation (Frisch 1998; Evans 2004).  These letters contained the name of the project and the requestor, the rationale, and a requested dollar amount.  To gain support for their earmarks from other members, and more importantly congressional leaders, members would often agree to vote for or against general interest legislation (Evans 2004). The final appropriations bill often contained several hundred specific project requests with only a brief description and dollar amount appearing in the bill and report language making it difficult to know exactly which member requested each project.  

In 2006, following the high-profile corruption scandals of lobbyist Jack Abramoff and Congressman Randy “Duke” Cunningham (R-Ca), Democratic members of Congress enacted  earmark reforms. To remove the taint of furtive quid-pro-quo corruption, lawmakers were required to attribute their names to each earmark request and sign conflict of interest disclosures.

The increased transparency proved insufficient to quell the criticisms. Congress banned earmarks in 2011. The Internet and watchdog groups such as Citizens Against Government Waste, Taxpayers for Common Sense, and the Center for Public Integrity that allowed citizens to easily see the projects requested by their member of Congress.  

Exit Earmarks, Enter Letter-marks

So, in absence of earmarks, how have members been able to secure funds for their districts and claim credit with the ban on earmarks in Congress? 

The answer is an obscure practice called letter-marking.  Letter-marking occurs when members of Congress write to the head of an administrative agency asking (or demanding) the agency retain, or allocate, distributive benefits in their districts (Mills, Kalaf-Hughes, and MacDonald 2015; Mills and Kalaf-Hughes, 2016). The process for directing funds to a member’s district begins with a call for programmatic requests or language requests from constituents by members of Congress. Programmatic requests allow members of Congress to propose total funding amounts for programs but do not allow for the identification of specific projects to be funded.  Language requests do not direct funding to a particular entity but encourages, urges, or directs some type of action by an agency.  Constituents (and presumably organized interests) identify projects and areas of need within the member’s district that they want funded by the federal government.  The member of Congress then writes to appropriations cardinals to have their programmatic or language requests inserted into the bill or report language.  Once the programmatic request is enacted as part of the appropriations bill, members of Congress write letters to the head of an administrative agency asking (or demanding) that they agency retain, or allocate, distributive benefits in their districts.

Our recent research on letter-marking found executive agencies and the president now have wide discretion in the allocation of projects. Additionally,  a recent study by John Hudak of the Brookings Institution concluded President Obama used this new authority to shift federal spending to swing states during the 2012 election and to vulnerable democratic Senate candidates during the 2014 mid-term elections.  Thus, the ban on earmarking and the emergence of letter-marking has shifted the critical responsibility of appropriating funds from the legislative to executive branch while also giving the President increased control over the electoral future of members of Congress.   

Letter-marking provides members of Congress with an opportunity to attempt to persuade federal agencies to allocate projects to their districts.  Consider the following example from Congressman Alan Grayson’s (D-FL) letter to save an air traffic control tower in his district from being closed as a result of sequestration cuts proposed by the Federal Aviation Administration (FAA):

“ISM [Kissimmee Gateway Airport’s tower] affords proactive separation of Kissimmee aircraft from MCO’s [Orlando International Airport] approach and departure corridors… flight space which may someday be used in the War on Terror if the various reports of Al Qaeda targeting Disney are true” (Rep. Alan Grayson Letter to FAA Administrator Michael Huerta, March 13, 2013). 

While some may debate the accuracy (i.e. Al Qaeda’s ability to strike Disney World using an aircraft in 2013) and dire nature of Grayson’s tone in the letter, his message to FAA Administrator Huerta was clear: this tower has significant and real benefits to my district and to the United States and deserves to be spared from sequestration cuts.  Grayson’s letter was successful-the FAA granted Kissimmee Gateway Airport one of 24 national interest exemptions (green dots in map below).  

Figure 1. Federal Contract Towers Slated for Closure and National Exemptions (2013)

The letter from Congressman Grayson is not an isolated phenomenon.  In an examination of letter-marking related to stimulus spending, Solomon and Mehta (2010) found that three agencies, the Departments of Commerce, Transportation, and Energy, received over 1,500 letters from a bipartisan cross-section of members of Congress ranging from Senate Minority Leader Mitch McConnell (R-KY) to Speaker of the House Nancy Pelosi (D-CA) to Tea Party heroes such as Rep. Michele Bachmann (R-MN).  The letters for stimulus funding ranged from requests for upgrades at Phoenix Sky Harbor Airport from Senator John McCain (R-AZ) to funding from the Department of Commerce to support the Massachusetts Broadband Initiative by Senator Scott Brown (R-MA) to a request to improve New Orleans’ streetcar system from Rep. Joseph Cao (R-LA).  Today, letter-marking is a common practice among members of Congress that spans several agencies for a wide range of projects including harbor dredging from the Army Corps of Engineers, new hospitals from the Department of Veterans Affairs, health research facilities operated by the Department of Defense, and requests for runway improvements from the Federal Aviation Administration (Nixon 2010; 2012). 

The emergence of letter-marking in Washington suggests that members of Congress have found an effective solution to the challenge of requesting projects for their district while publicly advocating for reduced government spending.  By funneling requests for projects through federal agencies, members are able to work behind the scenes through letter-marking, phone-marking (making calls to federal officials), and personal connections to secure distributive benefits while arguing that these benefits were awarded through a competitive process and determined by the agency, not Congress. 

The obscured nature of letter-marking allows members to achieve two goals simultaneously: working to secure projects for their districts behind the scenes while publicly advocating for deficit reduction and reduced spending.  Take, for example, former tea party member Michele Bachmann (R-MN), who was one of the most outspoken critics of the size of the federal deficit in Washington D.C.  However, in 2011, months after the enactment of the earmark ban, Ms. Bachmann penned a letter to Transportation Secretary Ray LaHood asking him to allocate a $750,000 grant to St. Cloud, Minnesota to enhance air service in the region.  

Pick Your Poison, Reformers

If letter-marking provides political cover for lawmakers, particularly conservatives, to work behind the scenes to secure projects for their districts while publicly opposing increased spending, why did some Republicans advocate for a return to earmarks when the President-elect has pledged to “drain the swamp”? 

We have two hypotheses.  First, we suspect members of Congress fear the unknown of requesting projects from a new administration, particularly from Donald J. Trump — an outsider to the Washington system of bargaining.  Second, given the rise in the power of the executive branch, Speaker Ryan and Majority Leader McConnell know the only way to restore the power of the legislative branch, and maintain their majority in the 2018 mid-term elections, is to increase the productivity of Congress by passing legislation — appropriations bills.  Earmarks would provide the “grease to skid the wheels” to bring members along on bills while internalizing control over the allocation of federal projects and funds.    

Regardless, it is clear the ban on earmarks did not stop the flow of federal funds and projects to states and districts.  Instead, lawmakers have relied on the less transparent, “vegan pork” substitute of letter-marking to secure projects.  The ban on earmarks also has contributed to historical gridlock within Congress eroded its power vis-à-vis the executive branch. 

So, reformers need to pick their poison. We can continue the earmark ban and live with lettermarking, or we can restore a transparent and accountable system of earmarking. 

Russell W. Mills is an associate professor of political science at Bowling Green State University. Nicole Kalaf-Hughes is an assistant professor of political science at Bowling Green State University.