Lifting the Earmark Moratorium: Frequently Asked Questions

December 10, 2018 – December 3, 2020 R45429

Lifting the Earmark Moratorium: Frequently
December 3, 2020
Asked Questions
Megan S. Lynch
In response to congressional concern over the earmarking process, in the 110th Congress (2007-
Specialist on Congress and
2008), the House and Senate codified earmark disclosure requirements into their respective
the Legislative Process
chamber rules with the stated intention of bringing more transparency to the earmarking process.

As concern over earmarks continued, in the 112th Congress (2011-2012), the House and Senate

began observing what has been referred to as an “earmark moratorium” or “earmark ban.” The
moratorium does not exist in House or Senate chamber rules, however, and therefore is not enforced by points of order.
Instead, the moratorium has been established by party rules and committee protocols and is enforced by chamber and
committee leadership through their agenda-setting power.
In recent years, some Members have expressed interest in lifting the earmark moratorium. Whether or not the earmark
moratorium is lifted, the House and Senate continue to have formal earmark disclosure rules that were implemented in the
110th Congress with the stated intention of bringing more transparency to earmarking. These rules generally prohibit
consideration of certain legislation unless information is provided about any earmarks included in the legislation. House and
Senate rules require that any Member submitting an earmark request provide a written statement that includes the name of the
Member, the name and address of the earmark recipient, and a certification that the Member has no financial interest in the
earmark. House and Senate rules require that committees determine whether a provision constitutes an earmark, and
committees must compile and make accessible certain earmark-related information.
If Congress were to lift the current earmark ban, it might also choose to institute any number of policies or restrictions to
govern the use of congressional earmarks. These policies or restrictions might be instituted through formal amendments to
the House and Senate standing rules, by standing order, or by enacting new law. Such policies might also be instituted
through party rules or leadership and committee practices and protocols. Some policies might seek to add more transparency
to the earmarking process or prohibit certain types of entities from receiving earmarks. Restrictions might be implemented
related to the purposes for which an earmark could be used or limiting the amount of federal dollars that might be spent on
earmarks. Other policy approaches might potentially involve the executive branch or the congressional support agencies.

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link to page 4 Lifting the Earmark Moratorium: Frequently Asked Questions

What Is an Earmark?
While the term earmark has been used historical y to describe various types of congressional
spending actions, in the 110th Congress (2007-2008), the House and Senate each codified a formal
definition of earmark into their respective chamber rules. While House and Senate rules define
the term earmark slightly differently (Table 1), each general y emphasizes that any
congressional y directed spending, tax benefit, or tariff benefit be considered an earmark if it
would benefit a specific entity or state, locality, or congressional district other than through a
statutory or administrative formula or competitive award process. For the purposes of this report,
from this point forward the term earmark includes any congressional y directed spending, limited
tax benefit, or limited tariff benefit.
Table 1. House and Senate Earmark Definitions
House Definition
Senate Definition
Congressional earmark- a provision or report language
Congressional y directed spending item- a provision or
included primarily at the request of a Member,
report language included primarily at the request of a
Delegate, Resident Commissioner, or Senator
Senator providing, authorizing or recommending a
providing, authorizing or recommending a specific
specific amount of discretionary budget authority,
amount of discretionary budget authority, credit
credit authority, or other spending authority for a
authority, or other spending authority for a contract,
contract, loan, loan guarantee, grant, loan authority, or
loan, loan guarantee, grant, loan authority, or other
other expenditure with or to an entity, or targeted to a
expenditure with or to an entity, or targeted to a
specific State, locality or congressional district, other
specific State, locality or congressional district, other
than through a statutory or administrative formula
than through a statutory or administrative formula
driven or competitive award process.
driven or competitive award process.
Limited tax benefit- any revenue provision that (A)
Limited tax benefit- (1) any revenue-losing provision
provides a federal tax deduction, credit, exclusion, or
that (A) provides a federal tax deduction, credit,
preference to a particular beneficiary or limited group
exclusion, or preference to 10 or fewer beneficiaries
of beneficiaries under the Internal Revenue Code of
under the Internal Revenue Code of 1986, and (B)
1986, and (B) contains eligibility criteria that are not
contains eligibility criteria that are not uniform in
uniform in application with respect to potential
application with respect to potential beneficiaries of
beneficiaries of such provision.
such provision; or (2) any federal tax provision which
Limited tariff benefit- a provision modifying the
provides one beneficiary temporary or permanent
Harmonized Tariff Schedule of the United States in a
transition relief from a change to the Internal Revenue
manner that benefits 10 or fewer entities.
Code of 1986.
Limited tariff benefit- a provision modifying the
Harmonized Tariff Schedule of the United States in a
manner that benefits 10 or fewer entities.
Source: House Rules XXI, clause 9 and Senate Rules XLIV, paragraph 5.
What Is the Earmark Moratorium?
In the 112th Congress (2011-2012), the House and Senate began observing what has been referred
to as an “earmark moratorium” or “earmark ban.” The moratorium does not exist in House or
Senate rules, however, and therefore is not enforced by points of order. Instead, the moratorium
has been established by party rules and committee protocols and is enforced by chamber and
committee leadership through their agenda-setting power. For example, the Rules of the House
Republican Conference for the 112th Congress (2011-2012) included a standing order labeled
Earmark Moratorium that stated, “It is the policy of the House Republican Conference that no
Member shal request a congressional earmark, limited tax benefit, or limited tariff benefit, as
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Lifting the Earmark Moratorium: Frequently Asked Questions

such terms have been described in the Rules of the House.” This language has been included in
orders adopted by the conference in the 113th, 114th, 115th and 116th Congresses (2013-2020).1
Likewise, in early 2011, the Senate Appropriations Committee issued a press release stating that it
would implement a two-year moratorium on earmarks (which was later extended).2 Additional y,
the Senate Republican Conference adopted a resolution on November 14, 2012, that included an
earmark moratorium. It stated, “Resolved, that it is the policy of the [Senate] Republican
Conference that no Member shal request a congressional y directed spending item, limited tax
benefit, or limited tariff benefit, as such terms are used in Rule XLIV of the Standing Rules of the
Senate for the 113th Congress.” This same rule has been adopted by Senate Republicans in each
Congress through the 116th Congress (2019-2020).
How Would Congress Lift the Earmark
Moratorium?
As noted above, the earmark moratorium is not codified in House or Senate rules. Therefore,
lifting the earmark moratorium would not require an amendment to either chamber’s rules. Since
the moratorium has been established through Republican Party rules and committee protocols and
has been enforced by chamber and committee leadership through their agenda-setting power,
presumably the moratorium might be “lifted” simply by either or both chambers permitting the
development and consideration of legislation that includes earmarks.
If the Moratorium Were Lifted, What Rules and
Requirements Would Govern the Use of Earmarks?
The House and Senate continue to have formal earmark disclosure requirements in their standing
rules that were first established in the 110th Congress (2007-2008) with the stated intention of
bringing more transparency to earmarking. A summary of those requirements is presented below.
For additional information, see CRS Report RS22866, Earmark Disclosure Rules in the House:
Member and Committee Requirements, by Megan S. Lynch; and CRS Report RS22867, Earmark
Disclosure Rules in the Senate: Member and Committee Requirements, by Megan S. Lynch.
House Rules and Requirements
House Rules general y require that certain legislation be accompanied by a list of congressional
earmarks, limited tax benefits, or limited tariff benefits that are included in the measure or its
report or include a statement that the proposition contains no earmarks.3 Depending upon the type

1 House Republican Conference, “Conference Rules of the 115th Congress,” Standing Orders for the 115th Congress,
https://www.gop.gov/115th-rules/.
2 U.S. Senate Committee on Appropriations, “Committee Announces Earmark Moratorium,” press release, February 1,
2011, https://web.archive.org/web/20110203075236/http:/appropriations.senate.gov/news.cfm?method=news.view&
id=188dc791-4b0d-459e-b8d9-4ede5ca299e7; and U.S. Senate Committee on Appropriations, “ Senate Appropriations
Committee Announces Extension of Earmark Moratorium ,” press release, February 2, 2012, https://web.archive.org/
web/20120214222505/http:/appropriations.senate.gov/news.cfm?method=news.view&id=3883059e-7a0c-496e-8d51-
440aa7c2d57c.
3 House Rule XXI, clause 9.
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Lifting the Earmark Moratorium: Frequently Asked Questions

of measure, the list or statement is to be either included in the measure’s accompanying report or
printed in the Congressional Record.
House earmark disclosure rules apply to any earmark included in either the text of a bil or joint
resolution or the committee report accompanying them, as wel as to conference reports and their
accompanying joint explanatory statements. The disclosure requirements apply to items in
authorizing, appropriations, and tax legislation. Furthermore, they apply not only to measures
reported by committees but also to unreported measures, “manager’s amendments,” Senate bil s
and joint resolutions, and conference reports.4
Requirements for House Members Submitting Earmark Requests
Under the House Code of Official Conduct, a Member requesting a congressional earmark is
required to provide a written statement to the chair and ranking minority member of the
committee of jurisdiction that includes:5
 the Member’s name;
 the name and address of the intended earmark recipient (if there is no specific
recipient, the location of the intended activity should be included);
 in the case of a limited tax or tariff benefit, identification of the individual or
entities reasonably anticipated to benefit to the extent known to the Member;
 the purpose of the earmark; and
 a certification that the Member or Member’s spouse has no financial interest in
such an earmark.
Requirements for House Committees
Under House rules, the earmark disclosure responsibilities of House committees and conference
committees fal into three major categories: (1) determining if a spending provision is an earmark,
(2) compiling earmark requests for presentation to the full chamber, and (3) preserving records
related to the earmark requests.6 Individual committees may establish their own additional
requirements in the committee rules they are required to adopt each Congress.
Committees of jurisdiction must use their discretion to decide what constitutes an earmark.
Definitions in House rules, as wel as past earmark designations, may provide guidance in
determining if a certain provision constitutes an earmark.
House rules state that in the case of any reported bil or joint resolution or conference report, a list
of included earmarks and their sponsors (or a statement declaring the absence of earmarks) must
be included in the corresponding committee report or joint explanatory statement.7 In the case of
a measure not reported by a committee or a manager’s amendment, the committee of initial
referral must cause a list of earmarks and their sponsors, or a letter stating the absence of
earmarks, to be printed in the Congressional Record before floor consideration. A conference

4 As defined in the rule and clarified in a letter from the House Parliamentarian to the chairman of the House
Committee on Rules (Congressional Record, daily edition, vol. 153 [October 3, 2007], pp. H11184-H11185), a
manager’s amendment is “ an amendment offered at the outset of consideration for amendment by a member of a
committee of initial referral under the terms of a special rule.”
5 Specifically, House Rule XXIII, clause 17(a). For the purpose of this report, Member includes Members, delegates, or
the resident commissioner.
6 House Rules XXI, clause 9, and House Rule XXIII, clause 17(b).
7 House Rule XXIII, clause 17(b).
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report accompanying a regular appropriations bil must identify congressional earmarks in the
conference report or joint explanatory statement that were not specified in the legislation or report
as it initial y passed either chamber.
Each House committee and conference committee is responsible for “maintaining” al written
requests for earmarks received—even those not ultimately included in the legislation or report.
Furthermore, those requests that were included in any measure reported by the committee must be
not only “maintained” but also “open for public inspection.” Rule XXIII does not define these
terms.
Senate Rules and Requirements
Senate rules prohibit a vote on a motion to proceed to consider a measure or a vote on adoption of
a conference report unless the chair of the committee or the majority leader (or designee) certifies
that a complete list of earmarks and the name of each Senator requesting each earmark is
available on a publicly accessible congressional website in a searchable format at least 48 hours
before the vote.8 If a Senator proposes a floor amendment containing additional earmarks, those
items must be printed in the Congressional Record as soon as “practicable.”9 If these earmark
certification requirements have not been met, a point of order may lie against consideration of the
legislation or vote on the conference report. A point of order could not be raised against a floor
amendment.
Senate earmark disclosure rules apply to any congressional earmark included in either the text of
the bil or joint resolution or the committee report accompanying the measure as wel as to
conference reports and their accompanying joint explanatory statements. The disclosure
requirements apply to items in authorizing, appropriations, and tax legislation. Furthermore, they
apply not only to measures reported by committees but also to unreported measures, amendments,
House bil s, and conference reports.
Requirements for Senators Submitting Earmark Requests
Under Senate rules, a Senator requesting that a congressional earmark be included in a measure is
required to provide a written statement to the chair and ranking minority member of the
committee of jurisdiction that includes:10
 the Senator’s name;
 the name and address of the intended earmark recipient (or, if there is no specific
recipient, the location of the intended activity);
 in the case of a limited tax or tariff benefit, identification of the individual or
entities reasonably anticipated to benefit to the extent known to the Senator;
 the purpose of the earmark; and

8 Senate Rule XLIV.
9 T he rule does not apply to all earmarks in floor amendments but only those “ not included in the bill or joint resolution
as placed on the calendar or as reported by any committee, in a committee report on such a bill or joint resolution, or a
committee report of the Senate on a companion measure,” as stated in Rule XLIV, paragraph 4(a). T he rule does not
define the term practicable.
10 Senate Rule XLIV, paragraph 6.
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 a certification that neither the Senator nor the Senator’s immediate family has a
financial interest in such an earmark.11
Requirements for Senate Committees
Under the Senate rule, the earmark disclosure responsibilities of Senate committees and
conference committees fal into three major categories: (1) determining if a spending provision is
an earmark, (2) compiling earmark requests for presentation, and (3) certifying that requirements
under the rule have been met.12
Committees of jurisdiction may use their discretion to decide what constitutes an earmark.
Definitions in Senate rules, as wel as past earmark designations during the 110th Congress (2007-
2008), may provide guidance in determining if a certain provision constitutes an earmark.
Senate rules state that before consideration of a measure or conference report is in order, a list of
included earmarks and their sponsors must be identified through lists, charts, or other means and
made available on a publicly accessible congressional website for at least 48 hours.13 The rule
states that the consideration of a measure or conference report is not in order until the applicable
committee chair or the majority leader (or designee) “certifies” that the requirements stated above
have been met.
What Additional Policies or Restrictions Might
Congress Institute to Govern the Use of Earmarks?
Some Members of Congress have expressed interest in lifting the earmark moratorium, and
Congress may examine what changes, if any, are needed in the area of earmark policy. Congress
may choose to keep the earmark moratorium in place but insert it into formal chamber rules.
Alternatively, Congress might choose to lift the earmark moratorium but institute any number of
policies or restrictions to govern the use of congressional earmarks. Just as in the past, these
policies or restrictions might be instituted through formal amendments to House and Senate
standing rules or by enacting new provisions in law.14 Restrictions could also be instituted
through party rules, leadership and committee practices and protocols, or standing order.
Such policies or restrictions could seek to accomplish a number of goals.
Requiring Enhanced Transparency
Some policies might seek to add additional transparency to the earmarking process. In the past the
House and Senate Appropriations Committees have required a Member requesting an earmark to
post information regarding the earmark on his or her personal website, including the purpose of
the earmark and why it was a valuable use of taxpayer funds.15 The committees stated that

11 For more information on the definition of immediate family, see Senate Select Committee on Ethics, Definition of
“Immediate Family” for Requested Appropriations, September 12, 2007, http://www.ethics.senate.gov.
12 Senate Rule XLIV, paragraph 4.
13 Senate Rule XLIV, paragraphs 1, 2, and 3.
14 T he Senate included Senate Rule XLIV in the Honest Leadership and Open Government Act of 2007, which became
law on September 14, 2007 (P.L. 110-81, 121 Stat.760, §521).
15 House and Senate Appropriations Committees, “House and Senate Appropriations Committees Announce Additional
Reforms in Committee Earmark Policy,” press release, January 6, 2009.
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earmark disclosure tables would be “made publical y available the same day as the House or
Senate Subcommittee rather than Full Committee reports their bil or 24 hours before full
Committee consideration of appropriations legislation that has not been marked up by a Senate
Subcommittee.”16 In addition, in 2010, the House Appropriations Committee stated that it would
“establish a ‘one-stop’ online link to al House Members’ appropriations earmark requests to
enable the public to easily view them.”17
Prohibiting Certain Types of Earmarks
Congress could also restrict the purposes for which an earmark might be used or prohibit certain
entities from receiving earmarks entirely. For example, according to press reports, the House
Appropriations Committee adopted a policy prohibiting any earmark for projects named after the
Member of Congress requesting the earmark.18 In March 2010, the House Appropriations
Committee announced that it would no longer consider earmarks directed to for-profit entities.19
Limiting Earmark Spending Levels
Congress could also limit the amount that might be spent on an earmark. Such a limit could apply
to each specific earmark or to the total cost of al earmarks. For example, in January 2009, the
House Appropriations Committee articulated a policy of limiting “total funding for non-project
based earmarks” to 50% of the 2006 levels and no more than 1% of the total discretionary
budget.20 Some have suggested that to create equity or fairness while simultaneously limiting
total earmark amounts, each Member or state might be eligible to receive earmarks, but
restrictions might be put in place to limit those earmarks to a certain number or to a certain
amount of spending per district or state.
Requiring Additional Support
Congress might also institute policies that would require earmarks receive additional support
before they can be implemented. Some have suggested that any earmark be required to be
included in both the underlying authorizing legislation and appropriations legislation.
Some have suggested that the executive branch be required to support or at least not oppose the
earmark. For example, in March 2009, House Democratic leadership and the House
Appropriations chairman announced that when a Member submits a request for an earmark, the
appropriate executive branch agency would be given 20 days to review the project to “ensure the

16 House and Senate Appropriations Committees, “House and Senate Appropriations Committees Announce Additional
Reforms in Committee Earmark Policy.”
17 House Committee on Appropriations, “Appropriations Committee Bans For-Profit Earmarks,” press release, March
10, 2010.
18 David Clarke, “Several Bills Contain Money for Kentucky Institute,” CQ Today Online News, August 26, 2009;
Richard Simon and Kate Linthicum, “ Maxine Waters Job-T raining Center Caught in Funding Ban,” Los Angeles Tim es,
July 4, 2009. In early 2008, House Republican leadership issued a ban on earmarks that were popularly characterized as
“monuments to me,” according to a press release. Office of the Speaker of the House, “Boehner, Cantor Urge
Democratic Leaders to Follow Suit by Naming T heir Own 10 Members to the Panel Before the Beginning of the New
Congress Next Month,” press release, December 18, 2008, https://www.speaker.gov/press-release/house-republicans-
appoint -members-earmark-reform-committee.
19 House Committee on Appropriations, “ Appropriations Committee Bans For-Profit Earmarks.”
20 T his policy was stated to have begun in January in Congressman David R. Obey, “Pelosi, Hoyer and Obey Announce
Further Earmark Reforms,” press release, March 11, 2009.
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earmark was eligible to receive funds and meet goals established in law.”21 In addition, the
announcement stated that for any earmark intended to be directed to a for-profit entity, the
executive branch would be required to ensure that the earmark would be awarded through a
competitive bidding process.
Requiring Further Study and Oversight
Congress could also choose to conduct further research into the practice of earmarking general y.
This might involve asking CRS or the Government Accountability Office to perform research into
earmarks or earmark policy.
Congress may also choose to hold hearings on the subject or to create a select committee to study
earmarks and recommend new policies or restrictions. In January 2018 the House Rules
Committee held a hearing on earmark policy, and in November 2008, the rules of the House
Republican Conference for the 111th Congress created a Select Committee on Earmark Reform to
be composed of 10 Members appointed by the Republican leader. This House Republican
Conference panel was directed to study House earmark practices and rules and to report their
findings and recommendations to the conference.
Congress could also choose to institute new policies or restrictions that would involve the
executive branch. This could al ow the executive branch to affect the earmarking process by, for
example, advising committees on whether a potential earmark constitutes a suitable use of funds.
Congress could also involve the executive branch by requiring agency inspectors general to audit
spending for earmarked projects in order to ensure that the funds are being used for their intended
purpose.

Author Information

Megan S. Lynch

Specialist on Congress and the Legislative Process

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
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material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

21 House and Senate Appropriations Committees, “House and Senate Appropriations Committees Announce Additional
Reforms in Committee Earmark Policy.”
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