Order Code RS22867
April 29, 2008
Earmark Disclosure Rules in the Senate:
Member and Committee Requirements
Megan Suzanne Lynch
Analyst on the Congress and Legislative Process
Government & Finance Division
Summary
Earmark disclosure rules have been adopted in both the House and Senate during
the 110th Congress, and those rules establish certain administrative responsibilities that
vary by chamber. Under Senate rules, a Senator requesting that an earmark be included
in legislation is responsible for providing specific written information, such as the
purpose and recipient of the earmark, to the committee of jurisdiction. Further, Senate
committees are responsible for compiling and presenting such information in accord
with Senate rules. In the Senate, disclosure rules apply to any congressional earmark,
limited tax benefit, or limited tariff benefit included in either the text of a bill or any
report accompanying the measure, including a conference report and joint explanatory
statement. The disclosure requirements apply to earmarks in appropriations legislation,
authorizing legislation, and tax measures. Furthermore, they apply not only to measures
reported by committees, but also to measures not reported by committees, floor
amendments and conference reports. This report will be updated as needed.
Introduction
Earmark1 disclosure rules were adopted in both the House and Senate in the 110th
Congress with the stated intention of bringing more transparency to congressionally-
directed spending. The administrative responsibilities associated with these new rules
vary by chamber. This report outlines the major administrative responsibilities of
Senators and committees of the Senate associated with the chamber’s earmark disclosure
rules.2
1 In Senate rules, the term “congressionally directed spending item” is used in place of earmark.
For the purposes of this report, the terms will be used interchangeably. From this point forward,
the term “earmark” refers to any congressionally directed spending item, limited tax benefit, or
limited tariff benefit.
2 This report outlines the administrative responsibilities relating to earmark disclosure contained
in Senate rules. It does not discuss earmark-related responsibilities required by either party’s
conference or caucus, or those that may be adopted by individual committees. For information
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Senate Earmark Disclosure Rule
Senate Rule XLIV3 prohibits 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 website at least 48 hours before the vote. If a Senator proposes
a floor amendment containing an additional earmark,4 those items must be printed in the
Congressional Record as soon as “practicable.”5
Rule XLIV, paragraph 5, explicitly defines congressionally directed spending item,
limited tax benefit, and limited tariff benefit as follows:
! Congressionally directed spending item- a provision or report language
included primarily at the request of a Senator providing, authorizing or
recommending a specific amount of discretionary budget authority, credit
authority, or other spending authority for a contract, loan, loan guarantee,
grant, loan authority, or other expenditure with or to an entity, or targeted
to a specific State, locality or congressional district, other than through
a statutory or administrative formula driven or competitive award
process.
! Limited tax benefit- any revenue provision that (A) provides a federal
tax deduction, credit, exclusion, or preference to a particular beneficiary
or limited group of beneficiaries under the Internal Revenue Code of
1986, and (B) contains eligibility criteria that are not uniform in
application with respect to potential beneficiaries of such provision.
! Limited tariff benefit- a provision modifying the Harmonized Tariff
Schedule of the United States in a manner that benefits 10 or fewer
entities.
If the earmark certification requirements have not been met, a point of order may lie
against consideration of the measure or vote on the conference report. A point of order
would not apply to floor amendments.
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regarding administrative duties associated with House earmark disclosure rules, see CRS Report
RS22866, Earmark Disclosure Rules in the House: Member and Committee Requirements, by
Megan Suzanne Lynch. For further information on the rules governing congressional earmarks,
see CRS Report RL34462, Earmark Reform: Comparison of New House and Senate Procedural
Rules, by Sandy Streeter.
3 The Senate included this rule in the Honest Leadership and Open Government Act of 2007,
which became law on September 14, 2007. (Section 521 of P.L. 110-81, 121 Stat.760)
4 The rule does not apply to all earmarks in floor amendments, 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).
5 The rule does not define the term “practicable.”

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Legislation Subject to the Rule
Senate earmark disclosure rules apply to any congressional earmark included in
either the text of the bill or the committee report accompanying the bill, as well as the
conference report and joint explanatory statement. The disclosure requirements apply to
items in authorizing legislation, appropriations legislation, and tax measures.
Furthermore, they apply not only to measures reported by committees, but also to
unreported measures, amendments, House bills, and conference reports.
Requirements for Senators Submitting Earmark Requests
Under Senate Rule XLIV, paragraph 6, 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
1.
the Senator’s name;
2.
the name and address of the intended earmark recipient (if there is no specific
recipient, the location of the intended activity should be included);
3.
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;
4.
the purpose of the earmark; and
5.
a certification that neither the Senator or Senator’s immediate family has a financial
interest in such an earmark.6
When submitting earmark requests, it is important to note that individual committees
and subcommittees often have their own additional administrative requirements beyond
those required by Senate rules (e.g., prioritizing requests or submitting request forms
electronically). They may also establish relevant policy requirements (e.g., requiring
matching funds for earmark requests) or restrictions (e.g., not considering earmark
requests for certain appropriations accounts or disallowing multi-year funding requests).
In addition, committees and subcommittees often have deadlines, especially for earmark
requests in appropriations legislation. For this reason, it is important to check with
individual committees and subcommittees to learn of any supplemental earmark request
requirements or restrictions.7
The committee of jurisdiction is responsible for identifying earmarks in the
legislative text and any accompanying reports. Therefore, when it is not clear whether
a Senatorial request constitutes an earmark, the committee of jurisdiction may be able to
provide guidance.
6 For more information on the definition of “immediate family” see Definition of “Immediate
Family” for Requested Appropriations, released by the Senate Select Committee on Ethics,
September 12, 2007, available at [http://www.ethics.senate.gov].
7 Often these requirements are communicated through a “Dear Colleague” letter, committee staff
memos or through the committee’s website.

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When submitting an earmark request, it may be relevant whether the Senator wants
the earmark to be included in the text of the bill or the committee report accompanying
the bill. Committees may make an administrative distinction between these two
categories in terms of the submission of earmark requests, and there may be policy
implications of an earmark’s placement in either the bill text or the committee report. For
example, under Executive Order 13,4578 issued in January 2008, executive agencies are
directed not to commit, obligate, or expend funds that were the result of an earmark
included in non-statutory language, such as a committee report.9
If during consideration of a measure, a Senator proposes an amendment10 that
contains an additional earmark11, the Senator shall ensure that a list of earmarks (and the
name of any Senator who submitted a request to the Senator for each item included) is
printed in the Congressional Record as soon as “practicable”.
Requirements for Committees
Under the new Senate rule, earmark disclosure responsibilities of Senate committees
and conference committees fall into three major categories: (1) determining if a spending
provision is an earmark; (2) compiling earmark requests for presentation,12 and (3)
certifying that requirements under Rule XLIV have been met.
Committees of jurisdiction may use their discretion to decide what constitutes an
earmark. Definitions in Senate rules, as well as past earmark designations during the
110th Congress, may provide guidance in determining if a certain provision constitutes
an earmark.
Senate Rule XLIV states that before consideration is in order on a measure or
conference report, a list of included earmarks and their sponsors must be identified
through lists, charts, or some means, and made available on a publicly accessible
congressional website for at least 48 hours.13 In the case of measures, the list of earmarks
8 “Protecting American Taxpayers From Governmental Spending on Wasteful Earmarks,”
Executive Order 13,457, January 29, 2008, available at [http://www.whitehouse.gov/news/
releases/2008/01/20080129-5.html].
9 For further information, see CRS Report RL34373, Earmarks Executive Order: Legal Issues,
by Thomas J. Nicola and T.J. Halstead.
10 Including amendments in the nature of a substitute.
11 The rule does not apply to all earmarks in floor amendments, 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).
12 In the case of an earmark in any classified portion of a report accompanying a measure,
Paragraph 7 Senate Rule XLIV states that the committee of jurisdiction should, to the greatest
extent practicable, consistent with the need to protect national security, including intelligence
sources and methods, include an unclassified program description, funding level and name of the
Senate sponsor.
13 Rule XLIV, paragraph 4(b) states that when a committee reports a measure, the earmark list
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(and Senate sponsors) on the congressional website must be “searchable.” Lists
associated with conference reports should also be in a searchable format, but only to the
extent technically feasible. Senate rules state that a committee report containing a list of
earmarks (and their sponsors) that is available online satisfies the disclosure requirement.
The rule also requires the applicable committee to make the certifications of no financial
interest available online. The rule does not specify how long after consideration any of
these required materials must be maintained.
The rule states that 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. While the rule does not state what
constitutes certification, it has been the practice of the committee chair to make a
statement on the Senate floor, or submit a written statement to be printed in the
Congressional Record, confirming compliance with Rule XLIV’s disclosure
requirements. An example of a certification letter is provided below.
U.S. SENATE, COMMITTEE ON
AGRICULTURE,
NUTRITION, AND FORESTRY,
Washington, DC, November 5, 2007.
I certify that the information required by
Senate Rule XLIV, related to congressionally
directed spending in S. 2302 has been
available on a publicly accessible website in
a searchable format for at least 48 hours before
a vote on the pending bill.
TOM HARKIN,
Chairman.
Source: Congressional Record, daily edition, vol. 153, November 5, 2007, p.
S13751.
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13 (...continued)
should be made available online in a searchable format as soon as “practicable.” The rule does
not define “practicable.”

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