Earmark Disclosure Rules in the Senate:
Member and Committee Requirements
Updated April 28, 2021
Congressional Research Service
https://crsreports.congress.gov
RS22867
Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Summary
Earmark disclosure rules in both the House and the Senate 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 bil 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 wil be updated as needed.
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Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Contents
Introduction ................................................................................................................... 1
Senate Earmark Disclosure Rule........................................................................................ 1
Legislation Subject to the Rule .......................................................................................... 2
Requirements for Senators Submitting Earmark Requests...................................................... 2
Requirements for Committees ........................................................................................... 3
Contacts
Author Information ......................................................................................................... 4
Congressional Research Service
Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Introduction
In the 110th Congress (2007-2008), the House and Senate codified earmark disclosure
requirements into their respective chamber rules with the stated intention of bringing more
transparency to the earmarking process.1 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 earmark disclosure rules in both the House and Senate, however, have remained in place.2
On April 26, 2021, the chair of the Senate Committee on Appropriations announced an intention
to “restore” the use of congressional y directed spending items in appropriations bil s for the
upcoming fiscal year (FY2022).3 As noted by the committee, such congressional y directed
spending items wil be subject to the Senate rules and restrictions governing earmarks. Similarly,
on February 26, 2021, the chair of the House Committee on Appropriations announced that the
committee wil accept Member requests for Community Project Funding in appropriations bil s
for the upcoming fiscal year (FY2022).4
The administrative responsibilities associated with earmark disclosure 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.5
Senate Earmark Disclosure Rule
Senate Rule XLIV6 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 form at least
48 hours before the vote. If a Senator proposes a floor amendment containing an additional
earmark,7 those items must be printed in the
Congressional Record as soon as “practicable.”8
1 In Senate rules, the phrase
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
earm ark refers to any
congressionally directed spending item, limited tax benefit, or limited tariff benefit.
2 For more information on the earmark moratorium, see CRS Report R45429,
Lifting the Earmark Moratorium:
Frequently Asked Questions, by Megan S. Lynch.
3 U.S. Congress, Senate Committee on Appropriations, “Leahy Announces Restoration of the Power of the Purse:
Reforms for a Return to Congressionally Directed Spending in Fiscal Year 2022, ” 117th Cong., 1st sess., April 26, 2021,
https://www.appropriations.senate.gov/news/majority/-leahy-announces-restoration-of-the-power-of-the-purse-reforms-
for-a-return-to-congressionally-directed-spending-in-fiscal-year-2022.
4 U.S. Congress, House Committee on Appropriations, “DeLauro Announces Community Project Funding in Fiscal
Year 2022,” 117th Cong., 1st sess., February 26, 2021, https://appropriations.house.gov/news/press-releases/delauro-
announces-community-project-funding-in-fiscal-year-2022. For more information, see CRS Report R46722,
Com m unity Project Funding: House Rules and Com m ittee Protocols, by Megan S. Lynch.
5 T his report discusses requirements and restrictions imposed by Senate rules. It does not cover requirements or
restrictions articulated in committee or party rules.
6 T he 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).
7 T he 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).
8 T he rule does not define the term
practicable.
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Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Rule XLIV, paragraph 5, explicitly defines congressional y 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.) A point of order applies only in the absence of such a certification and does
not speak to the completeness or the accuracy of the certification.
Legislation Subject to the Rule
Senate earmark disclosure rules apply to any congressional earmark included in either the text of
the bil or the committee report accompanying the bil , as wel 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 bil s, 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
the Senator’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 Senator;
the purpose of the earmark; and
a certification that neither the Senator nor the Senator’s immediate family has a
financial interest in such an earmark.9
9 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.
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Earmark Disclosure Rules in the Senate: Member and Committee Requirements
It is important to note that, when submitting earmark requests, 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 electronical y).
The Senate Appropriations Committee, for example, has stated that it wil require Senators
requesting earmarks to post information regarding their requests on their websites.10
The committees 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 disal owing multi-year funding requests). In addition, committees and
subcommittees often have deadlines, especial y 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.11
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.
When submitting an earmark request, it may be relevant whether the Senator wants the earmark
to be included in the text of the bil or the committee report accompanying the bil . 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
bil text or the committee report. For example, under Executive Order 13457, 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.12
If, during consideration of a measure, a Senator proposes an amendment13 that contains an
additional earmark,14 the Senator shal ensure that a list of earmarks (and the name of any other
Senator who submitted a request for each earmark included) is printed in the
Congressional
Record as soon as “practicable.”
Requirements for Committees
Under the Senate rule, 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,15 and (3) certifying that requirements under Rule
XLIV have been met.
10 U.S. Congress, Senate Committee on Appropriations, “Leahy Announces Restoration of the Power of the Purse:
Reforms for a Return to Congressionally Directed Spending in Fiscal Year 2022,” 117th Cong., 1st sess., April 26, 2021,
https://www.appropriations.senate.gov/news/majority/-leahy-announces-restoration-of-the-power-of-the-purse-reforms-
for-a-return-to-congressionally-directed-spending-in-fiscal-year-2022.
11 Often these requirements are communicated through a “Dear Co lleague” letter, committee staff memos, or the
committee’s website.
12 Executive Order 13457, “Protecting American T axpayers from Governmental Spending on Wasteful Earmarks,” 73
Federal Register 22, January 29, 2008.
13 Including amendments in the nature of a substitute.
14 T he rule does not apply to all earmarks in floor amendments. It applies only to 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).
15 In the case of an earmark in any classified portion of a report accompanying a measure, paragraph 7 of 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,
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Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Committees of jurisdiction may use their discretion to decide what constitutes an earmark.
Definitions in Senate rules, as wel as past earmark designations, 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.16
In the case of measures, the list of earmarks (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 it is technical y 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, prior to
the earmark moratorium, it had 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
congressional y 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 bil .
TOM HARKIN,
Chairman.
Source: Congressional Record, daily edition, vol. 153 (November 5, 2007), p. S13751.
Author Information
Megan S. Lynch
Specialist on Congress and the Legislative Process
funding level, and name of the Senate sponsor.
16 Rule XLIV, paragraph 4(b), states that when a committee reports a measure, the earmark list should be made
available online in a searchable format as soon as “practicable.” T he rule does not define
practicable.
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Earmark Disclosure Rules in the Senate: Member and Committee Requirements
Disclaimer
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RS22867
· VERSION 11 · UPDATED
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