The Earmark Ban: Shooting ourselves in the foot

We are so gosh-darned noble

NB: My apologies for the hiatus.  I have been busy with other writing and also have violated my own rule on action by sitting on this draft for a while, thinking I might find a way to communicate a grand unifying theory, like an ass.  No!  Publish or die!

“Fiscal conservatism” is a term that should be abandoned entirely.  Focusing on money as the currency of politics narrows the field of view, so that a politician who focuses on fiscal conservatism is easily played.  And perhaps that’s the point.

Recently, Senate Republicans declined to bring back earmarks, which are provisions in appropriations bills that direct money to a specific recipient or project.  Under Rule 44, this could be directed spending, tax benefits or tariffs with a small target, or anything else that has monetary benefit to an obvious and small group of people.  If you can’t get sixty votes to let an earmark through, it is stricken (I wonder if a Senator could object to minority set-asides on this basis...).

To the unschooled, this sounds great— let’s ban pork!  But earmarks are an area where the academics and the retail politicians both agree earmarks have their place, and the only people who disagree are rubes.

This is a hard sell for conservatives, but let me give some examples.  It’s precisely because this is a hard sell that it must be argued— it is my view that in exchange for a zing of electoral dopamine, politicians on the right who oppose earmarks are screwing over their constituents.  

Let’s imagine we have the perfect bill.  It’s perfect, and by rights it should pass with 50%+1 of both houses of Congress.  But Joe Manchin opposes the bill, because at home one of his supporters opposes it, and that big donor is marginally more important than the support.  Well, in a world with earmarks, Manchin can liquidate this disagreement by demanding an earmark to make him come out ahead in the political calculus.  If his district takes $10 billion per cycle in “goodies” to win, and he needs another $10 million to get there, he can demand the $10 million from both the donor (“I need strong public support”) or the senate leadership (“I need a $10 million project if I’m going to vote yes”) and see who gets him across the finish line.  Many have argued that congress doesn’t legislate as much anymore precisely BECAUSE of earmark bans.

Why can’t you just give Manchin the ability to amend the bill?  Well, what if the bill says “ban X?”  He can amend the bill to say “don’t ban X” but that’s effectively a no vote.  Or he can amend to water down the ban, but again, effectively a no vote.  Earmark opponents are essentially small-l liberals who simply cannot imagine that such a thing as disagreement exists.  But there are cases, daily cases, where negotiations are zero sum.  To obtain a result other than “status quo” every time, you need earmarks.  You need to ask, how much is this going to hurt you, and give not a promise of future support, but a concurrent handout.  I strongly suspect the incumbency and monopoly issues with Big Tech are exacerbated by the earmark ban, which allows Big Tech to buy out wins, but doesn’t allow Congress to do so.

Aside from incumbents in the market (which could be police, or teachers unions, or criminals, or anybody really), who benefits from earmark bans?  In the Senate, the answer is leadership.  In both houses, leadership has no formal power (a bare majority of Senators could change the rules if they really wanted to), but in the Senate, leadership does have traditional control over the calendar, which means control over the amendment process.  In a world with earmarks, a Senator can object in advance of a bad or good bill and get a promise of an earmark for support, and this is a substantive promise.  If the earmark doesn’t come, the vote is no.  In a world without earmarks, all a Senator is empowered to do is get a vote, if that, on his amendment.  And when the majority of the Senate votes no, the Senator is still on the hook to vote yes on the final bill.  He can’t say “you promised to change the bill,” because even accounting for leadership shenanigans, he knows you can’t promise a legislative outcome.  There’s no negotiation with leadership, in other words.

And when you hear folks complain about filling the amendment tree, or placing cover votes, what they are really saying is that leadership is positioning bills to squeeze senators and give them two choices.  (1) vote the way leadership wants, or (2) make it appear that the Senator is screwing over his base.  Anyone who complains about leadership control over the amendment process and then opposes earmarks is a rube.  Why?  Because the latter solves the problem of the former.

One good example of how this works in practice today is the Federal Transit Administration (FTA) Capital Investment Grant (CIG) program.  This program is an earmark.  It *is* an earmark program.  But it doesn’t call itself that.  How it works is complicated for those with no knowledge of the budget process, but I’ll shortcut here.  The FTA, in a highly proscriptive program, helps serve as broker, and get projects into the Presidents Budget (read: the OMB swamp budget), which then enables these specific earmarks to get funded by Congress outside the ordinary appropriations process and the earmark bans.

So we have earmarks, but they are capped and only in a few specified subject areas, and on a regular cycle.  As a result, and I haven’t done quantitative work on this but I’m sure in principle you could, these programs have been more captured by leadership than earmarks as a broader tool would be. 

I periodically have lunch with an Anglo-American friend of mine, who concurred on my point about earmarks, noting that every legislature in history makes this tool widely available for a reason.  The ban, in my view, makes no sense whatsoever and only serves (1) leadership control and (2) the facile, libertarian, masochistic impulse to be “better” on spending.  All it does is preserve the status quo of a do-nothing Congress, which of course the bureaucracy and its master, industry are happy to retain.