At the beginning of the 110th Congress, the House adopted new rules concerning the consideration of Member-directed projects or “earmarks,” specifically clause 9 of rule XXI and clause 17 of rule XXIII (the Code of Official Conduct). These rules followed efforts in the 109th Congress to provide greater transparency in the earmarking process.
The rules are intended to prohibit the consideration of legislation that does not identify individual earmarks and the Members who sponsored them. The rules also require the distribution of the information in a way that makes it readily available before the legislation is considered, and certification by earmark sponsors that neither they nor their spouses have a financial interest in the earmark.
Point of Order:
Clause 9 of rule XXI requires the Chair of the committee of initial referral to either disclose all earmarks contained in a bill, joint resolution, or conference report, or certify that the bill, joint resolution, or conference report contains no earmarks, and provide that information either in the accompanying report or printed in the Congressional Record. If the Chair of the committee of initial referral does not fulfill either of these requirements prior to the consideration of the measure, a point of order would lie against the consideration of the measure. This requirement also applies to unreported measures (in which case the information must be printed in the Congressional Record).
Clause 9(c) of rule XXI prohibits the Rules Committee from waiving those disclosure requirements. If the Rules Committee reports a rule waiving clause 9 of rule XXI, it would then be in order to raise a point of order against consideration of the rule. Disposition of the point of order raised against the rule would be determined by the Chair putting the question of consideration after 20 minutes of debate on the point of order equally divided and controlled by the Member initiating the point of order and a Member opposed. At the conclusion of debate on the point of order the Chair will put the question as follows: “Will the House now consider House Resolution ___?”
Members should also be aware that clause 9(a)(3) of rule XXI applies the point of order to the initial amendment made in order under a special rule from the Rules Committee if that amendment is authored by a member of the committee of initial referral. Clause 9(a)(3) requires the sponsor of the amendment to comply with the same disclosure requirements by having a statement printed in the Congressional Record either disclosing earmarks contained in their amendment or certifying that there are no earmarks in their amendment.
The point of order is also applicable to conference reports accompanying general appropriations bills (debatable as a question of consideration) for the failure to include a list of “air dropped” earmarks in the joint statement of managers. Unlike other points of order raised under clause 9 of rule XXI, this point of order does not have a cognizability standard, allowing Members to question the accuracy or completeness of the list.
Clause 17 of rule XXIII (the Code of Official Conduct) imposes a disclosure requirement on a Member who requests a congressional earmark, a limited tax benefit, or a limited tariff benefit in any bill or joint resolution or in any conference report on a bill or joint resolution. The committee of primary jurisdiction over the bill shall determine, using the definitions of “earmark,” “limited tax benefit,” and “limited tariff benefit” provided in clauses 9(e), (f), and (g) of rule XXI, whether any particular spending provision constitutes an earmark or a request for an earmark.
A Member can raise the point of order at the point the manager calls up the conference report by saying: “Mr. Speaker (or Madam Speaker), I raise a point of order under clause 9(b) of rule XXI against the conference report for the failure to include a [complete/accurate] list of congressional earmarks.”
If the rule providing for consideration of the conference report waives all points of order, the point of order automatically moves to the rule. The form of that point of order is: “Mr. (or Madam) Speaker, I raise a point of order against H. Res. ____ under clause 9(c) of rule XXI, because the resolution contains a waiver of all points of order against the conference report and its consideration.”
A Member who requests an earmark or other provision must provide a written statement to the Chair and Ranking Member of the committee of jurisdiction of the bill, resolution, or report that contains the following information:
- The name of the Member;
- In the case of an earmark, the name and address of the intended recipient or if there is no intended recipient, the location of the activity;
- In the case of a limited tax or tariff benefit, the name of the beneficiary;
- The purpose of the earmark or limited tax or tariff benefit; and
- A certification that both the Member and the Member’s spouse have no “financial interest” in the earmark or limited tax or tariff benefit.
Clause 17(a)(5) of rule XXIII (the Code of Official Conduct), requires a Member who requests an earmark to certify that the Member and his or her spouse have “no financial interest in such congressional earmark.” In the great majority of cases, Members should readily be able to determine whether they have a financial interest in an earmark by simply determining whether or not it would be reasonable to conclude that the provisions would have a direct and foreseeable effect on the pecuniary interests of the Member or the Member’s spouse. However, Members are strongly encouraged to consult the Ethics Committee for guidance with any fact-specific questions they have.
Additionally, various committees and the Republican Conference have their own standards for certifications and disclosures regarding earmarks, limited tax benefits, and limited tariff benefits. Members are strongly encouraged to check with the committee of jurisdiction before requesting an earmark to ensure that they are complying with all applicable standards.