Preserve the Ban on Earmarks

Background: In January, the House Rules Committee will hold a hearing on “congressionally directed spending,” which is an inside Washington euphemism for a congressional earmark. Earmarks have been prohibited since 2011, when Republicans seized control of the House after the tea party wave.

What is an earmark?

Generally, an earmark is a special provision inserted into legislation that directs funds to a specific recipient, often times circumventing formula, merit-based or competitive funds allocation processes. Current House rules (Rule XXI, clause 9) explicitly defines a congressional earmark as follows:

[A] provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or 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.

In other words, instead of simply setting funding levels for an existing or new federal program, earmarks are explicitly directed to a specific recipient.

Why are earmarks bad?

Earmarks are bad for several reasons. First, congressional leadership can use the promise of earmarks to pass fiscally irresponsible and liberal policy that favors the politically and financially well-connected. In other words, earmarks grease the skids by — for all intents and purposes — buying the votes of individual lawmakers who might not otherwise vote in favor of a specific bill. The $30 billion in taxpayer bailouts for the disastrous 2005 highway bill contained 6,300 earmarks, for example. In another now-forgotten example, to win Senator Mary Landrieu’s (D-LA) vote in 2009, Obamacare included the “Louisiana Purchase” – a deal that sent $4.3 billion in additional Medicaid funds to her state.

Second, earmarks waste millions of taxpayer dollars. In fiscal year 2010, Congress passed 9,129 earmarks to the tune of $16.5 billion. By circumventing merit-based or competitive funds allocation processes, earmarks are more likely to go towards politically favored pet projects, resulting in greater government waste. Perhaps the most infamous example was the “Bridge to Nowhere” connecting Ketchikan, Alaska with Gravina Island, funding for which was ultimately cancelled in 2015. Two years after the earmark ban was enacted, the number of earmarks dropped to 152 and costed only $3.3 billion as Congress continued the process of weeding out earmark-like provisions.

Finally, earmarks also serve as a source of corruption. As The Heritage Foundation noted in 2006, “a growing body of evidence suggests that illegal and questionable lobbying practices are not uncommon and that incidents such as those involving Mr. [Jack] Abramoff have likely been repeated in similar transactions between other lobbyists and Members.” The Abramoff scandal resulted in 21 people — including one congressman and two White House officials — to either plead guilty or to be found guilty of corruption.

When did congressional Republicans ban the use of earmarks?

Former Speaker of the House John Boehner (R-OH) successfully led the effort to ban earmarks after the tea party wave of 2010 that ushered in anti-crony and fiscally responsible Republican members. The ban on earmarks has already saved taxpayers millions of dollars, created a more transparent appropriations process, and has made it harder for congressional leadership to ram through big-government legislation. Right after the election of Donald Trump, some congressional Republicans — led by Reps. John Culberson of Texas, Mike Rogers of Alabama, Tom Rooney of Florida, and Mike Kelly of Pennsylvania — attempted to lift the six-year ban on earmarks.

Current Speaker of the House Paul Ryan (R-WI) reportedly shut down the effort, telling Republican lawmakers that “We just had a ‘drain the swamp’ election. “Let’s not just turn around and bring back earmarks two weeks later.” Now, in a shocking turn of events, President Trump recently suggested that Congress should consider bringing back earmarks to help pass a massive infrastructure package later this year. The House Rules Committee will hold a hearing in January.

Claim and Response:

Aren’t earmarks irrelevant or at least a small share of the spending problem?

No. First, earmarks grease the skids by — for all intents and purposes — buying the votes of individual lawmakers who would not otherwise vote in favor of a specific bill. Those bills tend to be large, expensive and unpopular. Second, the American people will never give politicians the chance to reform large mandatory and entitlement programs that will bankrupt the country if they cannot demonstrate some semblance of fiscal responsibility. And regardless of the percentage, the cost of all earmarks in spending bills is real money.

Doesn’t the ban on earmarks hand spending control over to the executive branch and undermine Congress’ power of the purse?

There is no question the Constitution gives Congress the power of the purse, but that does not mean every special project is a constitutionally appropriate use of federal taxpayers’ money. That is even truer when spending should be reduced. Moreover, Congress sets the budget, authorizes spending and appropriates funds to federal agencies and to new programs without the use of earmarks. Congress can even defund specific federal programs or agencies if they so desire. If members of Congress have an issue with how the current system appropriates funds, the answer is to change the formula, not bring back earmarks.

Without earmarks, aren’t spending decisions left to “unelected bureaucrats?”

The legislative branch routinely delegates significant authority to unelected bureaucrats at the programmatic level. For example, the legislative text of Obamacare was roughly 2,700 pages long, whereas the regulatory implementation of Obamacare required well over 20,000 pages. Conservatives fully support taking away power from unelected bureaucrats, but that should come in the form of rigorous oversight and well-drafted legislation. The time-consuming focus on earmarking, by personal offices as well as committees, is a distraction that actually makes the effort to strengthen transparency and accountability in lawmaking even harder.

Don’t constituents want federal funding to benefit their district or state over another?

No. According to a 2016 Economist Group/YouGov poll, 63 percent of Americans approve of the ban on earmarks while only 12 percent disapprove. But even if this were true, it does not give Congress an excuse to do the wrong thing and betray the public’s trust in a “Drain the Swamp” administration.

Wouldn’t robust transparency measures address the concerns about corruption and overspending?

No. “The victory against secret earmarks will not directly affect Congress’s spending behavior,” wrote former House Appropriations cardinal Rep. Ernest Istook in 2007. Looking back at previous transparency efforts, Istook made clear that “All that Republicans won is the chance to save billions by allowing public scrutiny of earmarks. So far, not a penny has actually been saved, but now any Member can challenge any earmark on the House floor-and force colleagues to vote for or against each project.”

If Republicans do not reform the earmark process now, won’t Democrats bring them back without reforms if they return to power next year?

In 2011, then-President Barack Obama used his annual State of the Union address to issue a veto threat against all bills that contained earmarks. Thus far, congressional Democrats have remained relatively quiet as Republicans flirt with the idea of a return to earmarks. But as Republican Study Committee Chairman Mark Walker (R-N.C.) wrote: “If Republicans bring back earmarks, you can bet that Democrats plant the blame of every subsequent earmark on Republicans. It’s only a matter of time before there is another politically catastrophic “Bridge to Nowhere.”

Even CNN noted: “Democrats are likely to use the effort to revive earmarks as a midterm campaign issue, pointing out that a party that pledged to ‘drain the swamp’ is now preparing to re-institute a practice that prompted a major public backlash a decade ago.”


Solution: Uphold the Current Earmark Ban

One of the main tenets of conservatism is a limited federal government that spends no more than it takes in. Republicans consistently campaign on fiscal responsibility, lower spending, balanced budgets, and draining the swamp. They must live up to their campaign promises and refurbish the Republican brand as anti-cronyism and fiscally responsible. Therefore, the expectation is that Republican members will abide by the ban on earmarks. Failure to do so runs contrary to the will of the Conference and the American people.


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Advancing School Choice Through Military Educational Savings Accounts


Every child deserves the chance for a good, individualized education that can prepare him or her for a job and a bright future. What is sorely needed in education policy is not rigid federal government control but parent and student choice. Federal government intervention in elementary and secondary education has been growing for over half a century, during which time education spending has skyrocketed (on a per-student basis, federal spending on K-12 education has nearly tripled in real terms since 1970) and programs and regulations have ballooned. Yet the current public school system is failing far too many parents in terms of school satisfaction and far too many children in terms of student academic performance and outcomes. All parents deserve to send their children to the school or educational provider of their choice.

School Choice:

Conservatives are winning the debate on school choice at the state and local levels. Reforms adopted by states and school districts across the country increasingly reflect positive outlooks for K-12 education. More than half of states have created options for parents in recognition that choice (rather than monopolistic residential assignment schooling) provides better opportunities for all families, especially families with children with special needs.

Education Savings Accounts:

As The Heritage Foundation notes, a growing body of literature finds that school choice is associated with parental satisfaction, student safety, academic achievement, and increased graduation rates. An innovative school choice financing option known as Education Savings Accounts (ESAs) has seen great success at the state level. Arizona was the first state to establish ESAs: every quarter since 2011, the state government has deposited up to 90 percent of the base support level of state funding into a parent-controlled ESA for eligible students. Parents can then use that money to pay for a variety of educational options including private-school tuition, private tutoring, special education services, homeschooling expenses, textbooks, and virtual education, enabling them to customize an education for their child’s unique needs. Parents may also roll over funds from year to year, and they can use the money to invest in college savings plans to pay for college tuition in the future.

Military ESAs:

The schooling options available to children of military families can play a significant role in whether a family accepts an assignment, even factoring into decisions to leave military service altogether. Yet more than half of all active-duty military families live in states with no school choice options at all. According to a recent survey, 35 percent of respondents said that dissatisfaction with their child’s education was a “significant factor” in their decision to remain in or leave military service. As noted in a Heritage Foundation report, the Pentagon’s changes to policy in 2016 enabling families to remain at duty stations for longer time periods was a direct response “to complaints by military parents who are loathe to move if the next duty station has poorly performing schools. Those complaints stem from the fact that military-connected children are too often assigned to the district schools closest in proximity to military bases, regardless of whether those schools meet their needs.


Providing education choice to families in uniform is a national security issue. Since the federal government has exclusive responsibility to provide for the national defense, the education of military connected children has a special place at the Department of Education. Congress should transition funding for a federal program known as the Impact Aid program into ESAs for children from military families. This would provide children of active-duty military families with education choice, while ensuring the federal program serves military families as well as they serve the nation. Since it pertains to the U.S. military, the Impact Aid program represents one of the few federal education programs that have a constitutional warrant. Instead of filtering its current $1.3 billion in federal funding to district schools, and then assigning students to those schools based on where their parents are stationed, Impact Aid dollars should be directed to military ESAs. A military family could then choose to use the account to pay for any education-related service, product, or provider that meets the specific needs of their child.


The U.S. military is primarily funded by the National Defense Authorization Act (NDAA), an annual bill that sets policies and budgets for the U.S. Department of Defense. This bill and the defense appropriations bill are Congress’s two annual major pieces of defense legislation. As mentioned above, Impact Aid pertains to the U.S. military and has a constitutional basis that should be funded as defense spending. The NDAA presents the best possible vehicle for this policy and its funding. Heritage Action and conservatives are dedicated to including Military ESAs on this year’s NDAA.


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Co-Sponsorship of the Higher Education Reform and Opportunity (HERO) Act of 2017 (S.2228)

The Higher Education Reform and Opportunity (HERO) Act (S.2228), introduced by Sen. Mike Lee (R-Utah), would empower states with the option to develop their own systems of accrediting colleges and universities, individual courses and curricula, and apprenticeship programs. The HERO Act would decouple federal financing from accreditation so that federal dollars follow the student, not the institution, unleashing new and innovative approaches to higher education in the 21st century economy.

S.2228 is the Senate version of H.R.4274, introduced by Rep. Ron DeSantis (R-Fla.), with a few policy tweaks, including allowing additional state autonomy in their declaration of intent to the U.S Department of Education (ED) to implement HERO. Additionally, the Senate bill eliminates in-school interest subsidies, which is similar to a provision in the Higher Education Act reauthorization bill recently marked up in committee.

The current and outdated accreditation system administered by the U.S Department of Education creates a higher education cartel that locks out innovation and competition, resulting in higher costs and less choice for students and their families. Lindsey Burke, Director of the Center for Education Policy at The Heritage Foundation, describes the damaging effects of accreditation in her 2012 report Accreditation: Removing the Barrier to Higher Education Reform:

With regard to colleges and universities, accreditation has become, first and foremost, a barrier to entry. Indeed, the accreditation system has morphed into a powerful and rigid system whereby a few large regional and national accrediting agencies have a tremendous amount of power over higher education. This system, in turn, creates massive and expensive headaches for existing colleges and universities; crowds out new higher education start-ups; and creates an inflexible and questionable college experience for students who, in order to be eligible for federal student aid, have little choice but to attend accredited institutions.

The HERO Act would allow states to work with a variety of educational institutions, nonprofits, and even businesses to accredit high-quality alternative education programs and individual courses so students are equipped with directly applicable skillsets employers are looking for and our global competitive workforce demands. Heritage Foundation policy analysts Jamie Hall and Mary Clare Amselem make the case for higher education reform clear:

With outstanding student loan debt now exceeding $1.4 trillion and another $1.3 trillion in new federal student loans expected to be originated in the next 10 years students and taxpayers have much to gain from accreditation reforms that increase learning options and lower costs.

Any changes to the Higher Education Act of 1965 should incorporate the much-needed reforms outlined in the HERO Act.  

***Heritage Action supports the HERO Act (S.2228) and will include CO-SPONSORSHIP of this legislation in our scorecard.***


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Memo: Fiscal Sanity in the Year End Budget Deal

To:                Interested Parties
From:          Heritage Action for America
Date:            December 05, 2017
Subject:    Fiscal Sanity in the Year End Budget Deal (PDF)

Government funding for defense and domestic agencies will expire after Friday, December 8. Congress is expected to vote on a temporary two spending bill – a continuing resolution, or CR – to further negotiations over an omnibus spending bill that funds the remainder of the fiscal year.

Conservatives are rightly concerned that a funding deadline the Friday before a major holiday is disadvantageous to good policy making. It would empower some lawmakers that are seeking to exploit the last minute nature of a government “shutdown” while Americans are spending time with their families. Those lawmakers are seeking a budget deal that defies fiscal sanity – raising out-of-control spending without any enforceable fiscal restraints – and an untold number of big-government policy add-ons ranging from Obamacare bailouts to amnesty.

A Conservative Budget Deal

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Eliminating the Diversity Visa Lottery the Right Way

To: Interested Parties
From: Heritage Action for America
Date: November 08, 2017

On October 8, 2017, the White House released a letter from President Trump to Congress outlining several “principles” for immigration reform. The letter called for ending “extended-family chain migration by limiting family-based green cards to spouses and minor children” and replacing these policies with a “merit-based system that prioritizes skills and economic contributions over family connections.” The letter also called for elimination of the diversity visa lottery.

The Halloween terrorist attack in New York City drew attention to a decades old immigration program known as the Diversity Immigrant Visa Program because the 29-year old suspect, Sayfullo Habibullaevic Saipov, used it to migrate to the United States from Uzbekistan. Following the attack, President Trump reiterated his support for eliminating the Diversity Immigrant Visa Program, or “diversity visa lottery.”

The Heritage Foundation has long opposed the diversity visa lottery, calling for its elimination and replacement with a system that favors employment-based visas and merit-based applicants. While the terrorist arrested in the New York City attack used the visa system to enter the United States nearly a decade ago, this is not a failure of the current vetting system in general or the suspect’s visa in particular.

Saipov is a homegrown terrorist who was radicalized in America subsequent to his legal entry. James Carafano, an expert in national security and foreign policy at Heritage, makes this point in The Daily Signal: “No visa program per se represents a particular terrorist threat if proper vetting and security practices are in place,” adding:

Proper measures are determined by competent risk assessments. Terrorists have tried every manner to come to the U.S. that can be imagined. If we banned a method of travel because a terrorist tried to use it, we would have to ban all travel to the U.S. The president was right to criticize the lottery visa—it’s not a useful or efficient or appropriate tool for determining who should immigrate here. We need a merit-based system.

Brief History

The U.S. State Department, which administers the diversity visa lottery using U.S. Citizenship and Immigration Services (USCIS) vetting processes and data, explains that Section 203 of the Immigration and Nationality Act (INA) provides for a category of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States.

The diversity category was added to the INA by the Immigration Act of 1990 and awards green cards, or legal permanent residence, to eligible applicants among six geographic regions with no single country receiving more than 7 percent of the total available visas in any one year. The State Department recently stated that 50,000 diversity visas will be available for fiscal year 2019, the application period of which closes on November 22, 2017.

Like numerous other government programs that award a valuable commodity – in the diversity lottery’s case, green cards or legal permanent residence – the program is subject to fraud and abuse. The U.S. Government Accountability Office found pervasive fraud in the program, concluding in a 2007 report:

Since its inception, the DV [diversity visa] program has facilitated thousands of individuals from countries currently underrepresented in the U.S. immigrant pool to immigrate to the United States. However, consular officers at 5 of the 11 posts we reviewed reported that fraud in the DV program is a major challenge […]. While fraud is an issue across all immigrant visa categories, there are specific aspects of the DV program […] that make it particularly vulnerable to manipulation from an unscrupulous visa industry in some countries.

As the State Department’s Office of Inspector General (IG) plainly summarized in a warning years earlier, “The DV [diversity visa] program is subject to widespread abuse.”

A Better Approach

As noted above, the application period for the next round of diversity visas closes on November 22, 2017. Recent media reports suggest that the president and several Senate Republicans will meet to discuss “progress on Capitol Hill thus far of any legislative fix to the end of the Deferred Action for Childhood Arrivals [DACA] program” or a potential “DACA fix.” Another report suggests Senate Republicans are “looking to move an immigration bill to the floor early next year.”

Any proposed deal to simply swap elimination of the diversity visa lottery with blanket amnesty for DACA recipients should be a nonstarter. Neither of these policies would address the underlying problems in our current family-based, or chain-migration, system which prioritizes immediate relatives before meeting the more pressing needs of our country – including demand for high-skilled migrant applicants seeking employment-based visas.

Congress could simply amend the Immigration and Nationality Act to eliminate the diversity immigrant program altogether. Rep. Bill Posey (R-Fla.) proposed a bill to do just that (H.R.1178). Indeed, as the Congressional Research Service (CRS) outlined, recent Congresses have attempted to eliminate the diversity visa lottery. Legislation similar to H.R.1178 passed the House in 2005 after a thorough committee process. However, the effort was subsequently blocked by Senate Democrats.

Beyond eliminating this misguided and pervasively fraudulent program, a rational immigration policy – one that makes sense for our nation’s economic needs – would reallocate the 50,000 visas in favor of awarding visas to foreign-born graduates of U.S. universities who earn advanced degrees in science, technology, engineering, and mathematics – or STEM.

According to State Department statistics on numerically-limited immigrant categories, as of November 1, 2016, the number of applicants on waiting lists in employment-based preference categories totaled 4,367,052. In other words, Congress mandated that USCIS and State – agencies it has tasked with administrative responsibilities to meet our nation’s immigration needs – vet and award thousands of visas annually under the moniker of “diversity” while leaving millions of prospective workers on a waiting list.


Lawmakers should take concrete steps to end the Diversity Immigrant Visa Program and begin reforming our legal immigration system to serve American interests in the 21st century. Specifically, Congress should reduce costly, low-skilled immigration, eliminate blanket family-based chain migration, and move toward a rational, merit-based migration system.

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