Introduction

On February 26, 2021, the House Committee on Appropriations announced that it will accept Member requests for Community Project Funding in appropriations bills for the upcoming fiscal year (FY2022).¹ In addition, the committee announced initial protocols governing requests for Community Project Funding, which include various requirements and restrictions. Individual subcommittees of the House Committee on Appropriations have also released subsequent guidance and restrictions governing Community Project Funding as it relates to specific appropriations bills.²

As noted by the committee, Community Project Funding requests will also be subject to the House rules and restrictions governing earmarks. This report summarizes House rules and recent committee protocols related to earmarks, including requirements for Members submitting an earmark, as well as the requirements of committees in disclosing earmarks.

House Earmark Rules

In the 110^th 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. Although Congress began observing an "earmark moratorium" or "earmark ban" in the 112^th Congress (2011-2012), the earmark disclosure rules in both the House and Senate have remained in place.³ The administrative responsibilities associated with earmark disclosure rules vary by chamber.⁴

While the term earmark has been used historically to describe various types of directed congressional spending actions, House rules generally define earmark as a congressionally directed spending, tax, or tariff policy that would benefit a specific entity or locality other than through a statutory or competitive award process. See below for the formal definition included in House Rule XXI, clause 9.⁵

House Rule XXI, clause 9(a), generally requires that certain types of measures be accompanied by either (1) a list of congressional earmarks, limited tax benefits, or limited tariff benefits that are included in the measure or its report or (2) a statement that the proposition contains no earmarks. Depending upon the type of measure, the list or statement is to be either included in the measure's accompanying report or printed in the Congressional Record.

House Rule XXI, clause 9(b), requires that a conference report to accompany a regular general appropriation bill include either (1) an earmark disclosure statement listing all congressional earmarks and limited tax and tariff benefits that were neither committed to the conference by either House nor contained in a report of a committee of either House on such bill or companion measure or (2) a statement that the conference report contains no such provisions.⁶

To enforce these requirements, if either the disclosure list of earmarks or the statement that no earmark exists in the measure is absent, any Member may raise a point of order against the measure's floor consideration.⁷ The point of order applies only in the absence of such a list or statement and does not speak to the completeness or the accuracy of either document.⁸

Requirements and Procedures for House Members Submitting Community Project Funding Requests

Existing Requirements Under House Rules

Under the House Code of Official Conduct (House Rule XXIII, clause 17(a)), a Member, Delegate, or Resident Commissioner requesting a congressional earmark is required to provide a written statement to the chair and ranking minority member of the committee of jurisdiction that includes

• the Member'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 Member;
• the purpose of the earmark; and
• a certification that the Member or Member's spouse has no financial interest in such an earmark.⁹ (See below for the House Appropriations Committee's requirement that the certification cover the Member's immediate family as well.)

The House Committee on Appropriations has made available on its website a template for the letter and certification required under House Rule XXIII, clause 17(a).¹⁰

New Requirements and Procedures Under House Committee on Appropriations Announced Protocols

In the announcement released on February 26, 2021,¹¹ the House Committee on Appropriations noted that it would require Members submitting Community Project Funding requests to do the following:

• Submit no more than 10 Community Project Funding requests. Specifically, the committee stated, "The Committee will accept a maximum of 10 community project requests from each member, though only a handful may actually be funded."¹²
• Post all requests online, presumably on the Member's website. Specifically, the committee stated, "Members are required to post every Community Project Funding request online simultaneously with their submission to the Committee." The committee noted that "the website must be searchable."
• Demonstrate community support. Specifically, the committee stated, "Members must provide evidence of community support that were compelling factors in their decision to select the requested projects."
• Submit only requests for state or local governmental grantees or for eligible nonprofits. Specifically, the committee stated, "There is a ban on directing Community Project Funding to for-profit grantees. Members may request funding for State or local governmental grantees and for eligible non-profits."
• Certify that the Member, the Member's spouse, and the Member's immediate family have no financial interest in the Community Project Funding request. The committee notes, "This is an expansion beyond the underlying requirements in House Rules in order to cover immediate families of Members."

Additional Requirements and Procedures under Specific Subcommittee Protocols

Individual subcommittees of the House Committee on Appropriations have released additional guidance and restrictions governing Community Project Funding as it relates to specific appropriations bills.¹³

Some subcommittees have announced that they will not accept Community Project Funding requests (e.g., the Appropriations Subcommittee on Legislative Branch and the Appropriations Subcommittee on State, Foreign Operations, and Related Programs).¹⁴

Other subcommittees have identified the specific accounts for which Members may request Community Project Funding. For example, the Appropriations Subcommittee on Defense has stated that it will accept project requests for five accounts,¹⁵ and the Subcommittee on Homeland Security has stated that it will accept project requests for three accounts.¹⁶

Subcommittees have also provided logistical information related to Community Project Funding, such as the method for submitting requests and the deadlines for such requests.¹⁷

Requirements and Procedures for the House Committee on Appropriations

Existing Requirements Under House Rules

Under House rules, the earmark disclosure responsibilities of House committees and conference committees fall into three major categories:¹⁸

• 1. Committees of jurisdiction use their discretion to decide what constitutes an earmark. Definitions in House rules, as well as past earmark designations, may provide guidance in determining if a certain provision constitutes an earmark.
• 2. House rules state that in the case of any reported bill or conference report, a list of included earmarks and their sponsors (or a statement declaring the absence of earmarks) must be included in the corresponding committee report or joint explanatory statement.¹⁹ In the case of a measure not reported by a committee or a manager's amendment, the committee of initial referral must cause a list of earmarks and their sponsors, or a letter stating the absence of earmarks, to be printed in the Congressional Record before floor consideration is in order.²⁰ A conference report to accompany a regular appropriations bill must identify congressional earmarks in the conference report or joint explanatory statement that were neither committed to the conference by either House nor contained in a report of a committee of either House on such bill or companion measure.²¹
• 3. Each House committee and conference committee is responsible for "maintaining" all written requests for earmarks received—even those not ultimately included in the legislation or report.²² Furthermore, those requests that were included in any measure reported by the committee must be not only "maintained" but also "open for public inspection." Rule XXIII does not define these terms.

New Requirements and Procedures Under House Committee on Appropriations Announced Protocols

In the announcement released on February 26, 2021,²³ the House Committee on Appropriations noted that it would do the following:

• Establish an online "one-stop" link to all House Members' Community Project Funding requests.
• Disclose all Community Project Funding requests included in an appropriations bill before a full committee markup. Specifically, the committee stated, "To facilitate public scrutiny of Community Project Funding, the Committee will release a list of projects funded the same day as the Subcommittee markup, or 24 hours before full committee consideration if there was no Subcommittee markup."
• Limit Community Project Funding to no more than 1% of discretionary spending.²⁴
• Require the Government Accountability Office to audit a sample of enacted Community Project Funding and report its findings to Congress.