Earmarks and Limitations in Appropriations Bills

Sandy Streeter

Analyst in American National Government
Government Division

Updated January 11, 1999

98-518

An annual appropriations act is generally made up of separate paragraphs, each of which provides funding for specific agencies and programs. Generally, each paragraph corresponds to a unique account and provides appropriations for multiple projects and purposes as a single lump sum. Earmarks and limitations are two devices regularly used in annual appropriations acts to restrict, or more precisely direct, the availability of funds for specific projects or purposes of an account. Sometimes an earmark or a limitation may generate more interest or controversy than the total appropriation.

Earmarks

An earmark refers to funds set aside within an account for a specified purpose. Sometimes earmark refers to any congressional set-aside for a specified program, project, activity, institution, or location. At other times, the term more narrowly refers to set-asides for individual projects, locations, or institutions. For example, an appropriations bill including $100 million for a construction account may set aside $10 million of the construction funds for a particular project. In addition to setting aside funds, the earmark might also provide spending floors by stating that not less than $10 million must be used for the specified project.

Some earmarks are included in the text of appropriations measures, floor amendments, and conference reports to such measures. If enacted, these earmarks are legally binding.

Most earmarks, however, are included in the Senate and House Appropriations Committees' reports explaining a measure as reported. Earmarks are also frequently included in the managers' joint explanatory statement (or managers' statement) that accompanies the conference report. Committee reports and managers' statements do not have statutory force; departments and agencies are not legally bound by their declarations. These documents do, however, explain congressional intent and frequently have effect because departments and agencies must justify their budget requests annually to the Appropriations Committees.

Under the Line Item Veto Act of 1996 (P.L. 104-130, 100 Stat. 1200), the President was allowed to cancel an earmark of discretionary spending in an appropriations act or an earmark in a committee report or managers' statement associated with the act. On June 25, 1998, the Supreme Court ruled the Line Item Veto Act unconstitutional.

Limitations

A limitation places a restriction on the expenditure of funds provided in an appropriations bill, either by prohibiting a use of funds for a specified purpose or by setting a spending ceiling. Congress is not required to provide funds for every agency or purpose authorized by law. It may provide funds for some activities or projects under an agency, but not others. For example, there may be several programs, projects, or activities included in a construction account within a particular agency. A limitation could state that none of the funds provided for the account could be used for a specific project in the account; the funds could only be used for other authorized programs, projects, or activities in the account.

Limitations may also set spending ceilings prohibiting no more than a particular dollar amount to be spent. Such limitations are typically applied only to specified programs, projects, and activities.

Under House rules, limitations cannot change existing law (clause 2 of House Rule XXI) nor amend or repeal existing law nor create new law. Therefore, limitations cannot directly change the duties of executive officials nor can they inevitably have that effect.

Limitations may apply to a single account, several accounts, a title, or a bill. They may be included in appropriations bills, floor amendments, and conference reports. Limitations are also included in committee reports and managers' statements. As with earmarks, limitations included the text of the legislation is legally binding; limitations provided only in the committee reports and managers' statements are not legally binding, but may have effect.

In the House, limitations may restrict the use of funds in a bill or part of a bill but may not limit the use of funds provided in other acts. Limitations also may not extend beyond the fiscal year for which an appropriation is provided; the House may waive these prohibitions by adopting a special rule. No similar prohibitions are in effect in the Senate.

Under House rules, limitation amendments generally must be considered after all the other amendments have been considered. Only the majority leader (or his designee) may prevent consideration of permissible limitation amendments by making a motion to "rise and report," effectively ending consideration of a measure. If a majority votes for the motion, no more amendments may be considered. If the motion fails, the majority leader may again propose it after a limitation amendment is voted on (see clause 2 of House Rule XXI). No similar procedure restricts the consideration of limitation amendments in the Senate.