Senate Republicans Could Enforce Earmark Ban If They Wanted To

The Senate can’t advance a five-bill minibus appropriations package because of Republican divisions over earmarks. Republicans on the Senate appropriations committee want to pass the package before the end of the year. To do so, Majority Leader John Thune, R-S.D., needs unanimous consent to add four appropriation bills to the House-passed Defense appropriations legislation (HR 4016) on the Senate floor. Reports indicate that Republican leaders are currently working to address senators' concerns with the package to secure its passage.  

Yet despite Republican leaders' efforts, the minibus remains stalled. Conservative Republicans are objecting to advancing it because the assembled package would contain over $5 billion in earmarks - in violation of the earmark ban in their conference rules. And pro-earmark Republicans on the Appropriations Committee object to removing earmarks from the minibus. They argue that Republicans’ prohibition in their conference rules is symbolic and that party members can't enforce it on the individual senators who request them.

But Republicans have tools to enforce party policies, such as their earmark ban. And Republicans could have avoided the current impasse if they were willing to use them.

Republican Conference Rules

Senate Republicans meet shortly after every election to adopt conference rules to regulate how they will make collective decisions in the new Congress. Those rules establish leadership positions, set elections to fill them, and determine the process by which the party allocates its share of committee seats and selects the party members who serve as chairs/ranking members on each panel.

The conference rules limit how long a Republican can serve in most leadership positions and as chair/ranking member of a committee. They also establish a seniority-based ranking system among Republicans, which gives lawmakers who have served in the Senate longer better committee assignments over time.

Republicans regularly approve resolutions at those meetings that establish party policy, like their earmark ban or clarify important precedents for how they resolved conference debates when their rules were silent, like senatorial courtesy in the confirmation process for judicial nominees.

In 2010, Republicans approved a resolution banning earmarks - or “congressionally directed spending items” - in their conference rules. And they voted to make that ban permanent in 2019. The Conference Rules presently stipulate “that it is the policy of the Republican Conference that no Member shall request a congressionally directed spending item.” Pro-earmark Republicans argued after Democrats revived the practice in 2021, however, that the party could not enforce the earmark ban against its members who violate it.

Enforcing Conference Rules

Senate Republicans can enforce their conference rules - including their earmark ban - by conditioning committee assignments, seniority status, and chair/ranking member positions on a party member's compliance with them.

Committee Assignments

The rules and practices governing how Republicans make committee assignments are outlined in the Standing Rules of the Senate and the Republican Conference Rules. Relevant provisions of these procedural authorities limit the number of committees on which a senator can serve and the circumstances in which they can serve on specific panels.

For example, Rule XXIV stipulates that the Senate assigns senators to seats on its standing committees in each Congress “by resolution.”  In practice, the Senate constitutes its committees at the beginning of every Congress by passing a simple resolution (or resolutions) specifying the majority- and minority-party senators who serve on each committee.

Republican Conference Rule V details how the party allocates its share of the Senate's committee assignments. At the beginning of every Congress, "all Republican Conference members shall be offered two 'A' committee slots in order of seniority. Newly elected senators are next offered one committee slot in order of seniority followed by another committee slot. Once all senators have chosen two committee slots, the Republican Leader makes any remaining assignments.”

The Republican Leader and the party’s Committee on Committees consider several factors when departing from seniority in making committee assignments. In the past, those factors have included seniority, senators’ preferences, committee importance, background, and experience. Once the process is complete, the Committee on Committees reports its proposed slate of committee assignments to the full Republican Conference for approval.

Seniority Status & Chair/Ranking Member Positions

Conference Rule V(E) establishes a seniority system among Republicans to guide the committee assignment process. That system allows Republicans who have served longer in the Senate to select specific committee assignments first. The result is that more senior Republicans get seats on powerful committees more often than their junior colleagues.

Rule V also defines the process by which the Republicans on each panel select their chair/ranking member. After senators have received their committee assignments, “the Republican members of each standing committee at the beginning of each Congress shall select from their number a chairman or ranking minority member, who need not be the member with the longest consecutive service on such committee, subject to confirmation by then Conference.”

What Republicans Could Have Done Differently

Republicans could have used their control over party seats on committees and panel chairs/ranking members to enforce their earmark ban before reaching the current impasse. Specifically, Republicans could have made it clear during the committee assignment process at the beginning of the present Congress that they expected party members assigned to the Appropriations Committee to comply with the earmark ban in their conference rules. Those rules allow Thune and members of the party’s Committee on Committees to consider various factors when assigning party members to committees. The full Conference also has an opportunity to make changes before it approves those assignments.

Once the committee assignment process was complete, Republicans on the Appropriations Committee could have demanded that Susan Collins, R-Maine, commit to enforcing the earmark ban in exchange for allowing her to serve as the panel’s chair. In 2004, Judiciary Committee Republicans refused to make Arlen Specter, R-Pa., chair of the panel until he committed to support President Bush's judicial nominees. In the event that Republicans on the Appropriations Committee refused to demand a commitment from Collins to enforce the ban, Republicans not serving on the panel could have insisted that she commit to complying with the conference rules before approving her selection. This is because the conference rules require the full Conference to approve, by majority vote, the party member selected by standing committee members to serve as chair.

The Takeaway

Senate Republicans’ conference rules are not merely symbolic. Republicans have expected party members to comply with them. And they could have taken steps in the recent past to make compliance with the earmark ban among Appropriations Committee Republicans more likely. Specifically, Republicans could have pressured party members to refrain from requesting earmarks in the appropriations process this year by conditioning party-bestowed positions of power on their past (and future) compliance with the conference rules.