Citations (2)


Footnotes (339)



Listening to Congress: Earmark Rules and Statutory Interpretation

Rebecca M. Kysar

Brooklyn Law School

94 Cornell Law Review 119
Brooklyn Law School, Legal Studies Paper No. 122

In the wake of recent scandals involving lobbying and special interest spending on Capitol Hill, each of the houses of the 110th Congress adopted unprecedented legislative, procedural rules that require broad disclosure of spending earmarks and tax provisions that benefit special interests. Recognizing the strong incentives for members of Congress to hide special interest deals within complex tax and spending legislation and through ambiguous drafting, scholars have long sought to bring such deals into the open in order to promote congressional deliberation and public accountability. Although the new reforms appear designed to address that laudable goal, the efficacy of the rules is doubtful given their self-referential status; that is, they rely upon the foxes to govern administration of the henhouse.

This Article begins by describing various tactics legislators have used or will likely use to evade the new disclosure regime, as well as deficiencies in the regime's design. The piece then explores the value of enlisting a force external to Congress as a response to the inherent weakness of endogenous, procedural rules. It concludes that although direct judicial review of legislation for compliance with the rules likely raises constitutional difficulties, judicial involvement through statutory interpretation offers a potential solution. Specifically, when interpreting ambiguous legislation that falls within the ambit of the disclosure rules, judges should assume the rules have functioned correctly; in other words, if no special interest beneficiary has been disclosed, judges should assume that none was intended and interpret the ambiguous provisions accordingly. The proposal thus strengthens congressional adherence to the rules by imposing costs upon defecting lawmakers, as well as the special interests they support. It does so, however, without offending the constitutional mandate that lawmakers have purview over such rules. Hence it offers a counterpoint to the entrenched view that Congress cannot truly precommit itself through procedural rules. Furthermore, because this method of statutory interpretation is guided by Congress's own remedy to the problem of special interests, it differs in an important respect from prior scholarly proposals for narrow interpretation of special interest legislation, making it more resilient to the critique that the interpretive mode exceeds the judicial function.

Number of Pages in PDF File: 69

Keywords: earmark, special interest, lobbying, legislative rules, good government, statutory interpretation, tax, spending, budget

JEL Classification: H60, H61, E62, H20, K34, D72, P16

Open PDF in Browser Download This Paper

Date posted: March 12, 2008 ; Last revised: April 12, 2012

Suggested Citation

Kysar, Rebecca M., Listening to Congress: Earmark Rules and Statutory Interpretation. 94 Cornell Law Review 119; Brooklyn Law School, Legal Studies Paper No. 122. Available at SSRN: https://ssrn.com/abstract=1105224

Contact Information

Rebecca M. Kysar (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

Feedback to SSRN

Paper statistics
Abstract Views: 1,682
Downloads: 207
Download Rank: 116,124
Citations:  2
Footnotes:  339