"An earmark moratorium shows that elected officials are serious about restoring trust between the American people and those who are elected to represent them," House Speaker John Boehner said at the time.
Denied the use of their time-honored negotiating tool, however, legislators are beginning to exploit a loophole in the ban by turning to a far more obscure strategy to seek funding for their constituencies, one that is appropriately being referred to as "phonemarking."
With earmarks, members of Congress tuck pet projects — such as funding for roads or research in their districts — into a piece of legislation in exchange for their vote.
With phonemarking, legislators bypass the open process of adding requests to bills and instead use their clout to call federal agencies directly and request grants for their constituencies.
And members of Congress aren't the only ones appealing directly to agencies. D.C. lobbyists are beefing up their grant-writing efforts, hoping to protect against pork-barrel funding cuts, according to The Washington Post. Lobbyists can also urge members of Congress who sit on committees overseeing agency funding to call and request that the agency allocate money to a specific project.
These tactics are largely untracked, with no clear way of knowing which phone call had any pull.
An executive order issued during the Bush administration calls on agencies to publish spending decisions, but the order is vague and hardly enforced. The Sunlight Foundation, a non-profit dedicated to uncovering special interest influence in Congress, is currently requesting data on phonemarks.
There are other loopholes waiting to be exploited, too. The House's ban targets for-profit earmarks — that's money directed to contractors and firms. It would not apply to nonprofits or universities. But this is where things get murky. Universities receiving earmarks often sub-contract with businesses, meaning a for-profit entity still stands to pull in the pork.
In addition, the Senate has not agreed to any ban. That means, at least for now, House members could seek favors from Senators and ask them to take up their district's projects — another activity that cannot be tracked.
While earmarking gets a lot of attention, it actually makes up less than one half of one percent of federal spending. As The New York Times reports, a ban means many worthwhile projects and programs will go unfunded, but so will projects like the infamous "bridge to nowhere."
But with lobbyists and legislators finding new and more devious ways to earmark, Capitol Hill ethics organizations such as the Sunlight Foundation question whether it will be trust and transparency that really end up getting burned.