The Real Earmark Problem Isn’t Secrecy—It’s Unconstitutional Spending

Washington has settled on a comfortable fiction: if a congressman posts his earmark request on a public website and certifies that he will not profit personally, the spending has been "cleaned up." The Constitution has a different view. The problem with an earmark is not that it was hidden. The problem is that it exists.

Congress banned earmarks in 2011 after years of abuse. In 2021, it brought them back, dressed up in online disclosure forms. Under current House and Senate rules, members must post their requests, provide a written justification, and certify that they and their spouses have no direct financial stake in the project. That is presented as reform.

But notice what the new rules do not require. They do not require a member to cite the enumerated power in Article I, Section 8 that authorizes the spending. They do not require a federalism analysis. They do not ask whether the project is a legitimate local responsibility. The form is about financial conflict, not constitutional authority.

That is the quiet shift. The debate has been reframed from "Should Congress spend money this way?" to "Did Congress spend money this way in public?" Transparency has replaced constitutionality as the standard. In a constitutional republic, that is not an upgrade. It is a substitute.

The Framers did not design this

James Madison dealt directly with the claim that the "general welfare" language gives Congress an open-ended spending power. In Federalist 41, he asked why the Constitution would bother enumerating specific powers if the general welfare phrase meant Congress could do whatever it wanted: "For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?"

The answer is that the enumeration exists to limit Washington. The Constitution gives Congress specific, delegated powers. The Tenth Amendment reserves everything else to the states and the people. A federal earmark for a local museum, a parking garage, or a bridge is not among the enumerated powers. Posting it online does not cure that defect. It merely documents it.

An originalist should have no trouble here. The text means what it meant when it was enacted. The Framers did not design a system in which a representative purchases consent with money taken from taxpayers in all fifty states and then buys political cover with a PDF. That is not the republic they gave us. In Federalist 45, Madison put it plainly: the powers delegated to the federal government are "few and defined," while those left to the states are "numerous and indefinite." An earmark database does not make a local project a federal power.

Disclosure changes incentives, not outcomes

The stated intention of earmark disclosure rules is to empower voters and watchdog groups to identify waste. That sounds reasonable. But as Thomas Sowell has spent a career explaining, we should judge policies by results, not by intentions.

What has actually happened? Earmarks have been transformed from a scandal into an achievement. Members now advertise the federal dollars they "secured" for their districts. The disclosure page is not a confession; it is a campaign mailer. A member who brings home a federally funded project gets credit with local voters. The fact that it was disclosed becomes part of the virtue: "I was transparent about fighting for you."

The voters, meanwhile, are expected to monitor thousands of these requests. That is not a serious theory of accountability. It is the Hayekian knowledge problem applied to oversight: no central authority-and no mass electorate-can process all the dispersed information needed to evaluate thousands of line items across the federal budget. Most citizens have jobs, families, and lives. They cannot become full-time compliance auditors. Disclosure does not solve the knowledge problem; it hands it to the public and calls it accountability.

A searchable database of earmark requests is not a decision-making tool. It is an invitation to do the impossible. When thousands of projects are listed, the individual citizen cannot weigh the merits of each one against every other legitimate use of the same dollar. The information exists, but the capacity to use it does not. That is the difference between making data public and making government accountable.

The Bridge to Nowhere wasn't secret

The most infamous earmark of the modern era was not hidden. The Gravina Island Bridge-the "Bridge to Nowhere"-was perfectly visible in a public bill. It became a national scandal only after it was so absurd that it turned into a punchline. That is not a governing strategy. That is a one-off media event.

Most earmarks are smaller, more boring, and below the outrage threshold. They survive not because they are secret, but because even with disclosure, nobody has time to catch them. A bridge in Alaska made the news because the name was irresistible. A grant to renovate a local theater in a Midwestern district does not. Transparency does not prevent bad spending; it just creates a searchable record of it. The mistake is believing that a public record is the same thing as public control.

Federalism is the cure, not more PDFs

If a project is worth doing, let the people who benefit from it pay for it. A local bridge, museum, or community center is a legitimate subject for state and local government. When Congress funds it, the link between who pays and who benefits is severed. A member of Congress becomes less a representative and more a middleman for redistributing other people's money.

That is the real corruption, and it is not financial. A congressman who funnels federal tax dollars to his district while neighboring districts-and every other state-pick up the tab is not guilty of bribery in the legal sense. He is guilty of something older: using public power to concentrate benefits on one group while dispersing costs across the whole country. The Founders called that faction. Madison warned against it in Federalist 10, not as a criminal act but as a structural threat to a free republic. The solution was not to make the faction's ledger public. The solution was to limit the government's power to hand out favors in the first place.

The conservative and constitutional answer to earmarks is not a better disclosure form. It is to reject the category. Congress should ban earmarks again. More fundamentally, Congress should stop spending outside its enumerated powers. A member who cannot point to constitutional authority for a project should not get to fund it just because the request is posted online.

I am not against transparency. Transparency is better than secrecy. But transparency and lawfulness are not the same thing. If a spending item is unconstitutional, making it visible does not make it legitimate. It makes it a well-lit violation. Sunlight is a disinfectant only when the underlying act is lawful. When the act itself is outside the bounds of the Constitution, sunlight does not cure it-it just helps everyone see the violation more clearly.

The objection

At this point someone will say, "Would you rather they hide it?"

No. Of course not. But that is the wrong question. It is like asking whether I would prefer a burglar to leave a note. I would rather the burglar not break in. A searchable database of earmarks is better than a hidden one, but it is not the finish line. The finish line is a federal government that spends only on the things the Constitution authorizes and leaves the rest to states, localities, and free people.

Earmark disclosure is an accountability placebo. It lets Washington pretend it has solved the problem while continuing the underlying practice. The ordinary citizen is not made freer by a public list of how his money was taken and spent. He is made freer when Washington does less, spends less, and obeys the Constitution.

The next time a politician boasts about a "transparent" earmark, ask not whether it was disclosed. Ask under which enumerated power it was authorized. If the answer is a quote from the general welfare clause and a link to a PDF, you already know the problem. The republic was not supposed to run on paperwork. It was supposed to run on limits.