Earmarks shall be abolished by requiring that Congress shall not pass any law without a vote, and all votes are to be public, recorded, and published.

All Bills and each and every provision thereof or amendment thereto shall be passed by Congress as provided in the Constitution by votes, and all votes shall be public, be recorded, and be published by voter.

Earmarks are a form of special legislation —  that is, the legislation benefits a few people but not the people generally. They are frequently approved in conference committee to avoid debate. In effect, Congress directs that a certain amount of an agency’s budget be spent on specific projects thereby removing discretion over the funds from others. Earmarks are synonymous with what we call “pork barrel projects.” 

State constitutions and by implication the U.S. Constitution prohibit special legislation. Special legislation is, in effect, conferring legislative favors on some and not on others. The courts have consistently validated what appears to be special legislation if the beneficiaries fall within a classification deemed reasonable. Thus, for example, in Colorado commercial property is taxed at a higher rate than residential property because the classification of the two is deemed reasonable.

Earmarks are a classic form of special legislation by which Congress confers favors on its members in exchange for votes. We have all heard about the “bridge to nowhere” in Alaska. Most members of Congress are publicly against earmarks, but they continue to approve them unabashedly. Through legislative sleight of hand, earmarks are permitted because voting on them is usually obscured to shield our representatives from accountability.

Would a constitutional amendment opposing special legislation solve the problem? Although such a rule might solve the problem, it would also lead to ingenious classification strategies and result in considerable litigation. For that reason, we have elected to remedy this problem, not with a prohibition on special legislation, but with a requirement that there be a publicly recorded vote on every appropriation bill. In this fashion, members of Congress who oppose earmarks can offer amendments to delete them and force a vote on the amendment which, in due course, will allow citizens the opportunity to vote against persons who say they oppose earmarks but yet vote for them. Also, if the President has a line-item veto, he is in a position to be rid of them and acts at his political peril by approving them.

Voting discipline is another way of eliminating earmarks. Congress currently passes laws by different means including a show of hands, voice votes and roll call votes. The roll call vote is the only method by which a member of Congress has his vote for or against a measure officially recorded and published. In the old days, other means of voting were appropriate because of the time required to vote. However, today, with the electronic and technological improvements that have occurred, voting on any issue is as simple as pushing a button. By requiring votes on all measures, members of Congress lose the ability to hide behind the shield of an unaccountable vote or avoid taking the position on a matter deemed important enough to be voted upon by Congress. People were not elected to Congress to vote “present” but to be leaders for their country and their State and to take positions. Those positions should be known and recorded so that we have a healthy government.