Cornell Law Review Volume 94 Issue 3

Listening to Congress: Earmark Rules and Statutory Interpretation

Many scholars have categorized legislative rules of procedure as precommitment devices—devices adopted by agents to bind themselves—drawing analogies between legislative rules and famous illustrations of precommitment: Ulysses binds himself to the mast near the island of the Sirens while Jane burns the bridges she crosses to leave Tarzan’s jungle, both to destroy the means to sate temptation.  Yet in the context of legislative rules, these analogies fail.  Precommitment devices typically utilize external forces to bind oneself; however, by decision of the Supreme Court and by action of the Congress, the latter reigns nearly supreme over its legislative rules, including those that nominally take the form of precommitment devices, such as earmark rules that require disclosure of special interest spending and tax legislation (respectively, “earmarks” and “limited tax benefits”).  It should not surprise, then, that Congress often strays from its precommitments.  Just as if Ulysses had hidden tools to loosen his ties or if Jane later discovered a fallen tree to provide a means of ingress, Congress possesses the ability to interpret, to enforce, and ultimately to undo its precommitment devices.  This Article proposes a straightforward solution to this problem: Extra-congressional forces—powers separate from, and hence able to constrain Congress—should be applied so that earmark rules more closely resemble precommitment devices in their purely binding form.  Recognizing that federal courts are unlikely to permit direct enforcement of earmark rules, this Article suggests a novel method of statutory interpretation that operates by imposing costs upon defectors from earmark rules and the interest groups they support, helping to ensure the success of a remarkable attempt by Congress to realize its better self.


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