Verizon had a radioactive situation on its hands.
Due to a series of mergers and acquisitions, the telecommunications giant owned land on Long Island that was once used to make nuclear fuel as part of Cold War atomic programs. Radioactive cleanup is costly, and the site has been the subject of numerous lawsuits from locals. So, every year since 2008, Verizon’s lobbyists have gone to Capitol Hill to convince the government to deal with the problem.
And Congress has obliged: putting language in a number of congressional reports directing the Army Corps of Engineers to prioritize cleaning up the old Sylvania site — thus relieving Verizon of some of the burden of fixing the environmental mess on Long Island.
Every year, Congress issues reports like this that accompany major spending or authorization bills to help agencies understand the programs lawmakers have approved and tell agencies how to spend the money they’ve been given.
But hidden within the text is language pushed by lobbyists and lawmakers for pet projects, everything from environmental regulations to defense contracts. These reports, known as joint explanatory statements, are rarely reviewed by lawmakers. They’re not bills in their own right and they aren’t subject to Congress’ rules — and past bans — on earmarks.
“When earmarks went away, the impulse to help constituent interests didn’t go away. Members who interface with appropriations got clever,” said Bruce Evans, a longtime Senate appropriations staffer.
Insiders call the secretive inclusion of these provisions as “shadowmarking,” “softmarking” or “fauxmarking.” While these reports do not carry the force of law, Hill veterans and agency staff say it is taken seriously and often treated as somewhere between a suggestion and an order. Agencies, after all, have to go hat in hand to Congress every year for funds to operate. As a result of this power dynamic, they will often do what Congress asks in nonbinding reports, just without the scrutiny of lawmakers, bureaucrats, journalists or the legal community.
And because they come out of a closed-door appropriations process and are rarely, if ever, modified by the full House or Senate, they’ve attracted the interest of lobbyists, trade associations and other special interests — who see them as a low-profile way to nudge the bureaucracy in a favorable direction without actually needing to pass a law.
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Babel Street, a company that makes social media-monitoring software largely for law enforcement, intelligence and military uses, built technology that could capture, analyze and instantaneously translate social media content from one language into another.
In 2015, it hired Les Spivey, a former appropriations committee staffer, to lobby Congress, according to lobbying disclosure reports. Earmarks were banned during this time frame — part of a stretch between 2010 and 2021 where Congress eschewed the practice in the hopes of bringing down spending and cleaning up corruption in the appropriations process.
Nevertheless, Spivey’s lobbying reports show his work was largely directed at the annual congressional appropriations and authorization bills.
In 2017, the congressional report included language directing the Department of Homeland Security to invest in better vetting of immigrants coming into the United States — a provision that a former Babel Street employee said was the result of work by the company’s lobbyists. The language did not mention Babel Street but perfectly encapsulated the capabilities that Babel could offer government agencies.
“It is crucial that DHS efficiently, effectively, and appropriately examine all relevant social media data sources from both conventional networks and the ‘dark web,’ with special emphasis on those networks used outside the U.S. where most of the postings are in languages other than English. In addition, DHS must maintain persistent access to these sources throughout the adjudication process,” the report instructed.
After that provision was included in a document called the joint explanatory statement accompanying a 2017 spending bill, Babel Street’s DHS business picked up. DHS had awarded it a $2 million contract in 2015 and nothing in 2016. In the months after the spending bill report, Babel got two more awards from DHS totaling $1.3 million. In 2018, it got three more contract awards totaling $1.8 million. Procurement documents show it has gotten at least one new award from DHS every year since 2017.
“There’s never a specific directive like ‘Lockheed Martin gets this money,’” said one former appropriations staffer turned lobbyist. “But if they’re the only ones who make this product, it’s clear.”When earmarks were banned, vague language started to show up in the congressional reports that companies could then take to agencies as evidence that Congress had authorized or directed them to buy a product, issue a rule or take some other action.
Some lobbyists have made a career out of the tactic. Spivey’s firm, Alpine Group Partners, listed “appropriations” work on more than 400 separate lobbying reports filed on behalf of more than two dozen clients during the period in which earmarks were banned. His firm collected about $14 million for the work, though Alpine often listed other issues besides appropriations in many of those reports. Spivey did not respond to a request for comment.
A review of other lobbying disclosures and joint explanatory statements shows that industry groups or special interests have successfully pushed Congress to include language on things like medical procedures, environmental regulations, technology procurements and much more in the nonbinding reports. These provisions never mention specific companies, but they push agencies toward actions that would financially benefit one company or another.
SentinelOne, a cybersecurity company selling software that scans computers and phones for possible cyberattacks, lobbied for language in a report accompanying the most recent spending bill calling for a “competitive, open, and transparent product selection process” when buying certain software that it manufactures — hoping to blunt the advantage of other entrenched competitors.
Illumina, a company that makes DNA-sequencing technologies, lobbied for language to nudge the Centers for Medicare & Medicaid Services to “develop guidance for state health officials on best practices.” It stands to benefit by selling its genomic testing services. And ID.me, a company that is trying to win government business for its identity-verification software, lobbied on language to encourage federal agencies to use multiple service providers to log into websites instead of an in-house service created by the GSA called Login.gov.
None of the lobbying firms representing companies in this story responded to a request for comment.
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An old congressional joke goes something like: “There are three parties on the Hill: Republicans, Democrats and appropriators.”
Every committee can issue reports, but two committees in both the House and Senate are particularly subject to the lion’s share of lobbying on their report language: appropriations and armed services in both chambers. They are the only two committees in Congress that regularly pass legislation every year, either to fund the government or to authorize defense programs.
“The bill is lit up like a Christmas tree. A 6,000-foot-tall Christmas tree with 1 billion lights,” said one former Hill staffer of the annual National Defense Authorization Act.
Defenders of this process say it’s a natural extension of a system of divided coequal branches of government.
“Congress is the legislative body that should be directing how agencies behave,” said Daniel Schuman, who runs the nonprofit American Governance Institute.
Are these reports a vehicle for special interests? “Yes. It’s a vehicle for all interests — special and otherwise,” Schuman said.
Report language can actually improve government operations and transparency. Schuman pointed to language over the years that has successfully prodded agencies to declassify secret court opinions or legal analyses, post critical watchdog reports and a myriad of other measures to make government more transparent.
Still, some ethics experts say the process is far too opaque. When Congress brought back earmarks in 2021, new transparency and ethics requirements were put in place. Lawmakers have to publicly disclose the earmarks they request, and the money is not supposed to go to for-profit entities.
None of that applies to “fauxmarks” in joint explanatory statements.
“It’s another example of how members get provisions into legislation that doesn’t follow the rules required for most other kinds of spending,” said Thomas Schatz, the president of the group Citizens Against Government Waste and a longtime opponent of earmarks and other congressionally directed spending.
“On the transparency side, we don’t know who put those provisions in,” Schatz said. “It’s hard to tell if there are no members’ names attached to those. In every case, they are less transparent than earmarks.”
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Correction: A previous version of this article referred to joint explanatory statements as conference reports. These are separate documents.
Byron Tau is a reporter at NOTUS.