This Comment explores the troubling phenomenon of “lettermarking,” which occurs when Members of Congress write to personnel in administrative agencies to request appropriations that would benefit their donors and constituents. Although lettermarking has exploded in popularity since both houses of Congress adopted a moratorium on earmarking in 2011, nothing has been written about this practice in legal scholarship.
This Comment fills that gap by providing a descriptive account of lettermarking and by suggesting ways to curb this pernicious practice. Part I documents the rise of lettermarking and explains how lettermarks damage American democracy. Part I also discusses Executive Order 13,457, promulgated by President George W. Bush in an attempt to control lettermarking. We explain why EO 13,457 has not been enforced and suggest that some supplementary control mechanism — preferably one that relies on private actors — will be needed to curb lettermarks.
Part II suggests that unsuccessful grant applicants may be able to fill this role by suing agencies that considered lettermarks when deciding which projects to fund. Indeed, since lettermarks induce agencies to act on the basis of extraneous political pressure, they violate several legal rules that require agencies to make decisions through merits-based processes.