A Loophole in the Earmark Moratorium?

The post is bound to be controversial! But I can't help it given that the argument is so interesting. 

Legislative earmarks are directives in bills to fund specific projects or activities. Without getting into the efficacy of the process, the House and Senate Republican Conferences have adopted rules preventing congressional earmarks. Specifically, the Republican Conference rules place a moratorium on earmarks as defined by the standing rules of the House and Senate.

The moratorium applies to the text of the bills or the committee reports accompanying the bills, as well as conference reports and joint explanatory statements. That pretty much includes all legislative vehicles either authorizing programs or appropriating money. 

However, a congressional earmark has a very specific definition. Rule XXI clause 9 of the House defines an earmark as:

... a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit loan authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive process.

Senate Rule XLIV clause 5 defines an earmark as:

... a provision or report language included primarily at the request of a Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit loan authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or congressional district, other than through a statutory or administrative formula driven or competitive award process.

However, the President of the United States is explicitly excluded from the list of offices that can request an earmark. But you may be wondering how can the President request an earmark? Through the President's annual budget and supplemental appropriations requests. 

For instance, if the President wants Congress to include an earmark for a specific project all they have to do is include it in a budget request and Congress can fund that activity by as much as they choose. By awarding the President a requested earmark, Members of Congress who are aligned with the earmark would potentially avoid the limitations in place under the rules. 

Why may this process potentially avoid the earmark limitations? At the end of the day, the moratorium is a conference rule (not a House or Senate rule) without a point of order. If members of the conference decide that the moratorium applies to the President too, well, then it applies. 

However, it could easily be argued that the earmark moratorium offers a tremendous amount of power to the President who, through the Office of Management and Budget, could control the earmark process.