The Return of Earmarks to Congress

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Earmarks are making a return to Congress. House Democrats have announced their intention to bring back earmarks after a moratorium lasting a decade. Removing the moratorium will give more power to individual lawmakers, especially Congressional members on the appropriations committees and the committees drafting the new infrastructure bill. It also provides stakeholders an opportunity to advocate for provisions and shape policy that is not necessarily included in the President’s budget.   

Earmarks are defined as any congressionally directed spending, limited tax benefit, or limited tariff benefit if it benefits a specific entity or state, locality, or congressional district other than through a statutory or administrative formula or competitive award process.

During the 112th Congress (2011-2012), Congress began to observe an “earmark moratorium” or “earmark ban” that prohibited members from requesting a congressional earmark. The ban is not codified in House or Senate rules and is not enforceable by points of order, but instead has been extended by every Congress through each party’s internal rules and committee protocols. 

New Appropriations Earmark Guidelines

In February 2021, House Appropriations Chair Rosa DeLauro (D-Conn.) announced the House Democratic Appropriations Committee would restore earmarks and rebrand them as “Community Project Funding.” This move will give lawmakers a greater ability to direct money to specific projects rather than allow the agencies, through the President’s Budget, to dictate the flow of appropriated money.  

The new reforms announced by Chair DeLauro include:

  1. Increased Transparency:
    • Members are required to post every request online simultaneously with their submission to the Appropriations Committee. 
    • The Appropriations Committee will release the list of projects funded before the full committee votes on the legislation.
    • Members must certify that they, their spouse, and their immediate family have no financial interest in the projects they request.
  2. Ban on For-Profit Recipients:
    • Members may not direct funding to for-profit grantees. Members may request funding for State or local governmental grantees and for eligible non-profits.
  3. Cap on Overall Funding:
    • “Community Project Funding” may constitute no more than 1 percent of discretionary spending.
  4. Enhanced Auditing:
    • The Government Accountability Office (GAO) will be required to audit a “sample” of community project funding and report its findings to Congress.
  5. Demonstrated community support: 
    • Members must provide evidence of community support that were compelling factors in their decision to select the requested projects.

The new reforms build on the current standards, which include:

  1. No Member Financial Interest:
    • Members are not allowed to pursue Community Project Funding to further his or her financial interest, or that of his or her spouse. Each Member requesting Community Project Funding must certify that there is no such interest.
  2. Request in Writing:
    • Members requesting Community Project Funding must do so in writing including the name and location of the intended recipient, and the purpose of the spending item.
  3. Committee Consideration:
    • When reporting legislation containing Community Project Funding, a Committee must identify each item in the corresponding committee report or joint explanatory statement, and make it publicly available online.
  4. Disclosure Before Floor Consideration:
    • Rules prohibit a vote on a bill or a vote on adoption of a conference report, unless the chair of the committee in question certifies that a complete list of Community Project Funding has been publicly available for at least 48 hours.
  5. Point of Order Against New Projects in Conference Reports:
    • A point of order may be raised against a provision of the conference report if it includes Community Project Funding that was not included in either the House or Senate bills.

Deadlines for Appropriations Requests

Each Member office typically sets a deadline for constituents to submit their appropriations requests. Deadlines vary by member offices, but the deadlines are usually around the end of March. This will give time for each member to submit their appropriations request to the Appropriation Subcommittees. 

This year, however, the submission deadlines will be later this Spring because the President’s budget will be delayed. The President will likely release his “skinny” budget mid-April and his full budget is expected in late May or June. Members and committees prefer to have the President’s budget before they start finalizing the budget requests. However, it is important for all stakeholders to submit their budget requests as soon as possible to allow members and committees time to process the increased member requests under the new earmark guidelines. 

Infrastructure and Transportation Earmarks

On March 3, 2021, House Transportation Committee Chairman Rep. DeFazio (D-OR) issued a "Dear Colleague" letter broadly outlining his plans regarding earmarks in the upcoming surface transportation reauthorization bill. The letter suggests a formal member submission process will be finalized toward the end of the month, which means the window for submissions may be relatively short. Chairman DeFazio suggested member offices begin compiling the following for their requests:

  • Basic project information.
  • Documentation that the project is on the state, tribal, or territorial transportation improvement program (STIP); and on the metropolitan transportation improvement program (TIP), if applicable.
  • Sources of funding for the full share of the cost of the project beyond the amount requested.
  • Letter(s) of support from the state's department of transportation, or local government, transit agency, or other non-federal sponsor.
  • A description of the process that has been or will be followed to provide an opportunity for public comment on the project.
  • Project phase (e.g. planning, final design, construction).
  • NEPA category of action (e.g. categorical exclusion, environmental assessment, environmental impact statement).
  • Status of environmental review.
  • Whether the project has received federal funding previously, and if so, the source and amount.
  • Certification that the member, their spouse, and other immediate family members do not have a financial interest in the project.

Democrats want to focus on drafting an infrastructure bill now that the COVID-19 relief bill passed Congress. The House wants to have a draft bill completed by Memorial Day. Given how quickly Congress intends to move, stakeholder should prepare their infrastructure requests as soon as possible.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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