Hogan Lovells

Last month House Appropriations Chair Rosa DeLauro (D-CT-03) unveiled a proposal to return to congressional directed spending (i.e., earmarks) in what is being called “Community Project Funding.” DeLauro’s proposal was not much of a surprise as congressional Democrats have been publicly eager to reinstate earmarks since taking control of both chambers.

The Republican conference, which first initiated an earmark moratorium in 2011, has been sharply divided over the issue and it was unclear whether House Republicans would embrace a reformed system proposed by Chair DeLauro. 

However, any doubts were laid to rest this week as the House Republican conference voted to lift the decade-long ban on earmarks through secret ballot. With this approval, the FY2022 appropriations process will include congressionally directed spending in the House. 

Senate Republicans are still working on an agreement to reinstate earmarks, but chances are looking good as the highest ranking Republican on the Senate Appropriations Committee, Richard Shelby (R-AL) is supportive of returning to the practice. 

A summary of new reforms and existing standards that will remain released by the House Appropriations Committee for earmarks is below. 

New Reforms for Community Project Funding

Transparency Requirements
  • All Requests Online: Members are required to post every Community Project Funding request online simultaneously with their submission to the Committee. The website must be searchable. The House Appropriations Committee will establish an online “one-stop” link to all House Members’ project requests.

  • Early Public Disclosure: To facilitate public scrutiny of Community Project Funding, the Committee will release a list of projects funded the same day as the Subcommittee markup, or 24 hours before full committee consideration if there was no Subcommittee markup.

  • No Financial Interest: Members must certify to the Committee that they, their spouse, and their immediate family have no financial interest in the projects they request. This is an expansion beyond the underlying requirements in House Rules in order to cover immediate families of Members.

 Eligible recipients: Who’s in and who’s out
  • Ban on For-Profit Recipients: There is a ban on directing Community Project Funding to for-profit grantees. Members may request funding for State or local governmental grantees and for eligible non-profits.

  • Cap on Overall Funding: The Committee will limit Community Project Funding to no more than 1 percent of discretionary spending.  

  • Member Requests Capped: The Committee will accept a maximum of 10 community project requests from each member, though only a handful may actually be funded.

Rigorous Vetting
  • Mandatory Audit: The Committee will require the Government Accountability Office to audit a sample of enacted community project funding and report its findings to Congress.    

Community Support
  • Demonstrations of Community Engagement: Members must provide evidence of community support that were compelling factors in their decision to select the requested projects.

Existing Standards

These reforms build on the requirements for accountability and transparency that are part of Rule XXI, clause 9 and Rule XXIII, clauses 16 and 17 of the Rules of the House. Those existing rules require the following:

  • No Member Financial Interest: The rules forbid any Member from pursuing 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 in writing that there is no such interest and make that certification available to the public. As noted above, the new Committee reforms will expand this requirement beyond existing House rules.

  • Request in Writing: Any Member requesting Community Project Funding must do so in writing, including the Member’s name, the name and location of the intended recipient, and the purpose of the spending item.

  • Committee Consideration: When reporting legislation containing Community Project Funding, the Committee is required to identify each item (including the name of each Member requesting the item) in the corresponding committee report or joint explanatory statement, and make it publicly available online in a searchable format.

  • Disclosure Before Floor Consideration: The rules prohibit a vote on a bill or a vote on adoption of a conference report unless the chair of the committee certifies that a complete list of Community Project Funding has been publicly available for at least 48 hours.

  • 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.

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