Ashley Lawrence

Return of Congressionally directed spending?

Several press reports indicate that Congress may return to the practice of including line items for specific projects in this year’s appropriations bills (referred to either as congressionally directed spending or earmarks) and perhaps include them in an upcoming infrastructure package. It appears that both the House and Senate leadership, the Chairs of the respective Appropriations Committees, Senator Patrick Leahy (D-VT) and Congresswoman Rose DeLauro (D-CT) and the Chairman of the House Transportation and Infrastructure (TNI)  Peter DeFazio (D-OR), all have signed off on the return to so-called earmarks. Earmarks provide a way for individual members to advocate for their districts, and may serve as a means to build support for major legislation.  

At this point, it is not clear if the House and Senate Republican leadership and the top Republicans on the Appropriations Committees, Senator Richard Shelby (R-AL) and Congresswoman Kay Granger (R-TX), and the ranking member of the TNI Committee Sam Graves (R-MO), will also go along. It is possible that there could be a divide among Congressional Republicans. Minority Leader Mitch McConnell and Senator Shelby have a long history of inserting home state projects in annual appropriations bills but the House Republican leadership and the influential Freedom Caucus has opposed this process in the past. 

How did earmarks go away?

In response to congressional concern over the earmarking process, in the 110th Congress (2007-2008), the House and Senate codified earmark disclosure requirements in the legislative process rules for their respective chambers with the stated intention of bringing more transparency to the earmarking process.

As concern over earmarks continued, in the 112th Congress (2011-2012), in 2011, the House and Senate effectively banned the earmark process, by observing what has been referred to as an “earmark moratorium” or “earmark ban.” The moratorium does not exist in House or Senate rules, only in the Democratic and Republican Caucus rules, which means that the Democrats can unilaterally reinstitute the process without needing to pass a controversial rule change on the House and Senate floors.

How might the new process work?

Most of the current Members of Congress have no experience with the earmarking process. Only one-third of the House Members and one-half of the Senators were in Congress prior to the 2011 moratorium.

The Democratic Committee chairs are likely to announce a new process that will likely build on previous transparency, disclosure and other reforms.

If Congress adopts this change it will likely include:

  • A prohibition on earmarks to corporations and for-profit businesses.
  • Restrictions on what type of entity might be eligible to receive such funds. It is likely that only governments and non-profits that provide government-like services to citizens or communities will be eligible.
  • A limit on the total amount for each earmark (and potentially a 1 percent cap of total earmarks on the spending level in any funding bill).
  • A requirement that each line item appropriation include a publicly available description, purpose, any potential matching funds required, etc. 
  • A signed disclosure by each Member of Congress certifying that the Member has no financial interest in the earmark.

Earmark examples from the Fiscal Year 2010 appropriations bills

Congress rarely includes earmarks in the actual legislative text of the bill or what becomes the statute. These line items are mostly found in tables and committee report language accompanying the legislative text. While the earmarks do not become law, both Democratic and Republican Administrations have honored them as if they were in the statutory language.

Here are some examples of earmarks from the Fiscal Year 2010 appropriations bills.

  • Marshall University, Huntington, WV Forensic Science Center DNA Laboratory, $4,575,000
  • Miami-Dade County Public Schools, FL Technological Equipment Upgrade For Miami-Dade Schools Police Department, $600,000
  • Oglala Sioux Tribe Department of Public Safety, Pine Ridge, SD, $1,200,000
  • Armstrong Atlantic State University, GA, Cyber Security Research Institute, for curriculum development, including purchase of equipment, $457,000
  • Fayette County Schools, Lexington, KY for a foreign language program $2,500,000
  • University of Texas, M.D. Anderson Cancer Center, Houston, TX for a comprehensive cancer control program to address the needs of minority and medically underserved populations $500,000
  • Good Samaritan Hospital, Los Angeles, CA for facilities and equipment $400,000
  • Hawai’i Community Foundation, Hawai’i Marine Fund, $1,000,000
  • Street and Utility Reconstruction Main Avenue, Park Rapids, MN $730,500
  • Sumner County Regional Airport, TN, Airport Road Re-Location, $1,500,000
  • Grade Separated Railroad Crossing, Northlake, TX $500,000
  • Northwest New Jersey—Northeast Pennsylvania Passenger Rail Project, NJ/PA, $974,000
  • Ames Transit Facility Expansion, IA $750,000
  • Ohio Clean & Green Statewide Bus Replacement Program, OH $692,200
  • Brewer Business and Commerce Park, Brewer, ME, $1,280,000
  • Baltimore City Schools, Baltimore, MD Career and Technology Pathways $350,000

PRESIDENTIAL PREVIEW: The Battle for 1600 Pennsylvania Ave

With a weekend to go before election day, the Dentons Public Policy team looks at the political climate, the polling, the battlegrounds and how and when the nation could learn the winner in our presidential preview, “The Battle for 1600 Pennsylvania Ave Report.” We believe the outcome of the presidential election will depend, to a significant degree, on whether voters view the race as a choice between two alternatives, each with positive and negative factors, or as a referendum on the President’s leadership. Pre-pandemic, President Trump was prepared to run hard on his record. But the pandemic robbed him of his strongest argument for re-election—a booming economy—leaving him no choice but to focus on Joe Biden’s flaws. 

Whether the American people are buying this line of attack remains to be seen, but recent polls suggest it is not working.

On Wednesday morning, November 4, our Public Policy team will be issuing a detailed report on the election results that are then available. We will be updating this report later in the day, and on succeeding days as necessary, to provide not only the presidential results but a comprehensive picture of what the next US House and Senate will look like. 

Whatever the outcome of the elections, once it becomes clear who will be taking the oath of office on January 20, 2021, and who will control the Congress, we also will be releasing additional reports that profile many of the people who are expected to play key roles in the next administration and that explore the central elements of, and prospects for, the legislative agenda of the winning presidential candidate.