C. Randall Nuckolls

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

2020 Presidential Election: Where Things Stand

November 3rd is nearly two weeks in our rear view mirror – here is what we know. Most major news outlets have called the race for former Vice President Joe Biden, but President Donald Trump has refused to concede, and has filed a string of lawsuits around the country challenging the results of the election. We leave the politics aside and provide you with an overview of where things stand in the certification process in key states, and what is required to happen between now and Inauguration Day by federal law.

Vote Certification – and the Electoral College

Congress enacted the Electoral Count Act of 1887 to set forth a uniform process for states to follow to deliver their electoral votes to Congress after the election. Congress ultimately counts and certifies the results of the Electoral College, this year on January 6th, three days after the new Congress is sworn in on January 3rd. In order for a state’s electors to receive protection that Congress will accept their electors without any questions asked, a state must certify the results of its election by the “safe harbor” deadline of six days before the electors meet to cast their votes. This year, that means that states have until December 8th to receive safe harbor status, as the winning electors will meet to cast their votes for President and Vice President on December 14th.

As of the time of this writing, six states have already certified their electors. It is widely expected that all states will do so before the safe harbor deadline. While there are reports that Republican legislators in some states may try to certify their own slate of electors in conflict with current state law in every state, this is a highly unlikely scenario, and one that likely wouldn’t change the electoral college count such that the results of the election change. We briefly detail the current status of vote certification in a number of swing states below.

Status in Swing States


The certification date for Arizona is November 30th. As of the time of this writing, former Vice President Biden maintains a roughly 11,000 vote lead, and most major news outlets have declared him the victor. Arizona has very restrictive recount laws, so there is unlikely to be a recount. The Trump campaign has filed a lawsuit seeking to block the state’s certification of votes.


The certification date for Georgia is November 20th. As of the time of this writing, former Vice President Biden maintains a roughly 14,000 vote lead, and most major news outlets have declared him the victor. The Georgia Secretary of State has announced that the state will conduct a hand recount of every ballot cast in the presidential race, and will also conduct a risk-limiting audit to rule out the possibility of fraud or errors. This process has begun as of the time of this publication.


The certification date for Pennsylvania is November 23rd. As of the time of this writing, former Vice President Biden maintains a roughly 60,000 vote lead, and most major news outlets have declared him the victor. Biden’s lead is currently too large to trigger an automatic recount, and it is unclear if the Trump campaign would request one. Pennsylvania is the state where the Trump campaign has filed the most lawsuits. Because of one of the lawsuits, the United States Supreme Court ordered mail ballots postmarked by election day but received in the three days following election day to be sequestered. The number of ballots in this category appears to be approximately 10,000. The Trump campaign has also filed a lawsuit seeking to block the state’s certification of votes.


The certification date for Wisconsin is December 1st. As of the time of this writing, former Vice President Biden maintains a roughly 20,000 vote lead, and most major news outlets have declared him the victor. The Trump campaign has said that it would request a recount, which would need to be completed within 13 days of its commencement under state law.

Barrett Confirmation on one page – October 9, 2020

Amy Coney Barrett joined the U.S. Court of Appeals for the Seventh Circuit in October 2017. A graduate of Notre Dame University Law School, Barrett clerked for the late conservative Justice Antonin Scalia and later returned to Notre Dame’s law school as a member of the faculty. If confirmed, Barrett would be the fifth woman to serve on the Court and the youngest justice confirmed since Clarence Thomas was elevated to the Court at age 43 in 1991. In preparation, Dentons’ Public Policy team has developed a Barrett Confirmation primer to provide insight into the confirmation process.

Supreme Court Nomination Primer – Friday, September 25

As we mourn the loss of a true giant, at all of 5’1’’, we look to the nomination process to fill Justice Ginsburg’s seat.

The President and Senate Majority leader have made clear that there will be a nominee and the confirmation process will begin immediately. The expectation is that a nominee will be announced over the weekend.  In preparation, Dentons’ Public Policy team has developed a Supreme Court Nomination Primer to provide insight into the nomination process, a look at past confirmations and a review of the Court’s fall schedule.

House sends US$2 trillion in Economic Aid Package to the President to sign

To respond to the coronavirus health crisis and the enormous economic downturn caused by the pandemic, the House of Representatives just now passed by voice vote the CARES Act, the US$2.2 trillion stimulus package that the Senate passed late Wednesday night by a 96-0 vote. The bill now goes to President Trump who has said that he will sign it into law immediately. 

This bill, the third legislative response to the coronavirus crisis, marks the biggest economic rescue package in US history. Passage of the bill marked the end to nearly week-long negotiations between senators, House Speaker Pelosi and the Trump administration.

Among its many provisions, the bill provides US$150 billion in aid for the health care industry. US$100 billion of which will be widely available.to hospitals and providers. It has substantial support for laid off employees, small businesses, non-profits, and numerous other industries that have been reeling from the economic impact of the virus. The wide-reaching bill includes a US$1,200 one-time check for individuals who make up to US$75,000 annually and married up to US$150,000.  It provides US$377 billion in small loan relief loan to numerous businesses, defers federal student loan payments through September 30 and provides US$260 billion in unemployment benefits. 

The bill also includes a US$500 billion infusion into the Treasury Department’s Exchange Stabilization Fund, to be used to make loans, loan guarantees, and other investments to businesses, states, and municipalities in 2020. Of that amount, it would provide as loans and loan guarantees as much as: US$25 billion in direct lending for passenger airlines, ticket agents, and aviation inspection and repair services, US$17 billion for unspecified businesses critical to national security and US$4 billion for cargo airlines.  As much as US$454 billion, and any other unused loan funds, would be available to make loans, loan guarantees, and other investments to support programs or facilities established within the Federal Reserve. Funds could be used to purchase obligations or other interests from businesses, states, or municipalities directly or in secondary markets.

Subject to returning to Washington, DC on 24 hours’ notice, the Senate has now adjourned until April 20 and the House also is not expected to return to DC for at least a comparable period.  We will continue to update you on all legislative and regulatory developments in connection with the COVID-19 crisis.

Click here to download the Senate bill.

Click here to download a section by section summary of the bill.

Existing Federal Economic Assistance Options for Small Businesses Affected by the Coronavirus (COVID-19): Part 1

This alert focuses on the existing federal economic assistance option with the U.S. Small Business Administration (“SBA”) called Economic Injury Disaster Loans (“EIDLs”).  Dentons will provide updates on the EIDL discussed below, as well as updates on additional economic assistance options, notably the anticipated Small Business Interruption Loan Program (see our most recent client alert on that program here), as new information becomes available. 

U.S. Small Business Administration – Economic Injury Disaster Loan

While the SBA’s EBILs have existed for some time, the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123) increases the amount made available to the SBA to use for EBILs to $197.2 million. 

What Is The EIDL?

The EIDL is a low-interest federal disaster loan of up to $2 million offered by the SBA to small businesses, as well as private, non-profit organizations to help alleviate economic injury directly caused by the coronavirus in certain approved areas. 

Which States Are Eligible?

As of March 23, 2020, small business owners in the following designated states are eligible to apply for a loan: Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Virginia, Washington, and West Virginia.

Certain contiguous counties located in the following states are also eligible: Alabama, Arizona, Arkansas, Idaho, Iowa, Kentucky, Mississippi, Missouri, North Dakota, Oregon, Texas, Vermont, Wisconsin, and Wyoming.

The most current list of states and contiguous counties can be found here.

What Is An Eligible “Small Business?”

There unfortunately is no single SBA guideline when it comes to size of the business.  Factors taken into account vary by industry and may include:

  • Average annual revenue (depending on the industry, annual revenue may not exceed $1 million or $30 million); or
  • Average annual number of employees (depending on the industry, the maximum number of employees might be 250 or 1,500).

See 13 C.F.R. § 121.201 (setting forth a table of SBA size standards identified by North American Industry Classification System (NAICS) codes).  Moreover, when calculating the size of your business, the SBA requires including the revenue and employees of any affiliates (i.e., a business that controls or has the power to control another, or a third party that controls or has the power to control both businesses).  The SBA offers online a Size Standards Tool for prospective applicants to check if their organization qualifies as a small business.

Additionally, a “business concern” for the purposes of EIDL is: (1) a business entity organized for profit; (2) with a place of business located in the United States; and (3) which operates primarily within the United States, or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.”  13 C.F.R. § 121.105(a).  The business concern may be:

  • An individual proprietorship;
  • A partnership;
  • A limited liability company;
  • A corporation; or
  • A joint venture, association, trust, or cooperative, except that where the form is a joint venture there can be no more than 49% participation by foreign business entities in the joint venture.

13 C.F.R. § 121.105(b). 

Importantly, your organization is not eligible for the EIDL if, for example, your organization is:

  1. Engaged in lending, multi-level sales distribution, speculation, or investment (except for real estate investment with property held for rental when the disaster occurred);
  2. A non-profit or charitable concern, other than a private non-profit organization;
  3. A consumer or marketing cooperative;
  4. Deriving more than one-third of gross annual revenue from legal gambling activities;
  5. A loan packager which earns more than one-third of its gross annual revenue from packaging SBA loans;
  6. Principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious beliefs, whether in a religious or secular setting; or
  7. Primarily engaged in political or lobbying activities.

13 C.F.R. § 123.301. 

Use of EIDL Proceeds?

EIDL proceeds are working capital loans and may be used to pay fixed debts, payroll, accounts payable, and other bills that cannot be paid due to the impact of the coronavirus.  See 13 C.F.R. § 123.303(a).

Importantly, loan proceeds may not be used to:

  • Refinance existing debt;
  • Repay other SBA loans or loans from another federal agency;
  • Pay, directly or indirectly, any taxes, fines or penalties;
  • Repair physical damage; or
  • Pay dividends or other disbursements to owners, partners, officers or stockholders, except for reasonable remuneration directly related to their performance of services for the business. 

13 C.F.R. § 123.303(b).

What Are The Conditions?

  • The interest rate is 3.75% for small businesses and 2.75% for private, non-profit organizations. 
  • The SBA offers loans with long-term repayment options, up to a maximum of 30 years; however, the term ultimately will be determined on a case-by-case basis, depending on the borrower’s ability to pay. 

The Application Process and Timing?

The application for the EIDL is a three-step process:

  • Apply for a loan;
  • Verify property and make loan processing decision; and
  • Close loan and disburse funds. 

The timing of the first step is largely in the control of the applicant as it consists of filling out the forms listed below.  With respect to the second step, it has historically taken the SBA loan officers up to three weeks to make a decision.  As to the third step, the SBA will prepare and send loan closing documents for signature upon approving the application.  Once the loan closing documents are received, an initial disbursement of $25,000 has historically been made within five days.  The loan will be fully disbursed in subsequent disbursements pursuant to a schedule determined by a case manager assigned to work with the borrower. 

When Do I Need To Apply By?

  • The deadline to apply for the EIDL is nine months from the date of the state governor’s disaster declaration. 
  • While the deadline may seem like months away, if your organization needs access to capital immediately, your organization may wish to consider applying for the EIDL sooner, rather than later, because processing applications may take a considerable amount of time.  
  • Prospective applicants should also be mindful that the SBA likely will experience significant backlog in processing applications, or that the SBA could deny the application, which would delay relief.

How To Prepare?

Review the following forms and collect information prior to starting the application:

Gather the following information or documents:

  • Year-end and current profit and loss statements;
  • A monthly breakdown report of sales; and
  • Complete copies of the business’s most recent Federal income tax returns (typically the last three).

Where Can I Apply?

Prospective borrowers may submit an online application here.  While the SBA prefers online applications, prospective borrowers can also call contact the SBA disaster assistance customer service center at (800) 659‑2955 (TTY: (800) 877‑8339) or e-mail disastercustomerservice@sba.gov and request a paper application by mail. 

Trump Impeachment Update: Senate acquits

On Wednesday, February 5, the United States Senate voted to acquit President Trump of the two articles of impeachment that the US House of Representatives passed on December 18 and hand-delivered to the Senate on January 15. The vote concluded a trial that lasted 20 days, saw 36 hours of presentations, 16 hours of Senate questioning, and some late-inning drama that ultimately resulted in Senate Majority Leader Mitch McConnell securing enough votes to prevent introduction of witnesses and new evidence, a move that would have delayed the final vote indefinitely. 

Late last Friday after Senate questioning ended, Republican Senator Lamar Alexander, a retiring senator from Tennessee, announced that he would vote against a measure to introduce witnesses and new evidence. Senator Susan Collins (R-ME) announced that she would support the measure, joining Senator Mitt Romney (R-UT) as the only members of their party willing to break ranks with their caucus to hear from witnesses. Had Senator Lisa Murkowski of Alaska, another moderate Republican, joined her colleagues from Maine and Utah, the vote count on the measure would have been 50-50, and Chief Justice John Roberts would have had to cast the deciding vote as the presiding officer. But Senator Murkowski ultimately voted against the measure, offering as one of the reasons that it had become clear that some of her colleagues intended to “politicize this process, and drag the Supreme Court into the fray, while attacking the Chief Justice. I will not stand for nor support that effort.”

Some Senate Republicans, as well as the President, wanted the Senate to conduct the final vote last Friday evening, which would have allowed the President to address the nation on the State of the Union on Tuesday without a cloud hanging over his head. However, other Republicans, and the Democrats, wanted an opportunity to make floor speeches about the impeachment trial. McConnell reached a deal with Senate Minority Leader Chuck Schumer to hold the final vote this afternoon. The President, for his part, did not mention the impeachment trial during Tuesday night’s SOTU address, and other news events, including the Super Bowl and the Iowa Democratic Caucus, prevented the impeachment trial from receiving much media attention over the last few days.

Senator Joe Machin (D-WV) has drafted a Senate resolution to censure the President, and has suggested that consideration of such a resolution would garner bipartisan support by giving Senators who don’t believe the President’s conduct warrants removal from office a formal opportunity to condemn the President’s actions. While both moderate Democrats and Republicans might like the opportunity to vote on such a resolution, it seems unlikely that the Republican leadership in the Senate will allow such a resolution to come to a vote. McConnell has said that he wants to move on after the acquittal, and various Republicans in the Senate have suggested that if the Democrats wanted a censure vote, they should have pursued such a vote in lieu of impeachment.

When Alexander Hamilton wrote in Federalist 65 that impeachment would “seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused,” he correctly forecast the dynamics that have played out over the past few months. As Senator Murkowski said in her statement last Friday night, “It is sad for me to admit that, as an institution, the Congress has failed. We are sadly at a low point of division in this country.”

Impeachment on a Page – Week of January 20, 2020

As developments in the Trump impeachment inquiry continue to unfold, Dentons’ Public Policy group has created a quick reference guide to the current status of this fast-moving process. Enclosed please find “Impeachment on a Page” for the week of January 20, 2020.

Previous Updates

Impeachment on a Page – Week of December 9, 2019

As developments in the Trump impeachment inquiry continue to unfold, Dentons’ Public Policy group has created a quick reference guide to the current status of this fast-moving process. Enclosed please find “Impeachment on a Page” for the week of December 9, 2019.

Previous Updates

Trump Impeachment Inquiry Alerts

Click here to subscribe and receive email updates directly to your inbox on the impeachment drama on Capitol Hill, including highlights of key testimony and documentary evidence, the White House’s response and the latest impeachment polls.

Impeachment on a Page – Week of December 3, 2019

As developments in the Trump impeachment inquiry continue to unfold, Dentons’ Public Policy group has created a quick reference guide to the current status of this fast-moving process. Enclosed please find “Impeachment on a Page” for the week of December 3, 2019.

Previous Updates