Sander Lurie

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

US Policy Scan 2021

Dentons’ US Public Policy practice is pleased to release its annual Policy Scan, an in-depth look at policy at the Federal level and in each of the 50 states. In this document we provide a first look at the key policy questions for the next year in the states, the House of Representatives, the Senate and the new Administration. Additionally, we examine the people who will be driving change.

US Policy Scan 2021 takes deep dives into the turbulent political and policy waters swirling around agriculture, cannabis, education, energy and the environment, financial services, foreign policy, health care, housing and community investment, immigration, infrastructure, smart cities and communities, national security, Native American communities, tax, technology, trade, and voting rights and government reform. All with an eye toward providing you with a clear, comprehensive and reader-friendly description of what US public policy will look like in 2021.

Other features include:

  • 2021 Congressional and State House Session Calendars
  • First 100 days of the Biden Administration
  • Biden cabinet nominees and senior White House staff appointees
  • New Committee Chairs and Rankers
  • Analysis of 2022 US Senate races
  • Key decided and pending cases before the Supreme Court of the United States.

And as in years past, we have also included a review of state legislative activity in 2020, an overview of legislation passed by the House Democrats in the 116th Congress that didn’t see movement in the Republican controlled Senate, and the policy drivers that will shape state legislative and executive branch activity in 2021.

We hope you find this report helpful and informative.

Lame Duck Session Fact Sheet

Dentons’ Public Policy team has developed a fact sheet as a quick reference guide on the lame duck session.

Click below for an overview of the 116th Lame Duck Agenda, the differences between the House’s Heroes II bill and the two bills introduced by Senate Majority Leader McConnell and legislation passed in recent lame duck sessions.

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.   

US HOUSE AND SENATE ELECTIONS PREVIEW – The Battle For Control Of Congress

Dentons’ Public Policy team has developed a US House and Senate Elections Preview to provide the latest developments as we approach the November elections.

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.

FEC increases contribution limits for 2019-2020

The Federal Election Commission (FEC) updated the federal contribution limits for the 2019-2020 election. The new per election limits were effective January 1, 2019. Below is a chart that explains the new limits on each donor.

The chart above illustrates the new increased contribution limits to the respective donors. Individuals can now contribute $2,800 per election to a candidate, an increase of $100 from the 2018 cycle. This means that individuals may now give up to $5,600 per candidate per cycle (combined to include both the primary and general election limits). Due to changes in inflation, these limits are increased every odd-numbered year to balance out differences.

The contribution limit to national party committees can now contribute $35,500 per year, an increase of $1,600 from last year. The annual max contributions to the national party committee accounts have been increased to $106,500, an increase of $4,800.

Note that traditional PAC contributions are not indexed for inflation. This means that PAC contributions remain the same from 2018.

Every committee assignment for the 116th Congress

House Democratic and Republican leadership have nearly finalized the grueling task of doling out committee assignments, capping weeks of acute jockeying by freshman lawmakers hoping to earn influential postings.

An opaque process tightly controlled by party leaders, the committee sweepstakes represents one of the earliest and most significant influences on a new legislator’s career trajectory, as panel membership often drives member legislative priorities and opens important avenues of fundraising opportunities.

House rules generally limit members to serving on no more than two standing committees and four subcommittees, with the four-most prized including Ways and Means, which writes tax laws; Energy and Commerce, which claims the broadest non-tax-oriented jurisdiction of any committee and has principal responsibility for telecommunications, consumer protection, food and drug safety, public health, the supply and delivery of energy, and interstate and foreign commerce; Financial Services (also known as the Banking Committee), which oversees the totality of the financial services sector; and Appropriations, which is responsible for passing spending blueprints for the federal government.

While the final composition of every committee is still being negotiated, Dentons’ bipartisan public policy team has assembled here the most up-to-date index of assignments available.

We’ll update this space as new assignments are announced.