Will Infrastructure Earmarks Return in 2021?

The New Year is poised to bring sweeping changes to the federal government, which may include the return of infrastructure earmarks...

The New Year is poised to bring sweeping changes to the federal government, which may include the return of infrastructure earmarks. Congress is reportedly considering whether the revive the controversial practice of appropriation bill earmarks as a means to promote bipartisanship.

History of Earmarks

Prior to 2011, Congress permitted Member-directed spending, commonly referred to as “earmarks.” During this period, committees were given an administrative choice to include an earmark in legislation or an accompanying report. However, concerns about transparency, which sprang from several high-profile abuses of the practice, such as the 2005 Alaska “bridge to nowhere” scandal, resulted in a moratorium that has lasted nearly a decade.

As the House Select Committee on the Modernization of Congress noted in its September 2020 report, there is no enforceable ban on earmarks. Rather, there are currently three standing rules that govern congressionally-directed spending. First, spending requests are not permitted to directly benefit a Member of Congress (or their spouse). Second, House and Senate Rules require that relevant legislation or reports include a list of spending requests, limited tax benefit, or limited tariff—or a statement that the legislation includes no congressionally directed spending. And third, it is the responsibility of the committee of jurisdiction to identify Member-directed spending in legislative texts or accompanying reports. Congressional committees can also establish their own policy requirements, deadlines, or restrictions, regarding earmarks.

Framework Proposed by Committee on the Modernization of Congress

The bi-partisan Modernization Committee is one of several groups to call for reinstating earmarks, albeit in a revised fashion. “Despite best intentions, the decision to end congressionally-directed spending has faced widespread backlash across the political spectrum,” its report stated. “Scholars from the Heritage Foundation to the Congressional Institute to the Brookings Institution have called for the reinstatement of some form of Member-directed spending.”

The Modernization Committee’s proposed framework for earmarks would establish Community-Focused Grant Program (CFGP) as a competitive grant program designed to fund projects that originate at the local level and have local support. Public entities, including certain non-profits, would be able to apply for grants by submitting an application to at least one Member of Congress. It is up to each member to determine which projects they will support via a uniform request process to the appropriate congressional committee. For discretionary programs, the grant program is limited to one percent of discretionary spending. The grant program will give special consideration to projects that have broad support at the local level, as evidenced by supporting documentation, bipartisan support, and multi-member support.  

Reinstating Earmarks Requires Bipartisan Support

Democrats are hopeful that bringing back earmarks will help them garner support for President-elect Joe Biden’s policy plans, including an expansive infrastructure bill. However, they will need Republicans to get on board, particularly if the party maintains control of the Senate.

In the Senate, Appropriations Committee Chairman Richard Shelby (R-AL) and Vice Chairman Patrick Leahy (D-VT) both support reviving earmarks. However, Shelby emphasized that restrictions must be in place this time around. “Directed appropriations are in the Constitution, but people abused them and there’s a lot of opposition to that,” he said. “So we will have to see.”

In the House, Representatives Rosa DeLauro (D-CT), Marcy Kaptur (D-OH), and Debbie Wasserman Schultz (D-FL) are all vying to head Appropriations Committee. To date, Kaptur and Wasserman Schultz have both stated that they support reinstating earmarks. Other House members have expressed concerns. “A lot of the corruption scandals of the early 2000s revolved around earmarks,” Representative Tom McClintock (R-CA) said. “When the same body that is appropriating the money is also spending the money, there is no check in the system.”

Key Takeaway

While appropriation bill earmarks may return to Congress in 2021, they will certainly look different. Nonetheless, there will likely be opportunities for companies and localities to secure directed funding.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Teddy Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.