Senate Appropriations Committee Issues Guidelines for CDS Appropriations Requests

Congressionally directed spending (CDS) is officially back, with the Senate Appropriations Committee releasing guidelines for making requests for Fiscal Year 2022

Congressionally directed spending (CDS) is officially back, with the Senate Appropriations Committee releasing guidelines for making requests for Fiscal Year 2022. Local governments and not-for-profit organizations (not private for-profit entities) are eligible to apply for CDS awards.

Congressionally Directed Spending

As discussed in a prior article, member-directed spending, commonly referred to as “earmarks,” was once a common practice. During this period, committees were given an administrative choice to include an earmark in legislation or an accompanying report. However, in 2011, Congress imposed a ban on congressionally directed spending in response to concerns about abuse.

Earlier this year, lawmakers began the process of resurrecting earmarks, with new safeguards in place to increase transparency and accountability.  On April 26, 2021, the Senate Appropriations Committee officially announced that Congress would restore the authority to approve congressionally directed spending items.

For FY 2022, the Senate Appropriations Committee will accept appropriations requests of two different types:

• Programmatic/Bill and Report Language Requests: These types of requests are general funding requests for national and regional programs, and/or bill and report language requests that directs, encourages or urges an Agency or Department to carry out an action.
• CDS Requests: As defined in Senate Rule XLIV, a CDS is a provision “included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority or other expenditure with or to an entity, or targeted to a specific State, location or Congressional district, other than through a statutory or administrative formula-driven or competitive award process.” In most cases, CDS directs funding to a specific project in a specific location.

In FY 2022, Senators may make requests for congressionally direct spending items in the following appropriations bills:

• Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Commerce, Justice, Science, and Related Agencies
• Energy and Water Development
• Financial Services and General Government
• Department of Homeland Security
• Department of the Interior, Environment, and Related Agencies
• Departments of Labor, Health and Human Services, and Education, and Related Agencies Military Construction and Veterans Affairs and Related Agencies
• Transportation, Housing and Urban Development, and Related Agencies

Guidelines for Appropriation Requests

As set forth in the Senate Appropriations Committee’s General Guidance for Appropriation Requests, all requests for congressionally directed spending items must comply with the requirements of Standing Rules of the Senate Rule XLIV. They include:

• No Member Financial Interest: The rules forbid any member from pursuing a congressionally directed spending item to further his or her financial interest, or that of his or her immediate family. Each member requesting a congressionally directed spending item must certify in writing that there is no such interest and make that certification available to the public. 
• Request in Writing: Any member requesting a congressionally directed spending item 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 congressionally directed spending items, the Committee is required to make each item publicly available online in a searchable format as soon as practicable after the mark up (including the name of each Member requesting the item).
• Disclosure Before Floor Consideration: The rules prohibit a vote on a motion to proceed to a bill or a vote on adoption of a conference report, unless the chair of the committee, certifies that a complete list of congressionally directed spending items 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 a congressionally directed spending item that was not included in either the House or Senate bills.

The Senate Appropriations Committee has also instituted the following reforms:

• A one percent cap will be imposed on discretionary spending for congressionally directed spending items;
• For-profit entities may not participate;
• Senators must post online their congressionally directed spending item requests, as well as their financial certification disclosures attesting that they do not have any financial interest in any of the items requested; and
• The Government Accountability Office must audit a sample of enacted congressionally directed spending items and report its findings to Congress.

Many senators, including New Jersey’s Senator Menendez and Senator Booker, have created online applications. The deadline to apply is May 28, 2021.

Key Takeaway

The resurrection of earmarks creates new funding opportunities for nonprofits and local governments. However, it is important to note that the CRS process will be competitive, with numerous applicants vying for a relatively small pool of funds. There may be additional opportunities in the future as transportation appropriations requests that are not included in the FY22 spending bills (due to size/cost) may be shifted to the transportation/infrastructure package that the Biden Administration and Congress are currently discussing.

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.