Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Will Infrastructure Earmarks Return in 2021?

Author: Scarinci Hollenbeck, LLC

Date: December 29, 2020

Key Contacts

Back

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Dissolving Your Business: Essential Legal Steps to Protect Your Interests post image

Dissolving Your Business: Essential Legal Steps to Protect Your Interests

If you’re considering closing your business, it’s crucial to understand that simply shutting your doors does not end your legal obligations. Unless you formally dissolve your business, it continues to exist in the eyes of the law—leaving you exposed to ongoing liabilities such as taxes, compliance violations, and potential lawsuits. Dissolving a business can seem […]

Author: Christopher D. Warren

Link to post with title - "Dissolving Your Business: Essential Legal Steps to Protect Your Interests"
The Role of Corporate Restructuring in Mergers & Acquisitions post image

The Role of Corporate Restructuring in Mergers & Acquisitions

Contrary to what many people think, corporate restructuring isn’t all doom and gloom. Revamping a company’s organizational structure, corporate hierarchy, or operations procedures can help keep your business competitive. This is particularly true during challenging times. Corporate restructuring plays a critical role in modern business strategy. It helps companies adapt quickly to market changes. Following […]

Author: Dan Brecher

Link to post with title - "The Role of Corporate Restructuring in Mergers & Acquisitions"
Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public post image

Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public

Cryptocurrency intimidates most people. The reason is straightforward. People fear what they do not understand. When confusion sets in, the common reaction is either to ignore the subject entirely or to mistrust it. For years, that is exactly how most of the public and even many in law enforcement treated cryptocurrency. However, such apprehension changed […]

Author: Bryce S. Robins

Link to post with title - "Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public"
Understanding Chattel Paper: A Key Component in Secured Transactions post image

Understanding Chattel Paper: A Key Component in Secured Transactions

Using chattel paper to obtain a security interest in personal property is a powerful tool. It can ensure lenders have a legal claim on collateral ranging from inventory to intellectual property. To reduce risk and protect your legal rights, businesses and lenders should understand the legal framework. This framework governs the creation, sale, and enforcement […]

Author: Dan Brecher

Link to post with title - "Understanding Chattel Paper: A Key Component in Secured Transactions"
Crypto Compliance: A Comprehensive Guide post image

Crypto Compliance: A Comprehensive Guide

For years, digital assets operated in a legal gray area, a frontier where innovation outpaced the reach of regulators and law enforcement. In this early “Wild West” phase of finance, crypto startups thrived under minimal oversight. That era, however, is coming to an end. The importance of crypto compliance has become paramount as cryptocurrency has […]

Author: Bryce S. Robins

Link to post with title - "Crypto Compliance: A Comprehensive Guide"
Supreme Court and Title VII: Implications for Reverse Discrimination post image

Supreme Court and Title VII: Implications for Reverse Discrimination

Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]

Author: Matthew F. Mimnaugh

Link to post with title - "Supreme Court and Title VII: Implications for Reverse Discrimination"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!