What You Must to Know About the Return of Earmarks

Earmarks are likely returning to Congress for the 2021 appropriation cycle...

Earmarks are likely returning to Congress for the 2021 appropriation cycle. Lawmakers in both the House and Senate are currently working out the details of how to resurrect congressionally-directed spending.

Member-directed spending, commonly referred to as “earmarks,” was a common practice prior to 2011. During this period, committees were given an administrative choice to include an earmark in legislation or an accompanying report. However,  transparency concerns arising 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. Currently, the rules of both the Senate and House include a ban on earmarking.

Proposal for Community Project Funding

Changes, however, are on the horizon. On February 26, 2021, House Appropriations Committee Chairwoman Rosa DeLauro (D-Conn.) unveiled a plan to restore earmarks, which would be given a new name — community project funding. “Members want Congress to help their communities, particularly now as the pandemic exposed so many inequalities and needs,” DeLauro said in a statement. “Community Project Funding will allow Members to put their deep, first-hand understanding of the needs of their communities to work to help the people we represent.”

In addition to adhering to the House Rules (House Rules XXI and XXIII), the House Appropriations Committee plans to enact series of important reforms with regard to Community Project Funding, including:

• All Requests Online: Members are required to post every Community Project Funding request online simultaneously with their submission to the Committee. The website must be searchable. The House Appropriations Committee will establish an online “one-stop” link to all House Members’ project requests.
• Early Public Disclosure: To facilitate public scrutiny of Community Project Funding, the Committee will release a list of projects funded the same day as the Subcommittee markup, or 24 hours before full committee consideration if there was no Subcommittee markup.
• No Financial Interest: Members must certify to the Committee that they, their spouse, and their immediate family have no financial interest in the projects they request. (This is an expansion beyond the underlying requirements in House Rules in order to cover immediate families of Members).
• Ban on For-Profit Recipients: Members may only request funding for State or local governmental grantees and for eligible non-profits.
• Cap on Overall Funding: The Committee will limit Community Project Funding to no more than 1 percent of discretionary spending.
• Member Requests Capped: The Committee will accept a maximum of 10 community project requests from each member.
• Mandatory Audit: The Committee will require the Government Accountability Office to audit a sample of enacted community project funding and report its findings to Congress.
• Community Support: Members must provide evidence of community support that were compelling factors in their decision to select the requested projects.

What’s Next?

The Senate is also working on a plan for earmarks. Senate Appropriations Committee Chairman Patrick Leahy and House Appropriations Committee Chairwoman Rosa DeLauro have reached an agreement to bring back to practice to both houses of Congress.

“I have always believed that members of Congress have a better understanding of their communities than Washington bureaucrats,” Senate Appropriations Chair Patrick Leahy (D-VT) said in a statement. “We are in good faith negotiations with the House and my Senate colleagues to bring back Congressionally directed spending in a transparent and responsible way, and those discussions are ongoing. I believe there is bipartisan support to restore the power of the purse to Congress and I am continuing to work toward that goal.”

Under the deal, which has yet to be formalized, the House and the Senate would split 1% of spending devoted to earmarks, and each subcommittee would vet the requests. The Government Accountability Office (GAO) would also perform a compliance review some of the FY 2022 earmarks.

Despite the agreement, support for bringing back earmarks is not universal, particularly among Senate Republicans. “I represent the entire conference and I can tell you the overwhelming majority of the Republican conference in the Senate is not in favor of going back to earmarks,” Senate Minority Leader Mitch McConnell said. “I’m assuming those people — even if Democrats craft the bill so that those are permitted — will not be asking for them.”  

U.S. Senators Rob Portman (R-OH), Steve Daines (R-MT), Pat Toomey (R-PA), Joni Ernst (R-IA), James Lankford (R-OK), Ted Cruz (R-TX), Mike Lee (R-UT), Rand Paul (R-KY), Marco Rubio (R-FL), and Ron Johnson (R-WI) have introduced legislation to permanently ban earmarks. Portman has cosponsored similar legislation in previous Congresses, and without bi-partisan support it is unlikely to pass in the Democrat-controlled Congress.

Conclusion

Even without universal support, earmarks are poised to return to Congress in 2021. The House Committee on Transportation and Infrastructure recently announced that earmarks will be included in the surface transportation authorization legislation this spring. According to a statement by Committee Chair Peter DeFazio (D-OR) and Chair of the Subcommittee on Highways and Transit Eleanor Holmes Norton (D-DC), the Committee will provide an opportunity for Members of Congress to submit requests for highway and transit project designations. A formal process to do so will be announced later in March.

While the details are still being finalized, there will likely be additional opportunities for businesses and localities to secure directed funding in the foreseeable future. According to Rep. DeLauro, the House Appropriations Committee will provide additional information regarding which accounts and programs will be eligible for Community Project Funding requests and the criteria necessary for consideration in those areas. Please check back for updates.

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.