|
By Katie Cross, Senior Associate,
Blakey & Agnew
Shakespeare famously wrote "What's in a name? That which we call a rose by another other name would smell as sweet." Well, a congressional earmark is certainly not a flower but, according to House Transportation and Infrastructure Chairman DeFazio (D-OR), it would actually be even sweeter if called by a different name. Specifically, the Chairman is asking industry stakeholders and supportive Members of Congress alike to stop calling them earmarks and instead call these congressional set-asides Article I Projects.
Stemming from Article I of the U.S. Constitution, which established the legislative branch, this rebranding comes as Chairman DeFazio mulls bringing back the currently-banned process. Earmarks allow Congress to direct funds to specific projects in an appropriations bill instead of designating the money for a program, such as a competitive grant program or a formula program, to distribute. During the height of earmarking, Members of Congress vied to sit on the House Transportation and Infrastructure Committee (T&I) for the opportunity to select projects to receive funding in their district. Indeed, earmarks were often used to help T&I pass long-term surface transportation reauthorization bills. According to some, banning earmarks seriously hurt Congress' ability to pass these bills – in 2014, Senator Dick Durbin said the earmark ban "created a situation where you can't get transportation bills passed."
So why were they banned in the first place? Some place at least part of the blame on 2005's Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). This surface transportation reauthorization bill was criticized for including an excessive number of earmarks, including the now infamous "Bridge to Nowhere." The Gravina Island Bridge would have connected Garvina Island, which has only 50 residents, to another sparsely populated region of Alaska, for a total cost of $398 million. $200 million of those funds were put aside through a SAFETEA-LU earmark.
Following continued complaints about the process, in 2011 House Republicans adopted a policy of not allowing its members to request congressional earmarks and then-Speaker Boehner (R-OH) indicated that he would not allow any bills containing earmarks to go to the floor. Later that year, the Senate Appropriations Committee (then held by Democrats) also announced their own ban on earmarking. After Republicans took control of the Senate in 2012, they continued renewing the ban every two years during the Republican Conference. However, in 2018 they delayed consideration of the ban and have not yet put it back on the books.
While no longer explicitly prohibited in either Chamber, earmarking remains implicitly banned. Those in favor of this procedure contend that they are important tools that allow Members of Congress to show their constituents where funds are going and how they are directly benefited. Chairman
|
DeFazio argues that bringing the process back could make it easier to raise funds for transportation projects, like increasing the federal gas and diesel tax. Members of Congress could use the earmarking process to ensure funds are spent in their districts and "show people what they're going to get for a small increase in their gas tax." Senator Tom Carper (D-DE) also supports bringing the process back, saying it allows Members to point to a project in their state that is benefiting from increased collection of funds.
Critics of the process argue that it is not transparent enough and that it leads to a "peanut butter" effect – spreading the money across every jurisdiction allows many small projects to be funded piecemeal but does not address large, regionally and nationally significant projects that require cross-jurisdictional collaboration and potentially higher levels of federal funding. Additionally, there is a fear that the projects would be funded that are not beneficial but instead simply as a way for Members to say they are bringing something back to their state (i.e., another "bridge to nowhere").
Still, earmarks can be a valuable negotiating tool – they allow Members to compromise on other issues while still holding up funding as a win. And some have suggested methods to improve transparency to ensure only meritorious projects are funded. During a House Transportation and Infrastructure Committee hearing on February 7, 2019, Governor of Minnesota Tim Walz said that Members of Congress could call on the state governors and mayors to send their offices the state's most pressing needs. Additionally, the list and any selected earmarks would be posted publicly and comments would be welcome. The Member would then choose the project to receive the earmark from that list based on comments, certain evaluation criteria or project benefits.
Despite calls from Chairman DeFazio and others, it appears that earmarking will not be on the table for the upcoming fiscal year 2020 appropriations bills. On February 28, the House Appropriations Committee Chairwoman Nita Lowey (D-NY) wrote a letter to colleagues saying there is not a necessary level of bipartisan and bicameral support for earmarks and therefore she did "not expect Fiscal Year 2020 House spending bills to include Congressionally-directed spending." This does not mean it is out of the question for the 2020 surface transportation reauthorization bill, indeed given Chairman DeFazio's interest there is still the possibility that transportation-related Article I project could be included.
Blakey & Agnew, LLC is a public affairs and
communications consulting firm based in
Washington, DC.
|
