Updated, May 17, 3:31 p.m. | The notion of passing a major infrastructure bill through the House and Senate without earmarks seemed, at first, unthinkable.
After all, it's a highly dysfunctional Congress, there's an army of outside conservative groups ready to thwart legislation that doesn't meet their standards and members from both parties have complained an earmark moratorium is a reason it's tough to get anything done.
But Speaker John A. Boehner insists things can get done, and he and Rep. Bill Shuster have a bipartisan water bill coming up to prove it. Should they succeed in the next few days, it might pave the way for a highway bill without special projects attached.
The bill is the bipartisan, bicameral conference report for the Water Resources Reform and Development Act, and the speaker touts it as “a significant policy achievement.”
“Earmarks aren’t coming back on my watch,” the Ohio Republican told CQ Roll Call in a statement. “With the reforms in this agreement, Chairman Shuster has proven that we can do water resources bills without earmarks, and for that he deserves great credit.”
As a first-term chairman of the Transportation and Infrastructure Committee, Shuster would have had an easier time seven years ago, when legislation to fund key water and infrastructure initiatives around the country was last signed into law.
That water bill was historically one of the only pieces of legislation to repeatedly come before Congress composed almost entirely of earmarks, basically constituting a laundry list of line items handpicked by lawmakers to pay for specific projects in their districts.
So Shuster, a Pennsylvania Republican, got to work early in the 113th Congress. He labored with his committee's ranking member Nick J. Rahall II, a West Virginia Democrat facing a difficult re-election battle, to build consensus for the billions of dollars worth of water projects. (The final conference report hasn’t been scored, but House aides predicted the cost will be close to the Senate’s bill, which would cost $5.7 billion over five years.)
Shuster also reached out to the chairman and ranking member of the subcommittee with WRRDA jurisdiction, Republican Bob Gibbs of Ohio and Democrat Timothy H. Bishop of New York.
Supported by party leadership and staff, Shuster set out to build consensus in uncharted territory. The congressman's goal, according to GOP committee aides, was to educate everyone who would have a stake in the final bill.
He invited industry groups to Capitol Hill to weigh in, and he traveled across the country to learn what was important outside the Beltway. Shuster also took a hands-on approach to the social media campaign surrounding the effort, even lending his voice to an "explainer" video walking laymen through the ins and outs of reauthorizing water infrastructure projects.
Anticipating pushback from the right over legislation typically criticized for wasteful spending and government overreach, Shuster made sure conservatives were all on board, from Republican Study Committee Chairman Steve Scalise of Louisiana to to the usual suspects in the outside advocacy group community.
Heritage Action for America spokesman Dan Holler told CQ Roll Call that Shuster’s gestures went a long way toward his group’s inclination not to score votes on the measure when it first passed the House last fall, which meant there weren't political consequences for backing it on the floor.
“You pull back and look at what this bill is, it is not something that we would generally be supportive of, [but] they went through a very painstaking process through this, and that really gave them an opportunity to explain what they were doing,” Holler said.
And Republican and Democratic committee staff worked on getting around the whole earmark problem.
In the past, individuals would take their water infrastructure requests to the Army Corps of Engineers — which executes construction and maintenance activities — directly to their representatives on Capitol Hill. The House Transportation and Infrastructure Committee and its Senate counterpart, the Committee on Environment and Public Works, would then fashion new authorization bills based on those requests.
While the practice clearly ran afoul of the earmarking ban, stopping it would mean ceding authority to the executive branch. The Senate’s approach to skirting its own earmark prohibition involved automatically authorizing projects with positive reviews from the Army Corps of Engineers.
But Shuster and other House Republicans didn’t like the idea of handing over project selection powers to the Obama administration — or any future administration — for fear that Congress wouldn’t be able to easily wrest back that power.
For WRRDA, their solution was to create a whole new process wherein local sponsors would take their projects directly to their regional Army Corps of Engineers office for review. Positively reviewed projects would be submitted to Congress as part of annual reports, and lawmakers would get to review those reports before including them in future water bills.
Shuster and company took their pitch to Republican leaders, who gave them the green light to move ahead. The bill overwhelmingly passed the House late last year, with just three dissenting votes. When both chambers finally finished hashing out one combined water bill, the House’s framework prevailed.
Two days after the conference report's release, Holler told reporters that Heritage Action and the group's think tank and policy arm, the Heritage Foundation, felt that while the final product was a step in the right direction, its conservative credentials had been diluted by the Democratic-controlled Senate during negotiations.
"We're not exactly impressed," Holler said, but he stopped short of suggesting the group would seek to punish lawmakers who vote "yes." Even if Heritage Action does decide to score votes, the bill is likely to pass, given its wide bipartisan support and the compelling narrative Republicans have created around the bill as one that doesn't betray the party's values.
The last WRRDA measures became law in 2007, only after Congress took a rare vote to override President George W. Bush’s veto of the legislation on the grounds that it spent too much — on earmarks. Shuster's goal? Reauthorizing the law in 2016 and every two years hence. In an interview with CQ Roll Call, Bishop said lawmakers felt “a sense of urgency” to get to work because it had been seven years since the last legislation. He dubbed the earmark ban "bad public policy,” but admitted the process worked well this year.
Practically speaking, WRRDA is so unique it’s not likely to give lawmakers a template they can replicate in other comparable bills. It could, however, create precedent going forward in an earmark-free Congress, especially in the case of the highway bill, which needs to be reauthorized this year and probably won’t enjoy as smooth and bipartisan a legislative journey.
The Senate is already generating new ideas on how to retain lawmakers’ supervision of project selection without relying on earmarks, no doubt inspired by provisions in the water bill.
Earlier this month, the Environment and Public Works Committee approved the Senate's proposed highway legislation, which would include a new grant program run by the Transportation Department that would spend $400 million annually on projects of regional or national significance.
There is a similar, existing DOT initiative known as TIGER, but the Senate program would be subject to greater congressional oversight: If lawmakers don’t like what they see, they’ll be able to block funding with a joint resolution of disapproval.
The Senate proposal is an attempt to get to the heart of objections to the earmark ban, the argument that it diminishes Congress’ power over purse strings.
On the House side of the Capitol, Shuster has no illusions about the challenges of passing a highway bill, particularly when the matter of funding is still in question. But a Republican Transportation committee staffer called WRRDA a “blueprint” for Shuster going forward.
The chairman expressed similar remarks at an association gathering earlier this year: “I’m really lucky that I had the WRRDA bill first … I learned a tremendous amount on how to put something together.”
Editor's note: This story was updated the day after it was published to add breaking news about Heritage Action's stance on the legislation.