Another earmark challenge for $2 trillion infrastructure plan

States and localities will have to apply for funding from the plan

Workers are seen under Union Station in Washington, D.C., on Thursday, April 1, 2021.  (Tom Williams/CQ Roll Call)
Workers are seen under Union Station in Washington, D.C., on Thursday, April 1, 2021. (Tom Williams/CQ Roll Call)
Posted April 6, 2021 at 9:51am

Earmarks appeared less likely to find their way into President Joe Biden's $2 trillion infrastructure proposal after White House spokeswoman Jen Psaki said Monday that states and localities will have to apply for pieces of the funding from the plan.

That prospect could push the next opportunity for congressionally-directed spending on transportation projects to a separate highway bill due for the fall.

Psaki's comment came at a White House press briefing where she declined to say whether that bidding process would use a population-based formula, for example, or whether a federal department would decide which projects get support.

“We're not quite there yet,” Psaki said. “A competitive bidding process, which I think most Americans would support, would mean that states, entities, have to apply for funding for rebuilding the infrastructure in their states and through local communities or whatever it may be.”

The comments seemed to rule out a process where members could request specific projects in the bill. The use of earmarks in legislation to carry out Biden's proposal may not be allowed by the Senate parliamentarian anyway, if congressional Democrats try to pass it using reconciliation. On Monday, the parliamentarian permitted them to use an amended fiscal 2021 budget resolution to pass another reconciliation bill.

Whether the parliamentarian would permit earmarks in a reconciliation bill depends on the definition of earmark, with distinctions as seemingly as minor as whether it benefits one entity or multiple congressional districts playing into the decision, said one budget analyst who spoke on condition of anonymity.

“Earmarks present unique challenges in a reconciliation bill,” the analyst said. “I am not prepared to say those challenges are insurmountable.”

But there’s already precedent this year for ruling out specific projects. Two were knocked out of the $1.9 trillion coronavirus relief bill that passed earlier this year through reconciliation because they were considered “merely incidental” to the overall bill.

'Byrd rule'

One, allocating $100 million for a Silicon Valley transit project, didn't make it past the Senate's "Byrd rule," according to Sen. Patrick J. Toomey, R-Pa. A $1.5 million appropriation to replace toll revenue losses for a bridge that carries substantial border traffic between upstate New York and Canada was also stripped from the bill.

It’s clear that Biden wants some of the $2 trillion proposal to go toward specific projects.

The 25-page White House fact sheet on the infrastructure proposal released March 31 said it would include $25 billion for a dedicated fund “to support ambitious projects that have tangible benefits to the regional or national economy but are too large or complex for existing funding programs.” That fact sheet also vowed to fix the “10 most economically significant bridges in the country in need of reconstruction,” as well as repair 10,000 smaller bridges.

Even as the Biden administration prepares to unveil more of its plan — Biden is scheduled to make remarks on it on Wednesday — the House Transportation and Infrastructure Committee has scheduled an April 14 “Members Day” hearing where lawmakers can talk about which pet projects they’d like to fund.

The current highway authorization law, a one-year extension of the 2015 act, expires Sept. 30. The Biden administration has been clear that it views the next extension to be separate from legislation emerging from his infrastructure proposal, which it views as a one-time infusion of money.

On April 1, Psaki was asked when the administration would release a list of the most urgent infrastructure projects so far identified and which agency would be a part of the White House plan. She said a White House group called the "Jobs Cabinet" would play a role, but declined to name any specific projects.

The Jobs Cabinet — Commerce Secretary Gina Raimondo, Labor Secretary Marty Walsh, Transportation Secretary Pete Buttigieg, Energy Secretary Jennifer Granholm and Housing and Urban Development Secretary Marcia Fudge — would be involved in engaging with Capitol Hill, governors and the general public and in internal policy development, Psaki said.

“But the competitive bidding process obviously wouldn’t start until the bill is passed,” she added.