Transportation Spending Under an Earmark Ban

Transportation Spending

Under an Earmark Ban

Robert S. Kirk

Specialist in Transportation Policy

William J. Mallett

Specialist in Transportation Policy

David Randall Peterman

Analyst in Transportation Policy

Updated May 5, 2020

Congressional Research Service

7-....

www.crs.gov

R41554

SUMMARY

Transportation Spending

Under an Earmark Ban

In the 112th Congress (2011-2012), the House and Senate began observing a moratorium on

earmarks. Earmarks—formally known as congressionally directed spending—directed a

significant amount of federal transportation spending prior to the ban. This report discusses how

federal highway, transit, rail, and aviation funding were distributed before and after the earmark

ban, and how Members of Congress might influence the distribution with a ban in place.

House Rule XXI uses the term “congressional earmark” while Senate Rule XLIV uses the term

“congressionally directed spending,” but they otherwise use the same definition of an earmark as

a provision or report language included primarily at the request of a [Member, Delegate,

Resident Commissioner, or] Senator providing, authorizing, or recommending a specific

amount of discretionary budget authority, credit authority, or other spending authority for

a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an

entity, or targeted to a specific State, locality or Congressional district, other than through

a statutory or administrative formula-driven or competitive award process.

R41554

May 5, 2020

Robert S. Kirk

Specialist in

Transportation Policy

-redacted-@crs.loc.gov

William J. Mallett

Specialist in

Transportation Policy

-redacted-@crs.loc.gov

David Randall Peterman

Analyst in Transportation

Policy

-redacted-@crs.loc.gov

For a copy of the full report,

please call 7-.... or visit

www.crs.gov.

This definition covers earmarks in authorization and appropriations bills as well as in committee

reports.

Currently, over 92% of federal highway funds and more than 75% of transit funds are distributed by statutory formulas. The

use of formula highway funds is under the control of the states. The bulk of formula transit funding is under the control of

local governments and public transit agencies. Most federal funding for aviation is for operation of the air traffic control

system and safety-related programs, and generally has not been earmarked. Most aviation infrastructure spending is

distributed according to priorities set forth in national plans, but a small percentage was available for earmarking prior to

2011. Most rail funding goes to Amtrak to operate national intercity passenger service. Federal funding for maritime

purposes is directed by statute and has not been earmarked.

Most of the remaining federal transportation funding is distributed under discretionary programs. U.S. Department of

Transportation (DOT) discretionary funds are typically distributed through a competitive grant-making process, within

guidelines established by Congress and DOT. In practice, however, much of this funding was earmarked by Congress prior to

2011. The precise share of federal transportation dollars that was spent on earmarks cannot readily be calculated, but,

according to a DOT Inspector General report, in FY2006 approximately 13% of DOT’s total budgetary resources were

earmarked.

Banning earmarks has not eliminated the opportunity for Members to influence the allocation of transportation resources. The

funding formulas and eligibility rules in authorization bills can be shaped to favor particular states, congressional districts,

and projects. The definition of “congressionally directed spending” under House and Senate rules appears to permit some

“soft” earmarks, which do not specify a place or amount of funding. Without earmarking, Members can continue to call or

write DOT in support of projects. Members may also seek to influence the priority a project receives under mandated state

and local planning procedures, which can increase the likelihood of federal funding without an earmark. Members can also

attribute their support for transportation authorizations to federally funded projects in their districts or states generally.

Congressional Research Service

Transportation Spending Under an Earmark Ban

Contents

Introduction ..................................................................................................................................... 1

Earmarks and the Structure of Federal Transportation Funding...................................................... 1

What Is a Congressional Earmark? ................................................................................................. 3

“Soft” Earmarks and “Hard” Earmarks ..................................................................................... 4

Earmark Ban.............................................................................................................................. 5

Earmarking of Surface Transportation Funding .............................................................................. 6

The Role of the Department of Transportation in Project Spending ............................................... 6

Highways .................................................................................................................................. 7

Transit and Rail ......................................................................................................................... 7

Aviation ..................................................................................................................................... 8

Maritime .................................................................................................................................... 9

BUILD Program ........................................................................................................................ 9

Transportation Spending Under the Earmark Ban ........................................................................... 9

Highway Programs Without Earmarks .....................................................................................11

Transit and Rail Programs Without Earmarks ......................................................................... 12

Aviation Programs Without Earmarks ..................................................................................... 12

Tables

Table 1. Congressionally Directed Spending Within the Department of Transportation,

FY2006 ......................................................................................................................................... 2

Contacts

Author Contact Information .......................................................................................................... 13

Congressional Research Service

Transportation Spending Under an Earmark Ban

Introduction

Since the 112th Congress (2011-2012), the House and Senate have observed a moratorium on

earmarks, formally known as congressionally directed spending. The moratorium1 has led to

changes in the way transportation funding decisions are made. This report explains what earmarks

are and discusses their use in surface transportation finance. It then discusses how federal

transportation funding is distributed with a ban in place and how Members of Congress might

influence the distribution.

Earmarks and the Structure

of Federal Transportation Funding

The structure of federal transportation funding is largely determined in periodic transportation

authorization legislation, which typically continues some existing programs (often with

modifications), allows some programs to expire, and creates new programs. The most recent

authorization act in surface transportation, for example, is the Fixing America’s Surface

Transportation (FAST) Act (P.L. 114-94), enacted in December 2015.

The vast majority of federal transportation funding is distributed directly to states, local

governments, and transportation authorities by formulas that are set in these laws. For example,

under the FAST Act about 92% of highway program spending through FY2020 was to be

distributed by formula. This was up from the 84% distributed by formula in the Safe,

Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA; P.L.

109-59), the 2005 law that was the last long-term surface transportation authorization enacted

prior to the earmark ban.2 Under the formula programs, the decisions about which projects get

funded are made by state and local governments, subject to federal guidelines.

Authorization legislation also creates a number of discretionary (non-formula) transportation

grant programs. These programs collectively distribute a relatively small portion of federal

transportation funding. Under these programs, the U.S. Department of Transportation (DOT)

awards grants at its discretion through a competitive application process.

For several years prior to 2011, funding for discretionary transportation grant programs was

heavily earmarked by Congress in authorization legislation and in the annual DOT appropriations

acts. In addition, Congress on occasion earmarked portions of highway formula funding.3

Earmarks were not prevalent in all parts of the transportation funding process. For example, the

Federal Aviation Administration (FAA) budget historically was largely free of earmarks, with the

Airport Improvement Program’s discretionary funding being the major exception.

1 The moratorium has frequently been termed a “ban” on earmarks, although there are no formal rules prohibiting them.

For more, see CRS Report R45429, Lifting the Earmark Moratorium: Frequently Asked Questions, by Megan S.

Lynch.

2 Federal Highway Administration, Financing Federal-Aid Highways, March 2007, Appendixes B and G, at

https://www.fhwa.dot.gov/policy/olsp/financingfederalaid/financing_highways_2007.pdf; Federal Highway

Administration, “P.L. 114-94, Fixing America’s Surface Transportation (FAST): Apportionment, at

https://www.fhwa.dot.gov/fastact/factsheets/apportionmentfs.pdf; Federal Highway Administration, Funding FederalAid Highways, January 2017,, Appendixes B and C, at https://www.fhwa.dot.gov/policy/olsp/fundingfederalaid/.

3 The appropriators deducted an across-the-board percentage of contract authority from the major highway formula

programs for earmarking in FY2004, FY2005, and FY2006. See “Coming in FY2007—No Highway Earmarks?,”

Transportation Weekly, January 25, 2006, p. 3.

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The magnitude of transportation earmarking is difficult to estimate. Earmarks were found in both

authorization and appropriations legislation. While Congress specifically identified “earmarks

and congressionally directed spending items” in appropriations legislation from FY2008 through

FY2011, those lists did not include earmarks in authorization legislation, such as those found in

SAFETEA, that might be funded in that fiscal year. DOT’s Inspector General (IG) examined

transportation earmarking in both the authorization and appropriations bills for FY2006 and

estimated that 13.5% of total budget authority provided to DOT in that year was congressionally

directed. The IG also estimated that 80% of the earmarks originated in authorizations and 20% in

the appropriations bill (Table 1).

Table 1. Congressionally Directed Spending Within the

Department of Transportation, FY2006

Number of

Items

Millions of

Dollars

Percent of DOT’s New

Budget Authority

Congressionally Directed Spending

8,056

$8,545

13.5

Authorization

6,474

N/A

N/A

Appropriation

1,582

N/A

N/A

Number of

Items

Millions of

Dollars

Percent of Agency’s New

Budget Authority

8,056

$8,545

13.5

Federal Highway Administration

6,556

$5,676

15.5

Federal Transit Administration

1,252

$2,406

28.0

Federal Aviation Administration

204

$408

2.8

Other

44

$56

1.5

DOT Agency

Department of Transportation

Source: Office of the Inspector General, Review of Congressional Earmarks Within Department of Transportation

Programs, Department of Transportation, “Report Number AV-2007-066,” Washington, DC, September 7, 2007,

at https://www.oig.dot.gov/sites/default/files/Congressial_Earmarks-_AV-2007-66—-508_Compliant.pdf.

Notes: N/A means not available. Table includes congressionally directed spending that may not have fallen

within the definition found in House and Senate rules. For example, data include 34 Federal Transit

Administration (FTA) Capital Investment Grants (CIG) projects that passed through the CIG program planning

and evaluation process. These projects accounted for $1,370 million of the $1,500 million CIG project budget in

FY2006, according to the IG’s report. Excluding these projects reduces the earmarked portion of FTA’s budget

to 12.0% and of DOT’s budget to 11.3%. New budget authority is authority provided by federal law to enter into

financial obligations that will result in immediate or future outlays involving federal government funds.

A major attraction of transportation earmarks to Members is that they provide specific,

identifiable benefits for constituents.4 A downside is that earmarks often go unused because the

amount of the earmark is too small for the project, because state and local authorities will not or

cannot provide the necessary matching funds, or because the project is misidentified in law and

the funding cannot be used unless Congress modifies the law. Funding for earmarks is typically

available until expended, so unused earmarks may exist “on the books” for many years,

sometimes decades, after enactment. Even if it is clear that a project will not be undertaken,

4 David A. Fahrenthold, “Between Losing and Going Home: the House Basement,” Washington Post, December 9,

2010. Historically, earmark funding was not made available in equal amounts to all Members of Congress in

transportation legislation. Committee leadership decided how and in what amounts earmark funding was distributed.

See “In-Depth Analysis: Earmarked Highway Projects: Their History, Their Nature and Their Role in Highway

Legislation,” Transportation Weekly, v. 3, issue 24, April 10, 2002, pp. 4, 10-12. See also “TW Analysis: Above the

Line Highway Earmarks,” Transportation Weekly, v. 7, issue 10, January 17, 2006, pp. 1-10.

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earmarked funding usually cannot be spent for other purposes or rescinded absent congressional

action.

In the past, Congress has dealt with the issue of long-term unobligated earmarks in at least three

ways. First, Congress has redesignated unused earmarks for other specific projects. This was

done, for example, in the FY2003 DOT Appropriations Act (P.L. 108-7). Under the current

earmark moratorium, a redesignation to a different congressionally directed project would be

considered an earmark, and would likewise be prohibited. Second, Congress has rescinded budget

authority for old earmarks as it did, for example, in the Department of Defense and Full-Year

Continuing Appropriations Act, 2011 (P.L. 112-10, §§2210 and 2211). Third, Congress has also

allowed old unused earmark funding (“orphaned earmarks”) to be used for other transportation

projects. Beginning with the Consolidated Appropriations Act, 2016 (P.L. 114-113, §125), for

example, Congress has allowed states to redirect long-term unobligated earmarks to a surface

transportation project within 50 miles of the original project. The legislation defines a long-term

unobligated earmark as one that is over 10 years old and for which 90% or more of the funding

remains unobligated. Similar language has been included in annual appropriations legislation

enacted each year since then. The 50-mile range was reduced to 25 miles in the Further

Consolidated Appropriations Act of 2020 (P.L. 116-94), Section 125.

What Is a Congressional Earmark?

House Rule XXI, clause 9 uses the term “congressional earmark” while Senate Rule XLIV,

paragraph 5 uses the term “congressionally directed spending,” but they otherwise use the same

definition of an earmark.5 The rules define an earmark as

a provision or report language included primarily at the request of a [Member, Delegate,

Resident Commissioner, or] Senator providing, authorizing, or recommending a specific

amount of discretionary budget authority, credit authority, or other spending authority for

a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an

entity, or targeted to a specific State, locality or Congressional district, other than through

a statutory or administrative formula-driven or competitive award process.6

This definition covers earmarks in authorization and appropriations bills as well as in committee

reports. Provisions in committee reports may not have the force of law but are often used to give

guidance to executive branch departments. One example of such an earmark appeared in the

conference committee’s explanatory statement on the Omnibus Appropriations Act, 2009 (P.L.

111-8):

Account

Project

Amount

Requester(s)

Surface Transportation Priorities

Coalfields Expressway, WV

$4,750,000

Senator Byrd

5 See CRS Report RS22866, Earmark Disclosure Rules in the House: Member and Committee Requirements, by

Megan S. Lynch, and CRS Report RS22867, Earmark Disclosure Rules in the Senate: Member and Committee

Requirements, by Megan S. Lynch, for a more detailed discussion.

6 The rules of the House are available at https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116House-Rules-Clerk.pdf. The rules of the Senate are available at https://www.rules.senate.gov/rules-of-the-senate.

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“Soft” Earmarks and “Hard” Earmarks

The definition of “congressionally directed spending item” under House and Senate rules appears

to permit some “soft” transportation earmarks. Whereas “hard” earmarks specify the project

place, purpose, and funding amount in bill or bill report language, “soft” earmarks do not specify

the amount of funding.7 Two types of soft earmarks are found in federal transportation legislation:

place naming and road naming.

Under place naming, the project location is named in the bill or report language, but no funding

amount is designated. The appropriators direct the agency to give priority to grant applications

from the named places. This form of congressional designation has been most commonly used to

influence Airport Improvement Program (AIP) spending. For example, in the FY1990

Department of Transportation Appropriations bill, the House conference report (H.Rept. 101-183)

urged the Federal Aviation Administration (FAA) to give priority to

grant applications involving the construction or further development of the following

airports:

Akron-Canton Regional Airport, Ohio.

Alexander Hamilton Airport, Virgin Islands ...

By not designating the amount, place naming appears not to be covered by the definition of

earmarks under current House and Senate rules.8

Road naming is similar to place naming, but has been used less often. The Surface Transportation

Assistance Act of 1982 (P.L. 97-424; H.Rept. 97-987) directed the states to give priority in use of

federal highway funds to the primary routes designated in a particular committee print.9

Whether soft earmarks are included in legislation or in conference reports under an earmark ban

depends on how strictly the ban is enforced by congressional leaders.

The definition of an earmark in congressional rules also appears to exclude most of the Capital

Investment Grants (CIG) Program funding distributed by the Federal Transit Administration

(FTA) (also known as New Starts). Prior to the earmark ban, Congress had appropriated amounts

for specific projects each year, but these projects were chosen through a competitive, multi-step

approval process that is administered by FTA according to law. However, appropriators had

sometimes added projects to the list of projects chosen through this process, and these additional

projects may have fallen within the definition of earmark used in House and Senate rules.10 Since

7 The terms “hard” and “soft” earmarks are terms of convenience, often used by congressional staff, but have no

procedural or statutory meaning. Historically, soft earmarks included congressionally directed project spending not

listed in the text of the bill itself, but listed in the language of the accompanying report. The current earmark

definitions, however, include such designations, making them “hard” earmarks under the House and Senate rules.

8 The FY1994 Transportation Appropriations Conference Report (H.Rept. 103-300) included language in which the

conferees rejected the place name lists in the House and Senate reports, arguing that the process was “neither effective

at ensuring funding nor useful at identifying those airports with the highest need for federal assistance.” Significant

place naming of airports, however, reappeared in the conference report of the FY2000 Transportation Appropriations

Act (H.Rept. 106-355). In the FY2001 Transportation Appropriations conference report (H.Rept. 106-940) amounts

were specified, effectively making the designations “hard” earmarks.

9 “One Possible Way Around an Earmark Ban,” Transportation Weekly, vol. 12, no. 4 (November 18, 2010), p. 9. For a

discussion of report language earmarks and why DOT responds to them, see “White House Considers a Ban on Most

FY2007 Earmarks,” Transportation Weekly, vol. 9, no. 8 (January 17, 2008), pp. 1-2.

10 Office of the Inspector General, Review of Congressional Earmarks Within Department of Transportation Programs,

Department of Transportation, “Report Number AV-2007-066,” Washington, DC, September 7, 2007, pp. 11, 15-17, at

https://www.oig.dot.gov/sites/default/files/Congressial_Earmarks-_AV-2007-66—-508_Compliant.pdf.

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the earmark moratorium was instituted, Congress has not named projects in the appropriations

bill, but it has sometimes prioritized the available funding. For example, in the FY2015

appropriations bill (P.L. 113-235) Congress directed

that when distributing funds among Recommended New Starts [CIG] Projects, the

Administrator shall first fully fund those projects covered by a full funding grant

agreement, then fully fund those projects whose section 5309 share is less than 40 percent,

and then distribute the remaining funds so as to protect as much as possible the projects’

budgets and schedules.

Earmark Ban

In the 112th Congress (2011-2012), the House and Senate began observing an earmark

moratorium, frequently referred to as a “ban.” The ban is not part of the rules in either the House

or the Senate, and thus cannot be enforced by points of order.11 Instead, since 2011, the ban has

been provided in congressional party policies (adopted as standing orders or resolutions) and

committee guidance. The rules of the House Republican Conference for the 112th Congress

included a standing order labeled Earmark Moratorium that stated, “It is the policy of the House

Republican Conference that no Member shall request a congressional earmark, limited tax

benefit, or limited tariff benefit, as such terms have been described in the Rules of the House.”

This was extended for the 113th, 114th, and 115th Congresses.12 The Senate Republican Conference

adopted a similar resolution on November 14, 2012. For the 116th Congress, the Senate

Republican Conference voted to permanently extend the ban on earmarks, and as that party

controls the chamber, its ban effectively applies to the entire chamber.13 The House Democratic

majority in the 116th Congress has not adopted a similar policy, 14 but it also has not allowed

earmarks in legislation.

Subsequent to the House Republican Conference instituting its earmark rule, President Obama

vowed at the State of the Union Address given on January 25, 2011, to veto legislation that

contained earmarks.15 In remarks of January 9, 2018, President Trump expressed support for a

return to limited earmarking.16

11 Separately, the House and Senate have earmark rules enforced by points of order that were adopted with the stated

intention of bringing more transparency to the use of congressional earmarks (Senate Rule XLIV and House Rule XXI,

clause 9). For more information on the House and Senate earmark rules, see CRS Report RS22866, Earmark

Disclosure Rules in the House: Member and Committee Requirements, by Megan S. Lynch, and CRS Report RS22867,

Earmark Disclosure Rules in the Senate: Member and Committee Requirements, by Megan S. Lynch.

12 House Republican Conference, “Rules of the House Republican Conference for the 115th Congress,” at

https://www.gop.gov/about/115th-rules/.

13 CRS Report R45429, Lifting the Earmark Moratorium: Frequently Asked Questions, by Megan S. Lynch.

14 H.Res. 6, 116th Congress. Adopting the Rules of the House of Representatives for the One Hundred Sixteenth

Congress and for other purposes.

15 White House, Office of the Press Secretary, “Remarks by the President in State of Union Address,” January 25,

2011, at https://www.whitehouse.gov/the-press-office/2011/01/25/remarks-president-state-unionaddress#annotations:8490988.

16 White House, Office of the Press Secretary, “Remarks by President Trump in Meeting with Bipartisan Members of

Congress on Immigration,” press release, January 9, 2018, at https://www.whitehouse.gov/briefings-statements/

remarks-president-trump-meeting-bipartisan-members-congress-immigration/.

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Earmarking of Surface Transportation Funding

Extensive earmarking of surface transportation programs is a relatively recent phenomenon. It

was common in authorizations that covered the period from FY1992 through FY2012 and for

appropriations from FY2001 through FY2010.17

The House rule establishing a separate Committee on Roads, adopted on June 2, 1913, included a

point of order against any provision for a specific road. According to an analysis by

Transportation Weekly, the rule was reasonably effective in preventing the earmarking of

highway projects until the 1970s, when the House Rules Committee began waiving the rule on

earmarks within larger transportation bills.18 However, highway earmarks in the authorization and

appropriations bills were few in number until the late 1980s. The increase to 152 earmarks in the

Surface Transportation and Uniform Relocation Assistance Act of 1987 (P.L. 100-17), up from 10

under the 1982 Act, elicited a presidential veto and President Ronald Reagan’s comment that “I

haven’t seen this much lard since I handed out blue ribbons at the Iowa State Fair.” Congress

overrode the veto.19

The number of highway earmarks grew in each of the next three surface transportation

authorization acts to a high of 5,671 in SAFETEA, enacted in 2005.20 The Moving Ahead for

Progress in the 21st Century Act (MAP-21; P.L. 112-141), enacted in 2012, and the FAST Act,

enacted in 2015, contain no earmarks.

There were typically fewer than 50 highway earmarks in annual appropriations bills through

FY1990, and there were none in the FY1996-FY1998 period.21 The 1913 House ban on highway

earmarks was repealed in 1999. The number of highway earmarks in appropriations bills grew

quickly from 96 in FY2000 to 614 in FY2010.22 There have been none since FY2010.

The Role of the Department of Transportation

in Project Spending

DOT is responsible for the administration of most transportation programs of the federal

government. Most of that funding is distributed under formula programs, with projects selected

by states, local governments, or transportation authorities pursuant to a federally mandated

planning process at the state and local levels. DOT’s direct involvement in project selection is

mostly limited to the funding in the department’s discretionary programs.

17 The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA; P.L. 109-59),

a surface transportation authorization bill enacted in 2005, covered the period from FY2005 through FY2009, but was

extended several times through FY2012.

18 “The Last Rule Banning Earmarks,” Transportation Weekly, vol. 12, no. 3 (November 10, 2010), p. 13.

19 Federal Highway Administration, President Ronald Reagan and the Surface Transportation and Uniform Relocation

Assistance Act of 1987, Washington, DC, November 23, 2010, at http://www.fhwa.dot.gov/infrastructure/rw01e.cfm.

20 “Congress Completes Work on Highway Bill,” Transportation Weekly, vol. 6, no. 34 (August 4, 2005), p. 19.

21 “In-Depth Analysis: Earmarked Highway Projects: Their History, Their Nature and Their Role in Highway

Legislation,” Transportation Weekly, vol. 3, no. 24 (April 10, 2002), pp. 1, 3-11. Transportation Weekly’s earmark

totals are used here because they provide a consistent source of earmark analysis over time. The tallies are unofficial.

CRS has not verified the counts.

22 Federal funding for transportation was provided in both FY2007 and FY2011 under a year-long continuing resolution

that did not contain earmarks.

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Highways

Over 92% of the $226.3 billion of highway funding authorized in the FAST Act, the most recent

surface transportation authorization act, was to be distributed through formula programs.23 These

funds are under the control of the states. Some of the $7.9 billion authorized for highway safety

programs administered by the National Highway Traffic Safety Administration and the Federal

Motor Carrier Administration was also distributed by formula.

Some highway funding under the FAST Act was to be distributed to states and localities through

discretionary programs such as the Nationally Significant Freight and Highway Projects Program,

also referred to as INFRA. INFRA project awards are decided within the Office of the Secretary

of Transportation. The remainder of highway funding was to go for transportation facilities on

federal lands such as national parks, research and training, and administrative expenses.

Whether for discretionary or formula program projects, federal law requires that all highway

projects must be a product of the planning process under the auspices of a Metropolitan Planning

Organization (MPO) or the state department of transportation. To be eligible for federal highway

funding, either discretionary or formula, the projects must be included in the State Transportation

Improvement Plan (STIP), which is issued by each state’s department of transportation. The STIP

lists the state’s planned highway projects, often in priority order.

Transit and Rail

Like highway funding, most federal transit funding is distributed by statutory funding formulas.

Under the FAST Act, more than 75% of the roughly $12 billion authorized annual budget was to

be distributed in this way.24 To be eligible for federal funds, transit projects must be included in a

STIP or a Transportation Improvement Program approved by an MPO. Unlike federal highway

funding, most of which flows to the states, most transit funding flows directly to local transit

authorities. Only transit funds designated for urbanized areas with populations of 200,000 people

or less and non-urbanized (rural) areas are administered by the states. Under the formula

programs, such as the Urbanized Area Formula Grant Program and the State of Good Repair

Program, FTA simply administers the funds and does not select projects.

Two major programs overseen by FTA are not governed by formula: the Capital Investment

Grants (CIG) program (authorized at $2.3 billion for FY2020) and the competitive element of the

Bus and Bus Facilities program (authorized at $344 million for FY2020).25 In the case of the CIG

program, FTA allocates funding based on factors determined in authorization legislation.26

23 Federal Highway Administration, “P.L. 114-94, Fixing America’s Surface Transportation (FAST): Key Highway

Provisions,” p. 8, at http://www.fhwa.dot.gov/fastact/fast_act_overview_20160310.pdf.

24 CRS Report R42706, Federal Public Transportation Program: In Brief, by William J. Mallett.

25 The Further Consolidated Appropriations Act, 2020 (P.L. 116-94), provided $1.978 billion for CIG in FY2020, less

than the authorized amount. The act’s Transit Infrastructure Grants provision, however, provided an additional $245

million for competitive Bus and Bus Facility grants.

26 Congress had been listing all projects funded through the CIG (New Starts) program in the “Earmarks and

Congressionally Directed Spending Items” table for DOT appropriations bills, although by the definition of earmark

provided in the rule it is not clear that many of the projects should be in that table, since many are the result of “a

statutory or administrative … competitive award process.” For example, in FY2010, $136 million of the $2 billion in

CIG funding was appropriated for projects added by Congress to the list of recommended projects submitted by FTA,

7% of the total program appropriation.

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Competitive Bus and Bus Facilities program funding is distributed by FTA based on either asset

age/condition or for no- or low-emissions bus deployment.27

By far the largest intercity passenger rail program is support for Amtrak. Amtrak receives both

operating and capital support. The expenditure of these funds is determined by Amtrak (though

Amtrak’s capital spending is concentrated in the Northeast, where most of the infrastructure that

it owns is located). There are several other smaller discretionary programs administered by the

Federal Railroad Administration (FRA), such as funding for intercity passenger rail grade

crossing improvements, positive train control implementation, and passenger rail corridor

investment planning. These programs do not all receive funding every year.

Aviation

Most federal aviation funding is spent by the Federal Aviation Administration (FAA) on operating

air traffic control, known as the Operations and Maintenance (O&M) account, and acquiring and

maintaining air traffic control equipment, known as the Facilities and Equipment (F&E) account.

Lesser amounts are also spent by the FAA on aviation safety programs and research. About 20%

of FAA’s authorized funding goes for the Airport Improvement Program (AIP).

The AIP is both a formula and a discretionary grant program. All development projects identified

in the National Plan of Integrated Airport Systems (NPIAS) are eligible for AIP funding.

Generally, about two-thirds of funding is distributed as “entitlements” through formulas set forth

in the authorization act. Entitlement funds may generally be used for any AIP-eligible projects.

However, FAA policy and statutory requirements discourage airport sponsors from using

entitlements for lower-priority projects if they are also seeking discretionary funds. This linkage

with the availability of discretionary funds is a tool that FAA uses to make airport sponsors think

twice about using entitlement funds for low-priority projects. FAA oversees the distribution of

AIP entitlement funds and enforces compliance with the eligibility criteria. Unlike the FederalAid Highway Program, federal aid to airports flows directly to the airport sponsor, usually an

airport authority.

After the entitlement funds are apportioned, whatever is left over is available for discretionary

grants. Airports compete against each other for discretionary grants in the sense that they compete

against each other for high national priority ratings (NPR) within the Airport Capital

Improvement Plan process, which is a subset of the NPIAS and is developed by FAA, airport

sponsors, states, and planning agencies. AIP discretionary funds were often earmarked

substantially before the earmark ban. Earmarking moved an airport up the priority list and

provided funding. On the other hand, it also moved the non-earmarked projects down. The

discretionary funds are also subject to set-asides for nationwide priorities set by Congress, such as

the 35% noise set-aside and the 4% Military Airport Program set-aside.

Prior to the earmark moratorium, some earmarks also appeared in the F&E account of the FAA

budget. The most significant of these were for projects under FAA’s Tower/Terminal Air Traffic

Control Program and the Instrument Landing Systems Program. The priorities for spending under

these programs also are established through a national planning process. According to DOT’s

inspector general, earmarking delayed some projects assigned high priority through this process

27 Federal Transit Administration, Fact sheet: Grants for Bus and Bus Facilities; Section 5339, at

https://www.transit.dot.gov/sites/fta.dot.gov/files/5339%20Bus%20and%20Bus%20Facilities%20Fact%20Sheet.pdf.

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while funding lower-priority projects.28 Virtually all aviation earmarks occurred in appropriations

legislation.

Maritime

DOT’s Federal Maritime Administration provides support for certain maritime operations and

vessel construction, typically under criteria set by law. Most capital programs to benefit marine

transportation, such as harbor dredging and lock repair, are undertaken by other federal agencies,

notably the U.S. Army Corps of Engineers, rather than by DOT.

BUILD Program

One of the largest discretionary programs overseen by DOT is the Better Utilizing Investments to

Leverage Development (BUILD) program, which replaced the preexisting Transportation

Investment Generating Economic Recovery (TIGER) program. BUILD is a multimodal funding

program with the stated intention of supporting “projects that will have a significant impact on

the Nation, a metropolitan area, or a region” (Consolidated Appropriations Act, 2018; P.L. 115141). Enacted initially as part of the American Recovery and Reinvestment Act of 2009 (ARRA;

P.L. 111-5), the program has been funded in all subsequent annual appropriations bills. Funding,

appropriated from the general fund, was $1.5 billion in FY2018, $900 million for FY2019, and $1

billion for FY2020. Projects are selected by DOT on a competitive basis according to merit

criteria that include safety, economic competitiveness, quality of life, environmental protection,

state of good repair, innovation, partnership, and additional nonfederal revenue for future

transportation infrastructure investments.29

Transportation Spending Under the Earmark Ban

Highways, transit, and intercity passenger rail are included in a single multi-year surface

transportation authorization bill, which establishes programs and sets authorized spending

levels.30 In the House, highways, transit, and rail are under the jurisdiction of the Transportation

and Infrastructure Committee (T&I). In the Senate, the Environment and Public Works

Committee has jurisdiction over the highway provisions, the Banking, Housing, and Urban

Affairs Committee handles transit, and the Commerce, Science, and Transportation Committee

handles rail. Provisions involving highway trust fund and revenue issues are under the jurisdiction

of the Ways and Means Committee in the House and the Committee on Finance in the Senate.

Aviation reauthorization bills are primarily under the jurisdiction of the T&I Committee in the

House and the Commerce, Science, and Transportation Committee in the Senate.

28 Office of the Inspector General, Review of Congressional Earmarks Within Department of Transportation Programs,

“Report Number AV-2007-066,” Washington, DC, September 7, 2007, p. 12.

29 Department of Transportation, BUILD Discretionary Grants, Washington, DC, April 15, 2020, at

https://www.transportation.gov/BUILDgrants/about.

30 After the expiration of the Transportation Equity Act for the 21st Century (TEA-21; P.L. 105-178), Congress passed

twelve “stop-gap” extensions for a period of almost two years until SAFETEA (in effect, a five-year bill) was enacted

on August 10, 2005. After its September 30, 2009, expiration SAFETEA was extended 10 times for almost three years.

After its September 30, 2014, expiration MAP-21 was extended five times for a total of about 14 months.

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For appropriations legislation, highways, transit, and aviation are under the jurisdiction of the

appropriations committees in each house. Members of the appropriations committees also oversee

the implementation of federal transportation spending through hearings that provide the

opportunity to publicly call the attention of DOT officials to issues that are important to the

Member’s state or district.

The process of developing a transportation authorization bill typically begins with a schedule of

hearings in which Members can participate, and at which local officials promoting the need for

particular projects can testify. Once the bill is introduced, Members may discuss their concerns

with the committee (both at the Member and staff levels). Such discussions may continue through

the bill markup and even during the eventual floor debate.31 The earmark moratorium does not

affect the ability of Members and their staffs to engage in such discussions. Nor does it limit their

ability to correspond and meet with DOT officials in support of projects.

A ban on transportation earmarks principally affects discretionary programs overseen by DOT. It

has little direct impact on the formula programs that make up most federal transportation funding.

Earmarks serve as a way for Members of Congress to ensure that discretionary transportation

funds are distributed according to their priorities, rather than those of the Administration, or in

some cases the relevant state department of transportation. With earmarks prohibited, and if

Congress does not act in other ways to set funding priorities within the discretionary programs,

then the job of setting priorities is left to DOT, subject to the grant selection criteria set forth in

law and regulation. One alternative to earmarks is more detailed legislative language to govern

the allocation of funds.

Divergences between congressional and Administration priorities for transportation funding have

come to the fore on several occasions. In FY2007, a year in which Congress passed a year-long

continuing resolution and the appropriators did not earmark the discretionary programs, the

George W. Bush Administration decided to consolidate virtually all discretionary funds in the

highway and transit programs to advance its focus on comprehensive congestion mitigation

strategies in metropolitan areas through urban partnership agreements. The roughly $850 million

in discretionary funding was divided among just five cities.32 This amount included unallocated

discretionary bus program funds that had been divided among hundreds of projects by Congress

in the previous fiscal year.33

Similarly, the Obama Administration used unallocated FY2009 Bus and Bus Facilities funds to

support one of its policy priorities, “livability.”34 Livability, which involves providing alternatives

to the car and integrating transportation, housing, and environmental policies, was not specifically

established as a policy priority by Congress.

31 The Department of Transportation usually also usually drafts a suggested bill. The DOT bill is introduced by request

in both the House and Senate.

32 “DOT Urban Partnership Awards a Far Cry from Usual Earmarking,” Transportation Weekly, vol. 8, no. 32

(September 5, 2007), pp. 3-4.

33 U.S. Department of Transportation, Federal Transit Administration, “Announcement of Project Selections for

FY2007 Discretionary Programs,” 72 Federal Register, 47123-47125, August 22, 2007, at https://www.gpo.gov/fdsys/

pkg/FR-2007-08-22/pdf/07-4125.pdf; U.S. Department of Transportation, Federal Transit Administration, “FTA Fiscal

Year 2006 Apportionments and Allocations,” 70 Federal Register, 75648-75709, December 20, 2005, at

https://www.gpo.gov/fdsys/pkg/FR-2005-12-20/pdf/05-24154.pdf.

34 U.S. Department of Transportation, Federal Transit Administration, “Section 5309 Bus and Bus Facilities Livability

Initiative Program Grants,” 74 Federal Register, 64984-64989, December 8, 2009, at https://www.gpo.gov/fdsys/pkg/

FR-2009-12-08/pdf/E9-29242.pdf.

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The earmark moratorium elevates the visibility of the programmatic selection process and of the

selection criteria, which may be established by Congress. Under the earmark ban, other traditional

avenues for Members of Congress to influence the flow of transportation funding become more

important, such as involvement in the policymaking aspects of transportation budgeting and

interaction with both federal and state transportation officials. Increased reliance on formula

funding may make it more critical for Members to try to make sure that projects of importance to

their constituents are included in transportation plans at an acceptable priority level.

Members of the appropriations committees can improve the chances that a specific project will be

funded without earmarking by increasing the amount of funding provided to a particular program.

Members also have the opportunity to include provisions in appropriations legislation that may

affect transportation program expenditures, including project selection, without identifying

specific projects.

Highway Programs Without Earmarks

Due to its size, the Federal-Aid Highway Program has the largest impact on highway spending at

the state and local levels. Reauthorization bills may extend existing programs, create new or

revised programs, or allow programs to lapse. Typically, Members may support increased

spending for programs that are more important to their state or district relative to other programs.

For example, a Member from a state or district with air quality problems might give priority to an

increased share of funding for the Congestion Mitigation and Air Quality Improvement Program.

In the past, in lieu of earmarking, Members also would also support the creation of programs that

would benefit their districts, states, or regions, such as the Coordinated Border Infrastructure

Program or the Alaska Highway Program. In the absence of earmarks, highway program formulas

become more important in directing the flow of highway funding. For example, the

Transportation Equity Act for the 21st Century (TEA-21; P.L. 105-178), enacted in 2005, added

factors to two programs’ funding formulas based on the annual contributions to the highway

account of the Highway Trust Fund by state motorists. This directed money toward states whose

motorists paid larger amounts of highway taxes and away from states whose motorists paid

relatively less in highway taxes.

However, in MAP-21, the 2012 legislation that was the first surface transportation act passed

under the earmark ban, Congress made changes that limited the likelihood that Members could

change formulas to benefit their districts or states. MAP-21 fundamentally changed the way that

the formulas were structured. Instead of each of the several highway programs having its own set

of formula factors that determined the distribution of the program’s authorization to the states,

there was one large authorization that was broken down into state shares before each state’s share

of the authorization was divided among the programs. This meant that there are no longer

individual program formulas or formula factors to modify as a substitute for earmarking. Under

the post-MAP-21 distribution structure, the ways to bring more money to a state or district are to

increase the overall funding authorized, change the calculation of the overall state amounts, create

new discretionary programs, or modify existing discretionary programs’ eligibility and selection

criteria.35

35 CRS Report R45727, The Highway Funding Formula: History and Current Status, by Robert S. Kirk.

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Transit and Rail Programs Without Earmarks

Like the highways programs, most federal transit programs rely heavily on funding formulas

established in authorization laws. Formulas are not a neutral way of distributing funds, as the way

in which a formula is constructed and subsequently modified can have significant effects on the

allocation of funding. For example, in the 1980s transit funding dedicated to fixed guideway

modernization was distributed by DOT based on an administrative formula that sent most funds

to transit rail systems that existed before the creation of the federal transit program in 1964. This

administrative formula was altered and inserted into law in 1991 in part to widen the distribution

of funds to include rail systems built in the 1970s and 1980s. This change was reinforced by

modifications made to the formula in the surface authorization law passed in 1997.

The allocation of funding among the various transit programs is more important in the absence of

earmarks. For example, districts with rail transit systems are likely to do well when more funds

are dedicated to the State of Good Repair Program. Rural districts, by contrast, are likely to

benefit when more funding goes to the Rural Area Formula Program. FTA also administers the

Bus and Bus Facilities Program, which was heavily earmarked in the past. While MAP-21

distributed Bus Program funding entirely by formula, the FAST Act added a competitive

discretionary component. With a ban on earmarks, funding has been distributed according to FTA

criteria, and Congress may want to provide FTA with guidance in developing those criteria.

The earmark ban has not made much of a difference in the realm of intercity passenger rail

because, as noted earlier, these funding programs have not been earmarked.

Aviation Programs Without Earmarks

The earmark ban is less significant for aviation than for surface transportation, due to the

relatively minor role of earmarking in aviation funding. An earmark ban does not affect the ability

of Members to help make the case for a higher priority for particular projects in the Airport

Capital Improvement Plan. Alternatively, Members may seek to adjust the entitlement formulas in

the Airport Improvement Program in ways that might benefit particular airports.

In the absence of earmarking, Members whose states or districts have particular concerns about

noise mitigation or conversion of a military airfield to civilian or dual use could support increases

in the set-asides for those purposes, increasing the likelihood that a particular project will be

funded without naming the project. Members could also intervene in the process of setting

priorities for FAA facilities and equipment expenditures under the Tower/Terminal Air Traffic

Control Program and the Instrument Landing Systems Program.

One of the federal government’s more visible aviation programs, the Essential Air Service

Program, subsidizes commercial flights to airports that lost service under airline deregulation.

This program is not earmarked, although Congress has from time to time altered the criteria that

determine whether a particular airport is eligible for the program.

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Author Contact Information

Robert S. Kirk

Specialist in Transportation Policy

[redacted]@crs.loc.gov

, 7-....

David Randall Peterman

Analyst in Transportation Policy

[redacted]@crs.loc.gov , 7-....

William J. Mallett

Specialist in Transportation Policy

[redacted]@crs.loc.gov

, 7-....

Congressional Research Service

R41554 · VERSION 12 · UPDATED

13

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