# Transportation Spending Under an Earmark Ban

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR41554

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 5, 2020
- **Citation:** R41554

## Text

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.

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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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41554. Public record. Not legal advice.