Earmarks are back. What does that mean for public affairs teams in 2021?
We spoke with Rich Gold, head of the Public Policy & Regulation Group at Holland & Knight, to learn more about the earmark process, how it’s changing, and how you can try and get a piece of the appropriations pie.
What Are Earmarks?
An earmark is a mechanism for members of Congress to allocate specific funds to projects in their districts or states through the appropriations process. If you were working in Congress or in the government affairs industry prior to 2010, you’re likely familiar with the process. But those newer to the industry haven’t seen earmarks in action as Congress removed the process in 2010 following a series of high-profile ethics scandals regarding how legislators were directing funds.
Earmarks allow legislators to target funds for important projects that can range from tackling policy problems to job creation. While earmarks do pose an opportunity for bad actors to abuse this system, most earmarked funds were intended to directly help constituents’ concerns and needs. When the earmark ban occurred, the process of targeting funds to individual projects was not dismantled, the power was simply shifted to the executive branch, which effectively made it more difficult for constituents to get the help they need from their representatives.
Why Are Earmarks Coming Back?
While there are a few outspoken Republicans against earmarks, fearing a return to the ethical challenges of the last time around, most legislators on both sides of the aisle support returning this power to Congress rather than leaving this distribution to the Executive Branch.
While the earmark ban was in effect, the House Select Committee on Modernization of Congress worked to build out recommendations to reimplement earmarks, while protecting from the potential ethical issues that occurred before. These recommendations included expanding transparency for members requesting earmarks, looking for connections between earmarks and recipients, capping the number of earmarks, and limiting the types of recipients who can receive earmarks. Now that earmarks are back with increased transparency, there is more accountability in their effectiveness at achieving the desired goal.
“Steny Hoyer, Nancy Pelosi, and Mitch McConnell all are former appropriators and all in their heart of hearts support this,” Gold said. “Over the last two administrations without earmarks, having handed over so much power to the Executive Branch, the leaders of the Appropriations Committee, particularly Senator Shelby and Senator Leahy—both of whom have been here for decades now—feel very strongly that Congress needs to reassert its power of the purse.”
And while Gold believes this movement back towards earmarks would have happened regardless of COVID, the pandemic provides a unique lens to look at the process that may make its benefits even more tangible to legislators.
“COVID has definitely played a role, probably psychologically or subconsciously for a lot of members who are seeing the direct impacts of the virus on their district,” Gold said. “I think the virus made us all acutely aware of the vulnerabilities in our communities and certainly made every member of Congress aware of that. What community projects allow a member to do is to look forward this year and figure out what problems can I actually solve right now with this process.”
What’s Different About Earmarks this Time Around?
Congress is invested in making sure the ethical challenges of the past don’t happen this time around. While the Senate has yet to finalize its rules on how it will proceed with earmarks, the House Appropriations Committee has outlined a series of rules to make earmarks more transparent and ethical. Here are a few of the most relevant:
- No For-Profit Recipients: Members may only request funding for State or local governmental grantees and for eligible nonprofits
- No Financial Interest: Members must certify to the Committee that they, their spouse, and their immediate family have no financial interest in the projects they request.
- No More than 10 Requests per Member: The Committee will accept a maximum of 10 community project requests from each member, though only a handful may actually be funded.
“There is total transparency in these earmarks,” Gold said. “When an appropriations bill comes to the floor under this process there will be a project listed in the bill and next to that project will be the name of the legislator who requested it. When you have the Department of Transportation choose a project, there’s no disclosure about the political support behind that project or who was pushing for it.”
Along with these new rules, they’re also giving earmarks a rebrand, referring to them as “Community Project Funds”.
How Can I Get My Project Funded?
According to Gold, earmarks are competitive.
“This is a little bit more like the casino than it is the bank,” Gold said. “An average member of Congress is going to get 2 or 3 projects in spending bills on an annual basis and he or she may have 30, 40, 50 people coming to them asking for support…You certainly don’t want to be in a situation of relying on it coming through the backend in a life or death situation.”
But, this doesn’t mean there aren’t steps you can take to improve the likelihood that your project is considered.
Here are five things you can do to improve your chances of earning earmarked federal funding:
- Get Started As Early as Possible
- Consider Expert Support
- Reach Out to Your Congressional Delegation
- Plan Your Pitch
- Observe Which Legislators Work Together On Community Projects
Get Started As Soon as Possible
Gold and the team at Holland & Knight usually tell their clients to start working on their earmark projects in January. That timeline wasn’t possible this year as it wasn’t until February that earmarks’ return became more clear. But the sentiment remains — don’t wait to get started on your project plan and relationship building. Identify your project and what funding bill it qualifies for.
“If you’re [reading this] right now and you’re just thinking about this and thinking about getting started, I hate to sound like your mother or your father but do it now, don’t wait.”
Consider Expert Support
Along with the logistical challenges of filling out numerous unique appropriations request forms for each legislator you wish to consider your request, it’s critical to understand the numerous legal requirements a project must comply with if it receives federal funding. Experts who have been through the federal funding process before can determine whether or not your project qualifies for the account you’re requesting funds from and potentially advise adjustments to make it a better fit.
Reach Out to Your Congressional Delegation
Next, you need to contact the members of your congressional delegation. One challenge here is that there is no uniform submission process for making a request for a community project — each legislator may have a unique form with different questions and requirements in order to be considered. The best way to start is to look on their website and find a form submission for community project funds.
Plan Your Pitch
While this process is more formal than lobbying a legislator to sponsor a bill or vote a certain way, the personal relationships you have and your understanding of what makes each legislator tick are still important. How can you connect your project to the things that are most important to that representative or senator?
Let’s say you want to build an off-ramp on a highway. If you’re working with a legislator who is deeply invested in climate change, you may relate this off-ramp to a nearby renewable energy plant and how an additional off-ramp will decrease travel costs for those working at the energy plant. On the other hand, if you’re working with a conservative Republican who isn’t driven by environmental issues, you may speak to how this exit will improve traffic congestion and help constituents within the district.
“You do need to message these projects in a way that convinces the member of Congress ‘This is something I support, this is right up my alley,’” Gold said. “That’s a big part of getting a project over the line at the end of the day.“
Observe Which Legislators Work Together On Community Projects
One potential benefit of reintroducing earmarks in Congress is bipartisanship. When community projects are at stake in the passage of a bill, it makes it harder to vote against. And, projects that have mutual aid across district lines can bring members together who may not usually work together. When legislators build relationships with each other over community projects, they may also be willing to work together in the future on other policy topics.
Conclusion: A Direct Channel for Democracy
For many people who work in nonprofits or for local government, it can feel like the federal government is far away and inaccessible. In Gold’s view, earmarks change that.
“In some sense, it is a direct channel of democracy from the local level to Washington and hopefully breaks down some of the preconceptions of the federal government not being responsive,” Gold said. “I really counsel people — if you’ve got a project that will really make a difference in your local community, this is a process that you need to look at and talk to your member of congress about.”
