The Ferguson Group Blog

Getting WRDA Done

That WRDA 2013 tops the agendas of the House and Senate public works committees is a fact. That drafting, passing and conferencing WRDA 2013 legislation will take some time and a lot of effort is also a fact. 

That is not to suggest the signing of a WRDA 2013 (or 2014, should it take that long) is unlikely. There are plenty of indicators that critical mass is building toward this becoming the first water resources development law since 2007. But getting there will take some legislative creativity in this era of a no-earmarks and it will take consensus on difficult issues in this time of political fractiousness. Here are three of the several dynamics/issues at play:

• People are noting that nearly half of the House Members were newly sworn into Congress since WRDA 2007 became law. That means that most have little experience in and understanding of the Civil Works program and the Federal role in water resources projects. That's why Chairman Bill Shuster has embarked on a path to educate his colleagues--especially those of his own party who came to Washington with the intent to do little more than cut government--as to the importance of WRDA and other programs for which his Transportation & Infrastructure Committee is responsible.  Shuster has asked trade associations, ports, counties and other stakeholders to engage their congressional delegations in the education process. We should undertake to do just that.  It is a simple matter of needing the votes in committee and on the floor when the time comes.  As of now, the votes may not be there in the House.
• An illustration of what can be accomplished even in these heavily partisan times was last year's collaboration between Chairman Barbara Boxer and her Republican counterpart on the Environment & Public Works Committee, Sen. Jim Inhofe (R-OK), and then T&I chairman John Mica (R-FL) in producing the MAP-21 surface transportation bill. That same collaboration is in process today with the new ranking member, Sen. David Vitter (R-LA). The two occupy different ends of the political spectrum but do agree on the essential view that a new WRDA is overdue. However coming to agreement on wording and key provisions is the challenge. The senators have been working at it since January.  We hear they are reaching agreement on many items in the bill drafting but we also hear they are philosophically divergent on some key issues still to be worked out. How to streamline the civil works process may be one of those key issues on which each will have to give in order to find common ground.
• The navigation program area has some particularly difficult problems in need of solutions. Agreement can be found on many of the problems but its the workable solutions that are hard to come by. The Harbor Maintenance Tax continues to be a thorn in the side of the ports of Seattle and Tacoma who have called for a tax on cargo at the land border in order to neutralize the competitive advantage they think Canadian ports have in attracting US bound cargo. The Harbor Maintenance Trust Fund looks like a simple problem needing only a simple solution but despite universal agreement among ports on the need for full-use of HMTF resources institutional barriers on Capitol HIll have frustrated problem solving. Then there is the underfunding of the Inland Waterway Trust Fund. Industry and the Administration agree that new revenue is required but they have been at loggerheads as to how to do it.

There are other challenges facing commitee Chairmen Shuster and Boxer and their ranking members, Rep. Tim Bishop (D-NY) and Sen. Vitter.  How to authorize projects without naming them—remember, no earmarks, please—is one. How to address climate change effects through water resources policy, is another. And there are more. The legislators in charge are up to the task, that’s clear. But they will need some help from the rank and file in Congress and from stakeholders among us. Senator Boxer's committee expects to be the first to produce a bill--maybe by the end of March or early April of 2013. Meanwhile,it's time to educate your Senators and House Members on the importance of WRDA.

 

Use it or Lose it – Transportation Earmarks to be Redirected

On August 17, President Obama directed the U.S. Department of Transportation to redirect and quickly spend $473 million in highway earmarks from FY2003-2006 appropriations acts that, for a variety of reasons, could not be fully spent by a local sponsor.  Many sponsors have tried unsuccessfully to redirect the original funds, but found they could not due to the current earmark moratorium restrictions.   State departments of transportation now have the ability to use the unspent earmarked highway funds on any eligible highway, transit, passenger rail, or port project. Each state must submit a spending plan to the U.S. DOT by October 1 and funds must be obligated by December 31 or U.S. DOT will give the unobligated money to other states.

Some state DOTs are already contacting local sponsors with earmarks on the redirect list to determine whether the funds can be spent on the original project.  Beyond this first procedural step, carrying out this Presidential directive gets murky.  Questions regarding state and local authority to redirect earmarked funds away from designated projects are under consideration and it is possible that jurisdictional battles may erupt in Congress as well as the state, regional, and local levels.

Rumor has it, though, that in at least one state, plans are underway by the state DOT to give the original local sponsors first priority to obligate the earmarked funds and redirect the money to another project in their community. 

My colleagues and I are certainly watching this issue closely and will report back on whether this rumor proves true in a subsequent blog post.  In the meantime, I would advise any local or regional government agency that has an earmark on the list below to contact their State DOT immediately and inquire how their state plans to handle the directive.  And since there will undoubtedly be communities who cannot spend their funds, if I were a community with a transportation project in a state with unspent funds, I would consider identifying several suitable transportation projects in case a chance to submit a request for reprogrammed funds is presented. 

For the list of earmarks in question, click here.

GOP lawmakers Working to Lift the Earmark Ban

Note: This is the third in a series of postings that will examine the state of play in the ongoing debate over earmarked spending.

In April, Sixty-five freshman Republicans sent Speaker Boehner a letter to consider a miscellaneous tariff bill (MTB) filled with provisions to suspend duties on various foreign goods. Although House rules state that “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.”, the freshmen argue that these tariff benefits fall outside the rules because they don’t benefit a specific company. The issue is yet to be resolved.

Now word comes that a group of GOP lawmakers is working to lift the earmark ban next year.

Conservative Rep. John Culberson (Texas) is the most recent GOP lawmaker to publicly push back against the ban that was formally adopted when Republicans took control of the House in 2011.

Culberson says he’s been “pounding” the leadership to move on the reforms, as well as “educating” his colleagues on the “urgency” of the situation.

“This is an evolving conversation … This was designed as a temporary ban, and I’m only talking about infrastructure for national security purposes or critical infrastructure. For example, flood control or transportation, that’s critical public infrastructure, which we have no conflict of interest, no personal interest of any kind and is utterly transparent,” Culberson said.

Rep. Mike Rogers told The Hill, “What I would like to see happen is a situation where we can’t advocate for private company and for-profit [companies]. But if it’s a state, county or local government in our district, we should be able to advocate for a project that is beyond the scope of what they can do and need federal partnership. I think you are going to see a lot of members advocating for [that arrangement]. Because right now we are prohibited from advocating for anything for our states.”

I’m following this debate closely and will update you as this continues. Please feel free to comment below or contact me at [email protected]

Will Earmarks Make A Comeback?

Note: This is the second in a series of entries that will examine the state of play in the ongoing debate over earmarked spending.

As months pass and legislation such as the reauthorization of the highway bill have stalled, whispers about the earmark ban have turned into rumblings. During a closed meeting of the House Republican caucus, Congressman Mike Rogers (R-AL) )  brought up the subject of bringing back earmarks as a way to move through the legislative impasse. Rogers was quoted as saying that he received “a lot of applause” from his fellow Republican in response to his idea.

Many Democrats also want to return to earmarking. Congressman Nick Rahall (D-WV), the Ranking Member of the House Transportation and Infrastructure Committee recently asked House Transportation and Infrastructure Chairman John Mica (R-FL) to join him in asking House Speaker Boehner to restore earmarks to the transportation bill. As early as November of 2011, Congresswoman Doris Matsui (D-CA) wrote a letter to House Speaker Boehner and Minority Leader Pelosi asking leadership to redefine “earmarks” to allow for fully vetted projects to move forward because the current policy is  “having profound detrimental effects on activities that create jobs, promote economic development and provide public safety benefits.”

Former members of congress are also calling for a return to earmarks. Former Senator Robert Bennett (R-UT) recently wrote an op-ed entitled It's time to reinstate earmarks In his editorial, Senator Bennett states: 

In fact, as the dictionary makes clear, "to earmark" does not mean "to add." It means "to designate or set aside." The top spending limit for a cabinet department is set by the budget resolution, and an earmark does not add to or raise that top number at all. A congressional earmark designates which programs should be funded within the limits of the overall budget. Absent such earmarks, the administration is free to spend the money on the projects it likes. And even Tea Party Members that were critical of the earmarking process have come to understand that a total ban on earmarks does not seem to be the right answer.

Congressman Bobby Schilling (R-IL), who was against earmarks during his campaign for Congress, said recently that he would have rather not banned earmarks entirely. "I did not want the earmarks banned, because I truly believe that there is such a thing as a good earmark," Schilling told the audience.

I’m following this debate closely and will update you as this continues. Please feel free to comment below or contact me at [email protected]

Are Earmarks Truly Dead?

Note:  This is the first in a series of entries that will examine the state of play in the ongoing debate over earmarked spending.

The whispers began months ago as Congress struggled with its self imposed two-year moratorium on earmarks.   Important legislation has stalled and gridlock seems to have become the new norm on Capitol Hill.

After having struggled through the first year of the earmark ban, a growing number of Republicans were beginning to discuss the possibility of reconsidering the ban after the 2012 elections.  The argument for bringing back earmarks ranged from ceding control of all spending to the Obama administration, to not having the ability to help fund worthy projects back home. 

These arguments were not new.  In January of 2011, Senate Majority Leader Harry Reid (D-NV) had this to say after President Obama’s state of the union speech when the President announced he would veto bills that included earmarks:  “The money is going to be spent anyway,” said Reid. “The difference is the White House is going to be directed [sic] where its spent, not us. That’s our obligation. This does not save any money.”  Added a visibly frustrated Reid, "I have a constitutional obligation to do congressionally-directed spending. I know much more what's needed in Elko, Nevada . . . than some bureaucrat does back here."

A report from the Heritage Foundation seems to back up the Majority Leader’s January 2011 claim that the Administration was the one now doing the earmarking. The report says that the Obama administration directed federal spending to Democrats to help get them to vote for controversial bills such as cap and trade, financial regulation reform and Obamacare.  Fox News reported:

"Numbers from the non-partisan Congressional Research Service show that the value of administration earmarks under President Obama increased by a 126 percent in his first two years in office and the actual number of administrative earmarks increased by 54 percent.

Those are dramatic increases that are 11 times more than Congress itself increased earmarks, which the White House did not explain today. 

It also does not square with statements the President is against earmarks, which he and his administration appear to have used to great effect and with increasing frequency."

 

I’m following this debate closely and will update you as this continues.  Please feel free to comment below or contact me at [email protected]

Another Ninety Days…and Counting on Action

A month ago I wrote about Congress figuratively “kicking the can” 90 days down the road when the House and Senate approved yet another extension of the aging SAFETEA-LU.  Well, they did it again…but this time with a difference.

When the House voted on April 18, to approve H.R. 4348, it was well ahead of the June 30, expiration of the last extension about which I wrote. As if getting ahead of itself, this one keeps current law alive through September. Why not the usual 11th hour renewal?

Answer: the point of the extension was less about extending current law and more about providing a legislative vehicle to speed the House and Senate to conference negotiations.

By sending H.R. 4348 to the floor, Speaker John Boehner (R-OH) and Transportation chair John Mica (R-FL) signaled that the House likely was ready to move into conference despite not having produced a full-fledged, multi-year surface transportation bill of its own.  The Republican and Democratic votes were not there for Chairman Mica’s signature “American Energy & Infrastructure Jobs Act,” H.R. 7.  Instead, another bill was teed up to, as Mica said, “help move the process forward in working to resolve differences with the Senate.”

The H.R. 4348 extension measure may lack the major policy and program reforms of H.R. 7 but it isn’t without controversy.  It includes a provision to advance the high-profile Keystone XL project on which the Administration has put off a go/no-go decision. 

Other amendments include project streamlining language from H.R. 7 and allow the recycling of coal fly ash in concrete. The one other adopted floor amendment requires appropriations from the Harbor Maintenance Trust Fund for port maintenance to be the equivalent of annual Harbor Maintenance Tax revenues. The provision to correct underfunding of channel O&M lacks credible enforcement language. Still, it was the first time the House voted to make that statement. (Look here for the full House floor debate and amendments.)

The Senate was ready and raring to go to the dance and voted on April 24, to amend the House extension with the Senate-passed MAP-21, S. 1813.  That was the procedural necessity to enable the House and Senate to proceed to the conference stage.  Conferees were named on both sides.  Committee staff are already on the case and, as always, at work in the background. 

Recall that the 2-year Senate bill passed that body with 74 votes.  That gives people some level of confidence that negotiations will produce a final product that can win a majority in the House.

However, confidence doesn’t equal unbridled optimism.  There are potential stumbling blocks, beginning with the pro-Keystone XL provision that the White House has promised to veto.  But we are a lot closer to seeing the proverbial light at the end of the tunnel today than we were earlier this year.  Odds are whatever gets through will not be all that pleasing to many.  The level of funding, elimination of certain programs, no earmarks, etc.  But since the measure may end up providing little more than a year’s worth of funding authorization—so as to spare Congress from having to come up with new revenue to offset Highway Trust Fund revenue shortfalls—Congress will have to leap back into the subject matter before long.