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They’re Back: Congressional Earmarks For Federal Construction Projects

by Joseph C. McGowan

Remember the Bridge to Nowhere? This was a term coined by John McCain to exemplify what some considered the evils of congressional earmarks for federally funded construction projects. The Bridge to Nowhere was a $233 million dollar project that, purportedly, served an island in Alaska with only 50 inhabitants.

Allowing influential members of Congress to demand such earmarks was considered essentially corrupt because money was thought to be spent for the political benefit of the members of Congress, rather than practical need of taxpayers. For this reason, congressional earmarks became disfavored during the last 15 years, and Senate rules for both parties have prohibited such earmarks.

Earmarks for federal construction spending is making a comeback, though, in a clear sign of the change in the political winds, and a rethinking of the actual pros and cons of congressional earmarks.

The driving force behind this comeback is the dire need for infrastructure spending in the United States. We all rely upon highways, bridges, public transit, and other infrastructure, but few of us make a connection between this infrastructure and the expense to pay for it. The federal gas tax has not been increased, or even indexed for inflation, for nearly 30 years. With the coming prevalence of electric vehicles, the obvious solution would be to charge a tax on the vehicle miles traveled, rather than the gas purchased. The Congress needs to pass a reauthorization of the highway bill. Our politicians are reluctant to take these steps because they lack the support of voters—who don’t really understand the benefit of federal spending on infrastructure.

The “powers that be” are hoping that earmarks will give members of Congress an incentive to pass a new infrastructure bill when it expires this year. Like any politician, our members of Congress will be able to point voters to a project funded by the US Dept of Transportation and say “I got you that subway station; you saved 20 minutes on your commute to work; that highway was improved; those electric charging stations were built because I demanded it.” Infrastructure spending will no longer be a mere number but will be a tangible benefit to taxpayers. Our politicians can support these projects without being accused of building the “bridge to nowhere.”

Obviously, any return to earmarks will come with restrictions against abuse and corruption. When earmarks are again permitted, there will be objective criteria to ensure funds are spent appropriately, a cap on the number of requests, and a cap on the amount of overall spending via earmarks.

Earmarks are coming, however, according to several current and former congressional staff members who spoke at the American Road and Transportation Builders Association (“ARTBA”) Federal Issues Program and Transportation Construction Coalition Fly-In, held virtually this week.

The task for each of us (whether we are mere commuters, or members of the construction industry) will be to communicate with members of Congress, and demand so-called “Member Directed Projects” in the areas where we live or work. It is also important to reinforce the need to make the tough decisions to support a highway reauthorization bill and to resolve the structural problems caused by this country’s reliance upon an inflexible gas tax.

If you are in need of an experienced litigator, please contact the firm of Rogers, Joseph O’Donnell, a firm specializing in construction law, government contracts, employment law, environmental law, retail trade, white collar crime, attorney liability and conduct, cybersecurity and privacy, and complex commercial litigation.

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