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House Earmarks Ban May Be Tested in Writing Water Bill

The House’s 3-year-old ban on earmarks may be put to the test in the coming weeks, as the House Transportation and Infrastructure Committee writes its authorization of flood control, navigation and environmental restoration programs.

Chairman Bill Shuster, R-Pa., said the Senate-passed water bill (S 601) already gives the Army Corps of Engineers too much power to select the projects that will be funded, and he has vowed to surrender no additional legislative authority.

“I’m not willing to cede one more inch to this or any executive branch,” Shuster told the Transportation Construction Coalition, an industry group that is holding its annual legislative fly-in this week.

The catch is that designating specific projects for funding in the legislation — as Congress did in previous water bills — would run afoul of the earmarks prohibition. Committee aides and leaders, who are aiming to get a water bill to the floor by the end of the summer, are trying to figure out how to proceed.

Ultimately, this may require rethinking the earmark ban that was a cornerstone of the Republican’s 2010 electoral strategy and helped the party win back control of the House.

“Discussions are ongoing,” a Republican aide said. “But the consensus is the Senate’s bill gave back too much.”

The effort to write a water bill is forcing lawmakers to confront a fundamental contradiction of the ban on member-directed expenditures. While earmarks sometimes led to wasteful spending and gave disproportionate power to appropriators, the process also provided House members with some influence over how federal dollars were spent in their districts.

Without earmarks, it’s increasingly up to presidential appointees and their staffs to direct discretionary dollars to projects.

Last year, Congress managed to cobble together a surface transportation authorization (PL 112-141) without earmarks — an effort that was helped by funding shortfalls that left little additional money for lawmakers to spread around. Most highway, bridge and transit funding is distributed to states under formula programs anyway, so earmarks always represented supplementary spending.

Water bills in the past have been different. Without formula programs to guide funding decisions, water resources bills have been collections of specific, congressionally designated Army Corps of Engineers projects.

Whether Shuster and fellow committee members are willing to fight the GOP’s tea party faction over the earmarks ban is uncertain. Lobbyists representing shippers, carriers and other waterways constituencies say it’s more likely that discussions will center on how to skirt the ban. That could mean a policy-heavy House bill to take to conference that doesn’t address specific projects.

“They’re having an uphill battle just convincing some members the federal government should be involved in transportation at all,” a lobbyist said.

Aides in both parties say many of the Senate’s legislative provisions work for them. House Republicans, in particular, like many of the provisions to accelerate the Army Corps of Engineers’ review and planning processes. They are less happy about the bill’s project-selection process, which focuses on the work by the corps in preparing chief engineer’s reports.

Senate Environment and Public Works Chairwoman Barbara Boxer agreed the solution her committee devised was imperfect, but said she blamed the need to comply with the ban on earmarks.

“I’m from California. I know every nook and cranny better than some bureaucrat in Washington,” the Democratic senator told the Transportation Construction Coalition this week. But she said she was resigned to working within the parameters set by the House leadership and agreed to by President Barack Obama.

At a hearing Wednesday by the Transportation and Infrastructure Subcommittee on Water Resources and Environment, Chairman Bob Gibbs, R-Ohio, reiterated Shuster’s concern about ceding too much legislative authority to the executive branch. He worried that the ready-to-go water projects with chief engineer’s reports currently pending before the corps are too skewed toward environmental mitigation projects, rather than port maintenance and expansion projects.

Likewise, Rep. Timothy H. Bishop of New York, the subcommittee’s ranking Democrat, expressed disappointment that the earmark ban has left Congress with little influence over spending by the corps.

“Nothing could be more important for us to do,” Bishop said. “We have to find a way to address specific projects.”

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