	Introduction

Since the beginning of the 112 th Congress, convened in January 2011, the House and Senate have observed a ban on earmarks, formally known as congressionally directed spending. It then discusses how federal transportation funding is distributed with a ban in place and how Members of Congress might influence the distribution. These programs collectively distribute a relatively small portion of federal transportation funding. The rules in both houses of Congress include identical definitions of "congressionally directed spending." 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. This definition covers earmarks in authorization and appropriations bills as well as in committee reports. 111-8 ):

		"Soft" Earmarks and "Hard" Earmarks

The definition of "congressionally directed spending item" under House and Senate rules appears to permit some "soft" transportation earmarks. Earmark Ban

In the 112 th Congress, which convened in January 2011, the House and Senate began observing an earmark ban. 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. These funds are under the control of the states. 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. Transit and Rail

Like highway funding, most federal transit funding is distributed by statutory funding formulas. Amtrak receives both operating and capital support. AIP discretionary funds were often earmarked substantially before the earmark ban. Transportation Spending Under an 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. 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. One alternative to earmarks is more detailed legislative language to govern the allocation of funds. 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.
In the 112th Congress, which convened in January 2011, the House and Senate began observing an earmark ban. 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.
The rules in both houses of Congress include identical definitions of "congressionally directed spending." 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.
This definition covers earmarks in authorization and appropriations bills as well as in committee reports.
Currently, about 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.