Is $45 million for Nevada an earmark? Reid says no, Nebraska senator says yes

Wed, Feb 15, 2012 (3:20 p.m.)

A Nebraska senator is going after Sen. Harry Reid about $45 million for a rail project that he’s trying to free up for the Nevada Department of Transportation to put to some other use.

Why does Sen. Mike Johanns care how Nevada spends $45 million the federal government budgeted ages ago? Because, he says, it's an earmark, and earmarks are a no-no.

Early in 2011, President Barack Obama promised to veto any bill that contained an earmark.

(An earmark, or a “congressionally directed spending item,” is defined under Rule 44 of the Standing Rules of the Senate as “a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority ... to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process.”)

In other words, Johanns says, because it’s only Nevada getting this money, and not every state getting some sort of freed-up funds in the surface transportation bill the Senate is currently considering, it’s an earmark.

Reid’s office disagrees, arguing it can’t be an earmark when they’re not asking for any money Nevada doesn’t already have.

“There is no new spending in this provision,” said Reid spokeswoman Kristen Orthman, adding that the change in the transportation bill just “provides Nevada with additional flexibility and supports more than 1,500 jobs in a state that has the highest unemployment rate in the country.”

The exact language in the transportation bill before the Senate is murky. (Follow along as we now slog through the federal code.)

On its surface, the provision under consideration would seem to be a directive to all states: “Notwithstanding any other provision of the law,” the section reads, “any unobligated balances of amounts required to be allocated to a State by section 1307 (d)(1) of the SAFETEA-LU...shall instead be made available to such State for any purpose eligible under section 133(c) of title 23, United States Code.”

But if you crack open the SAFETEA-LU law of 2005, section 1307(d)(1) only refers to one state - Nevada - and one project: a proposed maglev rail project.

A high-speed rail system that operates by magnetic levitation of trains above the track was at one time the preferred option for Nevada’s planned route between Las Vegas and Los Angeles.

However, Nevada’s not the only state that benefits from the SAFETEA-LU bill. “The MAGLEV project between Las Vegas and Primm, Nevada” is only half of section 1307(d)(1): it also says that half the “amounts” in that section are “for a MAGLEV project located east of the Mississippi River.”

While there are a few proposed maglev routes, none have been developed and aren’t likely to be in the near future as the technology is seen as prohibitively expensive.

That means there’s money that could also be converted to other purposes under the direction Reid has written into the transportation bill.

But not if Johanns, a Republican, succeeds with his amendment.

“It’s a matter of trust,” Johanns said in a statement Wednesday. “The President said he would not sign any legislation containing an earmark, and Congress has promised the American people a highway bill without earmarks...we need a highway bill signed into law and that cannot happen -- according to the President -- with this earmark.”

The White House didn’t immediately weigh in when asked whether they agreed with Johanns that this is an earmark, or with Reid that it is not.

But Nevada Department of Transportation officials say they can find a use for the money.

NDOT Director Susan Martinovich said Wednesday that the department would most likely put the funds, should the transportation bill pass, toward the Interstate-215/McCarran Airport Connector -- a priority project with an $107 million pricetag.

“$45 million? Obviously that would help,” added NDOT spokesman Scott Magruder. “We’ve got so many projects out there, anything would help.”

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