Trump City: The Earmark That Changed the Rules

September 10, 2015

Now that he has become the front-runner in public polling for the 2016 Republican presidential nomination, it may be useful to remember this story: Donald Trump was behind one of the most contested Congressional earmarks in living memory.

The Miller Highway, also known as the West Side Elevated Highway, once ran most of the length of Manhattan at the edge of the Hudson River. Most of the rest of the highway had closed and been redeveloped, but the elevated highway between 58th and 72nd streets still stood in the 1980s, when Trump proposed to redevelop the old Penn Central yards near there for a project to be called Television City. The project was to be centered on a new television studio for NBC to occupy after moving out of 30 Rockefeller Center, and would contain apartments, retail, and office space.

NBC pulled out of the project in 1987, citing widespread community opposition to the project, and is still famously occupying 30 Rock today. After some gestation, the project was renamed Trump City (naturally). Trump finally gained zoning permissions in 1992 but the project called for the Miller Highway to be relocated, and disputes over financing that part of the project led to more delays, during which Trump’s ownership share in the proposed project was diluted.

Starting with the FY 1996 Department of Transportation appropriations bill, Rep. Jerrold Nadler (D-NY) began offering amendments on the House floor saying that “None of the funds made available by this Act may be used for improvements to the Miller Highway.” On July 25, 1995, Nadler first offered his amendment (on p. H7600 here), pointing out that the state had just paid $92 million to repair the existing Miller Highway the year before and saying that, “Donald Trump wants the taxpayers to shell out another $350 million to tear down this brand-new highway and move it a few hundred feet so it will not interfere with the sight lines of the prospective purchasers of new apartments in a new high rise luxury development he plans to build adjacent to it.”

The Nadler amendment became law as section 343 of Public Law 104-50 (the FY 1996 DOT appropriations act) and was retained by Congress for the next two years (as sec. 330 of Public Law 104-205, the FY 1997 DOT spending act, and as section 333 of the FY 1998 law (P.L. 105-66)).

With the Appropriations Committees against Trump, and their actions precluding discretionary support from USDOT and from New York State using federal money, Trump turned to the authorizing committees of Congress.

Neither the original House-passed version of what became the landmark 1998 TEA21 law, nor the Senate version, contained any reference to the Miller Highway. But when the conference report resolving the disagreeing versions was filed on May 22, 1998, the report contained project #732 in section 1602 of the bill, earmarking $6 million of Highway Trust Fund contract authority for “Complete engineering, design, environment reviews and other preliminary work for the Miller Highway relocation project in New York.”

Interestingly, none of the members of the New York delegation claimed credit for inserting the project at the time. (This was before the days when each earmark had to be identified with a specific sponsor.)

The TEA21 conference report, laden with increased formula money and earmarked projects, represented the high-water mark of public works authorizing committee political power. In addition to the above, the conference report contained a number of new provisions intended to decrease the power of the Appropriations Committees at the expense of the authorizers. Among those was section 8101(e) of TEA21, which created a new point of order in House rules against any legislation that “would cause obligation limitations to be below the level for any fiscal year set forth in [TEA21].” Since obligation limitations occur in the annual appropriations act, this was a clear slap at the appropriators.

After TEA21 was signed into law in June 1998, the FY 1999 DOT appropriations bill came before the House on July 29. Nadler tried to offer a different version of his amendment, saying that, “None of the funds made available in this Act or in the Transportation Equity Act for the 21st Century (P.L. 105-178) may be used for improvements for the Miller Highway in New York City.” But the House parliamentarian ruled that it was now improper to use appropriations language to ban the expenditure of contract authority provided by an authorization law, even though the money was still subject to the obligation limitation in the appropriations bill.

Nadler settled for the House passing his old language again by voice vote, but this time it was dropped in the House-Senate conference committee. But just a few short months later, it would be the House Appropriations Committee coming to the floor with a must-pass bill, and in October 1998, Appropriations chairman Bob Livingston (R-LA) brought a bloated omnibus appropriations conference report to the House floor (with bills from seemingly every other committee in Congress rolled into it).

Section 108 of Division C of the omnibus appropriations act partially rolled back the TEA21 point of order in order to allow future appropriations bills to limit obligations for specific TEA21 earmarks: “For the purpose of any Rule of the House of Representatives, notwithstanding any other provision of law, any obligation limitation relating to surface transportation projects under section 1602 of P.L. 105–178 shall be assumed to be administered on the basis of sound program management practices that are consistent with past practices of the administering agency permitting States to decide High Priority Project funding priorities within state program allocations.”

Years later, after Congress had spent the Highway Trust Fund into bankruptcy, the House repealed the TEA21 points of order against underfunding appropriations bills, and the “Livingston codicil” (which had been updated in 2005 to refer to earmarks under the SAFETEA-LU law as part of the rule) became invalid as well.

As for Trump City? Much of the development was eventually built as the renamed Riverside South, but the Miller Highway (renamed the Joe DiMaggio Highway after the Yankee slugger’s death in 1999) is still standing in its original location between 54th and 72nd Streets, blocking much of the view from the lower levels of the new development, as shown in this aerial video from earlier this year.


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