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Engineering a Train Wreck

Scott Lilly writes about why the White House and its congressional allies are working hard to obstruct the appropriations process.

An old Yiddish folktale describes a young man who murders both of his parents and when brought to trial throws himself on the mercy of the court because he was an orphan. The story is intended to explain the concept of "chutzpah" but also describes what the White House and their allies in Congress are doing by decrying the fact that appropriation measures for the coming year won’t be completed on schedule.

The president and his staff have clearly been spoiling for a fall budget fight since they put the final touches on their proposed budget in January. The budget, according to their own accounting, was $60 billion or about 6 percent above current discretionary spending levels. Yet that budget directs the entire increase to the spending bills dealing with defense, military construction, foreign operations, and homeland security, leaving nothing for domestic priorities.

The White House proposed cutting research on cancer, Alzheimer’s, diabetes and most other dread diseases to pay for these increases. It also proposed cut backs in federal support to local school districts; even deeper cuts in federal assistance for local communities to maintaining sewer and water systems; and reduced funds for maintaining roads and bridges under legislation the president signed less than two years earlier.

The president’s budget all but insured a showdown with Congress. But to draw an even deeper line in the sand, the White House made it clear that there was virtually no room for compromise and that any legislation that increased spending above the levels requested by the administration would be vetoed.

The White House was soon chiding the Congress for not acting expeditiously on the annual spending measures. That criticism was in sharp contrast with the administration’s tone in the previous six years when members of the president’s own party were in charge of the Congress. During that period, Congress never produced all of the appropriations measures on time. In fact, despite one-party control of the White House and both houses of Congress for most of this period, the appropriations process was never completed before December 1, and only twice completed before Christmas. The average date for completion of over those six years was January 8—exactly 100 days after the beginning of the fiscal year. Nonetheless, the White House rarely if ever complained about congressional timeliness in passing spending measures.

And like the orphaned young man on trial for murder, the Bush administration has had more than a little to do with the problem it’s complaining about. While the White House was denouncing Congress for failure to move the bills more expeditiously, their allies in Congress were making every effort to gum up the legislative process.

The Senate is better known for the use of the filibuster, but the rules of the House also offer opportunities for significant delay and obstruction. House rules allow each representative to speak for no more than five minutes on each amendment. While that sounds restrictive, it would take more than 12 hours of debate to dispose of a single amendment if a third of the 435 members of the House decided to participate. Even more problematic is the fact that representatives can offer an almost unlimited number of amendments to the appropriations bills. As a result, a relatively small fraction of the House can grind the legislative machinery to a standstill.

That is precisely what certain House members allied with the White House did this past summer. During the 2006 congressional session 108 amendments to the annual appropriation bills resulted in roll call votes. Of those, 57 were offered by the minority party (Democrats) and 51 were offered by the majority party (Republicans). During the current session, a total of 234 roll calls were taken on appropriation amendments—25 of which were offered by the majority party (Democrats) and 209 of which were offered by the minority party (Republicans).

Not only did the minority party this year offer nearly four times the number of amendments offered by either party in the previous session of Congress, but an examination of the roll call votes raises serious doubt as to whether these amendments were intended to serve any significant legislative purpose other than delay and obstruction.

It is a normal and accepted practice for members of a legislature to offer amendments as a means of defining differences between the two competing philosophies or political alignments, even if the amendments have no prospect of adoption. It is also legitimate to offer amendments that may lose, but demonstrate that a substantial portion of the legislative body dissent from the views of the majority.

But it is of questionable utility to offer amendments, and particularly large numbers of amendments, that are opposed by large majorities in both parties and demonstrate a lack of support for the proposition put forward by the amendment. Of the 57 amendments offered by the minority party in 2006 (the Democrats), all but two were supported by at least a majority of the members of that party, and those two amendments both received substantial support from the opposition party. In other words, nearly all of the amendments represented a perspective held by a substantial portion of the House.

This year, a large portion of the proposed amendments were supported by a remarkably small number of members. A total of 59 amendments failed to receive the support of a majority of the sponsor’s own party. Another 40 of those amendments were supported by less than two-thirds of the members of the sponsor’s own party.

Some may argue that the effort to reduce congressional earmarking explains this unusual level of amendment activity. That argument appears strange, however, when considering that the appropriations bills on the House floor this year contained about 50 percent less in earmarked appropriations than the bills debated in 2006. Why would an effort to reduce earmarking result in four times as many total amendments in a year when the amount of money subject to earmarking had been cut in half?

A review of some of these amendments further indicates that many had nothing at all to do with earmarking. Rep. Steve King (R-IA), for instance, proposed on July 25th that Congress reduce funding for the Justice Department by $1 million and reappropriate that same amount to the department specifying that the money be used for a specific criminal investigation. This would transfer prosecutorial discretion from the Justice Department to the Congress. After the amendment was defeated on a voice vote, King insisted that it be reconsidered on a roll call. The amendment was defeated 389 to 19, with 95 percent of the House voting no.

There are numerous other examples of congressional gridlock. Rep. Jeb Hensarling (R-TX) proposed to cut $8 million directed toward helping poor rural communities maintain safe drinking water. That amendment was rejected by more than three-quarters of the House and more than two-thirds of Hensarling’s party. Yet Hensarling still demanded a roll call on a second amendment that gained only slightly more support.

A member may feel strongly that a particular amendment is important, but there is no satisfactory explanation for why such amendments cannot be consolidated and considered in block unless their purpose is to obstruct and delay.

All of these efforts in the House did not stop the approval of appropriation measures this year, nearly all of which passed by wide margins. They did, however, delay transmission of those measures to the Senate. Had the House been able to meet its target of completing action on all appropriations by the end of June, which is its normal goal, it would have more than doubled the number of legislative days available to the Senate for the completion of those bills before the beginning of the new fiscal year. As it is, the delays in the House will strengthen the ability of senators allied with the White House to use obstructionist tactics to cause even greater mischief.

Senate rules limit neither the length of time a given senator can speak on a piece of legislation nor the number of amendments that a senator can offer. There is also no mechanism in the Senate to impose restrictions if any Senator chooses to abuse the process and block the institution’s capacity to conduct its work. The only recourse is to pass a “motion to proceed,” which requires the support of 60 percent of the Senate. While the “motion to proceed” or “cloture” as it is also known can limit the time of debate on a particular issue, it does not limit the number of amendments that can be offered.

The power of a determined minority in the Senate can block completion of the work of the entire Congress, and this power is increasing as the year is passing. Obstruction in one area of legislative activity increasingly affects Congress’ ability to finish its work in other areas. By the beginning of the August recess, the Senate had been forced on 13 occasions to vote on motions to proceed. That is more than six times the average number of cloture votes required over the same time period in the previous two Congresses. Each one of those votes required wasted days that could have been used to consider appropriation measures. Most of the measures that were filibustered eventually passed the Senate by huge majorities, such as legislation fulfilling the 9/11 Commission Recommendations, which was adopted 97-0; a bill improving security in U.S. Courts, which passed 93-3; and the Clean Energy Act, which passed 91-0. The problem in each instance was shutting off the filibuster so that the Senate could do its work.

We are days away from the end of the fiscal year, and the Senate has been able to pass only four of 12 appropriation measures needed to fund the government. While this is not an unusual situation, it is also not a healthy one. Agencies that operate month after month on a continuing resolution do not have a full year to solicit and award grants and contracts. The efficiency and effectiveness of government programs is reduced, and the cost of providing service to the public increases.

Even more troubling is the fact that most of the remaining bills face threats of dilatory tactics by a handful of senators. This could force the Senate to work for weeks considering a single bill and still have no guarantee that the bill could be completed.

Each week that passes after the beginning of the new fiscal year forces Congress to weigh the possibility of resorting to the use of an emergency spending vehicle that crams together all decisions about government funding. Omnibus appropriations, as such measures have been labeled, amalgamate thousands of complex and controversial spending policies into a single bill and each member of the House and Senate is given an up or down vote. In the end, the Senate’s intention of preserving the rights of a few of its members results in gross abuse of the rights of almost all members of both bodies.

An additional consequence is that, because omnibus bills contain so many complex policy decisions, they are largely indecipherable to the press and general public. As a result, the Congress losses any real opportunity to contrast its judgments on spending priorities with that of the administration when there is disagreement between the two branches of government.

This aspect of the current debate over appropriations was made abundantly clear in a recent poll conducted by Peter Hart Research Associates. When the public was asked who they would side with in a disagreement on spending, they narrowly (46 percent to 40 percent) sided with Congress, which claimed more was “needed for necessary investments that the administration had shortchanged” over the White House, which said that the bills “contained too many wasteful pork barrel projects and go too far in busting the budget.”

But public sentiment shifted overwhelmingly toward the Congress when the choices were spelled out in terms of the individual issues contained in separate appropriation bills. On the issue of increasing the Military Construction and Veterans Affairs Appropriation by $4 billion to provide better care for returning veterans, even a majority of conservatives sided with the Congress. On the question of adding $2 billion to the Homeland Security bill for ports and first responders, the public sided with Congress 68 percent to 24 percent. On the question of more funding for health research, the public agreed by 65 percent to 28 percent. And on almost all of the other major spending issues public support of the congressional position was close to 2 to 1.

Obstruction of the normal process of legislating the federal budget has numerous costs. One is that most Americans do not know the choices that their government is making. Unfortunately, the White House seems to think that this is a preferable course given the support that their priorities received in the Hart poll. If it is not their choice, they should ask their allies in Congress to allow the Senate to do its work. If it is their choice, they should have the decency to not blame the Congress for their own obstructive activities.

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Scott Lilly

Senior Fellow