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Policy Riders: Stowaways on the Omnibus?

Prior to passage, CNN reported that the House Appropriations Committee Chairman, Representative Harold Rogers had announced that his panel and its counterpart in the Senate had reached a compromise and that the final legislation included a number of “policy riders“. A compromise on riders is a good sign, since earlier this year they were an important sticking point dividing the two parties. At stake was whether Congress would change policy through appropriation measures, a practice that is generally prohibited.

When Congress passes a law establishing a program or policy, the authorizing committee like Transportation, Armed Services, and Energy and Commerce will produce a bill that includes an amount that can be spent for it; however, whatever is created does not receive that money automatically. To actually fund the various government programs and activities, Congress must pass twelve appropriation bills each year. (Check out our previous posts on the budget process for more information.)

In theory, authorization bills codify the policy decisions regarding what the federal government should or should not be spending money on.  Appropriation bills should merely provide funds to carry out the authorized policies, not make changes to law.

According to Robert Keith, author of Congressional Research Service (CRS) Examples of Legislative Provisions in Annual Appropriations Act, the appropriation bills should not establish or alter government initiatives so that the funds for the government are not held up by disputes over divisive issues. However, each year Members try to enact policy via “legislative provisions”, also called “riders”. There are two types of riders. One actually creates a new program, policy, agency, or something similar. The other, a “limitation provision”, tries to rollback a policy already enacted by withholding funding for something. Both Chambers of Congress explicitly prohibit such provisions in their rules; both Chambers routinely ignore those rules. Despite being forbidden, riders slip into law through procedural loopholes, or because Members are unable to raise a successful point of order against them, or because the Chambers waive the rules prohibiting them.

There are a number of reasons for the inclusion of riders in an appropriation bill. The main reason is that the political stalemate between the Democratic Senate and the Republican House results in fewer and fewer legislative items passing both Chambers.  Most of these policy riders would typically be included in authorization bills – but Congress rarely passes authorization bills anymore. Appropriation bills are ideal substitute vehicles to do so. Why?  Because appropriation bills are usually the “last train to leave the Congressional station” at the end of the year.  They must pass. If Congress doesn’t, portions of the government might be shut down. Since the Senate passed so few appropriation bills in 2011, all the attention has been focused on the omnibus appropriation bill passed last week.

Riders can be a powerful means to persuade Members to support a bill.  In some ways, riders have replaced earmarks as “sweeteners” that the leaders in each Chamber can use to persuade reluctant fence-sitters to vote for the underlying appropriation bill.  For instance, last week the House included language in the $1 trillion appropriations bill overturning the federal government’s ban on incandescent light bulbs.  (For many Republicans, the issue was symbolic of bureaucratic overreach.) Some allege that riders are included as a way to pass measures that would not otherwise be enacted – a form of legislative blackmail – where the President is unwilling to veto a massive spending bill over one objectionable rider.  

Sometimes they go too far and the President calls Congress’ bluff.  For instance, in 2008, the Democratic majority passed a bill funding America’s war efforts but attached riders that Representative John Boehner, then the House Republican Leader, called “unpopular political provisions” (tax hikes and spending). President George Bush vetoed that bill and the Democratic majorities in Congress were unable to override him, eventually having to remove the policy riders from the bill.

This year, the Democrats have accused House Republicans of similarly abusing appropriation legislation. In November, House Minority Whip Steny Hoyer and over 180 of his Democratic colleagues sent a letter to Speaker John Boehner indicating that they would oppose what they deem to be controversial appropriation riders for this fiscal year. Hoyer and the other signatories call the riders “an attempt to push through both chambers an extreme, partisan agenda“.  Of course, this is just an example of political chutzpah, since the Democrat majority from 2007 to 2011 did the exact same thing.

It is not surprising that these riders tend to ignite partisan fireworks. The most significant riders reflect the division between the parties’ core principles and philosophies, thus generating the biggest battles, which are dangerous when the economy’s health is critical. In less than twelve months, Congress and the President have had to stave off a couple government shutdowns (due the inability to pass appropriation bills) and a national default. Riders have complicated the process along the way. During the shutdown showdown in early April, Democrats resisted riders Republicans proposed to defund Planned Parenthood and to impede the implementation of healthcare reform, among a number of other things. Riders affecting Planned Parenthood and healthcare in the Labor and Health and Human Services appropriation bill had been a source of contention among the Members as well.

Obviously, abortion and healthcare are two of the country’s most intractable issues. There is essentially no agreement about them, and many others. However, the consequences of not funding the government are so great, and the parties would suffer so much in the eyes of voters that the leaders generally come together to work out a deal. To resolve the rider impasse in April, the parties agreed that the anti-Planned Parenthood rider would be dropped, but they would retain a provision preventing the city of Washington, DC, from funding abortions. Additionally, Senate Majority Leader Harry Reid promised to bring up measures defunding Planned Parenthood and repealing healthcare reform for separate votes. Conversely, in 2007, President Bush threatened to veto an omnibus bill containing a number of Democratic riders. In order to pass this, the Democrats backtracked on including a pro-abortion provision and one making it easier to trade with and travel to Cuba. On the other hand, they were able to increase spending in areas like healthcare and education and included a rider permitting Washington, DC, to implement a needle exchange program and one cutting back on abstinence-only sex education funding.

The way to solve the problem of policy riders on appropriations bills is for the House and Senate to return to regular order and do their jobs. According to a useful chart maintained by the Library of Congress, this year the House passed nine regular appropriation bills, but the Senate only passed one before the start of the new fiscal year Congress should either commit to following the budget process set forth by law in the Budget Act of 1974 (a process that has not been successfully adhered to since 1997) – or enact major budget reform that revises the way the process works.

Given that Republicans and Democrats have not been in the mood to compromise on when they will take their Christmas vacation, let alone contentious issues that produce policy riders, it is unlikely we will see significant budget reform until after the next election.  However, the fact that Republicans and Democrats ultimately compromised in the three big fiscal fights of 2011 speaks volumes about the political ramifications of not funding the government.

Washington has already been through a number of bruising fiscal battles this year, and we are only a year out from a major election. So the compromise inclusion of some policy riders is not surprising if only because Senators and Representatives are exhausted from the excessive partisan bickering. Neither side probably got all it wanted, and it’s far less painful than letting the government go unfunded, but it’s no way to run a government.

Work Consulted: Examples of Legislative Provisions in Annual Appropriations Acts by Robert Keith, 4 September 2008, for Congressional Research Service

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

 

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