Stop Signs Amid Dollar Signs

Lawmakers Tackle Various Issues With Funding Bans

Posted September 4, 2007 at 6:43pm

For years, the dredging industry has urged Congress to force the Army Corps of Engineers to take the McFarland, a monster dredging boat, out of the water, so private contractors could take on its harbor clearing jobs.

But Northeastern states want the Philadelphia-based boat to stay in the water to tackle critical dredging operations in the region.

The Water Resources Development Act bill that awaits final Senate passage contains a carefully drafted compromise that would put the McFarland in reserve, only to be used if there is an emergency to which the private fleet cannot respond.

But with a single sentence in an appropriations bill, Rep. Peter Visclosky (D-Ind.) is offering private industry a much bigger victory: His language says no funds shall be spent on the McFarland except to decommission it.

The provision, included in the House-passed Energy and water development appropriations bill, is one of dozens of “none of the funds” provisions that Members have inserted into spending bills to address specific policy disputes. Under new rules, committees must disclose which Members have requested earmarks, and Members must certify that they have no financial interest in those requests, but these rules do not apply to riders that limit funding, even if the result is a direct benefit to a particular industry or location.

Appropriations bills for years have carried riders that prohibit federal agencies from spending money in ways that would offend Members of Congress — say, paying for abortions with taxpayer money or raising fuel-efficiency standards for automobiles.

But this year’s bills also are laden with sharply targeted provisions that appear to be a response to a narrow local problem or even a single news story.

For instance, in February, the conservative American Family Association sent an alert to supporters asking them to contact their Member of Congress about the Public Broadcasting System underwriting the Sundance Film Festival, where “sick” films with strong sexual content were screened. PBS had provided $40,000 for events at the “Filmmakers Lodge,” which hosts discussions of topics in the movie business.

In response, Rep. Steve King (R-Iowa) inserted a provision into the House Labor, Health and Human Services, and Education appropriations bill to prohibit PBS from spending any money “to sponsor events at the Filmmaker Lodge at the Sundance Film Festival.”

Rep. Shelley Berkley (D-Nev.) inserted a provision to kill off a Department of Energy Web site called the Yucca Mountain Youth Zone, designed to provide kids with information about the proposed nuclear waste disposal site. Berkley called the site “one-sided propaganda to sell kids on the idea that it is safe and acceptable to dump toxic nuclear waste in the State of Nevada.”

Congressional staff and outside observers agree that riders like these flourish because it is far easier to pass a one-sentence spending prohibition than a stand-alone bill. Appropriations bills are “must-pass” measures, and prohibiting spending offers a way to attack a very specific concern that is harder to reach through legislation.

For example, House Energy and Commerce Chairman John Dingell (D-Mich.) added a provision to eliminate the salary of one person: Andrew Biggs, the controversial deputy commissioner of Social Security. President Bush gave Biggs a recess appointment to his post in April after Senate Finance Chairman Max Baucus (D-Mont.) refused to hold a confirmation hearing because of Biggs’ track record of advocating for the privatization of Social Security.

Dingell’s amendment, which passed the House on a 231-199 vote, states simply that no funds “may be used to pay the basic pay of any individual serving as Deputy Commissioner of Social Security, Social Security Administration, whose appointment to such position has not been confirmed by a vote of the Senate.”

Two other funding limitations target specific court cases. One amendment, offered by Rep. Vito Fossella (R-N.Y.), prohibits the Justice Department from carrying out “the decision of the United States Court of Appeals for the Second Circuit in Lin, et al. v. United States Department of Justice rendered on July 16, 2007.”

The court in that case ruled the provision of U.S. law that allows a victim of China’s one-child policy — women forced to have abortions or be sterilized — to receive asylum does not extend to their spouses or partners. Fossella said the 2nd Circuit decision contradicts the precedent set by other courts, and, “I feel it is our responsibility to protect such asylum seekers either until there is a consistent national policy, or Congress considers a legislative remedy if necessary.”

A second funding restriction, offered by Rep. Tom Tancredo (R-Colo.), prohibits the DOJ from enforcing the prison sentences of Ignacio Ramos and Jose Compean, two U.S. Border Patrol agents who were convicted of shooting an unarmed Mexican drug runner who was running away. The case of the Border Patrol agents became a cause celebre for immigration hard-liners, who claimed the Justice Department protected the drug runner to prosecute the agents.

Chai Feldblum, director of the Georgetown University Law Center Federal Legislation Clinic, said, “I’m not opposed in principle to Congress imposing conditions on the use of funds,” but targeting specific court rulings “seems like a bad precedent.” Congress is responsible for writing laws and the judicial branch is charged with interpreting the law as written, Feldblum said. “I think once a court has issued a judgment in a case, it is not appropriate for Congress to indicate its disapproval of the substantive legal point by withholding funding for enforcing that judgment … the correct approach is to change the statute.”

But Fossella pointed out on the House floor the dilemma that faces most sponsors of funding limitations: Legislation takes time and is hard to pass. “What we are trying to do is at least provide a stopgap measure,” Fossella said. “I would be happy to work towards a legislative remedy, but until that time, we are trying to keep people here who want to seek and enjoy the American dream.”