How Omnibus Spending Bills Erode Legislator Accountability

By Tony McCann

Overview

Staff plays an essential role in the appropriations process as in all legislation. The legislative process, however, requires members to cast a recorded vote on amendments and the bill; thus validating, modifying or rejecting various provisions of the bill; i.e. giving them “ownership” of the legislation. However, the failure to pass individual appropriations bills, and in some cases the failure to even consider them in subcommittee or full committee means legislation is enacted in massive omnibus bills with virtually no input by the elected representative of the people.

 How Regular Order Enforces Legislator Accountability

The federal government and the issues it addresses are extraordinarily complex.  The range of problems and the depth of technical and political concern is such that few if any of the 535 elected representatives in Congress are able to master and remain current on even a few of them. Staff (both committee and personal), then must serve as an extension of their individual member or the committee members – but they, of course, are not members.

Congressional process (“regular order”) creates a series of points which, at the very least, require members to go on record on bills and amendments. In appropriations, like other processes there is a set procedure. First the subcommittee staff drafts a proposed chairman’s mark. The staff attempts to create a document reflecting the chairman’s public policy views, legislative strategies, and partisan tactics among others factors.

The draft is then reviewed by the chairman who have varying degrees of interest and capability; for some their review is perfunctory, for other it deals with a few specific accounts or issues and for others it is a detailed discussion of each account. The point is that the chairman, an elected member, goes through the staff document in as much detail as he or she feels appropriate.

The next step is the formal, public, mark-up of the bill in subcommittee. Historically and functionally these members are (or hopefully will become) the Congress’ most expert members in the particular subject matter. Here again, the interests and capabilities of the members vary. Ultimately, they all have to vote on amendments and the overall bill – a bill which was initially drafted by staff and reviewed with varying degrees of detail by the chairman.

The process then follows the normal pattern of full committee mark up, passage of the bill by each house and passage of the conference report. At each level, members, alone, must come to a conclusion and publically vote on amendments and final disposition. Factors entering into the decision and levels of interest surely vary, but in the end, what started out as a staff document has some level of member ownership and a series of public votes on its content.

 How Omnibus Spending Bills Erode Legislator Accountability

Over the last 10 years, if each appropriations bill were enacted separately there would have been 120 versions, acted upon at each step.[1] The reality, of course, is far different.

• Only 7 bills went through the process as separate bills, enacted separately;[2]
•  In three cases, bills were conferenced in the omnibus bill that had not been considered at any level in either house;
• In an additional 17 cases the bills conferenced had not been considered at any level in one house; and
• The House chose to skip the subcommittee stage and go directly to the full committee 43 times and the Senate 64 times.

All members are busy with legislative business and perpetual re-election campaigns. Chairmen are not going to review bills if mark-up is not imminent. Subcommittee and full committee members will react similarly. By the time it is clear that the final action will be a massive omnibus bill, chairmen and leadership will tend to focus on only the most contentious items, those with ideological elements or those with local constituent interests.

The simple fact is that as the steps are skipped or the process skipped entirely, the role of elected representatives, already far too tenuous, is virtually eliminated. When finally the omnibus bill is ready for consideration, it comes to the floor of the two houses as a massive document, often running many hundreds of pages. Occasionally it is available on the floor and voted on by members as a draft with handwritten corrections and comments: a stack of paper measured in feet![3] No one seeing this massive document for the first time, and with only a short time for review, has the capacity to review and understand any but a few items or provisions.

Thus a massive, omnibus bill may come to the floor and be enacted including individual bills that no member in one or both houses has ever seen and in which the staff draft from the early spring is still the “policy” for most of the bill.

S. Anthony (Tony) McCann serves on the faculty of the University of Maryland teaching courses in Public Policy and Budgeting. In addition to his extensive executive branch experience, Tony has congressional experience as the clerk and staff Director of the subcommittee of the House appropriations committee that funds most of the federal government’s discretionary programs in health, education and labor.

Notes

[1] One appropriations bill from each of the 12 subcommittees for each of the 10 years.

[2] This data is derived from the Congress.Gov website, the Appropriations page. https://www.congress.gov/resources/display/content/Appropriations+for+Fiscal+Year+2017  Actions at a particular level are based on indications on the site that action occurred at that level.

[3] See for example the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, a 920 page document with the footnote “*Note: This is a typeset print of the original hand enrollment as signed by the President on October 21, 1998. The text is printed without corrections.” Similar language is included in Public Law 104-135, the “Omnibus Consolidated Rescissions and Appropriations Act of 1996”