July 20, 1993

July 20, 1993 | Backgrounder on Federal Budget

Slowing the Spending Stampede: A Five-Day Waiting Period forCongress

(Archived document, may contain errors)

95 1 July 20, 1993 SLQWINGTHESPENDINGSTAMPEDE A FIVE-DAY WAlTlNGPERIOD FOR CONGRESS INTRODUCTION This fall, Congress will go on a spending binge n the course of six or eight weeks legislators will approve bills ap propriating over half a trillion dollars in spending for fis cal year 19

94. If recent history is any guide, much of this spending will be considered in a fashion that denies most Congressmen the opportunity to read or even effectively skim the legislatio n that appropriates the funds. Soon afterwards the House and Senate likely will embark on a pre-holiday legislative orgy, approving scores of bills in the course of a few days before quitting work for the year. In the closing days of its 1990 session, for in stance, Congress approved 109 separate bills. Without even a scorecard to tell what is being voted on, Members will be forced to rely on lobbyists and party leaders for a thumbs up or down before casting votes. Long after legislation is passed investig a tors will be uncovering unjustified spending and special interest favors-items that should have been debated before Congress voted. While Congressmen may be entitled to vote without knowing what is in a bill if they so choose, the public, media, and citiz ens groups deserve a reasonable opportunity to review bills for pork-barrel spending or other objectionable provisions before they have become the law of the land.

Congressional rules already mandate minimum review periods of two or three days prior to consideration of appropriations bills (and for legislation generally in the House).

Already insufficient for complex legislation, these waiting period rules have increasingly been waived, ignored, or bypassed in recent years. This blind spending and legislat ing un dennines the principle of mjority rule in Congress, frustrates accountability to voters and expands opportunities for pork-barrel spending. While the problem of rushed de sion-making is most acute with Congresss massive annual spending bills, the n e ed for adequate time for review, delibera~on, and debate applies to all legislation. Congress needs to slow down before it spends again. Fostering genuine deliberation and allowing public scrutiny are essential to reforming congressional spending habits. C onms needs I l I THREE DAYS, TWO DAYS, OR NONE AT ALL to extend existing legislative waiting periods and ensure compliance with its waiting pe riod rules. Specifically, Congress should: d Lengthen the waiting period for appropriations and other bills to f i ve days, SO that legislators and the public have sufficient time to examine proposed spending and other legislation d: Eliminate;loopholes.and;rule waivers ,that dlow congressional committees to I s~fi t ;kfi-g Gd &h ,debgtQ.,on~~ls.in-orde.to.shield insu p- portable spending and other controversial proposals.

Unlike waiting period proposals which.would infringe upon constitutional rights (on gun purchases, for instance an internal congressional waiting period would restrict only the delegated powers of Con gress. Rather than trespassing on rights an internal congres sional waiting period would help to protect citizens rights to representation and petition.

Current rules providing minimum periods for scrutiny of appropriations and other leg islation are both inadequate and inadequately adhered to. Reports on appropriations must be available to the House for three days, and the Senate for two? before legislators can vote on them. Separate provisions of House rules also require three-day waiting periods before consideration of non-appropriations legislation and conference reports. If a report is filed in the Senate, a two-day waiting period must be observed. These rules are in tended to allow Congress sufficient time to make informed choices, and to give the pr e ss and public sufficient information about government spending and other decisions. The fact that three separate House rules include versions of the three-day waiting period demonstrates the importance of allowing time for adequate deliberati~n In practic e , however, these waiting periods frequently are shortened. The Senate Ap propriations Committee is allowed to opt to omit any report on spending legislation, thus avoiding .the-required two-day .waiting period. Under unanimous consent agreements the Senat e often pulls bills just out of committee immediately onto the Senate floor. The House routinely waives its three-day rules. Those waivers require a majority vote in both the Rules Committee and the full House. The Rules Committee has nine seats for Repre s entatives in the majority party, and four seats for those in the minority. This gives Demo crats 69 percent of the votes in that committee, although they have only 59 percent of seats in the House. Since House members traditionally follow committee recomm e nda tions on arcane-sounding procedural matters, the vote in the full House rarely varies from the recommendations of the inflated majority in the Rules Committee, so the rules for.legislative waiting-periods .are easily waived. b-the 102d Congress (199 1 1992 1 2 See Senate Manual (Washington: U.S. Government Printing Office, 1989), Rule XW(5 3 See The Constitution Jflersons Manual. and Rules of the House of Representatives (Washington, D.C U.S.

Government Printing Mice, 1991), Rule xxX(7 See Rules of the House, Rules XI(2)(1)(3 XXI(7). and XXVIII(2)(a 2 F The need for a waiting period is magnified by congressional practices which fre quently succeed in making an end run around other rules designed to assure openness in the legislative process. Though Hou s e and Senate rules generally require committees to hold open meetings, the House Committees on Appropriations and Ways and Means fre quently conduct bill-writing sessions in secret. The Senate Finance Committee likewise excluded press and public from its r ecent deliberations on the Clinton Administration's new tax bill. While the Senate Appropriations Committee opens its meetings to the pub lic, the meeting room used by the committee is so small that only a handful of outsiders are allowed in Conference co m mittees also are supposed to be open to the public, but conferees fre quently meet in secret, making the constraints imposed by House and Senate rules irrele vant. Though conference committees are supposed to compromise between differences in House and Se n ate bills, not add new material, this constraint is often ignored. This prac tice is in violation of both House and Senate rules. If new provisions are inserted in an appropriations report, an objection may be raised against it by. any Senator, but there i s no remedy in the rules of the House? Even bills which are relatively free of pork when they pass the House and Senate can be loaded up with wasteful spending in a conference committee. Like mushrooms that emerge ovemight and flourish in the dark, the co n fer ence process can produce-new-growth on-what .had been a clean fieldthe.day before eleven out of 26 appropriations bills were passed in the House under waivers of the re quired three-day waiting period for legislation or conference reports4 Even when w a iting period rules are not avoided, their spirit frequently is violated. Cop ies of bills or reports often are unavailable until a day or more after they are filed. Substi tute amendments which revise completely the text of legislation'are not subject to w ait ing period requirements. A loophole in House rules voids the waiting period in the final days ofeach-session, creating anincentive-to delay controversial matters I HURRY UP AND VOTE The legislative hurry-up offense-the combination of committee and con f erence se crecy with waiting period waivers-deprives the public, the media, and rank and file Members of the House and Senate of adequate opportunity to examine legislation before it is voted on. In most cases the only evident reason for accelerating the l egislative pro cess is to hurry through pork-barrel spending or to cut short debate on other politically controversial proposalsrNearly .every instance-of circumventing the waiting period rules provides more evidence of the need to strengthen such require m ents and to apply them consistently. t I 4 5 The eleven waivers comprised four in the fmt session and seven in the second session. They typically permitted the See Senate Manual, Rule xxVm(2 House to dispose of in one or two days matters that ordinarily r e quire a three-day waiting period 3 Stratospheric Spending Senior Congressmen frequently use waiting period waivers not only to overcome pol icy objections, but even to frustrate the express will of a majority of lawmakers. Take, for vanced solid rocket mo tor (ASRM Although NASA, the Bush Administration, and many environmental, scientific, and taxpayer groups recommended termination of this program,%the.fact that .the ASRM is built in the.dis

ct.of Jamie L..Whitten, then Chair instance, the $360.million allocated-in fiscal year 1993 for continued funding of the ad 1 a mm 78~s~~~pp~p appare

ly.was. decisive U i Whitten added the ASRM funds to the Veterans Administration and Housing and Urban Development (VA-D) appropriations bill in committee. The House then ap proved an amendment to kill all ASRM spending and sent the bill to the Senate, which left ASRM funding out of the bill. In the conference committee, however, ASRM fund ing was reinserted. The day that the conference committee reported its decision, th e House voted to waive the three-day rule, and funding for ASRM and the rest of the bill was approved the next day. Had a five- or even a three-day waiting period been en forced, ASRM opponents might well have been able to marshal forces to uphold the ini t ial House decision to kill the program Urban Mushrooms The bill that funded ASRM also contained a Housing and Urban Development Spe cial Purpose Grants fund controlled by Congressmen sitting on HUDs funding commit tees. The Senate had proposed spending ro u ghly $125 million for the grants; the House had included no money at all. The conference committee did not compromise: it added an additional $135 million. The $260 million appropriation included $1.3 million for sub sidies to two sugarcane mills in Hawai i and $1.5 million each for a manufacturing incu bator facility in North Dakota, renovation of two county courthouses in Alabama, small business loan funds in Vermont, a Center for Pacific Rim Studies at the University of San Francisco, and a video confere ncing and training facility at Enterprise Development Incorporated of south Carolina.

It is difficult to see why these local governments, private universities, and businesses should be subsidized by the federal government. But it is easy to explain why so many Congressmen pushed to waive the mandated three-day period that the conference report was required to be available: scrutiny of this spending would have jeopardized its pros pects of passage.

California received the biggest payload from this fund over $25 million. However the second largest recipient of special purpose grant funds 19.25 million) was the state of West Virginia, a state with comparatively little acreage but comparatively large politi ccal elout~-its-representati~es include Senate Approp r iations Committee Chairman Robert C. Byrd and House HUD subcommittee member Alan Mollohan. For purposes of com 6 The ASRM was opposed by such diverse groups as Citizens for a Healthy Environment, Friends of the Earth National Toxic Campaign Fund, the Sier ra Club Legal Defense Fund, the Association of American Scientists, the National Resource Council, the Aerospace Safety Advisory Panel, Citizens Against Government Waste, Citizens for a Sound Economy, and the National Taxpayers Union.

Conference Report 102 -902, H.R. 5679. 7 4sight House members began debating the merits of the conference report on the House floor. Just before 5:oO a.m a single copy of the bill, pieced together from &fferent word r parison, Arkansas-a slightly larger state with comparable e c onomic needs-received only $1.25 million Scientific Pork Another blatant example of the use of rule waivers to avoid public scrutiny and frus trate a congressional majority occurred on the 1993 Energy and Water appropriation. The subcommittee in charge of writing the bill slipped in ten science projects, costing over 9? Nan at~..notla&xized as~eq~d ouse s.~The..Appropriations s out controversy. However, Representative George E. Brown, Jr., the authorizing commit tee chairman, discovered the pork and propos e d that the funding be deleted unless the projects were duly authorized after a competitive review process. Three weeks after Brown won 250-104, supporters of the ten disputed projects convinced their Appropria tions Committee colleagues to insert the same projects into the conference report on an other appropriations bill, the one funding defense spending. Before the defense report was available to non-committee members, appropriators secured a Rules Committee waiver of all points of order, including the t hree-day waiting period and the ban on unau thorized spending.

One copy of the conference report was made available for the scrutiny of Congress men about two hours before the vote took place I think they deliberately did their best to conceal what they we re doing," Brown later said By the time that he was permitted to see the only available copy of the conference report-73 pages of small print-and was able to fmd the pork, the window of opportunity to marshal support for another fund ing deletion vote had passed. The bill was reported only one day before the end of the ses sion, just a few weeks before the 1992 elections.

A successful vote to overturn the waiver of the waiting period would have meant that Congressmen would have had to stay in Washington rather than going home to campaign. Brown's attempt to overturn the rules waiver failed, and the unauthorized spending (a l ong with the rest of the bill) was ap proved. d e~of.~e ng in.~opesithat bill would pass with 9 LEGISLATION WITHOUT DELIBERATION 8 See Holly Idelson Unsinkable Science Congressional Quarterly Weekly Report, October 10, 1992. p. 3191 9 Ibid 10 See the disc u ssion of the Intermodal SurfaceTransportation Efficiency Act of 1991 in Eric Felten's The Ruling Cfuss Washington: Regnery Gateway, 1993), pp. 3-5 5 Ic overwhelmingly to approve the bill which no Member had even leafed through. Weeks later, Department of T ransportation staffers were still plowing through the bill, discover ing unknown pockets of pork. Nothing in the bill was so urgent as to demand such a will fully blind voting procedure. While a weeks wait may not have changed the outcome the prospect of s crutiny certainly would have made conferees think twice about the pork laden monster they created In theceursed-the .final-.seven.days.of the-session that- saw: the highway bill pushed federal deposit insurance reform to the decl&ation of National Visitin g Nurse Associa tions Week In the final week of the previous session, Congress took action on 109 pieces of legislation, including eleven out oflhkken appropriations bills. There is little excuse for Congresss habit of procrastination all year followed by a final rush in the last days of a congressional session. Knowing that they faced an enforceable waiting period likely would force committees to conduct their business in a more orderly and delibera tive fashion throughout the year No Reason to Rush Even m o re inexcusable than Congresss annual end-of-the-year rush is the cavalier waiver of waiting period rules on major legislation-legislation which likely would pass muster even with an additional day or two of delay. The only appreciable result is to force l egislation to a vote before it can be scrutinized and vetted of any potential flaws.

The conference report on the congressional budget resolution embracing President Clintons first five-yearbudget plan was treated with just such unjustified haste In the sp ace of one day, the House of Representatives received the conference report, voted to waive the three-day waiting period, and approved the bill. Not one member of this Con gress knows what is in this except for about five people, argued Republican Represe n ta tive Gerald Solomon of New York, perhaps generously. With one exception, every House Republican voted against the waiver, while every House Democrat voted for it. A real de 1iberative .periodmight have.permitted .Congressmen to cast a.vote .on some .ba sis other than party affiiation ions of President Clintons deficit reduction plan, was likewise the subject of unjustified haste. The Senate Finance Committee approved the plan before legislation even existed.

Members of the committee voted on the plan on Friday afternoon, June 18, with only a three-page outline of the bills likely provisions and a Joint Taxation Committee docu ment explaining their tax consequences. The actual text of the legislation was not avail able until late Friday night; Senators ha d one working day to study the legislation before the Senate began considering the $1.5 .trillion plan on June 22 Second Thoughts ad te-d n~s:s,~p 6-oth;err.p~~s:of:legis~~on, ranging from The Senate version of the reconciliation bill, embodying the tax an d entitlement provis Certainly most outside observers object to habituallymshing bills though the legisla tive process. There is also evidence that Members of Congress themselves are frustrated with a system that places them at the mercy of conference comm i ttees and congressional barons, forcing them to vote on legislation they do not understand. In a recent survey con ducted by the Joint Committee on the Organization of Congress, Congressmen ranked studying and reading about pending or future legislation o r issues first among a dozen choices of activities on which they would like to spend more time. Nearly twice as many 6 Congressmen expressed a desire for more time to study and read as cited any other activ ity THE SUNSHINE SOLUTION Some solutions to the p r oblem of politicized appropriations and hastily considered leg islation.require substantial alterations in the constitutional balance-of powers: the line item vetq, for-exampleAsimpler reper day waiting 2.4% period for approval of pro posed legislation; m i ght achieve the same lund of public accounta6ility while producing a far more fair and democratic legislative process. A weeks delay would allow a more thorough examination of spendingand other proposed laws by the media, congressional staffers, public in t erest groups, and ordinary citizens. Justice Louis D. Brandeis called sunlight the best of disinfectants. Public review may provide the best test of whether spending is a legitimate response to national needs, or just pork. Current procedures, on the othe r hand, sanction the use of public money without public review A waiting period could reduce pork-barrel congressional spending dramatically. Cur rently, appropriations bills speed through Congress. Even the two or three days which Congressmen are supposed to have to scrutinize bills are simply not enough-and Con gress frequently fails to follow its own rules. Experienced budget analysts say they need at least a week of work to gain a reasonable understanding of an average appropriations bill. Since many ap p ropriations bills are brought forward and then voted on long before a week passes, there is every reason to conclude that public monies are being appropriated whose significance Members of Congress have no real opportunity to understand. Each of the thirt e en appropriations packages (the legislation plus the accompanying report) is typically hundreds of pages long; last years defense appropriations package ran to over 250 pages. For FY 1993, the average appropriations bill totalled $59.7 billion. l2 With fi ve days to read a bill that size, working 24 hours a day, a Member of Congress would have to pass judgment at a rate of over eight million dollars a minute.

Support for particularly egregious pork often vanishes under the light of day. Two re cent examples of pork barrel funding that was approved but later rescinded show the sort of abuses that conscientious Congressmen and watchdog groups could highlight more often if given greater opportunity to examine appropriations bills. Democratic Senator Daniel Ino u ye of Hawaii inserted $8 million for North African Jewish refugee schools in France into the conference report on a 1987 appropriation bill.13 The funding came to light only after the bill had passed, but when Inouye was unable to provide a convincing rat i onale for U.S. taxpayers to provide funding for a religious school in France, Congress rescinded the funds. In 1990 North Dakota Democratic Representative Byron Dorgan added half a million dollars to renovate the birthplace of Lawrence Welk, which is lo c a ted in his state.14 Though thefunding survived its -first challenge, the resultant public ity created an uproar and Congress later acted to remove the controversial spending. With 11 Other Peoples Money (New York: National Home Library Foundation, 1933 p. 67 12 See House Report 102-1091, p. 4; the median appropriation is the Commerce-Justice-St-Judiciarys $23.2 billion 13 S. 1924,lOOth Congress 14 H.R. 5268, lOlst Congress 7 expanded and consistently enforced waiting period rules, there is every reason to b elieve that rank and file Congressmen will successfully pursue more challenges to committee sponsored pork tive when they are waived. The rules which mandate time for consideration, as well as those which prevent conference committees from adding new mate r ial, are regularly breached.Thomas Jefferson began-his .account-of-the-House-Rules-by endorsing the idea that;nothingycould..promote..the,,prospects d.cengalized..politic.alUpower than a neglect of, or departure from, the rules of proceeding The rules] op e rated as a check and con trol on the actions of the majority, and they were, in many instances, a shelter and pro tection to the minority,-against the attempts .of power. 15 The modem trend toward frequent waiver and disregard of Congresss procedural rule s confirms Jeffersons understanding of the dangers of this course. Congress would do well to heed Jeffersons advice and resist the temptation to waive its own rules. Any genuine congressional reform package should move in the opposite direction: it should s trengthen rules that encourage deliberation and scrutiny of all legislation, particularly spending bills If the current waiting period rules are not effective as written, they are even less effec RECOMMENDATIONS Congress should lengthen the waiting period for legislation.

Congress should lengthen the two- and three-day waiting periods to five days, and the Senate should expand its waiting period rule to cover all legislation. Congress should also begin to count days when the bill or report is printed in th e Congressional Record, or otherwise made widely available, rather than starting the clock when the bill or report is filed (as it does currently). The waiting period must include conference reports, though it should not be necessary for the second house acting on the identical report to delay action if the other chamber has complied with the waiting period rules.

Finally, Congress should apply the same waiting period to substitute amendments which replace the entire text of a bill with new proposals.

Conaress should eliminate loonholes and waivers of its waitina Deriod rules.

The House should eliminate the special provision which automatically waives the waiting period in the final six days of the session,16 as this creates an incentive to put off until the sessions final days what should be handled earlier. If waivers are neces- sary, the House should require a two-thirds vote of the Members to waive the rules making rules waivers more.difficult and underscoring-the -gravity-of departing from or- dinary procedures. The Senate should make the production of appropriations reports mandatory, not optional, so that the appropriations committee cannot avoid a waiting period by failing to issue such a report 15 Rules of the House, p. 1 18 16 See Rules of the Ho u se, Rule XXVm(2 8 4 CONCLUSION c C Current congressional waiting periods re both too short and too easily waived. Rank and file Congmimen id the public deserve a reasonable opportunity to review legisla tion before it is voted on by the House or Senate. A d equate and well-enforced waiting pe riods would make Congress more accountable, more democratic, and more cautious in the use of .thepublic:s ,money. Allowing insufficient time to. review spending and other legislativc&xisia, is .poor, public,policy Crea& rules.which.enco‚Č• deliberation is difficulty in slipping in special interest provisions without adequate justification and de bate. The pressures of public review would prompt Congress to avoid squandering public funds:Indeed, itmight serve asawelcomem n inder of the source of that money the responsible kmative. Commikkes and influential Congressmen would have greater I Dan .Greenberg Congressional Analyst 9 95 1 I a I a July 20, 1993 SLOWINGTHE SPEGSTAMPEDE A FnTE-DAY WAKINGPERIOD FOR CONGRESS INTRODUCTI ON This fall, Congress will go on a spending binge. In the course of six or eight weeks legislators will approve bills appropriating over half a trillion dollars in spending for fis cal year 19

94. If recent history is any guide, much of this spending will be considered in a fashion that denies most Congressmen the opportunity to read or even effectively skim the legislation that appropriates the funds. Soon afterwards the House and Senate likely will embark on a pre-holiday legislative orgy, approving sco r es of bills in the course of a few days before quitting work for the year. In the closing days of its 1990 session, for in stance, Congress approved 109 separate bills. Without even a scorecard to tell what is being voted on, Members will be forced to rel y on lobbyists and party leaders for a thumbs up or down before casting votes. Long after legislation is passed investigators will be uncovering unjustified spending and special interest favors-items that should have been debated before Congress voted. Whi l e Congressmen may be entitled to vote without knowing what is in a bill if they so choose, the public, media, and citizens groups deserve a reasonable opportunity to review bills for pork-barrel spending or other objectionable provisions before they have become the law of the land.

Congressional rules already mandate minimum review periods of two or three days prior to consideration of appropriations bills (and for legislation generally in the House).

Already insufficient for complex legislation, these.wa iting .period ruleshave increasingly been waived, ignored, or bypassed in recent years. This blind spending and legislating un dermines the principle of majority rule in Congress, frustrates accountability to voters and expands opportunities for po+-barre l spending. While the problem of rushed deci sion-making is most acute with Congresss massive annual spending bills, the need for adequate time for review, deliberation, and debate applies to all legislation. Congress needs to slow down before it spends ag a in. Fostering genuine deliberation and allowing public scrutiny 8~e essential to reforming congressional spending habits. Congress needs THREE to extend existing legislative waiting periods and ensure compliance with its waiting pe riod rules. Specificall y , Congress should d Lengthen the waiting period for appropriations and other bills to five days, so that legislators and the public have sufficient time to examine proposed spending and other legislation. d -Eliminate loopholes and rule-waivers that allow congressional committees to O short-circuit,waiting.periods and rush debate.on bills.in.order to shield insup Unlike waiting period proposals which would infringe upon constitutional rights (on gun purchases, for instance an internal congressional waiting period would restrict only the delegated powers of Congress. Rather than trespassing on rights, an internal congres sional waiting period would help to protect citizens rights to representation and petition portable spending and other controversial propos a ls IAYS, TWO DAYS, OR NONE AT ALL Current rules providing minimum periods for scrutiny of appropriations and other leg islation are both inadequate and inadequately adhered to. Reports on appropriations must be available to the House for three days, and t h e Senate for two: before legislators can vote on them. Separate provisions of House rules also require three-day waiting periods before consideration of non-appropriations legislation and conference reports. If a report is filed in the Senate, a two-day w a iting period must be observed. These rules are in tended to allow Congress sufficient time to make informed choices, and to give the press and public sufficient information about government spending and other decisions. The fact that three separate House r ules include versions of the three-day waiting period demonstrates the importance of allowing time for adequate deliberati~n In practice, however, these waiting periods frequently are shortened. The Senate Ap propriations Committee is allowed to opt to om i t any report on spending legislation, thus avoiding the required two-day waiting period. Under unanimous consent agreements the Senate often pulls bills just out of committee immediately onto the Senate floor. The House routinely waives its three-day rule s . Those waivers require a majority vote in both the Rules Committee and the full House. The Rules Committee has nine seats for Repre sentatives in the majority party, and four seats for those in the minority. This gives Demo crats 69 percent of the votes i n that committee, although they have only 59 percent of seats in the House. Since House members traditionally follow committee recommenda tions on arcane-sounding procedural matters, the vote in the full House rarely varies from the recommendations of the inflated majority in the Rules Committee, so the rules for legislative waiting periods are easily waived. In the 102d Congress (1991-1992 1 2 3 See me Constitution. J&ersons Manual. and Rules of the House of Representatives (Washington, D.C US.

Government Printing Office, 1991 Rule xxX(7).

See Senate Manual (Washington: U.S. Government Printing Office, 1989 Rule XW(5).

See Rules of the House, Rules XI(2 1)(3 XXI(7 and XXVIII(2)(a 2 .I SPENDING SECRECY eleven out of 26 appropriations bills were passed in the House under waivers of the re quired three-day waiting period for legislation or conference reports.

Even when waiting period rules are not avoided, their spirit frequently is violated. Cop ies of bills or reports often are unavailable until a day or more after they are filed. Substi tute amendments which revise completely the text of legislation are not subject to wait ing period re q uirements A loophole in House rules voids the waiting period in the final days of each ,session;creating -an incentive-to delay .controversial matters 4 The need for a waiting period is magnified by congressional practices which fre quently succeed in mak i ng an end run around other rules designed to assure openness in the legislative process. Though House and Senate rules generally require committees to hold open meetings the House Committees on Appropriations and Ways and Means fie quently conduct bill-wr i ting sessions in secret. The Senate Finance Committee likewise excluded press and public from its recent deliberations on the Clinton Administration's new tax bill. While the Senate Appropriations Committee opens its meetings to the pub lic, the meeting r oom used by the committee is so small that only a handful of outsiders are allowed in.

Conference committees also are supposed to be open to the public, but conferees fre quently meet in secret, making the constraints imposed by House and Senate rules irre le vant. Though conference committees are supposed to compromise between differences in House and Senate bills, not add new material, this constraint is often ignored. This prac tice is in violation of both House and Senate rules. If new provisions are in s erted in an appropriations report, an objection may be raised against it by any Senator, but there is no remedy in the rules of the House? Even bills which are relatively free of pork when they pass the House and Senate can be loaded up with wasteful spen d ing in a conference committee. Like mushrooms that emerge overnight and flourish in the dark, the confer ence process can produce new growth on what had been a clean field the day before HURRY UP AND VOTE The legislative hurry-up offense-the combination o f committee and conference se crecy with waiting period waivers-deprives the public, the media, and rank and file Members of the House and Senate of adequate opportunity to examine legislation before it is voted on In most cases the only evident reason for accelerating the legislative pro cess is to hurry through pork-barrel spending or to cut short debate on other politically controversial proposals. Nearly every instance of circumventing the waiting period rules provides more evidence of the need to stren g then such requirements and to apply them consistently 4 5 The eleven waivers comprised four in the first session and seven in the second session. They typically permitted the House to dispose of in one or two days matters that ordinarily require a three-d a y waiting period See Senate Manual, Rule xxVm(2 3 Stratospheric Spending Senior Congressmen frequently use waiting period waivers not only to overcome pol icy objections, but even to frustrate the express will of a majority of lawmakers. Take, for instanc e , the 360 million allocated in fiscal year 1993 for continued funding of the ad vanced solid rocket motor (ASRM). Although NASA, the Bush Administration, and many environmentd, scientific, and taxpayer groups recornended termination of this program,fi,.th e fact .that.the ASRM.is built .in the-district-of Jamie L. Whitten, then Chair man i of the I House 7 Appropiations Committee, I apparently a was r.i decisive Whitten added the ASRM funds to the Veterans Administration and Housing and Urban Development (V A -HUD) appropriations bill in committee. The House then ap proved an amendment to kill all ASRM spending and sent the bill to the Senate, which left ASRM funding out of the bill. In the conference committee, however, ASRM fund ing was reinserted. The day t h at the conference committee reported its decision, the House voted to waive the three-day rule, and funding for ASRM and the rest of the bill was approved the next day. Had a five- or even a three-day waiting period been en forced, ASRM opponents might we l l have been able to marshal forces to uphold the ini tial House decision to kill the program Urban Mushrooms The bill that funded ASRM also contained a Housing and Urban Development Spe cial Purpose Grants fund controlled by Congressmen sitting on HUDs fu n ding commit tees. The Senate had proposed spending roughly $125 million for the grants; the House had included no money at all. The conference committee did not compromise: it added an additional $135 million. The $260 million appropriation included $1.3 m illion for sub sidies to two sugarcane mills in Hawaii and $1.5 million each for a manufacturing incu bator facility in North Dakota, renovation of two county courthouses in Alabama, small business loan funds in Vermont, a Center for Pacific Rim Studies a t the University of San Francisco, and a video conferencing and training facility at Enterprise Development Incorporated of South Carolina?

It is difficult to see why these local governments, private universities, and businesses should be subsidized by the federal government. But it is easy to explain why so many Congressmen pushed to waive the mandated three-day period that the conference report was required to be available: scrutiny of this spending would have jeopardized its pros pects of passage.

Calif ornia received the biggest payload from this fund over $25 million. However the second largest recipient of special purpose grant funds 19.25 million) was the state of West Virginia, a state with comparatively little acreage but comparatively large politi cal clout: its representatives include Senate Appropriations Committee Chairman Robert C. Byrd and House HUD subcommittee member Alan Mollohan. For purposes of com 6 The ASRM was opposed by such diverse groups as Citizens for a Healthy Environment, Friend s of the Earth National Toxic Campaign Fund, the Sierra Club Legal Defense Fund, the Association of American Scientists, the National Resource Council, the Aerospace Safety Advisory Panel, Citizens Against Government Waste, Citizens for a Sound Economy, an d the National Taxpayers Union.

Conference Report 102-902, H.R. 5679. 7 4 parison, Arkansas--a' slightly larger state with comparable economic needs-received only $1.25 million Scientific Pork Another blatant example of the use of rule waivers to avoid pub lic scrutiny and frus trate a congressional majority occurred on the 1993 Energy and Water appropriation. The subcommittee in charge I of writing a. the I. bill slipped in r ten science n projects L costing over 97 qillion, that were not authorized as req u ired by House rules. The Appropriations out controversy. However, Representative George E. Brown, Jr the authorizing commit- tee chairman, discovered the pork and proposed that the funding be deleted unless the projects were duly authorized after a compet i tive review process. Three weeks after Brown won 250-104, supporters of the ten disputed projects convinced their Appropria tions Committee colleagues to insert the same projects into the conference report on an other appropriations bill, the one funding defense spending. Before the defense report was available to non-committee members, appropriators secured a Rules Committee waiver of all points of order, including the three-day waiting period and the ban on unau thorized spending.

One copy-of the confere nce report was made available for the scrutiny of Congress men about two hours before the vote took place I think they deliberately did their best to conceal what they were doing Brown later said.8 By the time that he was permitted to see the only availab l e copy of the conference report-73 pages of small print-and was able to find the pork, the window of opportunity to marshal support for another fund ing deletion vote had passed. The bill was reported only one day before the end of the ses sion, just a fe w weeks before the 1992 elections. A successful vote to overturn the waiver of the waiting period would have meant that Congressmen would have had to stay in Washington rather than going home to campaign. Brown's attempt to overturn the rules waiver failed , and the unauthorized spending (along with the rest of the bill) was ap proved Cd;ri;iiittee"ee"~a gri+Sqei 5f theswaitingperi6d ifi:hcpks that th3 .bill would pass with 9 LEGISLATION WITHOUT DELIBERATION The deliberative vacuum is not confined to appropr i ations. In 1991, the House ap proved a thousand-page $15 1 billion highway authorization bill that was unread by any Member.1 Shortly after midnight on November 27, the day before Congress was sched uled to quit work for the year, the House Rules Committe e met to approve a waiver of all House rules applying to the highway conference report. At the time the Rules Committee met, conferees had not even completed work on the bill. At 4:OO a.m still with no bill in sight, House members began debating the merits of the conference report on the House floor. Just before 5:OO a.m. a single copy of the bill, pieced together from different word processing machines, was brought to the House floor, and at 6:OO a.m. the House voted 8 See Holly Idelson Unsinkable Science C ongressional Quarterly Weekly Report, October 10, 1992, p. 3 191 9 Ibid 10 See the discussion of the Internodal SurfaceTransportation Efficiency Act of 1991 in Eric Felten's me Ruling Class Washington: Regnery Gateway, 1993 pp. 3-5 5 overwhelmingly to app r ove the bill which no Member had even leafed through. Weeks later,Department of Transportation staffers were still plowing through the bill, discover ing unknown pockets of pork. Nothing in the bill was so urgent as to demand such a will fully blind votin g procedure. While a weeks wait may not have changed the outcome the prospect of scrutiny certainly would have made conferees think twice about the pork laden monster they created In the course ofthe final seven daysof the sessionthat saw thehighway bill p u shed p throughand.completed,..Congress approved. 46 other pieces,of.legislation, ranging from federal deposit insurance reform to the declaration of National Visiting Nurse Associa tions Week In the final week of the previous session, Congress took action on 109 pieces of legislation, including eleven out of thirteen appropriations bills. There is little excuse for Congresss habit of procrastination all year followed by a final rush in the last days of a congressional session. Knowing that they faced an en f orceable waiting period likely would force committees to conduct their business in a more orderly and delibera tive fashion throughout the year No Reason to Rush Even more inexcusable than Congresss annual end-of-the-year rush is the cavalier waiver of wa iting period rules on major legislation-legislation which likely would pass muster even with an additional day or two of delay. The only appreciable result is to force legislation to a vote before it can be scrutinized and vetted of any potential flaws.

Th e conference report on the congressional budget resolution embracing President Clintons first five-year budget plan was treated with just such unjustified haste In the space of one day, the House of Representatives received the conference report, voted to waive the three-day waiting period, and approved the bill. Not one member of this Con gress knows what is in this except for about five people, argued Republican Representa tive Gerald Solomon of New York, perhaps generously. With one exception, every Hou se Republican voted against the waiver, while every House Democrat voted for it A real de liberative period might have permitted Congressmen to cast a vote on some basis other than party affiliation.

The Senate version of the reconciliation bill, embodying the tax and entitlement provis ions of President Clintons deficit reduction plan, was likewise the subject of unjustified haste. The Senate Finance Committee approved the plan before legislation even existed.

Members of the committee voted on the plan on Friday afternoon, June 18, with only a three-page outline of the bills likely provisions and a Joint Taxation Committee docu ment explaining their tax consequences. The actual text of the legislation was not avail able until late Friday night; Senators h a d one working day to study the legislation before the Senate began considering the 1.5 trillion plan on June 22 Second Thoughts Certainly most outside observers object to habitually rushing bills though the legisla tive process. There is also evidence tha t Members of Congress themselves are frustrated with a system that places them at the mercy of conference committees and congressional barons, forcing them to vote on legislation they do not understand. In a recent survey con ducted by the Joint Committee o n the Organization of Congress, Congressmen ranked studying and reading about pending or future legislation or issues first among a dozen choices of activities on which they would like to spend more time. Nearly twice as many 6 Congressmen expressed a des i re for more time to study and read as cited any other activ ity THE.SUNSHINE SOLUTION I I Some solutions to the problem of politicized appropriations and hastily considered leg islation.require substantial-alterations in.the constitutional bal-ance of pow e rs: the line it.eiiii eto;iiijraewA- simpler.~p y for-~pproval of pro posed legislation, hight achieve the:s&ekihd bf-publii accountability while producing a far more fair and democratic legislative process. A weeks delay would allow a more thorough exami n ation of spending and other proposed laws by the media, congressional staffers,.public interest groups,-and ordinary citizens. Justice Louis D. Brandeis called sunlight the best of disinfectants. Public review may provide the best test of whether spending is a legitimate response to national needs, or just pork. Current procedures, on the other hand, sanction the use of public money without public review. z5 A waiting period could reduce pork-barrel congressional spending dramatically. Cur rently, appropri a tions bills speed through Congress. Even the two or three days which Congressmen are supposed to have to scrutinize bills are simply not enough-and Con gress frequently fails to follow its own rules. Experienced budget analysts say they need at least a we e k of work to gain a reasonable understanding of an average appropriations bill. Since many appropriations bills are brought forward and then voted on long before a week passes, there is every reason to conclude that public monies are being appropriated wh o se significance Members of Congress have no real opportunity to understand. Each of the thirteen appropriations packages (the legislation plus the accompanying report) is typically hundreds of pages long; last years defense appropriations package ran to o v er 250 pages. For FY 1993, the average appropriations bill totalled $59.7 billion.12 With five days to read a bill that size, working 24 hours a day, a Member of Congress would have to pass judgment at a rate of over eight million dollars a minute Support for particularly -egregiouspork-often vanishesunder the light of day. Two re cent examples of pork barrel funding that was approved but later rescinded show the sort of abuses that conscientious Congressmen and watchdog groups could highlight more often i f given greater opportunity to examine appropriations bills. Democratic Senator Daniel Inouye of Hawaii inserted $8 million for North African Jewish refugee schools in France into the conference report on a 1987 appropriation bill. The funding came to ligh t only after the bill had passed, but when Inouye was unable to provide a convincing rationale for U.S. taxpayers to provide funding for a religious school in France, Congress rescinded the funds. In 1990 North Dakota Democratic Representative Byron Dorgan added half a million dollars to renovate the birthplace of Lawrence Welk, which is lo cated in his state. l4 Though the funding survived its first challenge, the resultant public ity created an uproar and Congress later acted to remove the controversial s p ending. With 11 Other Peoples Money (New York National Home Library Foundation, 1933 p. 67 12 See House Report 102-1091, p. 4; the median appropriation is the Commerce-Justice-State-Judiciarys $23.2 billion 14 H.R. 5268, lOlst Congress 13 S. 1924,lOOth Co n gress 7r expanded and consistently enforced waiting period rules, there is every reason to believe that rank and file Congressmen will successfully pursue more challenges to committee sponsored pork tive when they are waived. The rules which mandate time f or consideration, as well as those which prevent conference committees from adding new material, are regularly breached.-.Thomas.:Jefferson began his account of .the House Rules by endorsing the idea of or departure from, the.ruie~-O~proCeediiig nili oper ated a check and con trol on the actions of the majority, and they were, in many instances, a shelter and pro tection to the.minority, against the attempts of power.

The modem trend toward fiequent waiver,and disregard of Congresss procedural rules confums Jeffersons understanding of the dangers of this course. Congress would do well to heed Jeffersons advice and resist the temptation to waive its own rules. Any genuine congressional reform package should move in the opposite direction: it should strengthe n rules that encourage deliberation and scrutiny of all legislation, particularly spending bills If.the current waiting-period rules are-not-effective as written,..they ameven less effec thatili;rithi~~o;ol~.prosp 4 xt+plitiGal-pOwer than a neglect 0.6 15 R ECOMMENDATIONS Congress should lengthen the waiting period for legislation Congress should lengthen the two- andthree-day waiting periods to-five days, and the Senate should expand its waiting period rule to cover all legislation. Congress should also beg in to count days when the bill or report is printed in the Congressional Record, or otherwise made widely available, rather than starting the clock when the bill or report is filed-

it does currently The waiting period must include conference reports, though it should not be necessary for the second house acting on the identical report to.delay action-if the,other chamber .has. complied -with .the waiting period rules.

Fhally, Congress should apply the same-waiting period to substitute amendments which re place the entire text of a bill with new proposals Congress should eliminate loopholes and waivers of its waiting period rules The House should eliminate the special provision which automatically waives the waiting period in the final six days of the sess i on,16 as this creates an incentive to put off until the sessions final days what should be handled earlier. If waivers are neces sary, the House should require a two-thirds vote of the Members to waive the rules making rules waivers moredifficult and unde r scoring the gravity of departing from or dinary procedures. The Senate should make the production of appropriations reports mandatory, not optional so that the appropriations committee cannot avoid a waiting period by failing to issue such a report 15 Rul e s of the House, p. 118 16 See Rules of the House, Rule XXVIII(2 8 CONCLUSION Current congressional waiting periods are both too short and too easily waived. Rank and file Congressmen and the public. deserve a-reasonable opportunity to review legisla tion b efore it is voted on by the House or Senate. Adequate and well-enforced waiting pe riods would make Congress more accountable, more democratic, and more cautious in the use of the publicls money..Allowing insufficient time to review spending and other the responsible alternative; Comhitkks an~~influentiail'Congressmen- would have greater difficulty in slipping in special interest provisions without adequate justification and de bate. The pressures of public review would prompt Congress to avoid squandering public funds. Indeed, it might serve as a welcome reminder of the source of that money q d..s+*Mmc licy maw -encourage deliberation!is I P I r AB Dan Greenberg Congressional Analyst 9

About the Author