When Congress Acts In the Dark of Night, Everyone Loses

This article originally appeared in Roll Call on December 6, 2004

There has been great consternation in recent weeks over a provision in the omnibus appropriations bill that would allow certain Appropriations staff access to individual tax returns and would exempt them from criminal penalties for revealing the contents of those returns.

That appears to be an outcome that no one was either aware of or intended. The omnibus is now being held in the Senate until the offending language is stricken, and the privacy threat it posed is now certain to be blocked. What remains, however, is what this episode tells us about the current process by which the Congress is doing the people’s business.

Since early last spring it has been obvious that the “regular order” for appropriations bills would once again be ignored. Allowing the individual appropriation bills to be considered separately, on their own merits, has become so unusual that it is difficult to even say that it is the “regular order.”

Instead, Congress goes through a pretend exercise each year in which only a handful of the appropriation bills are actually passed as free-standing legislation. In many instances major bills are not even brought to the floor for public debate in one or both houses. Many of the bills that are debated on the floor differ substantially from the final versions brought back in the many-thousand-page conglomerations that appear only hours before the Congress is scheduled to go home.

Thus ensues a mad scramble each fall involving thousands of budget and policy decisions that are hurriedly wrapped into one massive piece of legislation – legislation that no single person could begin to read, much less comprehend, in the time between its final assembly and its consideration on the floor of the two houses.

And even if one were able to read and understand these documents, an individual Member could do little about any item he or she disagreed with. Conference reports now present elected Representatives with only one choice: “Do you want to fund the government for the coming year or don’t you?”

Over the past decade, Congressional leaders have learned that amalgamating such a massive amount of must-pass legislation into one package makes it possible to not only do most of the work of an entire session in one fell swoop but to also pass numerous agenda items that do not have majority support – and which simply could not survive in any other form.

In other words, these omnibus appropriation bills have become a tool by which the democratic principles that underlie both Houses can be circumvented.

But such actions have consequences, and the provision discovered after this year’s omnibus cleared the House is a perfect example. The back-room process of putting together a 3,000-page bill in a matter of days or weeks is necessarily a process preformed almost exclusively by staff. Conferences serve merely as pro forma meetings at which massive amounts of paper are plopped before Members purporting to explain the decisions already made by staff. After a few “opening” statements, the conference chairman typically gavels the conference into recess and the members of the conference are asked to sign the report.

Nothing underscores the risks inherent in this approach more than the claim by the chairman of the Treasury-Transportation subcommittee that he had no idea that the offending provision had been included.

It might be understandable if he’d claimed that the impact of the provision was contrary to his understanding – but he insists that he had never even heard of it. That provides a dramatic contrast with the days when the full membership of each House and Senate subcommittee, and not just the chairmen, sat for days, if not weeks, to hash out their differences.

Of further concern is the fact that the provision Chairman Ernest Istook (R-Okla.) professes never to have heard of directly addresses his ability to conduct oversight and to assure his colleagues that the money he is asking them to take from the Treasury is actually being spent for the purposes intended.

His subcommittee appropriates more than $10 billion a year for the Internal Revenue Service, but currently neither the chairman nor his staff can enter Internal Revenue Service facilities to determine how these funds are spent. This was the issue that the offending language was attempting to address – but it appears to be an issue that the chairman was either unfamiliar with or uninterested in resolving.

In addition to taking policy choices out of the hands of the people who were elected to make them, the omnibus process has another consequence: It creates a high probability that serious and embarrassing mistakes will be made in compiling the final product.

The offending provision was introduced in an all-night staff negotiation and was discussed between 3 and 5 a.m. on the day before the final 3,000-page document was assembled. If it is the only screwup in this package, it would be a miracle. The language in question replaced an earlier version that would have granted appropriations staff the same access to tax returns as staff of the Ways and Means Committee now holds.

Appropriators do not write the revenue code, and they do not oversee IRS interpretation of the code. As a result, such authority would be unnecessary and inappropriate. But appropriators do pay the salaries of 100,000 IRS employees. They are responsible for paying hundreds of millions of dollars in IRS contracts and for the leasing of tens of millions of square feet of office space. The revised language now at the center of the controversy was drafted by IRS with instructions to narrow the authority in the earlier version and simply permit appropriators to enter IRS facilities.

Apparently no one realized, during those early morning hours, that not only did the new language fail to restrict access to tax returns, but it also inadvertently exempted appropriators from the criminal penalties to which the U.S. Code subjects any other government employee with similar access to tax returns. While the flawed language should have been spotted, the circumstances in which it was added make such mistakes almost inevitable.

Why do we conduct the people’s business this way? Some say it’s that Members of Congress have become too lazy to do their own work, and there may be some instances in which this is true. But my experience indicates that the vast majority of Members of both parties would love to revert to the old system in which the people elected to make these decisions actually do. I also know that nearly all of the staff who have been called on to participate in these exercises are deeply troubled by the process that has evolved.

The reason the old system of legislating no longer works is that the current leadership has not only assumed the role of passing the legislation required of Congress, but has also taken on the responsibility of insuring that the content of that legislation is consistent with a specific ideological criteria that is often not the will of a majority in the House.

They have committed to conservatives within the Republican Conference that legislation sent to the president will be consistent with the views of a majority of the Conference. On dozens of issues ranging from trade with Cuba to Canadian drug imports and the raising of the minimum wage, the majority position in the Republican Conference is not the majority position of the full House. Preventing the House from producing legislation that reflects the views of its Members requires circumventing a body of rules and procedures developed in the past 215 years.

The House was intended to be the centerpiece of our democracy. It can again function as a democratic institution if we return to the “regular order.” When even subcommittee chairmen don’t know the content of the legislation bearing their own name, the role of elected representatives has been diminished to the point that ordinary citizens can have little confidence that their views have any weight in decisions made by Congress.

Scott Lilly is a senior fellow at the Center for American Progress. In 1994 he served as clerk and staff director of the House Appropriations Committee. From 1995 to this past March he served as the committee’s minority staff director.