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The Ominous Omnibus Appropriations Bill
Why Senators Daschle and Byrd Were Right to Decry The Lowdown, Dirty Tactics That Led to It


Friday, Dec. 19, 2003

In Article I of our Constitution, the legislative branch is listed as the first branch of government. That was neither accident nor chance. In a nation where the people are sovereign, their collective representation in the United States Congress is the heart and core of our system. In light of this basic truth, it pains me to see what is happening in Congress today.

Friends working on the Capitol Hill, and doing business there, have been telling me for months they have never seen it so bad. More than ever, business is being done behind closed doors, and dubious deal making -- you give me this and I'll vote for that sort of arrangements -- is going on. Members of Congress are using one legislative ploy after another to write laws for the few, at the expense of the many, and much of it has been proceeding unnoticed by anyone -- especially the press.

Before the Senate adjourned, Democratic Senators Tom Daschle and Robert Byrd went to the Senate floor, and blew the whistle, demanding a stop to these corrupt procedures. They have called public attention to these offensive tactics, refusing to countenance Republicans' (at the behest of the White House) flouting the legislative process .

Halting The Process: Underhanded Tactics in the Fight over Spending

Under normal procedures (and pursuant to existing laws), Congress is to complete its annual appropriations for the government's fiscal year -- which begins on October 1 of each year -- before that date. It is standard procedure to keep each of the thirteen annual appropriations bills separate, for they are complex enough by themselves without combining them into what is called an omnibus bill.

The House passed all thirteen fiscal '04 bills before getting out of town, after an unusually contentious fight on the spending bills. Traditionally, both parties have tried to avoid fights on spending. But the House Republican leadership, and the White House, took a hard line this year -- either their way, or no way. In fact, President Bush threatened an unprecedented 16 vetoes on spending bills to get what he wanted.

In addition, the Republican leadership, in a remarkable in-your-face partisan move, denied Democrats the right to participate on conference committees, and cut them out of the debate on the House rules for the spending bills and floor activity, which certainly did not create a sprit of goodwill. Shockingly, not only was the House GOP leadership unwilling to compromise with House Democrats, they also refused to compromise with Senate Republicans.

When the House, with its GOP leaders demanding the "our way or no way" approach, sent the last seven spending bills to the Senate, the upper chamber Democrats balked. Their objection? What arrived in the Senate (and had been approved by the House) was a conference committee report -- that in effect created an omnibus bill. The Senate had passed six of the seven spending bills earlier, and the differences in House and Senate legislation had been resolved by a conference committee, which had combined all seven spending bills into one omnibus measure.

With most members of the Senate already out of Washington, Majority Leader Bill Frist sought unanimous consent on December 9, 2003 to adopt the conference report, and send the seven spending measure to the president for signature. That is when Daschle and Byrd blew the whistle to stop the process -- and for good reason.

Bringing The White House Up Short: Minority Leader Daschle Speaks His Mind

Senator Daschle obviously must have recalled how Bill Frist had pounded on him when a few spending bills were delayed when Daschle was Majority Leader. In his remarks, he reminded Frist that the Senate had been "told by the White House and the Senate Republican leadership [that they] would make sure the appropriations process ran more smoothly than ever before." That had not happened.

Daschle then made a much needed statement: "In fact," he pointed out, "the process broke down to an extent never seen before, opening the door to the worst kind of legislative abuses and special interest giveaways." Daschle explained that the appropriations process had become "an abomination, closed largely to Democrats, hidden from the light of day, written to satisfy nothing more than special interest wish lists." And how had this all happened?

Daschle further explained that notwithstanding the objections of the Senate leadership, "they were overruled by the White House and Republican leadership," opening "the door to the most ludicrous example of pork spending [for the benefit of particular legislators and their special interests], which has contributed to citizens' loss of faith in the process itself."

Out of several dozen potential examples, Daschle plucked a few to make his point: "you will find $2 million to encourage young people to play golf; a half a million dollars for halibut data collection; [and] money for a replica mule barn in LaSalle, IL." On the other hand, the conference report "cuts will result in 24,000 fewer children who will be served by title I educational programs; 5,500 fewer kids will be able to attend Head Start; [and] 26,500 fewer veterans will receive medical care."

What appears to have irritated Daschle most was "the fact that some of the most egregious provisions that were sneaked into this bill at the last minute had already been rejected by one or both House of Congress. The fact that the White House directed conferees to include them shows a contempt both for the procedures of Congress and the citizens they were designed to protect."

Bringing The Senate Up Short: Senator Byrd Speaks His Mind

Senator Robert Byrd spoke next. Byrd is often called the conscience of the Senate, given his long service, intimate knowledge, and conspicuous love of the institution. Like Daschle, he also addressed the omnibus spending package that the Majority Leader had hoped to slip through the Senate without a vote.

Byrd reminded his colleagues (and the press gallery) that "members of this Congress have a duty and a responsibility to the American people. The men and women who send us to represent them in this Capitol do not expect us to rubberstamp legislation; they do not expect us to cash our paychecks without doing the work. Senators are paid to be in the Capitol when votes are required. Today is such a day. Yet, few Senators are present."

Standing at his desk with his hand resting atop the 1,182 page conference report -- a report with which he was quite familiar as the ranking Democrat on the Appropriations Committee -- Byrd explained that the omnibus spending bill totaled "more than $328 billion.It provides funds for 11 of 15 federal departments."

Senator Byrd wanted Senators to return and vote on the bill -- that is, to do the job they were elected to do. He objected strenuously to the bill's being passed by unanimous consent. Instead, he urged his colleagues that "[o]ur responsibility is to work, to debate and vote on this conference report. We should not have postponed this until next year."

Byrd then turned to the process by which the appropriations package had been put together. He pointed out that "[t]here are many provisions within this package that never came before the Senate, yet Senators were asked to approve this bill by consent. Can you imagine, $328 billion and not even a recorded vote? Four of the bills contained in this omnibus did not have a recorded vote in the Senate. One of the bills, the Commerce/Justice/State bill, was never even debated in the Senate, let alone adopted," Byrd protested.

"Under pressure from the White House, provisions that were approved by both the House and the Senate have been dropped," he noted. "Under pressure from the White House, controversial provisions that were written as one-year limitations when they were before the House or Senate have mutated into permanent changes in authorization law," he explained, addressing more of the legislative legerdemain that was becoming only too commonplace.

After detailing many of the excesses, Senator Byrd asked, "What is the use of having elections if the voters are prevented from knowing how their Senators voted on investing $328 billion of the people's money? This is wrong.The people have a right to know how their elected representatives stand on this legislation, which will affect the lives of so many. I am saddened by the Majority Leader's decision to postpone a vote on this legislation until January 20. That is no way to govern. That is no way to serve the American people."

What Is Next? Will Congress Heed Daschle and Byrd's Wise Counsel?

This contentious spending bill, created in secret, with giveaways galore, will be the first order of business when Congress returns. It will be on the agenda immediately after the President's State of the Union message is delivered. President Bush wanted Majority Leader Frist to call the Senate back into session, and jam the measure through. But Frist had committed to his Republican colleagues not to do that.

Realizing he is in for a fight, however, Senator Frist has filed a motion for cloture, to cut off a filibuster when the ominous omnibus bill is taken up for further business. Meanwhile, I anticipate that the Democrats will try to educate Americans about the horrors in this 1,182-page monster. Indeed, Daschle called it just that, "a Frankenstein monster bill born of badly broken promises" that needed to be sent back to the laboratory.

Stay tuned, for early next year, we will discover if Congress is dead, dormant or a rubberstamp, or if it is still the living institution the Framers of our Constitution envisioned it would be. It is difficult to think of any legislation that could be a truer test of Congress that this omnibus appropriations bill. If it passes as it presently exists -- laden with secret deals, unnecessary lard, and inappropriate underfunding of needed programs -- then a hard truth will be evident: About half of America has no voice in Congress at all.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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