The past few years have seen the U.S. system of regulatory safeguards come under increasingly intense attacks from the business community and their conservative allies in Congress. During this time, antiregulatory lawmakers have deployed a wide range of tactics aimed at preventing such agencies as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA) from carrying out their statutory missions of protecting people and the environment. These tactics include slashing these agencies’ budgets, berating administrators and wasting their time in “show” hearings, and promoting so-called “regulatory reform” bills that aim to delay or block rulemaking by forcing agencies to satisfy dozens of new analytical and procedural requirements before issuing new safeguards.
Now that Republicans control both chambers of Congress, antiregulatory forces are trumpeting the use of another legislative weapon against public safeguards: antiregulatory appropriations riders. Opponents of regulation insert these provisions into must-pass appropriations bills to block agencies from using funding to develop or enforce particular regulatory actions. Commenting on the power of this approach, Senate Majority Leader Mitch McConnell observed in an interview that the “only good tool” Congress has for reining in the EPA “is through the spending process.”
When the budget process is working normally, Congress passes annual appropriations bills, doling out funds to agencies and specified agency programs for the coming fiscal year. Congress, of course, uses its “power of the purse” to advance its particular policy priorities by, for example, providing greater budgetary resources to favored agencies or programs while decreasing budgetary resources for those agencies or programs that are disfavored. By its nature, appropriations legislation carries high stakes, since the failure to pass any one bill will result in the shutdown of all the agencies that the bill funds (unless other revenue streams, such as licensing fees, happen to pay for particular agency programs).
Individual members of Congress who are hostile to particular regulations have sought to exploit the appropriations process by attaching what are commonly known as “limitation riders” to relevant bills that prohibit an agency from expending any of the appropriated funds on a particular activity, such as the development, implementation, or enforcement of particular regulations.* Once added, these limitations “ride” along through the expedited legislative process that typically applies to appropriations bills, increasing their chances of reaching the President’s desk and getting signed into law.** Because the underlying appropriations bills are “must pass,” the successful inclusion of limitation riders creates a difficult dilemma for other participants in the budget process, including the president and other members of Congress. They can reject the whole bill, but doing so increases the chances of shutting down all of the affected agency’s activities, including those targeted by the rider. Alternatively, they can accept the rider-laden bill, even though they might have opposed the rider’s provisions if presented as a stand-alone bill.
This CPR Issue Alert refers to antiregulatory limitation riders as “negative earmarks” to emphasize that they are the mirror image of the earmarking practice that has been so widely condemned in recent years—especially by conservative lawmakers. A classic “earmark” is a legislative instruction directing an executive branch agency to spend appropriated funds on specific organizations or projects favored by politically powerful constituents. By contrast, an antiregulatory limitations rider (i.e., “negative earmark”) directs an executive branch agency not to spend appropriated funds on specific programs or activities that are opposed by politically powerful constituents. As developed below, almost all of the arguments against the abandoned practice of “affirmative earmarks” apply with equal strength to “negative earmarks.” Both are tailor-made devices for conferring benefits on special interests without transparency or deliberation.
This CPR Issue Alert shines a light on two basic problems associated with the extortionate use of negative earmarks in appropriations bills. The first and more obvious problem is that these provisions can cause lasting damage to the public interest by leaving people and the environment at unnecessary risk of harm. For example, as detailed below, the Fiscal Year 2016 Interior and Environment Appropriations bills moving through both chambers of Congress contain several dangerous negative earmarks, including some that would halt regulations to address climate change and to protect the health of critical water bodies. Using the agency’s own estimates, this Issue Alert calculated that just three of these antiregulatory negative earmarks would bar the EPA from preventing 10,900 premature deaths; 5,000 non-fatal heart attacks; 1,110,000 asthma attacks in children; and 1,690,000 missed school and work days. Combined, these negative earmarks would also enable the emission of an additional 730 metric tons of carbon dioxide and the waste of up to $572 million in taxpayer money.
Second and more insidiously, negative earmarks upend the normal legislative process and entrench a system of policymaking that undermines core principles of representative democracy. In particular, negative earmarks involve the use of extortion to advance policies that are counter to the public interest. In contrast to the use of normal legislative procedures for policymaking, the process of including negative earmarks into appropriations and other must-pass bills is marked by a distinct lack of transparency and deliberation. Because they confer significant benefits on favored industries, antiregulatory negative earmarks also create the risk of encouraging lawmakers to pander to corporate interests. Indeed, a review of the campaign contributions to members of the House and Senate appropriations subcommittees that were supportive of the negative earmarks included in the Fiscal Year 2016 Interior and Environment funding bills reveals strong financial ties between the lawmakers and affected industries. Just five of the appropriations subcommittees’ most influential members received a total of $3,600,644 in campaign contributions during their most recent election cycle from industrial sectors that would directly benefit from the negative earmarks included in the funding bills.
Of course, while the abusive use of negative earmarks for antiregulatory purposes has been around for decades, the dysfunction and extreme polarization that now characterizes the U.S. Congress provides a particularly fertile environment for their continued and expanded use. Nevertheless, some hope remains for ending this harmful practice. As a first step, the public interest community and the mainstream media must work to focus the public’s attention on the issue of antiregulatory negative earmarks and the harms they entail. With sufficiently widespread public condemnation, Congress might be persuaded to enact needed reforms that significantly limit their use. A similar movement helped to convince Congress to adopt reforms to limit the use of “affirmative earmarks” in appropriations bills, which could conceivably provide a model for pursuing similar reforms aimed at limiting the use of antiregulatory negative earmarks.
To be sure, negative earmarks can and have been used to advance the public interest as well by, for example, blocking the implementation of deregulatory programs. Consequently, any reforms aimed at restricting negative earmarks risks defeating their use to overcome the opposition of an obstructionist bloc in Congress in order to promote certain public health, safety, or environmental goals. As explained, though, the disadvantages of negative earmarks far outweigh their advantages, providing strong support for the conclusion that the United States would be better off if this practice were abandoned.
You've just read the introduction to Earmarking Away the Public Interest: How Congressional Republicans Use Antiregulatory Appropriations Riders to Benefit Powerful Polluting Industries. Read the full Issue Alert.
* Members might also attempt to include “legislative riders” that are antiregulatory in nature, such as provisions that require agencies to undertake new onerous processes while implementing regulatory programs. Separate House and Senate rules technically prohibit any such riders that create new law or change existing ones by, for example, creating new rulemaking requirements. These rules have been interpreted as not prohibiting limitation riders, however, which arguably do not change or create law and are applicable for a defined period of time. Even with respect to legislative riders, the rules are often flouted when the rules committees of both houses liberally issue waivers for riders the leadership prefers and deny waivers for riders the leadership opposes. Thomas O. McGarity, Deregulatory Riders Redux, 1 Mich. J. Envtl. & Admin. L. 33, 73 (2012). One noteworthy example was the inclusion of the Data Quality Act in the 2001 appropriations bill for “Treasury and General Government Operations.” Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L.J. 619, 647-48 (2006). This rider requires agencies to ensure and maximize the quality of information that they disseminate and to establish an error correction process. The rider also directs White House Office of Management and Budget (OMB) to issue guidelines outlining how agencies are supposed to implement these new requirements and incorporate them into their day-to-day work. [Back to text.]
** The Antideficiency Act gives limitation riders teeth by prohibiting any individual to spend monies in contravention of such a command in an appropriation act. 31 U.S.C. § 1512. [Back to text.]