With less than a month to go before the continuing resolution expires, both parties find themselves in a familiar position: arguing over policy riders while staring another government shutdown in the face.
It’s a situation that’s played out time and time again throughout President Obama’s presidency, as Republicans have loaded up the 12 appropriations bills with dozens of riders targeting the administration’s energy and environmental policies, only to meet a Democratic firewall backed up with the president’s veto pen.
But with Republicans firmly in control of both chambers of Congress this time around, senior Democrats are bringing up the issue every time they publicly discuss the status of omnibus talks.
"So rather than playing with fire and attempting to insert poison pill riders that will bog down individual appropriations bills, Republicans should move quickly to complete negotiations on an omnibus bill that skips the riders and fully funds our national and economic security," Sen. Charles Schumer (D-N.Y.) told reporters last week.
Meanwhile, Republicans scoff at the notion they have to leave their riders at the door of the negotiating room.
"There’s always riders, I got a few," said Sen. Richard Shelby (R-Ala.) last month, echoing comments from Senate Majority Leader Mitch McConnell (R-Ky.) and new House Speaker Paul Ryan (R-Wis.) (E&E Daily, Nov. 4).
There’s ample support for that position. While House and Senate rules ostensibly distinguish between "substantive legislation" and the annual spending bills, the Congressional Research Service has noted the "procedural separation … is not ironclad" because the rules are easily bypassed.
As a result, "the inclusion of legislative provisions in annual appropriations acts has been a long-standing feature of the appropriations process," CRS wrote in a 2008 report, which predates the heated policy fights over Obama’s regulatory agenda.
And despite Democrats’ insistence that riders not be part of the omnibus give and take, extraneous policy provisions have been a recurring feature of the broader spending packages that have kept the government operating throughout Obama’s presidency.
This year’s version is likely to be no exception, said ClearView Energy Partners LLC’s Kevin Book.
"There’s room for some riders in every appropriations bill," Book said Friday. "There’s a degree of pain that the president is likely to tolerate on energy and other issues simply as a matter of principle."
According to Roll Call, House Republicans this week are planning a series of member-only "listening sessions" on the six appropriations bills that did not pass the lower chamber this month, including the always thorny Interior, Environment and Related Agencies spending bill, which has historically been loaded with riders.
Even though they controlled just one chamber of Congress for much of Obama’s presidency, Republicans have successfully wielded the power of the purse to push back against — and even halt — some administration initiatives they oppose.
In 2011, House Republicans inserted a rider into a budget deal blocking funding for the Bureau of Land Management’s "wildlands" initiative to preserve wilderness-quality public lands across the West, prompting the Interior Department to scrap the plan (Greenwire, April 12, 2011).
That same deal also included a rider removing Endangered Species Act protections for the gray wolf in Montana and Idaho, which, to the dismay of environmentalists, marked the first time that Congress had intervened to legislatively remove a protected species from the list.
Later that year, Republicans notched another win by inserting a rider into a short-term extension of the payroll tax and jobless benefits that required Obama to make a decision on the Keystone XL pipeline within 60 days, although the president later rejected the application, kicking the issue past the 2012 presidential election.
And in a major victory for Republicans and Western interests, last year’s omnibus included a one-year ban on new ESA protections for the sage grouse, a delay that gave Western states time to successfully make the case that an ESA listing for the bird was unnecessary.
Last year’s spending bill also blocked EPA for one year from regulating lead in ammunition or fishing tackle, a long-standing area of concern for environmentalists, but an issue that federal regulators have not shown a willingness to act on.
Republicans have also used the appropriations process to pre-emptively head off any update of the U.S. Army Corps of Engineers’ definition of "fill material" under the Clean Water Act, an issue that could further complicate mountaintop removal mining in Appalachian coal country.
Another recurring rider that has found itself into law bars funding from being used to implement a Treasury Department guidance that limits U.S. funding for building overseas coal plants.
While these riders demonstrate the White House and Democrats are in fact willing to negotiate on riders in the interest of a deal, they fall well short of the limits sought by Republicans for years against EPA’s marquee regulations under the Clean Air and Water acts.
While McConnell has made clear that EPA’s Clean Power Plan and Waters of the U.S. rule are in Republicans’ sights during the current appropriations talks (Greenwire, July 8), Book said brinkmanship over riders is likely to be muted by political constraints — including the need to demonstrate Republicans can govern.
"For Leader McConnell, getting the bill done is going to be a higher priority than getting a specific rider into a bill, almost on every occasion," he said. "There’s symbolic value in trying and failing in some contexts, but right now for Republicans, it’s not just about being in charge of the Senate now, but staying in charge of the Senate after the next election."
Emphasizing the point is the tough math Republicans face in retaining Senate control after November 2016, when 34 Senate races will be decided — including six seats where Republicans face a decidedly uphill climb (E&E Daily, Nov. 9).
That’s one reason why environmentalists aren’t taking lightly upcoming votes on disapproval resolutions targeting the Clean Power Plan (Greenwire, Nov. 13). Environmentalists are also spending big to call out GOP senators who voted to kill WOTUS earlier this month (Greenwire, Nov. 13).
While there’s plenty of appetite in Congress for reining in Obama’s regulatory agenda, Book said there’s a historical precedent to consider for lawmakers who want to use the appropriations process to go after key elements of Obama’s environmental legacy: the twin government shutdowns that happened in 1995 after President Bill Clinton vetoed a number of controversial provisions — including one that would have opened the Arctic National Wildlife Refuge to drilling and 17 riders targeting EPA enforcement under the air and water laws.
Those shutdowns — which ended after Congress sent Clinton a spending bill without the EPA riders — were widely seen as a disaster for newly empowered Republicans, and cemented the power of the White House in such fights when Congress lacks the two-thirds majorities needed in both chambers needed to override a veto.
"Anybody who still thinks there’s still room for that needs to go back to December 1995 and take a look at what Bill Clinton did on ANWR," Book said. "You get a little leeway because you control both chambers, but unless you have 67 votes and 290, you can’t go ahead and force the president to take something he’s refused to take."
Reporter Phil Taylor contributed.
