By Anna Denecke, Associate,
Blakey & Agnew, LLC
At a briefing with reporters in late April, U.S. Department of Transportation Secretary Anthony Foxx spoke out against several policy changes that had appeared in the House Transportation, Housing, and Urban Development FY16 appropriations proposal.
"What’s happening is the appropriations process is now being used to create policy, which…is a real problem because it leaves us without a process with which we can articulate the concerns we have," remarked Foxx. Then, on June 1, the White House threatened a veto over the very same bill, arguing that, if enacted, the policy measures "could significantly comprise safety in our nation’s roads."
Vetoing an appropriations measure is no small threat; the twelve spending bills are some of the only must-pass legislation signed into law each year, and they serve to "keep the lights on" across government agencies. Even in politically contentious eras, appropriations bills pass, sometimes in the form of "omnibus" legislation, where all twelve spending bills are grouped together and voted on at year-end.
Policy changes in appropriations bills, like the ones objected to by Foxx and the White House, are called "policy riders" and come in the form of amendments that specifically prohibit the use of funds for designated activities. Just last year, an amendment defunding the controversial 34-hour truck driver Hours of Service restart rule was voted into law. The policy change first appeared Transportation, Housing, and Urban Development (THUD) Appropriations FY15 bill and reappeared in the FY15 omnibus that was passed at year-end.
This year’s THUD bill contains several new policy riders. There are requirements that would further prohibit the 34-hour restart rule from being reinstated until additional study is completed. There is also a provision allowing 33-foot twin trailers on interstate highways – up from the current 28-foot length cap. Finally, the legislation seeks to block DOT from proceeding with a potential rule to increase the current $750,000 minimum amount of motor carrier liability insurance.
The Administration’s reaction to the most recent DOT spending bill would give you the impression that policy changes like these are unusual, drastic, and circumvent the regular governing process. But according to the College of William and Mary Law School, use of policy riders on appropriations bills actually dates back to the 1830s.
For a time, there were two types of policy riders – legislation riders and limitation riders. Legislation riders were attached to appropriations bills and made policy changes that were unrelated to the bill at hand. House and Senate rules eventually prohibited legislative riders, in part due to President Rutherford B. Hayes vetoing several spending bills and proclaiming the unconstitutionality of the parliamentary procedure.
The second type of amendment – limitation riders – is still very much a tool of Congressional governance. In the 1970s, 31 percent of all amendments were limitation riders to appropriations bills, and by the 1980s, this number jumped to 40 percent. One of the most famous examples of a limitation rider is a 1977 "Hyde Amendment" – a rider prohibiting federal funds from going to abortion procedures.
These days, Appropriation bills are some of the only major legislation that gets voted on and sent to the President, which might explain why appropriation riders are getting so much press. The short-term extension of MAP-21 is a reminder of this. H.R. 2353, the Highway and Transportation Funding Act of 2015, extends contract authority until July 31 but the drafting and subsequent voting process offered lawmakers no opportunity to codify changes to surface transportation policy.
On June 1, the House Rules Committee voted to allow amendments to the House THUD bill when it is called up for floor debate. We may see additional rollbacks to safety programs offered on the House floor, or a reinstatement of the original funding provisions that were stripped in Committee.
Additionally, the Senate Appropriations Committee will have to consider their version of the FY16 bill as well, which may offer safety advocates opportunity to fund the programs axed in the House version. And finally, it remains to be seen whether the President will hold true to his veto promise, or if this bill will eventually get rolled into critical, must-pass omnibus legislation at year-end.