CONGRESS - Government on Autopilot

By David Baumann, National Journal
© National Journal Group Inc.
Saturday, March 13, 1999

	      The last time that Congress rewrote the law governing the 
Justice Department, Jimmy Carter was in the White House. 
Similarly, the National Endowment for the Arts and the National 
Endowment for the Humanities received some $ 208 million in 
federal aid last year, even though lawmakers have reauthorized 
them only once this decade. And many foreign-assistance programs, 
including the Agency for International Development, actually 
expired when the Republicans still held the White House and 
Democrats controlled Capitol Hill. 
	     While Congress likes to tackle such high-profile issues 
as tax cuts or military pay raises, one of Washington's dirty 
little secrets is that in many cases, lawmakers increasingly tend 
to neglect routine reauthorization bills for federal programs. 
The result: A myriad of programs are on automatic pilot because 
the House and Senate committees that have direct power over them 
have allowed their governing laws to expire. 
	     These programs stay in existence only because Congress 
each year waives the budget rules and provides another 365 days 
of funding, using the 13 must-pass appropriations bills. The 
Congressional Budget Office reported earlier this year that 
Congress provided $ 102.1 billion for unauthorized programs during 
fiscal 1999 (although there is some controversy over whether $ 17 
billion in health care programs for veterans should be included 
in that total). These ''orphaned'' programs range from services 
provided by the National Institutes 
of Health, which were last reauthorized during the 104th 
Congress, in 1995-96; to $ 7.4 billion in foreign assistance 
programs, whose laws were last rewritten in 1985. (See charts, 
pp. 690-91.) 
	     The consequence of all of this is increasingly poor 
congressional oversight over federal programs. Moreover, the 
annual congressional appropriations process gets bogged down in 
debates over controversial legislative issues that the 
authorizing committees of jurisdiction are supposed to deal with 
separately. Important policy issues that should be examined 
carefully and systematically are handled instead in the context 
of the appropriations bills, often during the frenzied final days 
of a legislative session. 
	     ''The committees with the responsibility and most 
knowledge of the programs are not exercising their 
responsibility,'' said former CBO Director Robert D. Reischauer, 
now a senior fellow at the Brookings Institution. When federal 
programs are reauthorized only through the appropriations 
process, oversight is ''less than it otherwise would have been,'' 
Reischauer said. ''It's not good for the system.'' 
	     Lawmakers are well aware of the situation. And even such 
ideological polar opposites as Rep. Barney Frank, D-Mass., and 
Sen. Orrin G. Hatch, R-Utah, agree that it indeed is a problem. 
	     As the Senate Judiciary Committee chairman, Hatch is 
particularly irked over Congress's inability for the past two 
decades to reauthorize the Justice Department. Last year, the 
House and Senate produced the necessary legislation, but the 
bills never went to conference committee. Now Hatch is vowing to 
pursue the task with renewed vigor. 
	     ''It is, in my view, a matter of significance when any 
major Cabinet department goes for such a long period of time 
without congressional reauthorization,'' Hatch said earlier this 
year. ''Such lack of reauthorization encourages administrative 
drift, and permits important policy decisions to be made ad hoc 
through the adoption (of) appropriations bills or special-purpose 
legislation.'' 
	     Frank, as is his custom, summarizes the problem a little 
more bluntly: ''It's bad for democracy.'' 

Why It Happens 
	     Lawmakers give a variety of reasons for their neglect of 
the day-to-day work. Democrats, not surprisingly, blame the 
Republicans. ''The whole legislative process hasn't worked in the 
past four years,'' contended Rep. Henry A. Waxman, D-Calif. 
	     Waxman and other Democrats note that House and Senate GOP 
leaders, especially former Speaker Newt Gingrich of Georgia, de- 
emphasized the committee process in recent years. The Democrats 
complain that the Republicans often bring bills to the floor 
without hearings or a committee markup, and sometimes they form 
special ''task forces'' outside the committees to craft 
legislation. All of this weakens the standing committees and 
allows them to shirk their duties. ''A fundamental part of the 
process . . . has been greatly eroded,'' Waxman said. 
	     Republicans do their own partisan finger-pointing. They 
argue that the Democrats, during their long control of Capitol 
Hill, did not bother to try to reauthorize many programs, either, 
because they were confident that they could get the necessary 
waivers. 
	     Besides, Republicans contend that authorizing programs is 
far simpler than reauthorizing them. ''It's always easier to 
create a program than it is to defend one,'' said one Senate 
Republican aide. He noted that lawmakers who support particular 
programs often find that upon closer examination, these programs 
''may not be as effective as their names might lead one to 
believe.'' 
	     House Commerce Committee Chairman Thomas J. Bliley Jr., 
R-Va., conceded that in a busy legislative session, reauthorizing 
programs often takes a low priority. ''Some of (the problem) is 
that Congress runs out of time,'' said Bliley, whose committee 
has $ 14.2 billion in programs whose laws have expired. 
''Committees feel there are other priorities. All of us start out 
every year saying we're going to do it, and then other events 
overtake us.'' 
	     Even seemingly noncontroversial programs, such as those 
providing assistance to the elderly, can be neglected. Rep. Ray 
LaHood, R-Ill., said that senior citizens in his district can't 
understand why Congress has failed since the 102nd Congress, in 
1991-92, to reauthorize several programs in the Older Americans 
Act, such as Meals on Wheels. 
	     ''When I mention it to (members of the authorizing 
committees), they say they just don't get it done,'' said LaHood. 
''I think you just have to get members to pay attention.'' But 
one source familiar with the program speculated that--at least in 
1998--Republicans did not even consider rewriting the Older 
Americans law, because they feared that a senior citizens' issue 
could become contentious in an election year. 
	     As the Meals on Wheels case suggests, fear of being 
dragged down by controversy seems to be a major reason Congress 
isn't bothering much with renewing federal programs. The slim 
Republican majorities of recent years have made it very difficult 
for the leaders to build consensus behind reauthorization 
legislation for hot-button programs. 
	     For instance, in their hard-charging days of 1995-96, 
conservative House Republicans tried and failed to eliminate such 
traditionally liberal programs as the Corporation for Public 
Broadcasting, which supports programming on public television 
such as Sesame Street; and the Legal Services Corp., which 
provide legal counseling to poor people. Now these programs 
remain in existence purely through the annual appropriations 
process. They remain unrenewed because, as both congressional 
supporters and opponents acknowledge, the bills renewing them 
would become magnets for ugly--and protracted--ideological 
fights. And after all the huffing and puffing, the bills, in all 
likelihood, might only pass one chamber. 
	     Even when there is wide agreement that a certain federal 
program is due for a once-over, reauthorization legislation can 
stall for the same reason that any major legislation stalls-- 
because of the complexity of the issues, the huge amounts of 
money involved, the intense lobbying from affected parties and 
interest groups, intra-party and intra-chamber differences, and a 
myriad of other reasons. 
	     That has been the case with the beleaguered Superfund 
environmental cleanup program, which, since it was last 
reauthorized as part of a 1990 budget reconciliation law, has 
been the subject of a string of overhaul attempts that were 
eventually abandoned. ''Structural changes that are needed in 
Superfund continue not to be made,'' said George Baker, a partner 
in the law firm of Williams and Jensen and executive director of 
Superfund '95, an industry coalition. 
	     In other cases, the reauthorization legislation itself is 
not particularly troublesome, but it gets stalled because 
lawmakers have used it as a vehicle to tack on controversial 
amendments embodying their pet agenda items. The abortion issue 
is notorious for hanging up major reauthorization bills. 

The Easy Way Out 
	     Ultimately, the authorizing committees have an escape 
hatch--the appropriations process. Chairmen can and do neglect to 
renew programs, because they're confident that at the end of the 
year, the House and Senate Appropriations committees will simply 
give money to the programs. ''We wink, as we should,'' said 
Reischauer, who asserted that programs such as federal housing 
assistance should not fold simply because members of Congress 
can't agree on how to rewrite the laws governing them. 
	     Appropriators, however, constantly grumble about having 
to carry the authorizers' water. ''Virtually all of my bill has 
been unauthorized,'' said Rep. Harold Rogers, R-Ky., the chairman 
of the Appropriations subcommittee that is responsible for 
writing the annual Commerce-Justice-State appropriations bill. 
''The Justice Department has not been reauthorized since I've 
been in Congress--almost 20 years. It makes my job triply 
difficult.'' 
	     Rogers said that lawmakers routinely bring him their 
controversial legislative amendments, or ''riders,'' to be 
included in his appropriations bill. The current process, he 
said, ''tells people, come on, bring me your riders. We've 
forgotten what authorizers are supposed to do.'' 	   
  Subsequently, appropriators frequently end up in a 
''damned-if-you-do, damned-if-you-don't'' situation, according to 
House Appropriations Committee ranking member David R. Obey, D- 
Wis. Obey said that when he chaired the Foreign Operations, 
Export Financing and Related Programs Appropriations 
Subcommittee, he added legislative language one year to his 
spending bill, at the request of some authorizers--only to find 
out that others opposed it. ''All of a sudden, I was in the 
middle of a shooting war with people on the authorizing 
committee,'' Obey recalled. 
	     Appropriators often point to the annual fight over the 
arts endowment as an indication that the process has broken down. 
The NEA was last reauthorized almost a decade ago, in the Arts, 
Humanities, and Museum Amendments of 1990, the CBO said in its 
report. When Republicans took over Capitol Hill in 1995, 
conservative House members made the NEA one of their prime 
targets for extinction. This was no surprise: Conservatives had 
long been incensed that the federal government supported art and 
performance projects that they considered indecent. They 
attempted to kill the NEA by simply eliminating its money, but 
Democrats--and moderate Republicans in both the House and the 
Senate--refused to go along. 
	     Since then, the NEA has been funded in the annual 
Interior appropriations bill, but in order to get the legislation 
through the House, Rep. Ralph Regula, R-Ohio, the Appropriations 
subcommittee chairman who handles that bill, has included 
legislative riders to reform the program by increasing the 
percentage of arts funds that go directly to the states and by 
adding members of Congress to an NEA oversight group. ''To me, 
it's just a matter of getting the bill out,'' Regula said. ''I 
have no strong feelings about the NEA one way or another, but 
I've had to do it to get my bills through.'' 
	     The authorizing committee--the House Education and the 
Workforce Committee--hasn't ignored the NEA. In 1997, Rep. Peter 
Hoekstra, R-Mich., the chairman of that panel's Oversight and 
Investigations Subcommittee, issued a report charging that the 
NEA failed to distribute its money fairly and was not needed to 
help foster support of the arts. ''Given all these facts,'' 
Hoekstra said at the time, ''it is hard to justify the existence 
of this organization.'' 
	     But now, some two years later, the full Education and the 
Workforce Committee has yet to take up a bill to reform or renew 
the NEA. ''My chairman has no interest in doing it,'' said a 
spokesman for Education and the Workforce Chairman William F. 
Goodling, R-Pa. Goodling, said the aide, continues to believe 
that the endowment does a poor job, but is uncertain whether he 
could find a consensus to rewrite the NEA law. ''We don't know if 
we could get a reauthorization through this committee,'' the aide 
said. ''Even if the chairman wanted to do it, he would face 
opposition, and I don't know if we could do it.'' 
	     So in the current political climate, NEA supporters must 
rely on the appropriators. And again this year, Congress will 
probably face the same fight in the House, pitting conservatives 
who want appropriators to give no money to the program against 
moderate Republicans and Democrats who support it. 

How to Fix It 
	     To solve such dilemmas, appropriators said they hope that 
House and Senate leaders will simply start focusing on 
reauthorization issues--and discourage members from trying to add 
controversial legislative matters to the funding bills. 
	     To that end, Senate Republican and Democratic leaders are 
trying to reinstate a Senate precedent that would make it 
difficult to add legislative riders to the appropriations bills. 
But no such efforts are under way in the House. ''Leadership 
needs to clamp down,'' said Rogers. He believes that legislators 
who want to add riders should be given an opportunity to address 
those issues on other bills. ''Give them their day in court,'' he 
said, ''but not on the appropriations bills.'' 
	     For years, Senate Budget Committee Chairman Pete V. 
Domenici, R-N.M., has argued that adopting a two-year budget 
cycle would allow the authorizers more time to tackle their 
bills. But Obey scoffed at that notion. ''We haven't even gotten 
through one-year appropriations (bills), and people are talking 
about two-year bills,'' he said. 
	     Still other congressional insiders suggest trying to make 
it easier for authorizers to actually do their jobs. House and 
Senate leaders, for instance, could begin reviewing federal 
programs to determine which ones might be able to receive 
permanent authorizations. ''Is it necessary for the Department of 
Energy to reauthorize salaries?'' asked a former key Senate 
Republican aide. Obey supports the idea. ''If you had longer 
authorizations,'' he said, ''then you wouldn't have to reinvent 
the wheel every year.'' 
	     But others would say that the wheels came off a long time 
ago.