Appropriations Riders Are Good Governance

• Democrats are criticizing riders to appropriations bills that prohibit or place conditions on funds as unreasonable, or “vexatious” in the characterization of Harry Reid.

• Appropriations riders are not only a proper use of Congress’ authority, they are a necessary component of Congress’ check on presidential power.

• Riders limiting the use of appropriated funds have been used since the 1870s.

In January 2014, President Obama declared his willingness to use his “pen and phone” to go around Congress and act on his own. He has certainly done that. From 2011 to 2014, Senate Democrats insulated President Obama from efforts to stop his expansive use of presidential power. Now the president and congressional Democrats are trying to pretend that riders on appropriations bills are an unreasonable intrusion on executive power. The truth is actually the opposite. Riders on appropriations bills are not only proper, they are a hallmark of good governance as a check on executive power.

Riders Fit into Our Nation’s Checks and Balances

Congress does not have to accept executive actions that exceed the president’s power or wait on the courts to decide if an action is unconstitutional or violates the law. The framers provided Congress with several ways to check the power of the executive branch.

“Limitations riders,” or the method of limiting appropriations for certain activities, have been used by Congress throughout our nation’s history. This check is important and should be valued by members of both parties against any president attempting to expand executive power at the expense of Congress.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” – U.S. Constitution, Article I, Section 9

In Federalist 58, James Madison wrote that the “power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Joseph Story, in his influential Commentaries on the Constitution of the United States, wrote that “it is highly proper, that [C]ongress should possess the power to decide, how and when any money should be applied” to “the expenses, and debts, and other engagements of the government.”

President Obama Has Unilaterally Expanded Executive Power

President Obama has shown himself willing to expand executive powers at an alarming rate. This should concern all Americans, including those who agree with the policies he seeks to implement. Good policy implemented by executive fiat allows future presidents to expand executive power even further. Bad policy implemented by executive fiat is bad governance. In nearly seven years in office, President Obama has sought to go around Congress with regard to: executive appointments; White House czars; waiving No Child Left Behind requirements; EPA regulations on water and greenhouse gases; declining to defend a law in the courts; rewriting immigration law; declaring inactive a portion of a defense bill he signed into law; and disregarding legal experts at the departments of Justice and Defense in order to ignore the War Powers Act.

Now the administration is signaling that it may move to close the Guantanamo Bay prison in direct violation of the law.

Use of Appropriations Riders Is Routine

Riders that limited the executive branch’s ability to spend money began in the 1870s. Since then, riders have ranged from large, controversial policies to more minor issues such as specific job requirements for the leadership of the Bureau of Reclamation. Several riders have even restricted the president’s ability to take military and foreign affairs actions.

• 1870s-1890s – The first “limitation riders” addressed “war powers, federal supervision of elections, and extensions of the Constitution and revenue laws to territories” and other issues such as requiring competitive bid contracting to acquire certain goods and services.
• 1896 – Prohibited funds appropriated for charitable purposes in D.C. from being paid to any church or religious organization.
• 1913 – Prohibited funds for “the compensation of any publicity expert.”
• 1922 – Prohibited purchase of dredges from private companies if the government could manufacture such dredges at a lower cost.
• 1932 – Prohibited funds from being used to send “additional Marines to Nicaragua to supervise an election there.”
• 1947 – Several prohibitions on the NLRB’s use of its appropriated funds, including prohibiting it from organizing agricultural laborers and prohibiting it from taking action under a 1943 law that allowed nationalization of industries for war production.
• 1949 – Through a funding prohibition, effectively required that three positions in the Bureau of Reclamation be engineers with at least five years of experience.
• 1953 – Capped the number of civilian employees of the Department of Defense at 475,000 by prohibiting funding to pay the compensation of any workers over this number.
• 1973 – Prohibited funds for the NLRB from being used in relation to agricultural laborers, maintaining prior 1938 and 1947 laws that excluded agricultural laborers from the NLRB.
• 1973-1974 – Seven separate provisions prohibited funds from being used for “combat activities” in Vietnam, Cambodia, or Laos.
• 1975 – Prohibited EPA funds from being used “to tax, limit, or otherwise regulate parking.”
• 1976 – Prohibited certain OSHA fines and OSHA enforcement against small farming operations.
• 1976 – Prohibited funds from being used for any military or paramilitary actions in Angola by any nation or organization.
• 1976-present – “Hyde amendment” restricting Medicaid funding of abortions. Similar riders have been passed in other appropriations bills.
• 1978 – Prohibited funds for any regulation requiring a motor vehicle to be outfitted with airbags.
• 1978 – Prohibited certain federal grantees from lobbying Congress.
• 1979 – Prohibited funds from being used to carry out IRS proposals that would revoke tax-exempt status for certain private or religious schools.
• 1982-1986 – The “Boland amendments” prohibited funds from being used to assist the Nicaraguan Contras.
• 1991 – Prohibited arms sales to Kuwait and Saudi Arabia until they paid in full funding commitments for support of Operation Desert Storm.
• 1996 – Prohibited funds to enforce OSHA rules against small businesses of 10 or fewer employees with an injury rate below average.
• 1998 – Prohibited funds for D.C.’s needle exchange program.
• 2007 – Several restrictions on the use of competitive sourcing (public-private competitions to determine the most efficient way to deliver public services).
• 2009 – A Democratic Congress prohibited funding to transfer Guantanamo detainees to the U.S. until the president submits “a plan regarding the proposed disposition” of each Guantanamo detainee. He has yet to submit such a plan.
• 2014 – Prohibited funding to transfer Guantanamo detainees to the U.S.

Potential Riders in Fiscal Year 2016 Spending Bills

For the first time in six years, the Senate Appropriations Committee has passed all 12 appropriations bills individually. Most of these bills were passed on a bipartisan basis. Included in the committee’s bills are appropriations riders that exercise Congress’ power to decide how taxpayer money is spent. Some of the riders address: Obamacare; improper EPA regulations; Dodd-Frank; net-neutrality; FDA dietary guidelines; economically harmful NLRB rules; the fiduciary rule at the Department of Labor; and the Department of Education’s “gainful employment” rule.