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.
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.
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