Policy Riders: Bringing Transparency to a Shadowy Legislative Process

Schoolhouse Rock was only partly correct: getting a bill through Congress is just one way to turn proposals into law. Another way to write your policy demands into law is to hide them in the funding bills Congress passes every year to keep the government running. These “policy riders” in appropriations bills are temporary, but they establish new policies just like normal laws. Their use effectively shuts the public out of important policy discussions, and they undermine the openness of the legislative process. To remedy this practice, Congress can take some lessons learned from its reforms of the earmarking process.

Congress has used riders for decades to help set federal policy. According to congressional rules, appropriations, or spending bills, must not contain any policy provisions; new policies are theoretically confined to “authorization” bills. But in practice, Congress has approved of a process of inserting policy language into spending bills, so long as it is couched in specific prose that appears to seek only to direct how federal funds are being spent. For instance, instead of saying “federal agencies cannot buy any SUVs,” which would set new federal policy, riders must be worded to limit how funds can be spent, as in “no funds in this bill may be used to buy SUVs.” Thus, riders are known as “limitations.”

In a sense, policy riders are the anti-earmark. Earmarks are provisions in appropriations bills specifically directing federal funds to a certain area or entity. Conversely, riders prevent funds from being spent in a certain way. But despite having the appearance of helping agencies decide how to spend their funds, cutting off federal funding can put an end to the activities that rely on it. For instance, many policy riders target government activities in Washington, DC, since Congress allocates the funds for the District’s budget. One such rider prevented the District from using its funds for abortion (DC general funds are considered federal funds). Other recent riders have aimed to curtail gun regulations, defund the now-defunct community group ACORN, and stifle climate change research.

These policy changes often occur without public debate. Most riders are inserted into appropriations bills when they are created in committee, so when the public first sees appropriations bills, they are already full of policy provisions. Other riders may be added as amendments and openly debated in committee or on the floor, but even this debate is typically curtailed, as the time for amendments is usually limited – even when they aim at sweeping policy changes.

Furthermore, policy riders are difficult for non-policy experts to track. If a citizen is concerned about certain policies, say, access to abortion in Washington, DC, the Financial Services and General Government appropriations bill is likely not the first piece of legislation she would be concerned about.

And there are a lot of riders to keep track of. In recent years, Congress has been slow to individually approve the 12 annual appropriations bills that fund government and has instead been clumping them together in a giant “omnibus” spending bill. Last year’s bill had hundreds of policy riders – too many to review in the few days the bill was publicly available before Congress voted on it. In fact, there were so many riders that even some members of Congress were unclear about exactly what they were voting on. In the end, most of the controversial riders were removed at the last second during negotiations between the House and the White House.

This year appears to be more of the same when it comes to riders. The Commerce-Justice-Science appropriations bill passed by the House earlier this month contained more than 60 riders, including a particularly controversial one that would cut off funding for the American Community Survey, a part of the Census that gathers important information about the U.S. population that is used by everyone from the federal government to small businesses. With Congress unlikely to finish the appropriations bills on time, another massive omnibus bill is likely.

Banning riders outright is not a practical solution, since in certain limited circumstances, they are an appropriate tool for Congress to use to guide agency actions. However, increasing transparency could mitigate policy rider abuse, as those inside and outside of Congress would have a greater opportunity to track and understand their implications.

Before it forswore earmarks in the current session, Congress made a concerted effort to bring this hidden aspect of appropriations bills into the light. Several of the steps Congress took to make earmarks more visible to the public could also be used for policy riders.

The most important reform would be to create a central list of all the riders in a bill, as both House and Senate rules required for earmarks. This list should be created by the Appropriations Committee staff and be made available to the public in advance of any vote on an appropriations bill, either in committee or on the floor of either house. The list should be more than a simple enumeration of riders; it should include a section describing the purpose and intent of each provision. Forcing members of Congress to clearly spell out the anticipated impact of their proposed riders would help the public understand just what their representatives are voting on and would bring a great deal of transparency to riders.

Additionally, the list of riders should be made machine-readable, which would facilitate rapid distribution of the list to citizens and interested parties via the web. Making the list available in THOMAS, the legislative database where many people inside and outside of Congress get information on bills, would also help raise awareness of the policy changes contained in riders.

Moreover, the riders should be highlighted in the text of the bills themselves. Currently, riders are often buried deep within the text of appropriations bills, which can stretch hundreds of pages, and if users do not know about the full list, they would find it difficult to find the hidden riders in the legislation. Having some kind of flag for these riders would help make them easier to spot and identify. Also, flagging the riders allows users to understand the provisions in context and draws attention to issues or programs that might have an unusual number of riders targeted at them, something a simple list of riders might not help with.

Forcing Congress to highlight and list all of the policy riders in its appropriations bills will not stop harmful or controversial riders from ever passing. But the steps detailed above will ensure policy changes are not slipped into massive bills without the public or legislators fully understanding their implications, and these reforms will bring transparency to this shadowy corner of congressional policymaking.

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