Bill Summary: H.R. 2028 extends the massive unconstitutional funding provided in the expiring Continuing Resolution (CR) through April 28, 2017, with some adjustments, (Division A). Division B of this measure also provides full-year (FY 2017) appropriations for “security assistance.”

Those Division A adjustments, some controversial in themselves, included: Health benefits for 16,500 retired miners due to expire on December 31st; money to help Flint, Michigan recover from its lead-tainted water system. It also included disaster aid for Louisiana and other states, and an expedited process for considering an exemption to a long-standing requirement of 7 years distance from military service for Mr. Trump’s nominee for the civilian post of defense secretary.

Analysis: Rather than working to roll back unconstitutional federal usurpations, appropriators are clearly focused on fine-tuning current operations and funding new programs, politically popular with their constituencies. As an example of this mentality, on December 9th, Senator Dean Heller (R-NV) addressed the Senate regarding the “accomplishments” of the 114th Congress

“This week, we were able to pass the 21st Century Cures Act….

“First, my bill, Bringing Postpartum Depression Out of the Shadows Act, was included in the mental health title of the bill. After working with mental health care providers in my home State, I learned that Nevadans lack access to the appropriate treatment, screenings, and community support needed to provide effective care for new mothers struggling with postpartum depression.

“I worked with Senator Gillibrand and HELP Committee Chairman Alexander on this important piece of legislation, which builds unon existing State and local efforts by providing targeted Federal grants to assist States in developing programs to better screen and treat maternal depression.”

What is seriously missing in Washington and the Establishment media is any discussion of the need to tame the federal monster by returning programs and spending to the limits required by the Constitution.

For example, prior to the Soviet’s 1957 launch of Sputnik, it was widely recognized that Federal aid to education was unconstitutional. The pretext of keeping up with the Russians was used to overcome this objection, and the powerful education unions and their revolutionary leaders, who would like to control the education of America’s youth, have ensured that Congress steadily expanded that intrusion.

There are dozens of other major examples of unconstitutional federal usurpations, such as health care, energy, and housing and urban development. The intrusions have been solidified by a media that refuses to support the vital principle of constitutionally limited government as a mainstay of freedom and progress.

The Real Problem

And that is the real problem with this measure, and with Congress in general. To head off looming disaster and restore prosperity, Congress urgently needs to focus on cutting back the federal government to its constitutional limits. Yet that agenda isn’t even on the table.

In the absence of that focus, a responsible legislator must respect his oath to defend the Constitution and do what the country desperately needs by refusing to support unconstitutional business as usual. As that voice hopefully grows, the leadership will have to cope with it.

You will not find that voice in either the House or Senate “debates” for this measure. Nevertheless, portions of the debates are quite instructive as to the failure of Congress to deal constructively with the Federal monster.  (See our analysis of House Roll Call 620 for pertinent excerpts form the House debates.

In the debate excerpts below, note how often senators on both sides of the aisle claimed to support the abhorrent CR out of necessity. Yet when that “desperation” option lacks sufficient support, Congress will be forced to act more responsibly

Ignored Alternative

As always, the argument in favor of a CR is that a government shutdown is unthinkable and that time has run out for regular order, i.e., passing the 12 regular appropriations bills.

However, any omnibus CR or omnibus full-term appropriations measure plays into the hands of those who want to use the fear of the political consequences of a full government shutdown to continue out-of-control, irresponsible spending.

So, instead, if a short-term CR is absolutely necessary, Congress could pass a CR for just those work areas not already completed.   As an example, the CR approved on 9-28-16, due to expire on December 9th, included full year appropriations for the least controversial of the 12 appropriations bills: H.R. 4974, Military Construction, the Department of Veteran Affairs

Better yet, Congress can pass separate CRs for individual areas, and even include program cuts in some, or simply let funding for a particularly egregious area run out while negotiating a full appropriations bill. The principled vote on any omnibus appropriations measure must be no, setting the stage for a determined, constitutionalist House or Senate, once assembled, to use the power of the purse to make necessary rollbacks.

Excerpts from the 12-9-16 floor “debates: 

Senator John Cornyn (R-TX)(Republican Whip):

“This continuing resolution also provides $872 million in funding for the 21st Century Cures legislation we passed just a few days ago, $500 million to deal with the scourge of opioid abuse but also to deal with prevention and treatment activities, as well as $372 million for the National Institutes of Health. It provides emergency flood and natural disaster relief for potentially up to 45 States, including my own — $4.1 billion in emergency natural disaster relief. As I mentioned earlier, it does provide a short-term coal miners fix while we work on a longer term solution. So my hope is, again, we can get it done.”

Senator Dick Durbin (D-IL)(Democratic Whip):

“Mr. President, I also wish to say a word about where we are with the continuing resolution. What is a continuing resolution? Well, we are used to it around here because we have done it so often. Both political parties have done it. Here is what it basically says….

“It takes last year’s budget and says: Let’s repeat. Well, things change….

“For the second time, we are going to come up with a 3- or 4-month budget resolution as we move forward. It is no way to run a government.

“Here is the good news: We didn’t have to do that. On this Appropriations subcommittee, Senator Thad Cochran of Mississippi and I worked a long time. Our staff worked even longer and prepared a Department of Defense appropriations bill. We are ready — ready to bring it to the floor, ready to debate it. And it is a good one. It keeps our country safe. On a bipartisan basis, we agreed on what it should contain. We can’t bring it forward. All of the spending is going to be done under this continuing resolution. We will be halfway through this current fiscal year with continuing resolutions if we ever get around to the appropriations process….

“Let me speak as well about the impact on the Department of Defense of this continuing resolution. A continuing resolution for defense might be harmful to our Armed Forces, and the longer we live under it, the worse it could get. If Congress were to pass a 3-month continuing resolution for the Department of Defense, they are going to feel it right away. The Pentagon has identified more than 150 programs costing tens of billions of dollars that will be disrupted by a continuing resolution. House Republicans fixed no more than a few of these. There are a lot of others in disarray.”

Senator John Barrasso (R-WY):

“Mr. President, in just a few hours, funding for the Federal Government will run out. It is going to run out in just a few hours. It looks like we are going to blow through that deadline right here in the Senate.

“POLITICO, one of the local newspapers, had an article this morning, and this is what the headline said. They ran an article with this headline: ‘Democrats push government toward shutdown.’ Let me repeat that: ‘Democrats push government toward shutdown.’

“The article says that Democrats are pushing the government to the brink of a shutdown. They are doing it with ‘coal country Senate Democrats leading a strategy to oppose a GOP spending bill if their demands are not met for a longer extension of expiring health care benefits for coal miners.’…

“But here we are in the Senate, with Democrats preparing to shut down the Government of the United States.

“Our goal should not be to bail out a union health plan — and it is a fund that does have problems. “The solution actually ought to be to let coal miners mine coal again. Let them go back to what they know how to do — mine coal. That way they can take care of themselves and take care of their own.

“I want to be really clear on this point. The only reason we are in the position we are in today is because the Obama administration and Democrats in Washington have been waging a war on coal for the past 8 years. That is the reason we are in the position we are in today.”…

“Health and pension funds can pay benefits for retired workers as long as the mines are actually working and they can mine coal and sell coal and make money.”

Senator John McCain (R-AZ) (Chair Armed Services Committee):

“Earlier this year we had a defense appropriations bill, approved unanimously by the Appropriations Committee, but Democrats put politics ahead of our troops, filibustered that legislation, and brought the Senate to a halt….

“Under this continuing resolution, nondefense spending is $3 billion above the Bipartisan Budget Act. Where does this additional money come from? It was taken from our troops. Under the continuing resolution, defense spending is $3 billion below the Bipartisan Budget Act….

“What is so disheartening about the hypocrisy of this continuing resolution is how unnecessary it is. We can pass an appropriations bill. The appropriations bill was passed out of the Appropriations Committee unanimously. We can pass it. We can do it tomorrow; we can do it tonight. But they don’t want to do that. They want this continuing resolution with all this stuff hidden in it, with a lot of legislative things in it that we find out, guess what, 10 hours, 24 hours, maybe even 48 hours before we vote on it. That is when we find out what is in the bill.

“I would challenge–I would like to take a poll of my 100 colleagues here. How many of them have read the continuing resolution? I will bet you the number is zero. With this legislation, Congress has already done the hard work of negotiating a bipartisan compromise for defense spending. The Defense appropriations bill from earlier this year could easily be amended to reflect the compromise, and the Senate could be taking up the bill, but we are not.”

Senator Chris Coons (D-DE):

“Mr. President, I rise today to speak about the continuing resolution that is the business before the Senate. We are here once again today, as we have too often been in the 6 years that I have served here in the Senate, working at the last minute to avoid shutting down our Federal Government later tonight.

“As we have before, to avoid a shutdown we appear likely to pass yet another continuing resolution. As an appropriator, as someone who is on the committee that is responsible for putting together all the provisions that will help keep this government moving forward, it is a

real disappointment to me that this continuing resolution fails to address issues of real concern to folks all over this country.”

Senator Patrick Leahy (D-VT):

“Mr. President, today the Senate will vote to put the government on autopilot for the next 4 and a half months. Coupled with the continuing resolution we are currently under, that is 7 months of fiscal year 2017 priorities funded–or not–under the terms of the fiscal year 2016 omnibus bill. Freezing in place an earlier year’s priorities — ignoring the many hearings and the committee work and the debates and the oversight that the Appropriations Committees have invested in genuine, full-year funding bills for next year — by definition means this stop-gap bill is chock-full of great mismatches between our current priorities and those set long ago for an earlier fiscal year….

“What makes the vote on this continuing resolution all the more frustrating is the fact that we didn’t need to be in this predicament today. The Senate Appropriations Committee carefully considered 12 individual appropriations bills. All but one were reported with broad if not unanimous support. Through September, October, and into November, we negotiated in good faith and in a productive way with our counterparts in the House of Representatives. That is until the order came to stand down. The word was that the President-elect didn’t want us to pass a responsible, full-year budget. The word was that he wanted Congress once again to kick the can further down the road. Then Democrats in both the Senate and House were shut out of the process–no consultation and no negotiations.

“In the absence of what could have been an achievable omnibus appropriations bill, this continuing resolution does fulfill a few key

priorities. It avoids a government shutdown, just before the holiday season. “It provides the millions of dollars authorized earlier this week in the 21st Century Cures Act to fight opioid abuse and cancer. It rejects the National Defense Authorization Act’s proposal to increase base defense spending through an increase in overseas contingency operations funds. It provides billions of dollars in emergency disaster assistance for recent natural disasters. It supports additional funds to care for unaccompanied children from Central America and Mexico. And at long last, it provides overdue funds — fully offset through the Water Resources Development Act authorization–to address the shameful lead contamination crisis in Flint, MI….

“Nonetheless, we face what is ironically both a complicated and straightforward decision: allow for a government shutdown, 2 weeks before the winter holidays, or approve this continuing resolution that casts aside Congress’s responsibility to enact meaningful appropriations bills for the fiscal year.”

Senator Barbara Mikulski (D-MD):

“Madam President, I rise for a final time as the vice chair of the Appropriations Committee….

“The Appropriations Committee is a problem-solving committee. Our markups are vigorous and rigorous, but at the end of the day, we do try to find compromise without capitulating on our principles. That is why I wish I was standing here today presenting the Senate with a full-year funding bill instead of a temporary bill through April 28….

“This bill includes important needs for our country. First of all, it meets our national security needs. There is funding in here for our troops overseas and money to enhance humanitarian relief and also very crucial needs related to embassy security. There are also other needs facing the people, and this goes to the disaster relief for victims of floods and Hurricane Matthew. While we are looking at the disasters of floods and hurricanes, there is also help for Flint, MI — $170 million, subject to authorization.

“We also looked at the other challenges facing our communities. One of the things we see is the big challenge of opioid abuse….

“Also in the Cures Act, there is money to deal with the dreaded “c” word, cancer. With the advocacy of the Vice President and again working across the aisle and across the dome, we have come up with something called the Cancer Moonshot….

“Today, as I bring this bill — the continuing resolution before the Senate — I say to you, I ask you to vote for the continuing resolution….

“I do hope in the next Congress we do return to regular order. This committee is capable of it if the Senate is capable of it.”