Wednesday, September 10, 2008

New Appropriations News

As I noted last Friday (see: “Congress Back in Session 9-08-08”) there is some doubt that there will be a DHS appropriations bill passed before adjournment on September 26th. I opined that there will probably be a continuing resolution for most of the government, including DHS. According to an article on there is the potential threat of a presidential veto of a continuing resolution being thrown into the process.


Budgetary Politics


While the Democrats currently hold a majority in both the Senate (by one vote) and the House, they do not have a large enough majority in either house to override a veto if the vote is split along any thing close to party lines. President Bush has threatened a veto of any appropriation bill that calls for spending more than his budget requested. While the President doesn’t have much political capital, the Republicans (particularly the House Republicans) can be expected to support such a move so they can campaign as fiscal conservatives.


The Democrats hope for an Obama win in November. They don’t want their President to be handicapped in his first year in office with a ‘Bush Budget’. Knowing that they have virtually no chance of getting the kinds of spending they would want, they figure that the best they can do is to keep the current funding level going through January 2009. Then, with a Democrat in the White House and firm majorities in both houses of Congress they could pass a series of appropriations bills that would allow them to put their stamp on government spending six to nine months earlier than normal.


A continuing resolution (CR) is normally used to keep the government functioning while the budgetary process is finally worked out. Usually they are passed for a limited and relatively short period of time to allow for negotiations between the various parties. To the best of my limited knowledge this would be the first time that a CR would be used to so drastically circumvent the political process.


Continuing Resolution Effect on CFATS


A continuing resolution does not normally contain the miscellaneous baggage seen in normal appropriations bills. There would be none of the ear marks or legislative provisions included that are added to appropriations bills to be used as bargaining points to acquire the necessary support for passage.


This means that there would be no place in such a bill to include language that would extend the expiration date for the current CFATS regulations. This would provide incentives for some high-risk chemical facilities to extend and postpone their implementation of the security procedures required to comply with the provisions of CFATS. They would justify their actions by noting that what ever follows after CFATS would probably require different security procedures, so why waste money implementing lame duck regulations.


Continuing current funding levels for CFATS would ensure that there will be an even more extended period of time before DHS can begin to hire all of the necessary personnel to complete the inspections required to ensure that high-risk chemical facilities have developed adequate site security plans to protect their facilities against potential terrorist attacks. Budget games have already delayed the fielding of these inspectors, but a further three to six month delay in the hiring and training of these personnel will effectively gut the enforcement of CFATS. This will be a firm signal to chemical facilities there is no real need to implement the security programs required by CFATS.


If the President Vetoes the Continuing Resolution


If a CR is passed, you can expectit to pass very close to the Democrats’ self-imposed legislative deadline of September 26th. If President Bush plans to veto the CR he would be expected to clearly make that point to the congressional leadership in advance of the vote. If/when Congress called the presidential bluff and the bill was vetoed, Congress would have to make a quick, foredoomed attempt to override the veto. Then the appropriations battle would begin.


The first thing that Congress would have to do is to pass another continuing resolution, a more traditional version lasting until shortly after the election. The lame duck session that Reid and Pelosi wanted to avoid would have to be held. Congressional staffers and committee chair would have to take time away from election pursuits to draft an omnibus spending bill; it would be unrealistic to try to pass individual spending bills.


There is no telling in advance what provisions would be added to such a bill. With the public attention focused on the election and a significant number of legislators not expecting to return in January, a number of odd provisions will be included. Provisions to look for could include:


  • A CFATS authorization extension beyond October 2009;
  • Exclusion of additional industries (propane distribution and agriculture) from CFATS coverage;
  • A removal of the water treatment and waste water treatment facility exemption;
  • Increases in a variety of COI STQ levels;
  • Changes in the COI list (both additions and deletions);
  • Further weakening of federal preemption provisions;
  • Adding inherently safer technology provisions;

 A veto or even a threat of a veto of a four month continuing resolution could have a profound effect on the budget process for this year. It could certainly derail Democratic plans to transfer responsibility for the 2009 budget to the next Congress.

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