This week the House of Representatives is expected to pass a large number of bills (49) under the suspension of the rules, a procedural mechanism that allows Leadership to fly through the consideration of legislation, potentially even passing the bills by voice vote (which avoids accountability to their constituents). If a bill considered under suspension of the rules ends up receiving a recorded vote, it requires a 2/3 majority to pass, as opposed to the typical simple majority. Because of the higher threshold for passage, Republican House Leadership must secure Democrat votes for these bills. Legislation considered under suspension should not make any substantial policy changes or incur significant costs to the taxpayers. Unfortunately, many of the bills on the suspension calendar regularly violate these principles, and this week is no exception; in fact, it is worse than most.
Through A Terrible Process
The process of underlying the bills being considered this week falls short of at least four main reasons:
- Considering almost 50 bills under the suspension of the rules avoids accountability and is an irresponsible way to govern. Most Members of Congress and their staff do not have time read each one of these bills, and even if they did, if the bills pass by a voice vote (which is often the case), constituents have no record of how their Representative voted on most of these bills.
- The Republican controlled Congress should be focused on more pressing matters, such as fighting for a conservative spending bill that avoids a lame duck session of Congress. Spending two days passing legislation that is meaningless at best, and liberal at worst, with Democrat support is an example of misplaced priorities.
- Many of the bills were scheduled for a vote before they had a Congressional Budget Office score available. While some of the scores may be made available later, Members of Congress and their staff will not have adequate time to fully grasp how much the legislation would cost and whether or not it would add to the debt or deficit. Furthermore, this violates the Majority Leader’s Floor Protocols.
- On the schedule are a number of Democrat bills from members who actively participated in the “sit in” that violated House Rules. This means that Democrats are being rewarded who broke House rules regarding decorum and behavior of Members of Congress.
Results In Bad Policy
Of the 49 bills on suspension, conservatives should be particularly opposed to two:
- H.R. 670, the Special Needs Trust Fairness Act, offered by Rep. Glenn Thompson (R-PA). The bill expands Medicaid, uses budgetary gimmicks, and provides $24 million for a slush fund at HHS. Along with creating a new $11 million Medicaid program to help women in post-pregnancy to quit smoking (even though it only has an expected 10% success rate), it appropriates an additional $24 million over two years (2020-2021) into the Medicaid Improvement Fund (a slush fund) and uses a budget gimmick (temporarily ending Medicaid payments for hair growth drugs like Rogaine) to offset the expansion of special needs trusts to non-elderly individuals with disabilities. Medicaid needs reform, not a piecemeal expansion of eligibility or benefits. The bill’s approach only undermines an already vulnerable program.
- H.R. 5859, the Community Counterterrorism Preparedness Act, offered by Rep. Michael McCaul (R-TX). This bill creates another new (and duplicative) federal grant program for counterterrorism training in major metropolitan areas and also authorizes $195 million for its implementation. This is despite the fact that earlier this year the Department of Homeland Security announced Fiscal Year (FY) 2016 Notices of Funding Opportunity for ten DHS preparedness grant programs totaling more than $1.6 billion. Furthermore, this bill brings back echoes of the failed Countering Violent Extremism policy promoted by the Obama Administration, DHS, and the Homeland Security Committee. Like other bad CVE bills Heritage Action has opposed, H.R. 5859 contains no effective prohibition against funding groups like CAIR, and other unindicted co-conspirators from the Holy Land Trial, or other potential Muslim Brotherhood front groups, or from receiving the grants and participating in the “community outreach.”
A Republican Congress should not be legislating through an expedited process that obscures transparency and grows government with little to no accountability. House Republicans should ensure that all 49 of these bills receive a recorded vote, evaluate each bill on their merits, and especially ensure that these two bills receive recorded votes and then vote against them.
Tomorrow the House of Representatives will most likely vote on an amendment that supports President Obama’s executive order elevating sexual orientation and gender identity into a federal protected class.
In July 2014, President Obama issued E.O. 13672, unilaterally elevating sexual orientation and gender identity to special status for purposes of federal contracts. This means that federal bureaucrats could discriminate against, and strip contracts from, contractors that, for example, do not give biological men unfettered access to employee bathrooms designated for women. Congress has repeatedly voted down ENDA — the so-called Employment Non-Discrimination Act — to avoid forcing just such a radical national bathroom policy on American business.
The Maloney Amendment would constitute Congress’s blessing and ratification of the President’s end-run around Congress. It constitutes bad policy that unnecessarily regulates businesses on sensitive matters. Finally it risks undoing the Russell Amendment which was included in the House-passed NDAA, which takes longstanding protections in civil rights law and makes clear that the president’s orders are not exempt from them.
According to Roger Severino, the Director of the DeVos Institute for Religion and Civil Society, the Maloney-style amendments would:
“Ratify and give Congress’s blessing to Obama’s executive overreach, thereby encouraging him to do more of it.Solidify SOGI protection as national policy.
- This would be cited by judges as a reason to uphold Obama’s overreaching and often lawless executive actions imposing SOGI policies (including bathroom access) on schools, private employers, housing providers, medical professionals, and health insurers.
- This would be used by judges as further reason to declare SOGI a protected class under the Constitution.
Affirm the left’s propaganda that SOGI is equivalent to race and that there is massive unjust discrimination against LGBT persons in America today that requires a federal response.
Effectively impose ENDA on federal contractors.
- This would require contractors to grant biologically male employees who identify as women unfettered access to women’s lockers, showers, and bathrooms. It would also require employees address co-workers by the pronouns of their choice regardless of biological sex. It would also require contractors to provide spousal employee benefits to same-sex spouses to the same extent provided to husband-wife couples.
Harm religious liberty.
- Although Maloney contains some protection for employers to hire according to their “particular religion,” it protects only religious non-profits and the Obama administration or courts can interpret the protection narrowly to deny protection of religiously-motivated employee conduct standards. The Obama administration has explicitly refused to say that such conduct standards are protected for religious non-profits. As a result, courts and the administration may (and likely will) say that contractors like Catholic Charities are free to hire only baptized Catholics, but may not deny employees access to the bathroom of their choice or same-sex spousal benefits.
- For-profit contractors that exercise religious beliefs while they earn a living, such as Hobby Lobby, would get no protection whatsoever under Maloney.
May undo the Russell Amendment.
The Russell Amendment protects religious non-profit contractors by applying the ADA’s explicit protection of faith-based employee conduct policies. Depending on the timing of when Russell vs. Maloney become law, Maloney may be interpreted to supersede this vital protection.
Conscience, freedom of speech and association, and religious freedom would suffer as an unavoidable consequence of Maloney (some on the left consider this the goal, not byproduct of Maloney). Although some harms can be mitigated through aggressive subsequent amendments, no amendment will eliminate those harms completely. Some harms, such as ratifying overreach, elevating SOGI to a protected class, and harming the culture cannot be mitigated at all by any amendment short of striking Maloney completely.”
As we saw last week, undermining religious liberty is not a prerequisite to passing appropriations measures in the House. Moving forward, it will be critical that House Republicans defeat any attempt by Democrats to further erode our First Amendment rights by codifying President Obama’s executive order through the appropriations process. House Republicans should expect Democrats to offer similar amendments on every appropriations bill moving forward, and must be prepared to defeat these amendments that threaten the very foundations of our civil society.
Last Thursday, Republicans in the House of Representatives defeated an anti-religious liberty amendment offered by Rep. Sean Maloney (D-NY) 15% to the 2017 Military Construction and Veterans Affairs (MilCon/VA) appropriations bill (H.R. 4974). Though not immediately clear at first glance of the actual amendment text, the Maloney amendment would have further ratified an overreaching executive order issued by President Obama in 2014, which threatens religious liberty for private institutions who may contract with the federal government. As The Heritage Foundation’s expert on religious liberty Ryan Anderson wrote in 2014,
“[President Obama’s executive] order disregards the consciences and liberties of people of goodwill who happen not to share the government’s opinions about issues of sexuality. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues.”
How does the EO disregard conscious and liberty, infringe upon the First Amendment, and the free exercise of religion? There are at least 4 main policy problems, which Ryan Anderson also detailed last week after the Maloney amendment failed:
Last week, the House Transportation and Infrastructure Committee marked up the Aviation, Innovation, Reform, and Reauthorization (AIRR) Act (H.R. 4441), a 273-page piece of legislation to reauthorize and make changes to the Federal Aviation Administration (FAA).
A major provision of the AIRR Act (Title II) removes the Air Traffic Organization (ATO) from the FAA and establishes a non-profit corporation, called the ATC Corporation, to provide Air Traffic Control services.
Understandably, many conservatives are eager to privatize our nation’s air traffic control system. But, concerns have arisen that this attempt would instead create an organization similar to other government-sponsored enterprises that keep taxpayers on the hook for serious missteps.
Beyond the structure of the new entity, there are several other conservative concerns:
“We’ll do audacious executive action over the course of the rest of the year, I’m confident of that,” promised Barack Obama’s chief of staff. Given the president’s unlawful unilateral actions, there is no reason to doubt that promise. Despite those promises and growing opposition from within their own conference, Senate Republican leaders continue to confirm federal judges nominated by President Obama.
On Wednesday, senators will be asked to vote in favor of John Michael Vazquez of New Jersey.
Vazquez was recommended for nomination by Sen. Robert Menendez (D-NJ) 9%. Few would be surprised to learn he donated thousands of dollars to both Menendez and Sen. Cory Booker (D-NJ) 16%, but even fewer would contend Mr.Vazquez would lift a finger to rein in this president’s executive overreach.