“YES” on the Email Privacy Act (H.R. 699)


On Wednesday, the House will vote on the Email Privacy Act (H.R. 699). Introduced by Rep. Kevin Yoder (R-KS) 80% and cosponsored by over 190 Republicans, this bill would update the Email Communications Privacy Act (ECPA) by bringing privacy protection standards for electronic communications into the 21st Century.

When ECPA became law in 1986, it was intended to extend Fourth Amendment protections to communications conducted over the Internet. Since 1986, technology has changed rapidly, but the law remains virtually the same.  As such, it fails to provide much needed privacy protections.  The goal of the Email Privacy Act is to improve these standards, providing stronger privacy protections for communications in response to changes in technology. As Heritage has written:

“To read Americans’ mail as it is in transit with the Postal Service, the government generally needs a warrant issued by a neutral magistrate and must have probable cause to believe the search will provide evidence of a crime.

“To read the content of email messages stored on a cloud server, the government does not need a warrant at all—it can view the content by issuing a subpoena to the cloud service provider.”

“NO” on the BBA-Level Budget

On Wednesday, the House Budget Committee is scheduled to mark up its budget for Fiscal Year 2017, with consideration on the House floor likely the following week. The House’s budget should be an opportunity for House conservatives to lay out their spending agenda for the year. Instead, this budget concedes on the FY17 spending levels laid out in last year’s Bipartisan Budget Act (BBA). Conservatives should reject this budget and insist that the House revert back to the previous discretionary spending caps of $1.040 trillion.

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“NO” on $1.1 Trillion Year-End Omnibus Spending Bill

On Friday, the House will vote on the year-end omnibus spending bill, formally known as the Consolidated Appropriations Act of 2016.  The bill should have been an opportunity for conservatives to reassert their prerogatives on a host of important issues, ranging from appropriate spending levels to substantive action on refugee resettlement, executive amnesty, Planned Parenthood, and many more.  Last year, one Republican leader explained a Republican-controlled appropriations process would “have a lot of restrictions on the activities of the bureaucracy” and that this would be “something [Obama] he won’t like, but that will be done.”  Unfortunately, the omnibus spending bill falls far short of achieving substantive policy victories on the issues Americans care about.

Notably, the bill fails to achieve any significant victories on some of the key national security issues facing our nation, including refugee resettlement.  Less than one month ago, a veto-proof House majority passed a bill that would have set up a more stringent vetting system for Syrian refugees.  Many conservatives considered it to be merely a first step because it would have relied solely on President Obama’s appointees to carry out the new vetting process.  Indeed, some GOP leaders acknowledged the bill was “just a first step” and others suggested it would “likely” be addressed in the omnibus.  It was apparently neither. To be clear, tweaks to the Visa Waiver Program are just “feel good” measures that will do absolutely nothing to mitigate the serious national security risks posed by Obama administration’s current resettlement plans.

Other major failures on the national security front include the absence of any substantive policy changes to address President Obama’s unlawful executive amnesties, the flagrant violation of federal law by sanctuary cities, or the little-noticed surge of illegal border crossing.

While the bill fails to achieve significant conservative policy victories (more on that below), it appears to deliver substantial liberal priorities, including a two-year delay of Obamacare’s Cadillac tax.  The Hill described the provision as Harry Reid’s “parting gift for unions.” As Heritage Action explained earlier this week, “The Cadillac tax is a political nightmare of epic proportions for a party that claims to represent the people.” It sends the wrong message to conservatives that Republicans are only repealing parts of Obamacare that are politically harmful to the Democrats who passed it. To be clear, “a delay of the Cadillac tax would not undermine Obamacare, nor would it make full repeal more likely come 2017.”

The omnibus will also boost ineffective early childhood education programs. It includes a $570 million increase in Head Start funding, which even HHS’s own studies prove are ineffective. The bill also increases funding for the Child Care and Development Block Grant by $326 million.  

Many of the conservative policy riders touted by the Appropriations Committee are pre-existing riders — the Hyde amendment, a ban on funding Obamacare’s risk corridor bailouts, and the ban on transferring detainees from Guantanamo Bay to military bases in America, just to name a few — that have endured throughout Republican and Democrat control. Meanwhile, many important riders were left out of the package, including:

  • WOTUS. Despite the EPA’s apparent violation of federal law in its promotion of WOTUS, the bill fails to block funding for the rule’s implementation;
  • Green Climate Fund. The bill does not explicitly prohibit the administration from funding the Green Climate Fund, which was seen as a major priority for the left on the heels of the recent Paris agreement. The White House believes the agreement allows them to make a $500 million payment to the fund;
  • Net Neutrality. This bill does not include a funding prohibition to prevent the FCC from implementing net neutrality;
  • Fiduciary Rule. This bill does not include a funding prohibition to prevent the DOL from implementing new standards for investment advice for retirement accounts;
  • NLRB Joint Employer. This bill does not include a funding prohibition to prevent new NLRB joint-employer standards;
  • EPA Power Plant rule. The bill does not include any provisions prohibiting the President from moving forward with his federal takeover of the electricity system; and
  • Pro Life Riders. Planned Parenthood funding will continue even though 151 House Republicans opposed the previous funding bill, many because it sent money to that organization. The bills also fails to include important riders sought by the pro-life movement, including the Abortion Conscience Clause and the Abortion Non-Discrimination Act.

One of the most hyped riders is the lifting of the four-decade ban on exporting unrefined crude oil.  While lifting the ban is undoubtedly good policy, The Heritage Foundation explains it should “not be a bargaining chip” to advance “wrongheaded policy.”  As Heritage Action explained earlier this year, entangling this good policy with awful policy is “incredible considering a new president – who will take office in about [13] months – has the authority to lift ban.”  In exchange for lifting the ban the Republicans gave up a number of concerning provisions including:

  • Five-year extension of the Wind Production Tax Credit and Solar ITC.  Allowing this extension of the Wind PTC is especially egregious. Republicans in Congress have opposed President Obama’s carbon regulations throughout this year, yet this bill provides an additional five years of this subsidy that is critical for the implementation of these regulations. The administration assumes a doubling of installed wind capacity over the next eight years to achieve their emissions targets, but these goals would be difficult to meet without the generous handout paid for by taxpayers to this large, mature industry. A vote to extend the Wind PTC serves as a de facto vote for the President’s radical climate agenda that is hurting hardworking American families.
  • Three-year extension of the Land and Water Conservation Fund with no reforms. Earlier this year The Heritage Foundation explained that the “federal government owns between 635 million and 640 million acres of land in the entire United States, nearly 30 percent of the country and nearly half of the western U.S. This massive amount of federal ownership has resulted in land mismanagement, stifled opportunities for recreation and resource production, and poor environmental management… Congress should reject attempts to reauthorize the LWCF.”
  • Senator Sheldon Whitehouse’s Oceans bill. This long-stalled legislation would provide funds to environmental groups to study and restore U.S. oceans and coastlines.
  • Tax Credit for Independent Refiners. The provision would provide a deduction for transportation costs for independent refiners, a narrowly crafted policy for an industry group that had mixed feelings about lifting the oil export ban.
  • Missing rider.  As mentioned above, several important riders — including funding prohibition for WOTUS and the Obama administration’s Green Climate Fund — were not included.

The omnibus also includes major pieces of legislation that should be debated on their own merits and in the light of day, through regular order:

  • IMF “Reform” bailout package. The legislation includes International Monetary Fund (IMF) quota changes, which increase moral hazard and threaten to put the U.S. on the hook for more bailouts to irresponsible countries.  Conservatives had previously beaten back this change.
  • James Zadroga 9/11 Victims Compensation Fund and World Trade Center Health Program. Regardless of the program’s merits, Congress should not include a 75-year program authorization (authorized through 2090 at levels annually indexed to inflation) within an unrelated omnibus appropriations bill.
  • Cybersecurity Act of 2015. Especially in light of recent events, Congress should be taking a long, hard look at cybersecurity and information sharing and carefully weighing national security and civil liberties concerns.

What’s more, the $1.149 trillion omnibus will spend at least significantly more than last year’s bill and well above the previously established budget caps.  In October, 167 House Republicans voted against the Bipartisan Budget Agreement (BBA) of 2015 (H.R. 1314), which increased the FY16 budget authority cap by $51 billion.  And as The Heritage Foundation notes, the BBA “expand[ed] the use of OCO funding to cover non-defense base budget costs as well as defense base budget costs.” In other words, the omnibus turns a war funding account into a non-security slush fund.

Finally, conservatives have raised significant concerns about the closed-door, dual-track negotiations that led to both the omnibus and the tax extenders.  The 233-page tax extenders package and 2,009-page omnibus were unveiled late Tuesday evening and earlier Wednesday morning, respectively, giving lawmakers little time to decipher the policy implications of both bills.

The omnibus spending bill represented an opportunity for lawmakers to reassert their Article I powers, but it falls far short of achieving substantive policy victories on the issues Americans care about.

Heritage Action opposes the omnibus spending bill and will include it as a key vote on our legislative scorecard.


UPDATE: In the 24 hours since Heritage Action released its initial key vote against to the omnibus spending bill (technically, House amendment #1 to the Senate amendment to H.R. 2029) additional areas of concern have emerged.  Conservatives should also consider the following problems:

  • CHIMPS Budget Gimmicks: CHIMPS, or Changes In Mandatory Program Spending, is a budget gimmick used to increase spending and do so outside of the spending caps. This bill already substantial increases spending because of the new budget arrangement, yet this budget gimmick remains and effectively increases spending an additional $19 billion above the caps. The Daily Signal highlighted this issue in more detail in their recent reporting on the omnibus.   
  • Permanently Weakens Cadillac Tax:  Yesterday, Heritage Action mentioned that the omnibus contains a big Democrat and union priority: a 2-year delay of Obamacare’s Cadillac tax. Some have suggested that this temporary delay is a good example of conservatives using leverage, and that conservatives will be able to extract concessions two years from now when this current provision expires. However, little noted has been the fact that the omnibus also permanently weakens the Cadillac tax beyond that two-year delay by making future payments of the tax deductible as a business expense.
  • Legal Services Corporation: The LSC is a long-standing liberal policy priority. The omnibus provides an additional $385 million in funding, which is $10 million more than FY 2015 level and $85 million above the House passed bill (see page 194). Heritage Action key voted in favor of eliminating the Legal Services Corporation in 2012.
  • Maritime Union Giveaway: During consideration of H.R. 702, a bill to lift the crude oil export ban, Heritage Action key voted in favor of an Amash amendment to strike a provision in the bill for the maritime shipping industry. It was widely reported at the time that the provision was placed in the bill to appease labor unions and to attract Democrat votes. This provision (see page 1536) now appears in the omnibus.
  • Green Climate Fund: Yesterday, Heritage Action explained the omnibus did not include a prohibition against the administration allocating funds to the Green Climate Fund, a critical component of the Paris Climate negotiations. As the Washington Examiner reported yesterday, White House Spokesman Josh Earnest said: “Based on what we have reviewed so far, there are no restrictions on our ability to contribute to the Green Climate Fund.” Despite GOP promises to stop these actions, the administration clearly believes the omnibus allows for the reallocation of funds from other programs to meet their international obligation.
  • Federal Aviation Administration Increase:The omnibus provides $16.3 billion for the Federal Aviation Administration. According to CQ, this is $445 million above the president’s request. This is concerning for conservatives, including Heritage, who would like to see a move towards privatization.
  • Stimulus-era TIGER Grants: The omnibus maintains the $500 million proposed cut to the Transportation Investment Generating Economic Recovery grant program (TIGER). TIGER grants were started as a part of Obama’s stimulus package and have been termed “administrative earmarks.” Two weeks ago, Congress passed and the President signed, a transportation bill that spent $70 billion in excess of projected Highway Trust Fund (HTF) revenue. Heritage has long advocated for the elimination of this duplicative and wasteful program. Even as late as June of this year, Heritage wrote that the TIGER grant program should be considered for elimination.
  • Partial Bailout for Puerto Rico. As Heritage has explained, bailing out Puerto Rico sets a bad precedent that could seriously come back to haunt taxpayers should larger places like Illinois and California continue their irresponsible financing decisions, particularly with regards to their pension systems. This bill contains $865 million is special Medicare payments to serve as a partial bailout for Puerto Rico.

Heritage Action opposes the omnibus spending bill and will include it as a key vote on our legislative scorecard.

“NO” on Transportation Spending Hike, Bailout, and Ex-Im Reauthorization Bill (H.R. 22)

This week, the House and Senate will vote on the conference report for H.R. 22, the Fixing America’s Surface Transportation (FAST) Act. The bill would spend more on highways than either the House or Senate-passed bills, and would finance that increased funding almost exclusively with embarrassing budget gimmicks.

Overall, the FAST Act continues the unsustainable federal highway and transit spending for 5 years.  The $305 billion bill is $70 billion in excess of projected Highway Trust Fund (HTF) revenue.  When it comes to highway programs specifically, the bill spends $281 billion over that five-year period – more than anticipated by either the $268 billion House-passed bill or the $280 billion Senate-passed bill.  The outcome represents a caricature of congressional negotiations: one chamber proposes an unsustainable spending bill, the other proposes even more spending, and they “negotiate” a level even higher. The FAST Act also cynically shortens the bill in order to stretch the spending even further. As Heritage explains:

The responsible move would be to reject this false proposition of spending more in exchange for a shorter bill. Once higher spending levels are enacted, they become the new “baseline”, begetting even more spending and commensurate bailouts in the future. This is not a prudent course for a trust fund with a cumulative deficit already projected at $159 billion over the next decade.

The FAST Act claims to reprioritize federal spending on federally-relevant projects, but in the same breath brags about increasing support for local bus programs by 89%. In fact, there is very little in terms of programmatic reforms in this bill. It continues to divert ever increasing amounts of funding from the supposedly highway-dedicated HTF to spend on non-highway-related projects. While the bill claims to reform Amtrak, it goes on to extend $8 billion in authorizations for the rail service, averaging over 5 percent annual increases. The wasteful New Starts program continues to receive over $2 billion in spending authority each year.

H.R. 22, as a 5-year highway and transit bill, does not represent something Congress should be proud of. It represents a Congress that refuses to make the tough choices and instead relies on gimmicks to finance its spending appetite. In fact, the largest “payfor” is a provision CBO notes “has no [impact] for the fiscal status of the federal government.” The FAST Act also returns to the Strategic Petroleum Reserve (SPR) well for another $6.2 billion. It also contains provisions that further empower the embattled IRS, allowing it to use private debt collectors to help collect federal taxes, and giving it the authority to deny passports to Americans.

The bill also unravels a minor reduction in the federal crop insurance program.  The $3 billion “payfor” was embedded in the Bipartisan Budget Act of 2015 – the bill that shattered the spending caps established in 2011.

Finally, the bill resurrects the now-defunct poster-child of corporate welfare: the Export-Import Bank. Ending this bank was a major blow to the culture of crony capitalism festering  in Washington, and reviving it now damages the conservative movement and the credibility of efforts to rid the federal government of favoritism for special interests.

Heritage Action opposes the FAST Act and will include it as a key vote on our legislative scorecard.

Related:
The House Just Passed Another Bailout, This Time for Highways and Transit
5 Gimmicks in Highway Trust Fund Bailout
Another Dud Highway Bill from the House
TEA: “Turn Back” Transportation to the States

“YES” on Barton Amendment to Lift Embargo on Crude Oil Exports

Today, the House will likely vote on an amendment offered by Rep. Joe Barton (R-TX) 59% to H.R. 8, the North American Energy Security and Infrastructure Act of 2015. The amendment would contain much of the policies of the previous House-passed bill, H.R. 702, but importantly would leave out that bill’s $500 million labor union buy-out program.

Under current law, companies must refine crude oil domestically before they are allowed to export the resulting petroleum products. The Barton Amendment would lift this decades-old embargo. As Heritage explains, were the United States to lift the crude oil export ban, “Americans [would] stand to benefit from a more efficient global oil market through lower prices and an increase in economic activity.” Heritage continues: