KEY VOTE: "NO" on House's FY17 Energy & Water Appropriations Bill (H.R. 5055)

Today, the House is scheduled to vote on H.R. 5055 the FY 2017 Energy & Water Appropriations bill. The bill spends a total of $37.4 billion, which is $259 million above FY16 enacted levels and $168 million above the President's request. Furthermore, it aligns with the higher spending caps enacted as part of the Bipartisan Budget Act (BBA) last fall, which was opposed by an overwhelming majority of House Republicans. As a result, H.R. 5055 is $2.8 billion above the last E&W bill crafted during Nancy Pelosi's reign as Speaker. To make matters worse, the bill now contains an amendment by Rep. Sean Maloney (D-N.Y.). Even as modified, the inclusion of the Maloney amendment further ratifies an overreaching executive order issued by President Obama in 2014, which threatens religious liberty and personal privacy for private institutions who may contract with the federal government.

Each individual appropriations measure should be evaluated on the following three criteria: 1) level of spending; 2) funding of bad programs; and 3) exclusion of conservative policy riders. On the first two counts the House's version of the FY17 Energy & Water Appropriations bill certainly falls short. On the third, the bill includes some of the key riders conservatives demand. That said, few are likely to become law—as last year's House-passed E&W demonstrated when important riders were ultimately left out of the December omnibus—while the elevated spending levels appear on track. In this environment, with the Senate seemingly even less interested in policy riders, it is more incumbent than ever for the House to put forward as conservative a bill as possible.

First, on spending, this year's bill is in stark contrast to the House passed FY 2016 bill, which came in at $35.4 billion ($2 billion below the bill before the House now). Even worse, this bill is $7 billion above the House passed FY 2014 bill that served as the low spending point for the House Republicans.

House Energy & Water Appropriations Spending Levels

Second, this legislation continues to make poor choices when it comes to programmatic funding. It contains $9 billion worth of programs with authorizations that have expired, a $1 billion increase from the House passed FY 2016 E&W bill. Many of these programs have gone unauthorized for many years. It even includes a program (Corps FUSRAP) that has never been formally authorized by Congress (the committee report says it was initiated but it never received a separate authorization).

The Heritage Foundation Blueprint for Balance made a number of detailed funding recommendations for this bill, including the elimination and reduced funding for particular programs. As outlined, the vast majority of the spending in the Department of Energy non-defense programs are different forms of energy subsidies that would be best handled in the private sector. For example, the bill continues to fund programs like ARPA-E, Energy Innovation Hubs, Weatherization Assistance Program, Energy Efficiency and Renewable Energy (EERE), Fossil Energy, and continues loan programs like the Innovative Technology Loan Guarantee Program and Advanced Technology Vehicle Manufacturing Loans Program. The EERE and Fossil offices in particular continues to provide very generous resources ($1.8 billion and $645 million respectively) despite the fact that nearly all of those resources basically subsidize particular forms of energy. The American taxpayer has seen very little benefit from these programs and there is little to suggest that will change with this bill.

Third, the bill does contain some important riders, like the prevention of the Waters of the U.S. rule and continued funding for Yucca, among others. As mentioned above, that is to be expected, though there is little indication the riders will prevail in year-end negotiations. In this environment, it is best for the House to put forward the most conservative bill possible, including at lower spending levels. Meeting the Senate half way by passing the bill at the "1070" levels will make it that much harder to achieve conservative policy victories in conference, either on spending or on policy riders.

Taken as a whole, the bill represents a significant spending increase for the Republican-controlled House, especially compared to previous E&W appropriations measures. As a result, taxpayer money continues to flow to programs that do not merit continuing, let alone increased funding. And given recent events in the Senate, there is little indication Senate Minority Leader Harry Reid (D-Nev.) will allow conservative policy riders to advance. In fact, Senate Republican leadership bent over backwards to prevent conservative priorities from being added to the bill like Sen. John Hoeven's (R-N.D.) WOTUS amendment or Sen. Tom Cotton's (R-Ark.) Iran heavy water amendment.

As drafted, H.R. 5055 does not put forward a useful conservative benchmark for the House to negotiate with the Senate; instead, it 1) validates the increased spending allowed by the Bipartisan Budget Act and moves the Republican-controlled House increasingly further from the policies it previously championed; and 2) further ratifies Obama's overreaching executive order issued by President Obama in 2014, which threatens religious liberty and personal privacy for private institutions who may contract with the federal government.

Roger Severino, The Heritage Foundation's director for the DeVos Institute for Religion and Civil Society, explains the inclusion of the Maloney amendment in a House-passed bill "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." To be clear, the Pitts second degree amendment has "absolutely no substantive effect" on the Maloney amendment, and the subsequent adoption of an amendment by Rep. Bradley Byrne (R-Ala.) would essentially reaffirm the same Religious Freedom Restoration Act (RFRA) that has been law throughout the entirety of the Obama administration.

"Religious liberty protections can never completely counteract the religious liberty lost from elevating SOGI as a protected class," Severino explains. "Exemptions only mitigate at best, they don't undo, the loss suffered from codifying SOGI language." As a result, the bill is a net loss for religious liberty in America.

Related:

Heritage Action Scorecard
The Heritage Foundation Blueprint for Balance - Energy and Water Development and Related Agencies Policy Recommendations