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Return of the Outlaw Riders by David Case TomPaine.com, September 26, 2000

Smuggling Anti-Environmental Rules into Legislation

This fall Congress is launching an assault on the laws that protect the water we drink, the air we breathe, the forests we cherish and the food we eat. Few, if any, legislators will be held accountable, nor will they even bother to debate most of the measures.

The legislation, proposed by the leadership in the Senate and House, would keep arsenic, a known carcinogen, in your drinking water. It would set minimum quotas for cutting timber in National Forests, requiring the Forest Service to make logging a budget priority. It would eliminate funding that Congress - under Newt Gingrich - unanimously authorized to protect children from harmful pesticide residues in our food. And it would constrain the country's ability to address the greenhouse effect, even though the vast majority of the world's scientists and nations consider the threat real and potentially cataclysmic.

These are not obscure initiatives that will languish forgotten in the archives of congressional subcommittees. They are "riders" attached to appropriations bills, legislation that Congress absolutely must pass each year to keep the government running. Like barnacles on an ocean liner, riders are miniscule compared to their host bills, and their authors hope that they seem just as insignificant. Yet politicians use riders to slip into legislation policies that may have a profound impact, and that would otherwise be vetoed or would be too controversial for Congress to support in broad daylight. The appropriations process - a perennially urgent struggle to keep the government liquid and the constituencies well stuffed with pork - provides the ideal cover.

This is hardly a new strategy. In fact, despite a nineteenth century House rule banning it, the majority in Congress has traditionally waived the rule and exploited the riders.

Yet while it may not be a new strategy, it is one that has attracted growing criticism since 1995, when the Republicans took control of Congress and began an annual assault on the environment.

The few dozen advocates who fight riders each fall on Capital Hill regard the battle as a legislative stick-up perpetrated by mercenary lawmakers whose campaigns depend upon the generosity of corporations in messy sectors: hard-rock mining, petroleum, automobiles, pesticide manufacturing and the like. For leading environmental groups the battle is a perpetual strain on staff and resources.

Anna Aurilio, a lobbyist with the U.S. Public Interest Research Group, points out that the playing field is tilted decidedly in favor of the polluters. As major campaign contributors, she says, they can propose pet riders during private meetings with legislators, who willingly insert - often with the knowledge of few legislators and with little or no debate - the well-camouflaged lines into spending bills that run hundreds of pages long.

To ferret out these amendments, environmentalists are forced to rely on tips from pro-environment congressional staffers who are typically busy with other budget priorities. "It is very, very, very difficult to get the actual bill language -- you have to beg, borrow or steal the language, and often the bill is not ready until it is nearly ready to be voted on," says Aurilio. In some cases, anti-environmental riders have eluded both the environmentalists and their allies in Congress.

Last year, in no small part due to the riders, the budget battle raged for weeks past the October 1 deadline. Finally, to keep the government running, the congressional leadership and the White House resorted to late night negotiations on a single bill that ran on for thousands of pages. With no access to the bill language, environmental lobbyists set up camp outside of the Capital Hill negotiating rooms to buttonhole legislators and White House negotiators. Yet despite the vigilance, a number of harmful riders slipped through.

Conspicuously absent at the late-night negotiations were the lobbyists for polluters - who were home asleep with their families, their work long since finished. "They are, after all, the ones writing the riders," says Aurilio, and the congressional leadership was there to do their dirty work.

BOUND AND GAGGED

One striking feature of the battle is the number of anti-environment riders each year that attempt to gag the federal government. Not only does this stealth lawmaking often elude debate in Congress, but many riders actually seek to stifle the national discourse, by preventing the government from studying, discussing or announcing information about problems that affect the health of Americans.

Since the mid-1990s, an amendment has prohibited the Department of Transportation from studying the costs and benefits of increasing the nation's fuel efficiency standards. The result: escalating greenhouse gas emissions and a country once again at the mercy of OPEC. And while this rider looks poised to perish this year, a new rider would "prevent the Environmental Protection Agency (EPA) from even telling people that they are being exposed to air that can be harmful to their health," according to Defenders of Wildlife (which keeps a list of all the riders).

This year, no fewer than a dozen riders would block government climate change programs. With crucial greenhouse gas negotiations slated for November, the EPA is fighting a rider that it says would block it "from assisting the president in carrying out his constitutional authority to conduct international negotiations" and "may well be unconstitutional." Similar riders in recent years "have had a chilling effect on agencies and the White House in taking significant action to curb global warming," says Dan Becker of the Sierra Club.

Slade Gorton (R-WA) has proposed another rider that would prohibit the government from even discussing whether dams should be removed to save the Snake River's endangered salmon. "There's a national debate about how to save salmon, and it's a healthy debate, and Gorton wants to censor it. It's not good for salmon and it's not good for democracy, says Heather Weiner of EarthJustice Legal Defense Fund. (An aide to Senator Gorton says that the rider simply holds the administration to its stated policy of not planning for dam removal this year.)

"The idea that [legislators] are stifling discussion and debate is offensive," says Joan Mulherm, also of EarthJustice Legal Defense Fund (and a board member of TomPaine.com's parent organization, the Florence Fund). "People need to have information for public policy choices. They should know the science on global warming to know what the policy should be. But legislators don't even want their constituencies to know about these problems; is it because they're afraid that their constituencies would want them to do something to address them? It's very hypocritical, it's astounding that anyone would support such amendments."

Riders also allow legislators to play tricks with their own voting records, enabling them to look green to their constituencies while servicing special interests at the back door.

In 1996, for example, Congress unanimously passed the Food Quality Protection Act, directing the EPA to determine whether pesticide residues on food were safe for children. Yet scores of the same legislators who supported the 1996 Act passed a rider that blocks much of EPA's funding to implement the law. Forget about holding lawmakers accountable: the rider was attached to EPA's appropriations bill. The same one is pending this year.

"It's the height of hypocrisy to vote for legislation like this that has high-minded goals, and then turn around and in the dead of night vote to kill the funding needed to make it work," says Eric Olson of the Natural Resources Defense Council. The rider is the result of what Olson calls "a profoundly undemocratic process."

"It's exactly what we complain about in non-democratic countries, but it's going on here in the US. And you can almost never ferret out who is responsible," he says.

CASHING-IN ON CONTRIBUTIONS

Why would elected officials surreptitiously gut legislation that was so popular a few years earlier that neither chamber registered an opponent? Critics point to the influence of Washington money: in the case of the Food Quality Protection Act, the chemical and agribusiness sectors - who make and use the pesticides - donate over $40 million per election cycle to lawmaker's campaigns.

In fact, many (if not most) of the anti-environmental riders are at the head of a money trail that leads back to powerful Washington interests.

The oil and gas industry has pumped over $ 100 million into political campaigns over the past decade, and the ten biggest petroleum firms spend a staggering $30 million per a year lobbying regulators, according to the Center for Responsive Politics. Compare that to the entire environmental movement's $7 million in campaign contributions for the decade, and annual lobbying expenses of less than $5 million. It's not hard to see why the budget is peppered with riders that "put U.S. government climate policy in a straightjacket," as President Clinton has noted.

Congressional sources say that even lone polluters can push through pet amendments. They point to General Electric as an example. In the current election cycle it has donated about $185,000, and it spends over $7 million per year on a phalanx of influence peddlers, including former legislators.

What does GE get for its investment? Democratic aides point to sentences in EPA's budget that they refer to as the GE rider, and that they contend was written nearly word-for-word by the company (a spokesperson for GE said he had no knowledge of this).

In December 2000 the EPA is scheduled to recommend whether GE should dredge tons of toxic PCBs that it dumped in the Hudson River, a project that could cost the company over a billion dollars. The rider would delay hazardous waste clean up projects across the nation, including GE's, until a National Academy of Sciences study is completed. EPA has been studying the problem for nearly two decades. The delay could mean that a more compliant George W. Bush administration would set the terms of the clean up.

A GE spokesperson said that the amendment was widely supported by a coalition of interested industries, and that the measure would only ensure that the EPA's decision was based on sound science.

Yet the spokesperson refused to comment on the ethics of using riders. With good reason, say its critics. "GE has lavished a lot of money into the political process, that's definitely borne fruit for them. They find that it's a lot cheaper to spend a few million dollars on the front end rather than cleaning up their mess," says a Democratic staff member.

LEGISLATORS FIGHT BACK

What can be done about the riders? Representative Henry Waxman (D-CA) has proposed a bill that would require legislators to disclose anti-environmental riders, and would guarantee Congress "the option of having an informed debate and a separate vote" on them. The bill has over a hundred co-sponsors, and environmentalists applaud it, but so far it's failed to reach the House floor.

That's because Republicans see Waxman's bill as nothing more than partisan politics cloaked as good governance. "This is an attempt to prevent Republicans from using the appropriations process to advance environmental priorities, which may be very different from Mr. Waxman's," says a Republican aide. "Not everyone shares Mr. Waxman's view that more regulation will make the world a better place." Democrats, he points out, were just as guilty of exploiting the appropriations process for their policy goals.

Pundits agree. Thomas Mann of the Brookings Institution comments that "There were times when Democrats were in the majority when Republicans were denouncing riders. Since Republicans have come into the majority they have been particularly inclined to use riders to restrain the Democrats' environmental policy. So the Democrats are mighty unhappy about it."

"I wouldn't call it undemocratic," he adds, "but it's contrary to the apparent intention of the [House rule] - which is to separate [policy making] from appropriating."

Democrats admit that they, too, used riders when they controlled Congress. But they distance themselves from the current anti-environmental assault. "It's one thing if you're trying to end the civil war in Nicaragua and another if you're trying to clear-cut national forests," says Karin Walser, an aide to Representative John Moakley (D-MA). "To each his own."

� 1999-2000 The Florence Fund