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Congress seeks to avoid an approps nightmare before Christmas

Appropriators and congressional leadership have just three weeks to resolve dozens of policy disputes between House and Senate spending bills

Sens. Jon Tester, D-Mont., and Shelley Moore Capito, R-W.Va., are seen during a Senate Appropriations Committee markup in June 2019. Lawmakers have just three weeks to iron out dozens of policy disputes between House and Senate spending bills. (Tom Williams/CQ Roll Call file photo)
Sens. Jon Tester, D-Mont., and Shelley Moore Capito, R-W.Va., are seen during a Senate Appropriations Committee markup in June 2019. Lawmakers have just three weeks to iron out dozens of policy disputes between House and Senate spending bills. (Tom Williams/CQ Roll Call file photo)

Congress returns to Washington this week with a challenging to-do list for December that not only includes drafting articles of impeachment and finalizing a massive trade deal, but also funding the government.

Appropriators and congressional leadership have just three weeks to resolve dozens of policy disputes between House and Senate spending bills — a daunting but routine exercise that will determine whether there’s a partial government shutdown right as lawmakers are set to leave for their winter break.

[House, Senate reach agreement on subcommittee spending levels]

In a significant step forward, the Democratic House and Republican Senate reached agreement following months of rocky discussions on how to divide $1.37 trillion among the 12 annual funding bills for fiscal 2020, which began Oct. 1.

Achieving consensus on these spending allocations, known as 302(b)s, however, was only one step in a rather arduous process.

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Subcommittee chairmen and ranking members now need to work out how much of their allocation goes to the various agencies funded in the bills and resolve some of the most polarizing issues facing the country, including the border wall, family planning grants and gun violence research.

For now, appropriators are hopeful they can get much of their work done before the stopgap spending bill expires Dec. 20 at midnight. But three weeks is not a lot of time to resolve all the differences, leaving open the possibility that some bills get resolved while others face yet another continuing resolution. Another partial government shutdown also cannot be ruled out.

“We’ve got our job cut out for us,” said Sen. Shelley Moore Capito, chairwoman of the Homeland Security Appropriations Subcommittee.

Hitting the wall

For fiscal 2020, the Trump administration asked Congress to appropriate $8.6 billion for border wall construction, including $5 billion for the Homeland Security Department. House Democrats countered with $0 in their $65.7 billion Homeland Security spending bill. Senate Republicans added the full $5 billion to their $70.7 billion bill, but the final allocation both sides have to work with is less than the Senate topline.

“It’s going to be difficult for us in Homeland, because we are allocated fewer dollars than we wrote our original bill to, and I think that’s going to present some challenges,” Capito, R-W.Va., said.

With the 2020 elections less than a year away, this could be the last full-year spending bill President Donald Trump gets before he faces voters in his bid for reelection. And with just 78 miles of border wall constructed along the nearly 2,000-mile U.S.-Mexico border during his time in office — all of which replaced existing structures — there will likely be a campaign push to focus more on the amount of money dedicated to the project and less on miles completed.

Outside of resolving border wall funding, Capito said determining how many people Immigration and Customs Enforcement can detain will continue to be a “perennial sticking point.”

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The Senate bill would boost detention bed capacity by about 6,800 people to just over 52,000 beds, while the House bill would appropriate $2.68 billion for about 34,000 people with an additional $387 million to detain migrants arriving at the U.S.-Mexico border.

Even though there’s a lot of pressure to resolve the key issues and reach bipartisan agreement on the Homeland Security spending bill, Capito said she doesn’t expect it to be in the first package of measures sent to the president’s desk.

It’s too early to say whether Congress will need to pass another short-term spending measure for the agencies funded within the bill, she said. But if another continuing resolution is needed, leadership would determine length based on the unresolved issues and timing of the impeachment process, Capito said.

The Military Construction-VA bill won’t be any picnic either.

After Democrats and Republicans reached an agreement to appropriate $1.37 billion for border wall construction during the previous fiscal year, Trump determined it wasn’t sufficient funding, declared a national emergency and diverted billions to the project. That move frustrated lawmakers on both sides of the aisle.

Among the reprogrammed money was $3.6 billion Congress previously approved for various military construction projects. The Trump administration has asked for those accounts to be refilled in this year’s Military Construction-VA spending bill, leading to concerns from several lawmakers that the White House will simply pull that funding again.

To avoid that scenario and remind the executive branch about Article 1, Section 9, of the Constitution, which gives Congress the power of the purse, Democrats have proposed restricting or eliminating the Trump administration’s ability to move money between certain accounts. Republicans, as well as the White House, are vehemently opposed to any changes.

“There’s as much symbolism as substance here,” said Jim Dyer, former Republican chief of staff for the House Appropriations Committee, regarding the border wall funding saga.

“If I’m on the congressional side, on the appropriators side, I’m a hell of a lot more worried about the issue of transfer authority; especially if it’s being abused as it is,” said Dyer, now a senior adviser with Baker Donelson. “I’m trying to come up with a very tight transfer formula.”

More complications

Behind Homeland Security and Military Construction-VA on the list of complicated, polarizing issues to resolve is the Labor-HHS-Education spending bill.

For now, the top Republican on the House spending panel is hopeful those differences can be ironed out before the Dec. 20 deadline.

“I’m determined to be optimistic,” Rep. Tom Cole said.

The Oklahoman believes lawmakers can successfully conference the Defense and Labor-HHS-Education spending bills as well as Agriculture, Commerce-Justice-Science, Interior-Environment and Transportation-HUD; the only four bills to receive floor votes in each chamber.

That won’t be without its challenges though.

Before the Labor-HHS-Education bill can clear both chambers, Cole and his counterparts will need to decide if they’ll keep a $50 million provision in the House bill for the Centers for Disease Control and Prevention to study gun violence. The bill still incudes the so-called Dickey Amendment that prevents any of that research from advocating or promoting gun control.

“Personally, the fact that the Dickey Rule has been left in the bill has helped. It makes it very clear that while you can spend money for gun violence research, you can’t do anything that advocates for gun control,” Cole said, adding that he doesn’t consider it a “make-or-break proposition.”

Working out Title X family planning grant language could be slightly more difficult.

Democrats are hoping to roll back a Trump administration rule that says any health care organization that refers or provides abortions cannot receive the grants. That change in policy led Planned Parenthood to withdraw from the multimillion-dollar program earlier this year. Republicans and the Trump administration are unlikely to agree to any restriction, Cole said, noting that will be a “flashpoint” in negotiations.

And while the appropriations process has stayed largely outside of the impeachment inquiry, discussions about how to reinforce that the administration needs to inform Congress if it’s going to try to hold or prevent money from being spent could work their way into final spending talks.

“The Ukraine issue has generated an appropriations question and that question is ’Can you delay, freeze, or pull back congressionally appropriated funds without notifying the Congress?’” Dyer said. “The answer we know is no, but it’s a very highly charged political issue and there’s a chance the Congress might want to address it in these bills.”

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