President Joe Biden’s nearly $2 trillion Build Back Better plan (originally pegged at $3 trillion) may be dead, but Democrats say key provisions of the bill are still likely to be approved — especially those addressing inflation, education, child care and workforce training. It is worth remembering that in November, Congress passed a $1.2 trillion precursor infrastructure bill.
Between these two omnibus legislative packages, the majority Democrats in Congress set out to appropriate something approaching $4 trillion this fiscal year alone. The current national debt is $23 trillion, just six times the size of two specimens of recent congressional legislating.
The late Sen. Everett Dirksen (1896-1969) is credited with saying, “A billion here, a billion there, and pretty soon you’re talking real money.” That was then. Now it is a trillion here, a trillion there. … But who’s counting?
Loosening The Reins
From a classical republican perspective, these omnibus bills are troubling. The Founding Fathers wanted to ensure that the people could keep a tight rein on the government’s ability to extract money from their pockets. They wanted their representatives to spend as little of the people’s money as possible and to make sure that every public expenditure was carefully considered and fully debated.
It may be that large, all-inclusive “omnibus” legislation is inevitable given the size and complexity of the United States in our time. If Congress had to debate every bridge or airport on the current list, it would take years to address the problem of American infrastructure. And yet we all know that some of the “infrastructure” spending now making its way through Congress will be on projects that probably could not stand the test of a focused debate.
If it’s essential that 21st-century legislation be bundled under general headings, the question now is how swollen the bundle can become and still protect the American taxpayer from profligate spending or legislative provisions that have little or nothing to do with the stated purpose of the legislation.
Once a bill has gone through Senate-House reconciliation so that its terms are identical, it moves on to the president, who can sign it or veto it or just let it pass into law without his signature. Because we have no line-item veto in our constitutional system, the president cannot remove the things he regards as unwise or unnecessary and keep the rest.
Battles of Presidential Will and Congressional Intent
Presidents occasionally attempt to divert appropriated money from its intended use to something they regard more important or, in a few cases, attempt to “impound” the money and refuse to spend the funds as appropriated by Congress. President Nixon attempted to do this during his administration. This led to the Impoundment Control Act of 1974, which forbids the executive to refuse to spend appropriated money. President Trump twice redirected congressionally appropriated Defense Department funds to build sections of his border wall on the U.S.-Mexican border.
The Founding Fathers were crystal clear that they wanted all federal spending to originate in and be directed by the Congress and in particular the House of Representatives.
The executive branch is required to implement and supervise federal spending, not determine what projects it likes or doesn’t like.
Classic Infrastructure And Not So Skinny Bills
The massive $1.2 trillion infrastructure bill signed by President Biden on Nov. 15, 2021, is fairly straightforward. Most of the money will be spent on unmistakably infrastructural projects, chiefly roads, bridges, airports and digital connectivity. The provisions designed to address the racial discrimination in the existing highway corridors in America’s cities might be regarded as only marginally tied to infrastructure, and the provisions addressing the taxing of cryptocurrency transactions would seem to belong to a separate legislative package, not to mention the bill’s directive to delay the Trump administration’s drug rebate initiative.
But the argument can be made — by the bill’s proponents — that each of these provisions relates “in some way” to the nation’s infrastructure or helps pay for the cost.
And that’s the “skinny bill!”
What began as the Build Back Better bill bundled a raft of progressive initiatives into one massive piece of legislation. Each component was so large and costly that it probably deserved to be debated and voted on separately. The bill stretched the definition of “infrastructure” almost beyond recognition. It would have, for example, expanded the Affordable Care Act, addressed global climate change in an ambitious manner, attempted immigration reform, provided for universal prekindergarten education, generous child-care subsidies, financial aid for college students, hearing aid benefits under Medicare, supported for low-income housing, and much more.
Thanks to nearly unanimous Republican opposition and the qualms of Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the bill is likely to be pared down, broken up and reassembled before it passes the Senate, where it still has plenty of chances to die altogether.
Hanging Together or Hanging Separately
Omnibus legislation is not new. The Compromise of 1850 Act bundled five separate bills into one overarching piece of legislation. This included the Fugitive Slave Act that was anathema to most Northern members of Congress. Omnibus bills brought two clusters of states into the union in the post-Civil War period.
The Omnibus Act of June 1868 readmitted seven former Confederate states, once they had complied with provisions of national Reconstruction. In 1889 an omnibus act admitted four new Western states with a single stroke of President Benjamin Harrison’s pen: North Dakota, South Dakota, Montana and Washington. In the 20th century, omnibus bills have served to embrace most or all of the annual budget of the United States. After months of procrastination and congressional wrangling, they are often cobbled together at the 11th hour to keep the government of the United States functioning. This sort of brinkmanship allows for a good deal of legislative mischief that would not stand up under a more deliberative process.
Critics of the Build Back Better bill and the previous infrastructure bill argue that the Democrats are attempting to shovel into these massive bills their entire legislative agenda, and that while some of their proposals may be worthy of bipartisan support, the whole package offered in a take-it-or-leave-it manner forces Republicans to reject the bills both on principle and because they sincerely disagree with much of the Democrats’ agenda.
For their part, the Democrats argue — at least behind the scenes — that they have a narrow window of opportunity and that they may have majorities in both houses of Congress for just one more year. Whatever they want to achieve by way of their agenda had better force its way through the House and Senate in one audacious initiative. Their assumption is that the country will be better for it in the long run, and nobody really stops to ask by what margin or just how the Social Security Act was passed into law in 1935.
Theodore Roosevelt’s Midnight Forests
The most interesting story in the history of omnibus spending bills involves President Theodore Roosevelt. In his seven years, 171 days as president, Roosevelt advanced his ambitious conservation agenda by any means he could. He read the National Monuments and Antiquities Act (1906) as broadly as possible. The act was designed to permit presidents to set aside small parcels to protect Anasazi villages or fragile archaeological sites from amateur pot hunters or commercialization. Think of Chaco Canyon or Canyon de Chelly. When Congress refused to make the Grand Canyon a national park (“not one cent for scenery,” said the speaker of the House), Roosevelt by executive order declared it a national monument instead. At 800,000 acres, it was approximately 799,000 acres larger than the intent of the National Monuments legislation. The Grand Canyon graduated to full national park status Feb. 26, 1919. Roosevelt also invented the National Wildlife Refuge System by executive order in 1903, and he used the previously underused Forest Reserve Act of 1891 to set aside 150 million new acres of national forest. No president has done more to conserve and preserve the sublimities of the American West more than TR.
“Not one cent for scenery.”
— Joseph Gurney Cannon, Speaker of U.S. House of Representatives, 1903-1911
All this offended pro-development interests, including the senators and representatives who did their bidding. Toward the end of Roosevelt’s second term, there was considerable “Roosevelt fatigue” in Congress and a conviction among many that he had pursued his conservation agenda too strenuously. After you spend an evening with Roosevelt, one guest confessed, you go back to your hotel and wring his personality out of your clothes.
The 16 Million-Acre Gambit
Finally, in 1907, a timber senator from Oregon, Charles W. Fulton, attached an amendment to an omnibus agricultural appropriations bill to prevent the president from setting aside any more forests in six states. The amendment read, “Hereafter no forest reserve shall be created, nor shall any addition be made to one heretofore created, within the limits of the states of Oregon, Washington, Idaho, Montana, Colorado or Wyoming.” Roosevelt knew he must sign the bill because of all of its other provisions, and therefore he had no choice but to swallow Fulton’s punitive amendment. But Roosevelt knew the U.S. Constitution.
He knew that he had a 10-day interim before he must sign or veto the bill, so he called in his friend and U.S. Forester Gifford Pinchot and got to work. Before TR finally signed the offensive bill on March 4, 1907, he had created by executive order 21 new national forests in the six designated states and enlarged 11 others.
With the help of Pinchot and his staff at the U.S. Department of Agriculture, Forest Division, Roosevelt augmented the National Forest System by approximately 16 million acres. What he had done was perfectly constitutional. They have been known ever since as the “Midnight Forests.” Roosevelt exulted that his pro-development enemies in and out of Congress “turned handsprings in their wrath.”
One less well-known feature of the Fulton amendment had a lasting impact. The amendment changed the name of the Forest “Reserves” to “National Forests” to make it clear that the public domain timber was meant to be harvested for use, not set aside to be protected from routine economic development.
Incidentally, Fulton failed to win re-election in 1908. He was a one-term senator.
As things stand today, we all know that if the tables were turned and a Republican majority in Congress were trying to dump a large number of not necessarily related initiatives into a single omnibus bill, the Democrats would cry foul and worry for the survival of the republic in apocalyptic terms. No wonder the American people are a little cynical about their government.
You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the new Governing podcast, “Listening to America.” Clay’s new book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes — actively solicits even — your comments and critiques of his essays, interviews and reviews. You can reach him directly by writing email@example.com or tweeting @ClayJenkinson.