| November 22, 2019 12:39 PM
Since 2001, a provision of the Patriot Act has allowed the National Security Agency to collect and store telephone metadata without warrants. Lawmakers exploited the fear generated by the 9/11 attacks and the 2001 anthrax scare to pass the overreaching legislation, ushering in an era of wanton violations of civil liberties by the federal government.
Even so, this key provision was set to expire at the end of the year. But on Tuesday, the House of Representatives voted to keep the worst part of the Patriot Act alive by hiding it in a temporary funding resolution — a perverse tactic that has unfortunately become one of Congress’s worst habits.
Originally intended to sunset in 2005, Congress has reauthorized this Patriot Act provision on multiple occasions, usually resorting to underhanded tactics to do it. With blatantly invasive stipulations and questionable necessity, the law would never survive public scrutiny if given a proper hearing, which is, of course, why House leaders from both parties are determined to prevent it from getting one.
The House’s short-term spending bill (continuing resolution/CR) extends expiring, unconstitutional provisions of the Patriot Act until March 15, 2020. The Patriot Act shouldn’t be extended even for one more day. Every representative in Congress should oppose this legislation.
— Justin Amash (@justinamash)
November 18, 2019
This is far from the first time Congress has made a dirty play using a continuing resolution, which is simply a temporary-funding bill meant to keep government from shutting down. When Congress and the president disagree on how to fund the government for the new fiscal year, they adopt a continuing resolution as an emergency measure to prevent a shutdown. The resolution maintains the status quo and allows Congress and the president more time to negotiate a proper spending bill.
House members are under enormous pressure to vote affirmatively on a continuing resolution. If it fails to pass, the government shuts down, thousands of government workers are furloughed without pay, many government programs are unavailable, and the uncertainty causes the private sector to stall. Congressional approval ratings often dip dramatically during a shutdown.
It wasn’t long until House leaders realized they could exploit this urgency. Want to pass a particularly bad or contentious piece of legislation? Stick it in a continuing resolution that most members feel like they have to vote for. That’s not enough? Push the resolution vote to the week before Thanksgiving. That way, if it fails to pass, the government shuts down, and you can’t go home for the holidays.
Thus, legislation attached to a continuing resolution is too often restrictive of civil liberties but able to pass anyway.
The Comprehensive Crime Control Act of 1984, passed as part of the continuing resolution for the 1985 fiscal year, is the poster child for this sort of legislation. Originally introduced by Sen. Strom Thurmond (yes, that Strom Thurmond, the segregationist), the CCCA greatly expanded federal law enforcement’s capabilities regarding civil asset forfeiture, a procedure that lets law enforcement seize someone’s property without charging him with any crime. Specifically, the CCCA introduced the concept of so-called “equitable sharing,” which provides incentives for state law enforcement to circumvent state-level restrictions on the use of forfeiture when cooperating with federal law enforcement.
Abuse of civil asset forfeiture is absurdly common. Personal stories of those affected by it are too numerous to count, but here are a few.
Carl and Mary Shelden lost their home after contracting to sell it to a man later accused of a federal crime. Gerardo Serrano lost his Ford F-250 after Border Patrol found a gun magazine in the center console for his legally owned handgun back home in Kentucky. Adam Chappell lost his Jeep SUV after Detroit police pulled over his son for alleged possession of marijuana, even though they found no marijuana in the SUV.
And under CCCA’s equitable sharing rule, Michigan’s recently passed limitations on civil-asset forfeiture will mean nothing as soon as the feds are involved. In one fell swoop, Congress used a continuing resolution to rob Americans of due process and trample over states’ rights.
The CCCA is only the tip of the iceberg. A previous continuing resolution passed in September was used to extend the life of the Export-Import Bank, a well-known engine of crony capitalism, and the National Flood Insurance Program, which has long used taxpayer dollars to encourage construction in disaster-prone areas inadvertently.
One way to get Congress to kick the habit might be to amend House and Senate rules so that continuing resolutions are treated the same as appropriations bills, where members are barred from attaching substantive legislative provisions to the bill.
This cycle must end. As long as lawmakers can hide controversial civil liberties legislation in must-pass funding bills, Americans will continue to pay the price.