As Jessica Herrera-Flanigan pointed out in her Tuesday post, a Homeland Security authorization bill has never been sent to the President for signature. In its absence the power of appropriators is amplified, as if appropriators were not already plenty powerful.
In prior posts I have offered an exegesis of what has been said by President Obama, Secretary Napolitano, and John Brennan, the Deputy National Security Advisor. To be an exegete is to closely analyze what is said or written by another in order to derive guidance.
Appropriators don’t leave exegesis to others. The official Conference Report of the House and Senate regarding the Department of Homeland Security Appropriations Act of 2010 is 149 pages long (and a 12 megabyte download). It is followed by a semi-official (for lack of a better term) “Joint Explanatory Statement” that is 12o-plus pages long (depending on whether you include the list of earmarks).
A House-Senate Conference highlights agreements and resolves differences between related legislation passed by each chamber of Congress. In doing this, provisions of each body’s legislation is adjusted with the agreement of conferees from both bodies. There is much horse trading both before and during a conference. If the conference is successful, a compromise measure is presented to both House and Senate for passage. The House approved the Homeland Security Conference Report on Thursday afternoon.
The explicit purpose of the Joint Explanatory Statement is to set-out, “the effects of the action agreed upon by the managers and recommended in the accompanying conference report.” It is not the law, but it has at least as much power as the law. I have usually been more interested in what is in the “Joint Explanatory Statement” or its equivalent than in the law itself.
I am usually looking for a single obscure sentence, something that most others will not even recognize as having importance. But I know — and senior Hill staff and senior public servants know — that this represents the formidable intent of a conferee or conferees. I assume there are dozens of such discreetly pregnant sentences. I recognize a few in this explanation.
At times formidable intent is a matter of how much money goes where. So, for example, on page 67 we read,
The conference agreement provides $64,179,000 for NCSD Strategic Initiatives as proposed by the House instead of $57,679,000 as proposed by the Senate. As discussed in the House report, the total amount includes: $3,500,000 for a Cyber Security Test Bed and Evaluation Center in Research Triangle Park, North Carolina; $3,500.000 for cyber security training at the University of Texas at San Antonio; $3,000,000 for the Multi-State Information Sharing and Analysis Center (MS-ISAC) at the New York Office of State Cyber Security and Critical Infrastructure Coordination; $3,000,000 for the Power and Cyber Systems Protection, Analysis, and Testing Program at the Idaho National Laboratory, Idaho; $500,000 for Virginia’s Operational Integration Cyber Center of Excellence (VOICCE) in Hampton, Virginia: and $100,000 for the Upstate New York Cyber Initiative at Clarkson University.
Some will immediately see this as “pork.” I am not so inclined. Since many of my family and friends raise hogs, I don’t have a prejudice against pork. Depends on how it is raised and slaughtered. The proof is in the tasting.
On other occasions the amount of funding is not mentioned, but a preferred “partner” is identified. On page 79 the explanation reads, “The conferees direct FEMA to consider utilizing the National Virtual Translation Center (NVTC) to enhance its translation services. FEMA is to report to the Committees, as specified in the House report, on possible uses of NVTC.”
You can anticipate the outcome. But, again, I have seen this power-of-the-purse be constructive, even innovative and creatively disruptive. I have also seen the power cynically abused.
But especially in the absence of an authorization bill, the guidance given through these explanations can go well-beyond what we might reasonably expect of appropriators. The following is excerpted from page 76 of the conferees self-exegesis.
The conferees recognize that since September 11, 2001 there has been a rush to increase, restructure, and reinvest in preparedness, response, recovery, and mitigation policies and capabilities. This effort was reemphasized after Hurricane Katrina. Major preparedness and response policies have been developed or reshaped including: the National Preparedness Guidance; National Incident Management System; the National Response Framework; Comprehensive Planning Guidance; Disaster Housing Strategy; and Hazard Mitigation Assistance. Countless guidance documents have been issued to address specific issues or disasters. Additionally, over $27,000,000,000 has been invested by the federal government in grants, and an untold amount at the local and State level. These investments have provided equipment to make our public infrastructure safer, our first responders better protected and prepared to respond to all hazards, and to ensure a more coordinated effort among the levels of government. Efforts to fully assess these investments and improved capabilities have not yet come to fruition, though disparate attempts to find a more comprehensive measure through programs such as Cost-to-Capability, the Target Capabilities List, and the Comprehensive Assessment System are ongoing.
The conferees note that tremendous time and fiscal investments into preparedness have been made to date and believe it is time to take stock of such efforts to find ways to ensure the most efficient investments are made in the future. The reality of a constricted economy and competing interests make it imperative that current efforts related to homeland security and all-hazards response and recovery be streamlined. Therefore, the National Preparedness Directorate (NPD), in cooperation with the Office of Intergovernmental Affairs, shall lead the administrative effort of a Local, State, Tribal, and Federal preparedness task force. The task force is charged with making recommendations for all levels of government regarding: disaster and emergency guidance and policy; federal grants; and federal requirements, including measuring efforts. The task force shall especially evaluate: which policies and guidance need updating, and the most appropriate process by which to update them; which grant programs work the most efficiently and where programs can be improved; and the most appropriate way to collectively assess our capabilities and our capability gaps. Representation on the task force shall include: decision makers and practitioners from all disciplines including, but not limited to, firefighters, law enforcement, emergency management, health care, public works, development organizations, mitigation, and information technology, elected officials, the private sector. NPD is directed to brief the Committees within 45 days after the date of enactment of this Act on its approach to establishing this task force and milestones for accomplishment.
I am not questioning the potential value of such a task force. On the face of it, sounds like an entirely reasonable idea. I suppose there may be a couple of discreetly pregnant sentences here as well, but too discreet for me to recognize. Depending on who is appointed to the task force it might be cats fighting over scraps… or saints leading us to salvation. Don’t know. Will be interesting to see.
But I do question the wisdom of such a far-reaching endeavor emerging from the bowels of a conference this late in the process. Someone recently said that reality can be layered, messy, inefficient, and randomly revealed. This is true of most conference reports. But that’s not the best benchmark for effective legislation.