Too Much Omnibus (Part Two)

As is to be excepted, the 2,220 page Omnibus spending bill that was drafted in secret and then rushed through has many outrageous spending provisions and riders. This blog will list some of the most outrageous, as well as some of the few good parts. But first I want to highlight two excellent pieces on the Omnibus, the first by Veronique De Rugy from Reason. The second is from Dan Mitchell from his blog.

The only caveat I have with Dan’s blog is his point that rising inflation does not justify these increases, since Dan relies on official government statistics that are manipulated to understate the rate of inflation. Of course, as Campaign for Liberty Chairman Ron Paul has pointed out, one reason inflation is high is the Federal Reserves need to monitor the federal debt. So inflation is actually a reason to cut spending not to increase it.

One of the most outrageous parts of the $654.6 billion defense spending is that it spends $6.8 billion dollars on weapons and planes that the Pentagon did not request— for instance the bill spends $2.5 billion buying twenty more F-35 joint strike fighters than the Pentagon asked for. I am sure it is a coincidence that the F-35 is manufactured by Lockheed-Martin whose headquarters is in Defenses Appropriations Subcommittee Chair Kay Granger’s district.

The bill also provides $8 million in breastfeeding grants, which is good cause it’s not like mothers have been breastfeeding for centuries without government help. Another gem tucked away in the bill is a mandate that the Alcohol Tobacco and Tax Bureau improve wine label accuracy.

It also increases funding for research on such urgent national priorities as pear genetics, hops research, cranberry and blueberry research, and molecular potato breeding.

One of the most dangerous parts of the bill is literally at the end of the bill. This is the CLOUD Act. CLOUD Act is designed to make it easier for the U.S. government to obtain data not in their jurisdiction. Not surprisingly, the CLOUD Act would facilitate  warrantless wiretapping of U.S. citizens both at home and abroad but could allow foreign governments to access data of American citizens and their own citizens living abroad. It could thus facilitate the human rights violations by totalitarian governments that the U.S. enter into agreements with to cooperate in violation of our rights.

This bill was never even the subject of a hearing and was shoved into the back of a 2,220 page bill that few will read. For more details on this bill please see the following coalition letter Campaign for Liberty co-signed opposing putting it in the spending bill:

March 12, 2018

Dear Member/Senator,

The undersigned privacy, civil liberties, and human rights organizations strongly oppose S.2383/H.R. 4943, the Clarifying Lawful Overseas Use of Data Act (CLOUD Act). Some technology companies have suggested that the CLOUD Act represents “notable progress to protect consumers’ rights.”1 We disagree. We believe the CLOUD Act undermines privacy and other human rights, as well as important democratic safeguards.

The legislation purports to provide clarity regarding the legal standards that should apply in cases where governments seek data that is not stored within their jurisdiction. Under current U.S. law, such requests for stored information are generally governed by Mutual Legal Assistance Treaties (MLATs), which allow for the exchange of information between the U.S. and foreign governments. The CLOUD Act proposes allowing the U.S. and foreign governments to bypass the MLAT framework.

However, the alternative framework created by the bill fails to protect the rights of Americans and individuals abroad, and would place too much authority in the hands of the executive branch with few mechanisms to prevent abuse. As described in more detail below, among other things, the legislation would:

• Allow foreign governments to wiretap on U.S. soil under standards that do not comply with U.S. law;

• Give the executive branch the power to enter into foreign agreements without Congressional approval;

• Possibly facilitate foreign government access to information that is used to commit human rights abuses, like torture; and

• Allow foreign governments to obtain information that could pertain to individuals in the U.S. without meeting constitutional standards.

Foreign Government Requests for Data

Many of the undersigned groups have written previously2 regarding our concerns with proposals similar to the CLOUD Act, which would allow the executive branch to enter into bilateral agreements with foreign governments to bypass the MLAT process. These agreements would permit foreign governments to obtain wiretaps and stored communications, including those that could contain information about Americans, directly from U.S. technology companies without review by the Department of Justice (DOJ) or approval from a U.S. judge. While this framework creates numerous problems, below are some of our most prominent concerns:

The bill would strip Congress of power and places authority in the hands of the executive branch. Unlike the existing MLAT process, the CLOUD Act would give broad discretion to the Attorney General, with the concurrence of the Secretary of State, to enter into agreements with foreign governments without the advice and consent of Congress, and would bar judicial or administrative review of their decision. MLAT agreements are generally negotiated by the executive branch and must be approved by a two-thirds vote of the Senate. In contrast, the CLOUD Act would allow the executive branch to enter into agreements with foreign governments—without congressional approval. The bill stipulates that any agreement negotiated would go into effect 90 days after Congress was notified of the certification, unless Congress enacts a joint resolution of disapproval, which would require presidential approval or sufficient votes to overcome a presidential veto.

The bill would give the executive branch discretion to enter into agreements with countries that do not protect human rights, allowing them to obtain sensitive user information without further review by any U.S. government entity. The CLOUD Act would not require that foreign governments meet even vague, malleable standards to request and receive data from U.S. companies. For example, the AG must consider whether, but does not need to affirmatively find that, a country “adheres to applicable human rights obligations” or “demonstrates respect for international human rights.” The legislation also would not require that foreign governments obtain prior approval from an independent decision-maker when making data requests, nor would they be required to show probable cause. This contrasts with the MLAT process, where foreign government requests are reviewed by the DOJ, and a U.S. judge must find probable cause and may consider human rights impacts.

The bill would permit foreign governments to obtain real-time intercepts (wiretaps) in the U.S. pursuant to standards under which the U.S. government is prohibited from wiretapping. For the first time, this agreement would allow foreign governments to obtain the assistance of U.S. companies for obtaining real-time intercepts of their users’ communications. It would do so without requiring foreign governments to adhere to Wiretap Act standards, including notice, probable cause, or set duration limits. This would adversely impact not just non- Americans who may be targeted by wiretaps, but also Americans who are parties to such communications.

The bill would fail to protect the constitutional rights of citizens and others residing inside the U.S. The bill would allow searches and seizures within the U.S. that do not meet the standards set out in the Fourth Amendment. It would also permit foreign governments to share incidentally collected data about Americans with U.S. governmental entities, even when obtained under standards lower than what the Constitution requires. In addition, while the bill states that foreign governments must take steps to minimize the retention of “U.S. persons’” information, these provisions are inadequate because they require only that government policies “meet the definition” of Foreign Intelligence Surveillance Act requirements to the “maximum extent possible.” Such language also excludes protections for non-citizens in the U.S. who are not green-card holders.

U.S. Government Requests for Data

The CLOUD Act also proposes permitting the DOJ to obtain data stored abroad without going through the MLAT process. But in doing so, the bill fails to ensure that such requests adequately protect individual rights and some of our most prominent concerns are:

The bill does not specify that the DOJ must obtain a warrant for content or comply with constitutional notice obligations. The CLOUD Act fails to include a warrant-for-content requirement for communications that are over 180 days old. This could open the door to U.S. government demands for this information without meeting constitutional standards. In addition, the bill would not ensure that users whose information is demanded are notified, so that they may challenge improper requests.

The bill may cut off users’ ability to intervene in cases where a U.S. government demand does not meet the bill’s requirements. The CLOUD Act allows companies to move to quash a disclosure demand in cases where disclosure would violate the laws of the foreign government where the information is located and the US has entered into a data agreement with the foreign government. It makes this motion the exclusive means by which a conflict of laws claim may be raised. This fails to explicitly state that users have standing to raise this claim. In addition, it does not require that a U.S. judge, as a matter of course in all cases, assess whether a demand raises conflict of law concerns.

We urge you to oppose the CLOUD Act, and efforts to attach it to other pieces of legislation.

If you have questions, please contact ACLU Legislative Counsel, Neema Singh Guliani, at 202-675-2322 or

[email protected].

Sincerely,

Access Now Advocacy for Principled Action in Government American Civil Liberties Union Amnesty International USA Asian American Legal Defense and Education Fund (AALDEF) Campaign for Liberty Center for Democracy & Technology CenterLink: The Community of LGBT Centers Constitutional Alliance Defending Rights & Dissent Demand Progress Action Electronic Frontier Foundation Equality California Free Press Action Fund Government Accountability Project Government Information Watch Human Rights Watch Liberty Coalition National Association of Criminal Defense Lawyers National Black Justice Coalition New America’s Open Technology Institute OpenMedia People For the American Way Restore The Fourth

The bill also makes some changes to agricultural subsidies by establishing a pilot program that allows State Farm Agencies to provide farmers with subsidy payments if necessary to ensure there are no disparities between payments going to farmers in different countries. Concerns have been raised that this is an attempt to increase subsidies before Congress considers a new farm bill this year.

One of the few good parts of the bill is that it maintains the prohibition on federal prosecutions of individuals who use marijuana for medical purposes in states where it is legal.

Here is a coalition letter Campaign for Liberty signed in support of the issue:

December 5, 2017 The Honorable Paul Ryan Speaker of the House United States House of Representatives H-232 The Capitol Washington, DC 20515 The Honorable Nancy Pelosi Minority Leader United States House of Representatives H-204 The Capitol Washington, DC 20515 The Honorable Mitch McConnell Majority Leader United States Senate 317 Russell Senate Office Building Washington, DC 20510 The Honorable Chuck Schumer Minority Leader United States Senate 322 Hart Senate Office Building Washington, DC 20510  

Dear Speaker Ryan, Leader McConnell, Leader Pelosi, and Leader Schumer:

On behalf of the thousands of Americans whose views and values our organizations represent, we respectfully request that as you consider an end-of-the-year omnibus FY 2018 appropriations bill, you preserve a provision that has had long-standing support in Congress and among the nation’s voters which modestly protects those states with legal medical marijuana from federal interference.

On its face, the Rohrabacher-Blumenauer/Leahy Amendment merely prohibits the use of taxpayer money by federal authorities to prosecute medical marijuana patients and providers who are in compliance with the laws of their state. At its heart, however, it is a guard for our nation’s fragile principle of federalism—the right of the states to govern matters within their borders as their constituents see fit.

The Amendment has a long history of support in Congress, both among Republicans and Democrats, passing as Rohrabacher-Farr in 2014 to protect thirty-two states and being subsequently included in budget deals since. Rohrabacher-Blumenauer/Leahy was even included in the FY 2017 appropriation bill signed by President Trump who, as presidential candidate, asserted support of legal medical marijuana and that when it comes to regulation the matter should be “up to the states.”

A majority of the Americans now live in states that have legalized medical marijuana and only 14 percent oppose such laws, according to a recent Yahoo/Marist College poll.1 With broad popular

support for them, it’s not surprising that Congress would take action to protect these laws from federal interference. In 2015 Congress approved Rohrabacher-Farr by a vote of 242-186, to protect thirty-nine states. This July, the Senate Appropriations Committee added the Leahy Amendment to their version of the Commerce, Justice, and Science appropriations bill by a voice vote which now protects forty-six states. Yet, the House Rules Committee refused to allow a vote on the measure in the House.

Our Constitution wisely limits federal power and leaves most issues of law enforcement to the individual states. As a nation of diverse populations and opinions, state legislatures and local law enforcement must be free to decide how best to use their limited resources to protect public safety, raise funds, and fight crime within their borders. What works for the state of New York may not be appropriate for the people of Texas. Rohrabacher-Blumenauer/Leahy would not prevent the federal government from enforcing federal laws criminalizing the sale or use of marijuana. It merely requires the federal government to enforce those laws in a way that respects states’ authority to legislate in this area.

As a coalition of groups supporting free market solutions and the protection of essential Constitutional principles, we strongly urge you to respect our nation’s federalist structure, patients’ right to decide on their own treatment, and good order by including Rohrabacher- Blumenauer/Leahy in the FY 2018 omnibus appropriations bill. Specifically, we urge that the following language, adopted by the Senate CJS Committee, be included in the final negotiated budget package:

None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any such State or jurisdiction from implementing a law that authorizes the use, distribution, possession, or cultivation of medical marijuana.

Sincerely,

Michelle Minton, Senior Fellow, Competitive Enterprise Institute Norman Singleton, President, Campaign for Liberty Brian Garst, Vice President, Center for Freedom and Prosperity Andrew Langer, President, Institute for Liberty Don Murphy, Director of Conservative Outreach, Marijuana Policy Project David Williams, President, Taxpayer’s Protection Allianceh

Another good provision of the bill makes Congressional Research Service Reports available to the public. Here is a letter Campaign for Liberty co-signed in support of this provision:

February 29, 2016 The Honorable Candice Miller Chairman Committee on House Administration United States House of Representatives The Honorable Roy Blunt Chairman Committee on Rules and Administration United States Senate The Honorable Gregg Harper Vice Chairman Joint Committee on the Library United States Congress Dear Chairman Miller, Chairman Blunt, and Vice Chairman Harper, As a coalition of 13 conservative, free market organizations we urge you to expand public access to Congressional Research Service (CRS) reports Each year CRS receives $100 million in taxpayer funding to produce and update thousands of nonpartisan reports describing government agencies, explaining public policy, and tallying government spending. They are an invaluable resource to Congress in its efforts to oversee our massive federal government and hold it accountable. This policy is unfair and outdated. It also stands in stark contrast to other legislative branch agencies: both the Congressional Budget Office and the Government Accountability Office release their reports to the public. Members of Congress and their staff have easy access to CRS reports. So too do lobbyists and other Beltway insiders, who often pay for the reports through expensive subscription services. But taxpayers cannot easily get copies of CRS reports. Making CRS reports easily accessible by the public will increase transparency in government, and allow everyday citizens access to important information that will better educate them on the issues before Congress. The bottom line is taxpayers pay for these reports. It is only fair that they have easy access to them. Sincerely, Phil Kerpen President, American Commitment Grover Norquist President, Americans for Tax Reform Norm Singleton President, Campaign for Liberty Neil Bradley Chief Strategy Officer, Conservative Reform Network Tom Schatz President, Council for Citizens Against Government Waste Adam Brandon President and CEO, Freedom Works Michael Needham CEO, Heritage Action for America Seton Motley President, Less Government Michael Ostrolenk Co-Founder, Liberty Coalition Brandon Arnold Executive Director, National Taxpayers Union Jerry Taylor President, Niskanen Center Kevin Kosar Senior Fellow and Director of the Governance Project, R Street Institute David Williams President, Taxpayers Protection Alliance  

Finally, the bill applies the Fair Labor Standards Act to Major League Baseball. This may seem trivial compared to the other issues in the bill, but this expands federal regulation over a major industry yet most members of Congress are probably unaware they voted for it, just like they are unaware they voted for the CLOUD Act and the other riders in the bill.