COMPASS: The (lack of) funding fight

February 27th, 2024

Good afternoon from Capitol Hill. 

The Senate is back in session, beginning this evening. The House returns on Wednesday. Both chambers are set for a course collision with two government funding deadlines that hit on March 1 and March 8.

How Congress intends to proceed here is a bit unclear. The House Speaker Mike Johnson struck a spending topline deal with Senate leaders Chuck Schumer and Mitch McConnell in January, but the spending bills themselves are not finished. This may require another short-term extension of funding via a Continuing Resolution (CR). The concern here, of course, is that all of these short-term CRs pile up into one giant omnibus spending bill.

Conservatives in the House and Senate continue to make the case that their respective conferences should fight tooth and nail for negotiators to include policy riders which control how and on what the executive branch spends taxpayer dollars. However, on a recent call with the House GOP conference, Speaker Mike Johnson admitted that elements of the spending bills are “not home runs and grand slams.” To get a sense of how conservatives feel about it, see this Twitter thread from Rep. Chip Roy.

The issue has become particularly charged in the wake of the alleged murder of Laken Riley, a University of Georgia nursing student, by Diego Ibarra, an illegal migrant from Venezuela. Immigration and Customs Enforcement has confirmed that Ibarra crossed into the country illegally in 2022, and was then paroled and released. In 2023, he was “arrested by the New York Police Department and charged with acting in a manner to injure a child less than 17 and a motor vehicle license violation.” He was released by the NYPD. He has since been arrested by the University of Georgia Police Department and charged with the murder and a number of other crimes in connection to the death of Laken Riley.

Caught up in this appropriations fight is the continued funding and operations of the Department of Homeland Security, who oversee operations at the southern border. Conservatives have long argued that this DHS funding bill is where Congress should exert its authority to force DHS to implement more stringent border policies. This is especially true in the wake of the failed Senate amnesty deal, which – because it codified catch and release and expanded parole authority rather than limiting it – would have done nothing to prevent the detention of migrants like Diego Ibarra from being released into the country. It remains unclear if conservatives will see any policy wins in that legislation. 

The other option is for Congress to scrap the current appropriations process altogether and instead pass a year-long CR. While not usually a palatable option to conservatives, a year-long CR in this instance would actually result in about a 10 percent spending cut. Sen. Rick Scott makes the case for that path in a recent op-ed. 

Finally, the Supreme Court yesterday heard arguments in NetChoice v Paxton, the blockbuster case between the Big Tech companies (represented by NetChoice) and the states of Florida and Texas, who have each passed state laws to reign in the censorship activities of the platforms. Media Research Center’s Dan Schneider previewed the case for Fox News: “The dispute comes down to one question,” he notes. “Do Big Tech companies have a constitutional right to censor other people?”

In the course of Monday’s argument (which you can listen to here), NetChoice defended that right. Attorney Paul Clement, while arguing on behalf of NetChoice that no attempt to regulate the platforms at all should survive a constitutional challenge, conceded in a question from Justice Samuel Alito that companies like Gmail believe they have a right to cut off individual accounts and delete emails and personal messages over viewpoint concerns.

The argument for Big Tech companies to engage in this behavior has always distilled to “private companies have a right to manage the speech on their platforms however they decide” – and this indeed formed the basis for NetChoice’s position. But the difference between Google, Amazon, Facebook and your local bookstore, when it comes to modern expression, is that these companies are speech platforms at an unprecedented scale (Google, for example, filters information for 90 percent of the world) while also acting as critical vectors for commerce; that is, the means for millions of people to access and transact in the marketplace itself. 

For more on this point, see this amicus brief filed jointly by the Center for Renewing America senior fellow Adam Candeub, arguing that common carrier law, which regulates business conduct, can apply to the Texas social media law. Law professor Richard Epstein also filed a brief on behalf of the Center for Renewing America highlighting the market power of the platforms and their use of it to discriminate against people they don’t like. The government always has the power to address market abuse, he contends, and that has nothing to do with the First Amendment.

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One More Thing…

Sticking with the Big Tech theme, Fox News contributor David Marcus unpacks the hilariously flawed – but truly insidious – rollout of Google’s Gemini AI tool, which stubbornly refuses to depict images of white people, even in defiance of historical fact.