[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
HEARING ON PROTECTING CONGRESS' POWER.
OF THE PURSE AND THE RULE OF LAW
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HEARING
BEFORE THE
COMMITTEE ON THE BUDGET
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
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HEARING HELD IN WASHINGTON, D.C., MARCH 11, 2020
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Serial No. 116-25
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Printed for the use of the Committee on the Budget
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on the Internet:
www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
41-966 WASHINGTON : 2020
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COMMITTEE ON THE BUDGET
JOHN A. YARMUTH, Kentucky, Chairman
SETH MOULTON, Massachusetts, STEVE WOMACK, Arkansas,
Vice Chairman Ranking Member
HAKEEM S. JEFFRIES, New York ROB WOODALL, Georgia
BRIAN HIGGINS, New York BILL JOHNSON, Ohio,
BRENDAN F. BOYLE, Pennsylvania Vice Ranking Member
ROSA L. DELAURO, Connecticut JASON SMITH, Missouri
LLOYD DOGGETT, Texas BILL FLORES, Texas
DAVID E. PRICE, North Carolina GEORGE HOLDING, North Carolina
JANICE D. SCHAKOWSKY, Illinois CHRIS STEWART, Utah
DANIEL T. KILDEE, Michigan RALPH NORMAN, South Carolina
JIMMY PANETTA, California KEVIN HERN, Oklahoma
JOSEPH D. MORELLE, New York CHIP ROY, Texas
STEVEN HORSFORD, Nevada DANIEL MEUSER, Pennsylvania
ROBERT C. ``BOBBY'' SCOTT, Virginia DAN CRENSHAW, Texas
SHEILA JACKSON LEE, Texas TIM BURCHETT, Tennessee
BARBARA LEE, California
PRAMILA JAYAPAL, Washington
ILHAN OMAR, Minnesota
ALBIO SIRES, New Jersey
SCOTT H. PETERS, California
JIM COOPER, Tennessee
RO KHANNA, California
Professional Staff
Ellen Balis, Staff Director
Becky Relic, Minority Staff Director
CONTENTS
Page
Hearing held in Washington, D.C., March 11, 2020................. 1
Hon. John A. Yarmuth, Chairman, Committee on the Budget...... 1
Prepared statement of.................................... 4
Hon. Steve Womack, Ranking Member, Committee on the Budget... 6
Prepared statement of.................................... 8
Josh Chafetz, Professor of Law, Cornell Law School, and
Visiting Professor at the University of Texas at Austin
School of Law.............................................. 11
Prepared statement of.................................... 14
Eloise Pasachoff, Associate Dean and Agnes N. Williams
Research Professor, Georgetown Law......................... 75
Prepared statement of.................................... 77
Thomas H. Armstrong, General Counsel, U.S. Government
Accountability Office...................................... 85
Prepared statement of.................................... 87
Philip G. Joyce, Professor of Public Policy and Senior
Associate Dean, University of Maryland, School of Public
Policy..................................................... 97
Prepared statement of.................................... 99
Hon. Sheila Jackson Lee, Member, Committee on the Budget,
statement submitted for the record......................... 147
Hon. John A. Yarmuth, Chairman, Committee on the Budget,
questions submitted for the record......................... 154
Answers to questions submitted for the record................ 156
HEARING ON PROTECTING
CONGRESS' POWER OF THE PURSE
AND THE RULE OF LAW
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WEDNESDAY, MARCH 11, 2020
House of Representatives,
Committee on the Budget
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m. in room
210, Cannon House Office Building, Honorable John A. Yarmuth
[Chairman of the Committee] presiding.
Present: Representatives Yarmuth, Moulton, Higgins, Boyle,
Doggett, Schakowsky, Kildee, Panetta, Morelle, Horsford, Scott,
Jayapal, Sires, Peters; Womack, Woodall, Johnson, Smith,
Flores, Hern, Roy, Meuser, Crenshaw, and Burchett.
Chairman Yarmuth. The hearing will come to order.
Good morning, and welcome to the Budget Committee's hearing
on Protecting Congress' Power of the Purse and the Rule of Law.
I want to welcome our witnesses here with us today. This
morning we will be hearing from Professor Josh Chafetz, a
Professor of Law at Cornell Law School, and Visiting Professor
at the University of Texas at Austin School of Law; Professor
Eloise Pasachoff, Associate Dean and Agnes N. Williams Research
Professor at Georgetown Law; Mr. Thomas Armstrong, General
Counsel of the U.S. Government Accountability Office; and Dr.
Philip Joyce, Professor of Public Policy and Senior Associate
Dean at the University of Maryland, School of Public Policy.
Welcome to all of you.
I now yield myself five minutes for an opening statement.
In Federalist 51, James Madison said that if we were governed
by angels, ``Neither external nor internal controls on
government would be necessary.''
Since that is not the case, our founders purposely embedded
a structure of checks and balances into our Constitution to
ensure a separation of powers. After fighting a war to rid
themselves of a king, the core goal of our Constitution was to
divide powers between the branches in order to prevent one
branch from gaining dominance and creating a new monarchy.
The founders knew that money, and who controls it, is
fundamentally important in a democratic government. They were
adamant that Congress control the power of the purse since it
can act as a critical check on the president, and because of
the House's biannual elections for Members, it is the branch
most accountable to the people.
Congress has carried out this constitutional responsibility
to control spending by enacting foundational laws to prevent
the executive branch from misspending; laws like the
Antideficiency Act and the Empowerment Control Act.
But despite Congress' commitment to fulfilling its role,
its ability to follow through and conduct oversight of
executive spending has been increasingly challenged over time
as presidents and agencies have sought to claim more control
over spending. They have circumvented the law, ignored the law,
and even broken the law, often without repercussions.
This threat to the American experiment transcends
presidents, parties, or politics. And if defending our
institution and the basic premise of our democracy is not
reason enough to strengthen our laws, then I would point to the
hundreds of millions of people impacted by executive
misspending and overreach: the American people.
The erosion of our nation's separation of powers poses
tangible and destructive impacts for constituents, states and
localities, and the operation of government. Our communities
count on the funds we appropriate whether it is disaster
relief, infrastructure investments, improving our military
bases and housing, or strengthening our education and
healthcare systems.
The American people need to know that when their
representatives in Congress pass an appropriations bill and it
is signed into law, a structure is in place to ensure that
money gets to the people who need it. That is why the growing
lack of transparency about how the executive branch uses non-
public apportionments to exert control over agencies' spending
is a major problem.
Too often, this leaves the American people and our allies
abroad wondering whether, when, and how they will get the
support they need and were promised by Congress.
To help protect and enforce its spending decisions,
Congress established the General Accountability Office, a
nonpartisan legislative office charged with investigating and
reporting on violations of budget and appropriations laws.
Since its inception, GAO has uncovered numerous instances
of executive misspending and impoundment. But even this
nonpartisan agency has faced executive stonewalling,
underscoring the need for stronger laws that demand compliance.
For Congress to remain a coequal branch of government and
fulfill its constitutional responsibility to control how the
people's tax dollars are spent, we must reassert Congress'
control over spending and ensure we are the ones holding the
purse strings. Increasing transparency and accountability will
enable Congress to provide the oversight of the executive
branch that our founders intended.
We are holding this hearing at a time when there is a
growing interest in strengthening our constitutional checks and
balances; but our nation's separation of powers did not break
down over night. Decades of presidents and federal agencies
testing the limits of their executive powers, a changing world
that requires quick government action and access to resources,
and an increasingly divided Congress more focused on what
divides us than what can bring us together, have all
exacerbated this clear and present threat to our democracy.
But recent and high-profile executive abuses of budget and
appropriations laws, including withholding foreign aid,
diverting domestic disaster relief, and reprogramming defense
funds, have brought Congress' power of the purse into the
spotlight; and as a result, the American people are demanding
action.
Today we will have the opportunity to explore reforms that
will help our government better serve the people and operate
more like the democracy our founders envisioned. I look forward
to what our expert witnesses have to say.
[The prepared statement of Chairman Yarmuth follows:]
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And I now yield five minutes to the Ranking Member.
Mr. Womack. I thank the Chairman for this hearing, and
thank you to today's witnesses for being here to discuss what I
consider to be a very important topic.
One of the most significant responsibilities afforded to
Congress is the power of the purse, clearly stated in our
Constitution. Our nation's founding document makes clear that
budgeting is not a secondary part of governance, but
fundamental to it. There is no escaping the fact that a
breakdown in the budget process has exacerbated our dire fiscal
situation and the ensuing policy challenges. This Committee has
felt this dysfunction firsthand.
Democrats did not produce a budget resolution last year,
and they will not do a budget resolution this year. American
families and businesses budget every day. They set budgets for
the day, the month, the week, and the year. And my guess is
families across America are reevaluating those budgets, based
on the current COVID-19 situation.
Yet here in the People's House, at the House Budget
Committee, we won't do a budget. And while my Democrat
colleagues on this Committee continually attempt to justify the
inaction, some of their colleagues seem to recognize the
problem at hand.
In fact, just this week, the Blue Dog Coalition submitted a
letter to Chairman Yarmuth calling on the Budget Committee to
produce a budget resolution. They recognized the serious fiscal
situation we face and how a budget resolution is the critical
tool that can establish the appropriate framework for the
entire federal government.
The inability to complete the most basic part of the
congressional budget process is telling of a much larger
problem. Whether you are a Republican or Democrat, it makes no
difference. There is no denying that both chambers have
relinquished power and failed to adhere to the budget process
prescribed by law.
Congress has not followed regular order; that is, adopting
a budget resolution conference report and separate annual
appropriations bills before the start of the Fiscal Year since
1995. That is nearly 25 years of dysfunction, 25 years of a
diminished role in policymaking authority. And let me just add,
it creates what is--I call a ``new normal'' for new Members of
Congress to think that this is a normal way of doing business.
While this is a concern of mine and one that needs to be
addressed by Congress, there is a much larger issue here. One
of the greatest problems we face is the fact that we have
surrendered our authority to unchecked mandatory spending.
A majority of federal spending is currently running on
autopilot without limit or approval; it is exactly the opposite
of what our Constitution prescribes. We need to reclaim our
authority and bring credibility back to the budget and
appropriations process. Our budget process was written in the
1970's; it does not align with the dynamics of the modern
Congress.
The Joint Select Committee on Budget and Appropriations
Process Reform, of which I served as co-chair, examined this
very issue during the 115th Congress. We ultimately produced a
bipartisan, bicameral package of reforms, one supported by my
colleague, Chairman Yarmuth. Unfortunately, we were unable to
achieve the required super-majority to affirmatively report the
legislation out of committee.
Although the outcome was not what I had hoped, I remain
committed to enacting comprehensive reform that improves our
budget and appropriations process. This should be a bipartisan
priority and one that includes collaboration by both parties
and both chambers.
In 2019, Senate Budget Committee Chairman Enzi was
successful in reporting a bipartisan and comprehensive budget
process reform out of his Committee. I applaud Chairman Enzi,
all of the Committee Republican and Democrat senators,
Whitehouse, Kaine, Van Hollen, and Warner for putting aside
partisan politics in producing much needed legislation.
We, in the House, must continue building on the bipartisan
efforts of the Senate and the Joint Select Committee. It is my
hope that today's hearing provides insight on ways to address
the dysfunction in our budget and appropriations process. It is
not only important to the effectiveness of Congress, but also
to the country's long-term fiscal health.
With that, I yield back the balance of my time.
[The prepared statement of Steve Womack follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Yarmuth. Thank you for your opening statement. In
the interest of time, if other Members have opening statements,
you may submit those statements in writing for the record.
Once again, I would like to thank our witnesses for being
here this morning. The Committee has received their written
statements, and they will be made part of the formal hearing
record. Each of you will have five minutes to give your oral
remarks.
Professor Chafetz, you may begin when you are ready.
STATEMENT OF JOSH CHAFETZ, PROFESSOR OF LAW, CORNELL LAW
SCHOOL, AND VISITING PROFESSOR AT THE UNIVERSITY OF TEXAS AT
AUSTIN SCHOOL OF LAW
Mr. Chafetz. Chairman Yarmuth, Ranking Member Womack, and
Members of the Committee, thank you very much for the
opportunity to testify today regarding the scope and
implications of the congressional power of the purse.
The power of the purse is one of the most potent tools in
the congressional toolbox. Not only does the Constitution give
Congress, and preeminently this House, the lion's share of
power over matters of taxing and spending, but that control
over budgetary matters also gives Congress significant latitude
when bargaining with the executive branch over collateral
policy matters.
This was a hard-won lesson for the generation that drafted
and ratified the Constitution. They were intimately familiar
with 17th Century conflict between the English Parliament and
the Stuart Crown, much of which centered around who would have
the power to tax and spend money.
After the glorious revolution in which a Stuart Monarch was
deposed for the second time in less than 50 years, Parliament
ensured that the Crown would thereafter be almost wholly
dependent on the legislature for funds. And that was one of the
most significant steps in the democratization of the English
Constitution.
Well Colonial American assemblies, who were, after all, at
the time English subjects in the 18th Century, knew this
history intimately and they looked to it for resources in their
battle with royal Governors and royal judges. Zeroing out
executive and judicial salaries, and even refusing to pay rent
on the royal Governor's house, were among the Assembly's
favorite tools of resistance to royal authority.
Indeed, the fact that the Crown took to paying Colonial
judges' salaries out of Imperial funds so as to diminish the
Assembly's power of the purse, was one of the complaints
memorialized in the Declaration of Independence. That is to
say, one of the justifications for the American Revolution that
the Colonists offered was that the Crown was paying its own
judges.
Small wonder then, that in the years after independence,
both the Republican State Constitutions and the New Federal
Constitution drafted in 1787 ensured that the power of the
purse remained firmly lodged in the legislature. And in
particular, in the House of the legislature closest to the
people.
Indeed, the fact that Congress held the purse strings was
one of the most common Federalist rejoinders to Anti-Federalist
fears of a monarchical presidency. That is to say, it was one
of the most important talking points in favor of the
Constitution as the sort of fledging Americans were debating
whether or not to adopt this new instrument of governance.
Subsequent developments, ranging from the insistance on
annual appropriations to the creation of the Treasury in 1789,
to the creation of the standing House Ways and Means Committee
in 1795, to the Miscellaneous Receipts Statute and the
Antideficiency Act in the 19th Century all involved efforts by
Congress to preserve and defend the leverage that the power of
the purse gives it in interbranch negotiations.
But Congress gave away some of that power in a nod to the
growth of the administrative state in the 1921 Budget Act. But
half-a-century of experience convinced it to take a good bit of
it back with the 1974 Budget and Impoundment Control Act.
In short, Congress has repeatedly reacted against the
attempts to encroach on its power of the purse and it may well
be time for the next episode of congressional reassertion in
this sphere.
In particular, let me briefly mention six ways, which in my
view, Congress' power of the purse could be strengthened. And
each of these are more fully elaborated in the written
testimony I have submitted, as is the historical development
that I have just outlined.
First, greater use should be made of zeroing out some item
or salary as a way of combatting executive overreach, and
especially, as a way of enforcing contempt of Congress
citations. If the South Carolina Colonial Legislature could
refuse to pay the rent on the royal Governor's house, then
Congress can refuse to pay the salary of a contumacious
executive official.
Second, appropriations bills should be drafted so as to
make clear that riders are not severable from appropriations.
If OLC wants to declare a rider unconstitutional, the executive
should have to sacrifice the underlying spending. Moreover, the
loss of the entire appropriation is more likely to create a
justiciable case or controversary than the loss of the rider
alone. And so non-severability may be a way in which Congress
can enlist the courts as allies in the battle over budgetary
control.
Third, criminal penalties should be added to the
Impoundment Control Act just as they already exist in the
Antideficiency Act. Illegal impoundments are serious matters
and the code should reflect that.
Fourth, the Antideficiency Act itself should be tightened
to prevent executive gamesmanship around the essential/non-
essential personnel distinction during a lapse in
appropriations.
Fifth, both houses of Congress should engage in significant
capacity building. Both bulking up the number and pay of Member
and Committee staff, as well as, the staff at non-partisan
institutions like GAO, CBO, and CRS. It is impossible to check
the executive without the capacity to adequately monitor the
executive.
And I would add that the work done by the Modernization
Committee, and in particular, the resolution passed yesterday,
is a significant step in this direction.
Finally, I agree with the Ranking Member, that Congress
should seek to return to the regular orthodox annual budget
process laid out in the 1921 and 1974 Acts. That process was
built to harness the expertise on both this Committee and the
Appropriations Committee in the service of granular
congressional control over spending. The turn to continuing
resolutions and omnibus bills has diminished ongoing
congressional control over budgetary matters.
The power of the purse is one of the most significant
congressional tools that the Constitution gives to Congress,
and Congress should ensure that it's using it to its full
potential.
Thank you very much.
[The prepared statement of Josh Chafetz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Yarmuth. Thank you for your testimony, and I will
recognize Professor Pasachoff for five minutes.
STATEMENT OF ELOISE PASACHOFF, ASSOCIATE DEAN AND AGNES N.
WILLIAMS RESEARCH PROFESSOR, GEORGETOWN LAW
Ms. Pasachoff. Chairman, Ranking Member Womack, and Members
of the Committee, thank you for the invitation to testify
today.
I would like to make three points this morning. First,
presidents have many tools to shape spending after the
appropriations process in Congress has come to an end. And in
general, these tools play a useful role in ensuring efficient
spending of taxpayer dollars within the bounds of the law.
Second, like any tool of implementation, these tools can be
misused, and they recently have been.
Third, there are a number of opportunities for Congress to
cabin the misuse of these tools while still recognizing their
value in the ordinary case.
And in the rest of my time, I will illustrate these points
by walking through recent experiences with three key
Presidential budget tools.
The first tool that I will discuss is apportionment under
the Antideficiency Act. This is the authority to specify by
time period and by project, how agencies may spend their
appropriations.
The purpose of apportionment is effective funds management;
it is not an independent source of executive policy
development. But the current Administration seems to be
developing an expansive view of apportionment as a tool of
Presidential control.
The most prominent example of this occurred last summer,
when OMB placed holds on some foreign aid funding, including to
Ukraine. Now, these apportionments became central to the
impeachment inquiry, but that is a completely different issue
from the one that concerns us today, which is the
Administration's broad view of its apportionment power.
In defending these apportionments, OMB attempted to place
the President's apportionment authority in the context of his
constitutional duty, to take care that the laws be faithfully
executed. But as GAO correctly explained, faithful execution of
the law does not permit the President to substitute his own
policy priorities for those that Congress has enacted into law.
So Congress could usefully clarify these limits on
apportionment, and it could also require that apportionments be
made public, rather than letting the executive keep them
secret.
The second tool I will discuss is rescission and deferral
under the Impoundment Control Act. Congress passed this act to
limit Presidential attempts to unilaterally withhold funds,
sometimes called policy impoundments.
Under this act, a president who wants to cancel certain
spending must make a rescission proposal to Congress, and
Congress must affirmatively pass a rescission bill within 45
session days or the president must release the funds. And a
president who wants to defer certain spending for operational
reasons, not for policy reasons, must tell Congress about the
delay.
Here, too, the Administration is engaging in expansive
interpretation of Presidential authority. On rescission, the
OMB has claimed that the act permits the President to
unilaterally cancel any spending he wishes if Congress does not
have time to act on a rescission proposal before the end of the
fiscal year.
But this is not right as GAO has explained. To read the act
to allow the Administration to cancel spending without
congressional approval is to ignore the limits that the law
clearly places on Presidential efforts to impound funds.
The Administration's expansive view of deferral is no
stronger. It has tried to expand a category that GAO has
distinguished from deferral called ``a programmatic delay.''
And the Administration has essentially argued that something is
a programmatic delay whenever the President says it is.
It is also argued that executive branch policy decisions
can justify a programmatic delay. But again, this just is not
right. OMB's reading would allow the category of programmatic
delay which is not even mentioned in the Impoundment Control
Act; it clips the controls that Congress put on--put in place
in that act.
OMB's reading would also mean that the Administration is
the only one policing itself for compliance with the
Impoundment Control Act, which again, is not how the rule of
law operates. Congress could usefully reject both of these
arguments with amendments to the Impoundment Control Act.
The last tool I will discuss is transfer and reprogramming.
A transfer moves funds between different appropriations while a
reprogramming changes the allocation of funds within a single
appropriation. And here, too, the Administration is taking a
particularly broad view under these authorities.
It has been actively using these tools, not just through
the emergency declaration and not just in building the wall,
but more generally, in other areas of domestic and foreign
policy as well.
The lack of transparency in these actions, too, makes it
difficult to monitor and hold the executive branch accountable
so Congress could, again, usefully place more specific
restrictions on transfer and reprogramming, and could also
require more transparency around the use of these tools.
Thank you for your time and your attention to these
important issues.
[The prepared statement of Eloise Pasachoff follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Yarmuth. Thank you very much.
I now recognize Mr. Armstrong for five minutes.
STATEMENT OF THOMAS H. ARMSTRONG, GENERAL COUNSEL, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Armstrong. Good morning. Thank you, Mr. Chairman,
Ranking Member Womack, and Members of the Committee for this
opportunity to speak with you about the work we do at GAO.
Since GAO was established in 1921, we have prepared audits,
investigations, and legal decisions for the Congress. What I
want to focus on this morning are the--is the legal work we do,
the legal decisions that we issue.
We do a number of things in this area that--and it is all
designed to support your constitutional prerogatives of the
purse. We issue decisions to Members of Congress and Committees
of Congress. We issue decisions to executive branch officials;
in fact, some executive branch officials have a statutory right
to a decision from GAO and that is very important because it is
through our decisions that we establish standards to ensure
compliance with the appropriations acts and with fiscal
statutes. We are kind of on the front line for the Congress.
We also have responsibilities under the Antideficiency Act.
For example, we maintain the official repository of reports by
executive agencies of ADA violations, and we report annually to
the Congress on what we have found in the previous fiscal year.
And shortly, you will be getting a report from us about Fiscal
Year 2019.
As I think everybody knows by now, we have certain very
significant responsibilities under the Impoundment Control Act.
Another thing that we do, and this is where we help the
Congress make sure that things are running as they should be in
the executive branch is, we have something that we call the
``Red Book.'' It is the ``Principles of Federal Appropriations
Law''; it is a multi-volume treatise on appropriations law.
It is called the Red Book because in hard cover, it is red,
and you know, attorneys are kind of clever like that. So it is
the Red Book. But that is a compendium of 99 years of case law
based on 99 years of experience and expertise, and that is
regularly referred to throughout the executive branch, and it
is referred in--by the federal judiciary.
There are some things that have happened in the past few
years that I think would compel legislative action on your part
that would strengthen our role. Because if you strengthen our
role, you are really strengthening your oversight of executive
spending activity and we can provide you information, legal
views, legal conclusions that I think are so very important to
you as you work through the appropriations process and you make
choices. I think it is important to you as you carry out your
own oversight of executive activity.
Mr. Yarmuth, you and Mr. Womack may remember that a little
over a year ago, you asked us for an opinion whether the
Impoundment Control Act allowed a president to propose a
rescission during the last 45 days of a Fiscal Year when the
money that would be proposed for rescission would expire by
operation of law before the end of that 45 day period.
We said, no, that the Administration did not have the
authority to do that, and that is something where you might
want to make clear in the Impoundment Control Act. We do have
recent experience where the current make-up of the Office of
Management and Budget has advised executive general counsels
that they do not need to listen to GAO's decisions and
opinions. So to ensure this, you can put it in law.
In that regard, something else that I would mention is that
OMB regularly gives instructions annually to federal agencies
on the budget process, and specifically, on the Antideficiency
Act. Until last summer, OMB, for decades, had instructed
agencies if GAO concludes that you violated the Antideficiency
Act, you need to report that violation. You can and should
report your disagreement with violation if you disagree, but
you should report it.
Last summer, OMB revised that instruction and said you only
have to report a violation if we, OMB, and you, the agency,
agree with GAO.
So we sent a letter to executive general counsels and said
if we conclude that there is a violation of the Antideficiency
Act, and you do not report it, we are reporting it. I think
that is information that the Congress should have as the
Congress oversees executive spending, and as the Congress makes
its choices in the appropriations process.
And if I could take just one more minute, one other point I
would make is some years ago, the Office of Legal Counsel over
at the Department of Justice basically told agencies if you
violate a spending restriction and that spending restriction
was enacted by Congress into permanent law, as opposed to an
appropriations act, you do not need to report that violation to
Congress.
In effect, it is a rather anomalous policy of Congress gets
information depending on the legislative vehicle Congress has
chosen. If it is in an appropriations act, the Office of Legal
Counsel says you have to report it. If the restriction is not
in an appropriations act, you do not have to report it. And
again, when we uncover things like that, we do report it.
I am going to read a quote because when I think about these
legislative ideas we have, and when I think about the topic
with--of this hearing, I am reminded again, James Madison in
the Federalist Papers in 1788, when he was talking about the
power of the purse and that it should be housed in the
legislature. He made the point that allowing it in the
legislature will help reduce ``all the overgrown prerogatives
of the other branches of government.'' I think that is the
power of the purse.
Thank you very much and I am sorry for going over time.
[The prepared statement of Thomas H. Armstrong follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Yarmuth. Thank you for your testimony.
Dr. Joyce, you are recognized for five minutes.
STATEMENT OF PHILIP G. JOYCE, PROFESSOR OF PUBLIC POLICY AND
SENIOR ASSOCIATE DEAN, UNIVERSITY OF MARYLAND, SCHOOL OF PUBLIC
POLICY
Dr. Joyce. Thank you very much, Chairman Yarmuth, Ranking
Member Womack, Members of the Budget Committee. I appreciate
you inviting me to share my views on the role of Congress in
the budget process.
I believe a strong congressional budget presence is crucial
to the health of our democracy, and that ineffective
congressional budgeting invariably strengthens the executive
and weakens the Congress.
In my testimony, I am going to discuss how we got to this
place, in addition to articulating some steps that are talked
about in more detail in my written testimony that might be
taken to shift the balance of power to a place where the
Congress can be on a more consistently equal footing with the
executive.
I would start by saying that I testified before this
Committee in May 2016 in a very similar hearing. And I tried to
avoid quoting myself, but I am going to. I read in that
testimony a sentence that said, ``It might be particularly
fruitful to talk about this now since we do not know which
party will occupy the White House in January 2017.''
And all I had to do was change the date to 2021. But I
think the sentiment still applies, which is that you may be
able to think about the protection of congressional
prerogatives as I think you should, relatively unconstrained by
knowledge of who would control the presidency and the Congress.
It is important, I think, to start by reiterating the
reason that the 1974 Act gave us budget committees, and the
budget resolution, and CBO. And it is because they were viewed
as essential to the Congress reclaiming the power that had
shifted too much to the president.
And some parts of the law have worked well. I think CBO has
given the Congress the analytical power to challenge the
executive, and reconciliation has proved a very useful tool for
the Congress to cut the deficit when it wants to.
However, the budget resolution itself has only been passed
about half the time in the last two decades after being passed
every year for the first two decades after the 1974 Budget Act.
This suggests the possibility that the problem is not at least
wholly procedural.
In fact, in 2011 I testified before this Committee with its
former chairman, Jim Nussle, and he suggested to the Committee
that, ``Before you search for new budget procedures to fix the
current process, actually give the current process a try.''
I agree, and I think that the Congress basically had it
right in 1974 when it created these committees, and CBO, and
the budget resolution. In my testimony, I do suggest several
changes in either law or practice that could assist the
Congress in reasserting its congressional--or its
constitutional role in budgeting.
First, I would change the Budget Committees into committees
on national priorities to include the Chairs and Ranking
Members of the appropriations, tax writing committees, and also
other major authorizing committees. I think this would lead to
the budget resolution being taken more seriously.
Second, I would make the resolution itself stronger by
thinking more comprehensively about how all the resources
devoted to particular policy aims would be used, and how they
are traded off against each other, rather than focusing on
distinctions which are largely driven by committee jurisdiction
between discretionary spending, mandatory spending, and tax
expenditures.
Third, I do think it is important for the Congress to
articulate a path for the budget on a routine basis. This does
not necessarily mean passing a budget resolution every year. I
am sort of agnostic about biennial budget resolutions versus
annual budget resolutions. But as a matter of routine, I think
having to confront the future path of the budget and deciding
whether to use the tools available to you, primarily
reconciliation, is a very important thing to do.
Fourth, I think the abysmal record of the Congress on
appropriations contributes to the general loss of public regard
for the Congress. This puts you in a weakened position relative
to the president, and is a completely self-inflicted wound
given that in only three of the last 44 years, have all the
appropriations been passed and signed into law before the
beginning of the fiscal year.
Fifth, I think Congress should take its oversight role
seriously by attempting to figure out how well programs and
policies are working, and how they might be changed in order to
be more effective.
Sixth, I think that Congress should support and defend the
analytical institutions, especially CBO and GAO, that assist it
in performing its constitutional responsibilities.
And finally, I think that Congress should stand up for
itself in the appropriations process by asserting its
prerogatives to decide on the details of spending, ensuring in
particular, that the provisions of the Impoundment Control Act
are followed.
In conclusion, Article I of the Constitution comes first
for a reason, and the Congress is called the first branch
because of the desire of the founders; the policies and laws
being initiated by the representatives of the People.
The budget process is the central means of deciding who
will pay for government and what government will do. Power
abhors a vacuum, however, and if the Congress does not reassert
its authority through law and action, it will inevitability
lead to the further transfer of power to the executive.
Thank you very much.
[The prepared statement of Philip G. Joyce follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Yarmuth. I thank the gentleman. We will now begin
our question and answer session, and we are going to depart
from our customary pattern, and I am going to recognize the
Ranking Member, Mr. Womack, for 10 minutes.
Mr. Womack. I thank the Chairman for giving me this
opportunity early in the hearing because I do have a couple of
other hearings that I have to depart for. And I appreciate,
again, the testimony, and quite frankly, the education that we
have received from these experts that are seated before us.
Dr. Joyce, question for you. We all know that our
democratic government is based on a system of checks and
balances. And as I mentioned, in the hearing we had yesterday
with the DoD Deputy Secretary Norquist, I have some serious
concerns about the executive branch's recent decision to
substitute its judgment on key defense funding decisions that
were made by the Congress of the United States.
So regarding discretionary spending that is provided by
Congress and the appropriations process, what are the checks
and balances that we have over the executive branch to ensure
the Administration implements the bills that are--that fund the
government in accordance with the intent of Congress?
Dr. Joyce. Well partly, I think what you have to do is
think about exactly how much detail and direction you want to
provide in law in those appropriation bills. I mean, often
where the gray area comes in might be where there is guidance
that is in report language, or guidance that is in, you know,
something that is said on the floor but it is not necessarily
in the bill itself.
So I think you, in some sense, have no choice in that kind
of situation but to try to make the law more strict in terms of
what you are permitting and not permitting to happen.
Mr. Womack. You have done extensive work in this area, and
as you indicated in your opening, you testified before this
Committee in 2016 about this broken budget process. With that
said, it is extremely frustrating to me, and probably to you,
that we have not been successful in fixing this process over
time.
Dr. Joyce. Right.
Mr. Womack. We gave it a good try in 2018 as was mentioned
in my opening. The Chairman was with me. The guy that sits
here, to my right, was with me during this process. We got very
close to the finish line but fell just a little bit short. And
now Congress continues to rely on a harmful practice such as
CRs, omnibuses, and budget deemers to fund the federal
government.
So in your opinion, why have we failed? And let me just add
this. When the vote was taken, the threshold was a super-
majority. We had to have five, and five out of the sixteen-
member Committee. Four Republicans each, Republican, Democratic
House and Senate. Four of my Democrat colleagues voted present
on the final vote.
Dr. Joyce. Mm-hmm.
Mr. Womack. Why have we failed?
Dr. Joyce. I think in part, I think it is always hard to
change the status quo because the people who are present at any
given point in time might feel like they are getting some
benefit from the status quo. I think also, you know, there is a
serious question in my mind, you know, given the overall fiscal
situation we are in. How much budget process changes themselves
can help us get out of the, you know, $23 trillion worth of
debt.
The Congress does not tend to--the budget process is not
good at forcing the Congress to do things that it does not want
to do. And I think the places where the budget process could be
changed, and where I think some of the sort of fruitful kinds
of process changes that you would consider, are places where it
would give the Congress more information and it would help the
Congress to better stay on its--on the schedule that it has
established for itself.
I think people confuse having the budget process get us out
of the fiscal mess with having the budget process sort of
helping the Congress to be able to have a more effective means
of making those decisions. And maybe it is difficult for people
to sort of separate those, too.
I thought that you--your committee did a very good job of
doing that, actually, of keeping the procedural fixes where
they ought to be. I do think that the, you know, in that
particular case, the rules that were set up in advance, which I
understand why they were, but they required such a, you know, a
super-majority that it--the hurdle was very high in getting
something out of that committee.
Mr. Womack. That may have been intentional on their part.
Dr. Joyce. Right.
Mr. Womack. I do not know, but we got very close.
Professor, I have a quick question for you. It, in my
opinion--and thank you for the history lesson, that was very
instructive to me and I need to read more of that.
But to me, it is grossly antithetical for instead of doing
a budget resolution and doing what we call--all of us call
regular order, that we would kick the decision to four people
basically, the leaders of the House and the Senate, to
basically decide what those numbers that our appropriators are
going to write to and have nothing to do, by the way, with
mandatory spending.
That's a whole other subject, but for the--for four people
to have to come to some agreement on what the appropriators
302(a)'s should look like. Do you agree with that?
Mr. Chafetz. I do agree with that. One of the things that
the rise of continuing resolutions and omnibus bills certainly
does is shift control from committees generally, and especially
this Committee, to leadership.
And, you know, you asked Dr. Joyce why previous efforts had
failed. I would point you there, right, leadership has--you
know, cameral leadership has relatively little incentive to try
to decentralize power to committees when it can sort of
maintain that power in itself.
And so you have a situation where leadership of both
parties is much more invested in something like the continuing
resolution omnibus way of going about things than in the
regular order.
Mr. Womack. Any of you that followed the Joint Select
Committee knows that we struggled. They had a lot of discussion
about, and struggled with, the old carrots and sticks idea.
Personally, I think that there have to be some consequences for
the failure to do your job.
In the private sector, failing to do your job means you
probably don't have a job. But up here it is a little bit
different. You talked in your recap of history that there were
consequences where there was the withholding of either rent or
pay or something. Some benefit that would accrue to the people
that are violating the terms.
Is it going to be necessary for us to have some serious
consequences ultimately for the Congress not to do its job?
Mr. Chafetz. I think it is important for this Committee to
sort of decide how much of that power it really wants to wield,
and how much it wants to cede to leadership. There are the
consequences for, sort of the Congress as an institution,
right, in terms of the sacrifice of its power to the executive.
I think equally there should be consequences for the
executive. You know, a lot of what I talked about in the sort
of historical recap was situations in which the executive
branch tried to seize appropriations power, or tried to wield
appropriations power on its own without the legislature, and
the ways that various legislatures have pushed back on that.
And I think Professor Pasachoff pointed us to a lot of ways
that is happening today as well.
So in thinking about what there should be consequences for,
I would point first to consequences for sort of an executive
branch usurpation. And maybe one way that Congress can go about
implementing those consequences is through revamping its own
procedures, and perhaps one of those would be a return to
regular order.
Mr. Womack. I thank the panel for your testimony here
today. I wish I could sit through all of it. I will get a
report back for what else transpires here today.
And again, Mr. Chairman, I want to thank you for your hard
work on the Joint Select Committee. I thought we did really,
really good stuff and maybe have a blueprint for how things can
go forward.
But this is, in my serious opinion, one of the most
pressing issues facing the Congress of the United States. And
that is to get back to some regular order on budgets and
appropriations. Because while there may not be consequences for
us failing to do our jobs, there are consequences for this
country eventually, and that is yet to be determined.
And I yield back.
Chairman Yarmuth. The gentleman yields back. I now
recognize the Vice Chairman of the Committee, the gentleman
from Massachusetts, Mr. Moulton, for five minutes.
Mr. Moulton. Thank you, Mr. Chairman. And as the Vice
Chairman of the Committee, which sounds like a much bigger deal
than it actually is, I would like to thank both the Ranking
Member and the Chairman for their work on that Joint Select
Committee. And I do wish they had been successful, and it is an
effort that we should try to do again.
Thank you all for joining us here today. You know, I think
you may not realize it, but you are actually very fortunate to
be here today in the hotseats because I cannot remember a time
when there has been more bipartisan consensus on this Committee
and bipartisan concern.
And you know, I think that we would be a better Congress if
that happened more often. Because in the midst of a very
difficult divisive time in politics here in Washington, we
cannot forget why we are here and the solemn oath that each of
us swore not to the Speaker of the House or the President of
the United States, not to this party or that party, but to the
Constitution. To the Constitution that we all hold dear.
We do not spend enough time thinking about that oath and
understanding the Constitution and the laws; those wise
restraints that make us free that support it. Certainly, one
issue of bipartisan concern here is the diminishing role of
Congress and our diminishing willingness to exercise our
authority when it comes to oversight of the executive.
At the beginning of the year, the Government Accountability
Office determined that the Administration violated the law when
it withheld military assistance from Ukraine.
Mr. Armstrong, I have a feeling you played a role in making
that determination. Can you share briefly how you came to that
conclusion?
Mr. Armstrong. You know, Mr. Moulton, that was really a
fairly straightforward legal analysis. The Impoundment Control
Act is the only authority that a president has to withhold
funds from obligation. The president doesn't have any
constitutional authority to withhold; doesn't have any inherent
authority to withhold. And the Impoundment Control Act permits
a withholding for policy reasons only if the president submits
a rescission proposal and waits 45 days. And if Congress does
not act to rescind during that 45-day period, the president
must release the money.
What we found was that this Administration withheld funds
from obligation for almost two months. And when we asked the
Office of Management and Budget the reason for it, OMB told us
that it was to ensure the money was going to be spent
consistent with the President's policy considerations.
There is no authority in the Impoundment Control Act to
withhold for policy reasons; it is really clear. And so there
was not--that was not that difficult a legal decision to come
to. The difficulty we had in the time we had, was developing
the information we needed to establish the facts, and to
analyze those facts because we apply the law to facts, and we
go where the law takes us.
Mr. Moulton. So I mean, hearing that a president might
withhold money for policy reasons, I imagine sounds to many
like a reasonable thing to do; it doesn't seem totally out of
the ordinary. But the problem is that, as you say, it is
against the law.
Mr. Armstrong. Yes.
Mr. Moulton. Is that safe to say?
Mr. Armstrong. Yes, that is right. Yes.
Mr. Moulton. And is there anyone on the panel who would
disagree with that?
[No verbal responses.]
Professor Chafetz, you are the constitutional historian, or
at least one of them here today. What might have concerned the
antiFederalists like Jefferson and Madison about power shifting
more and more to the executive under modern presidents, both
Democrat and Republican? And in this particular example, how
would their interpretation of the necessary and proper clause
of the Constitution inform these concerns?
Mr. Chafetz. Well just to be clear, when we are talking
about the antiFederalists, we are talking sort of earlier--a
little bit earlier time period. We are talking about the people
that actually opposed ratification of the Constitution, so
people like Patrick Henry and Luther Martin. And their main
concern when they looked at the structure of the presidency was
that it looked a lot like the British Crown. You know, you have
got this person, and admittedly, elected only for a term of
years. But who has control over the military? Who has a role in
the legislative process with the veto?
They were concerned about a sort of overbearing presidency.
And the response they kept getting from people like Madison and
Hamilton was you do not need to worry as much about the
president because Congress will always have the power of the
purse.
And in particular, there is a provision in Article I that
says no appropriations for the Army can last for more than two
years. They said, ``Look. Every new Congress will have the
opportunity to defund the military if we see the president
using it in an oppressive way.''
So the idea that the power of the purse was the central
reason that you could trust the new Constitution against this
fear that the president would become a monarch; that was the
sort of big concern there.
Mr. Moulton. Thank you very much.
Thank you, Mr. Chairman.
Chairman Yarmuth. The gentleman's time has expired. I now
recognize the gentleman from Ohio, Mr. Johnson, for five
minutes.
Mr. Johnson. Well thank you, Mr. Chairman.
I would like to echo what the Ranking Member said earlier.
Your work on that--the bicameral budget reform group, I wish we
had actually produced some things. I have tremendous respect
for you and the work that you do, but I am a little bit
confused, you know, because today this hearing is called,
``Protecting Congress' Power of the Purse and the Rule of
Law.'' But I wish instead it was titled, ``Exercising Congress'
Power of the Purse and Complying with the Law'' because we are
doing neither.
We are not here to mark up a budget because, Mr. Chairman,
you have not been able to bring your colleagues around to
produce a budget. In fact, this is the second year in a row;
and I might remind that the last time that my colleagues had
control of the House for four years they did not do a budget.
There is just a--there is a philosophy on that side of the
aisle that says budgeting is not important.
It is the chief responsibility of this Committee to write a
budget resolution. Instead, over the last year we have convened
hearings to talk about things like Medicare for All, the Green
New Deal, and the need for comprehensive immigration reform.
But we have not come together to do what we are sent here to
do: to pass a budget. To put it simply, we have not done what
the American people sent us here to do and what the law
requires us to do.
The failure of this Committee to write a budget resolution
is a failure of our constitutional duty. In other countries,
the refusal or inability to pass a budget leads to motions of
no confidence, resignations of prime ministers, and snap
elections. But not here, not in Congress. Thank God it does not
work that way, or we would all be out on our ears.
My colleagues are well aware that there are no consequences
for inaction, even though the Budget Act establishes the
various steps and deadlines of the congressional budget
process. Instead, Congress relies on continuing resolutions and
omnibus appropriations to fund our federal government.
Just yesterday, the Deputy Secretary of Defense testified
before this Committee and gave many examples of how CRs create
uncertainty for our men and women in uniform and weaken our
military readiness. And yet, Congress will likely rely on
another CR this year.
I would like one good reason why we should rely on CRs and
why we are not passing a budget. I have asked that question but
not--I have not gotten an answer. You cannot. You cannot
reconcile that because there is no good reason why Congress is
failing to pass a budget.
I respectfully remind my colleagues, my Democrat
colleagues, about failing to write a budget resolution for
Fiscal Year 2020. They have essentially violated the Budget
Control Act--the Budget Act.
And so if this Committee wants to have a meaningful
discussion on Congress' power of the purse and the rule of law,
then we should start by following the law. Produce a budget.
Let's have a markup. Or at the very least, let's convene a
hearing to discuss the need for bipartisan, bicameral budget
process reform.
This is the House Budget Committee, so let's do what the
law requires us to do and what the American people expect us to
do. OK.
Dr. Joyce, the last time Congress successfully observed the
process, adopted a budget resolution, and conference report
followed by separate appropriations bills before the beginning
of the subsequent fiscal year, was in 1995. How effective do
you think the Budget Act has been in enhancing Congress'
control over the budget?
Dr. Joyce. I think in practice it has not been very
effective; it certainly has not been very effective since that
point. When it was most effective was, I would say, in the
first half of the 1990's when reconciliation was used to
actually try to get a handle on the large fiscal problems that
were facing the country. But without using those tools, I think
the Budget Act cannot be very effective.
Mr. Johnson. Do you have any thoughts about how Congress
can improve the current congressional budget process?
Dr. Joyce. I think most of the issues around the failure of
congressional budgeting do not have to do with the process.
They have to do----
Mr. Johnson. It has to do with complying with the process.
Dr. Joyce. They have to do with the operation of the
process, not what the process says in law.
Mr. Johnson. OK. What elements of the Budget Act do you
believe should be retained as we move through potential budget
process reform?
Dr. Joyce. Well I mean, I do think that the role of CBO is
very important. I think CBO has empowered the Congress in a way
that it was not empowered prior to that point, and I think the
budget resolution when used, and reconciliation, are powerful
tools.
As I suggested in my testimony, you know, I would actually
strengthen both the budget resolution and the Budget
Committees.
Mr. Johnson. OK. Well I thank you.
And Mr. Chairman, I yield back.
Chairman Yarmuth. Yes. The gentleman's time has expired.
Now I recognize the gentlewoman from Illinois, Ms. Schakowsky,
for five minutes.
Ms. Schakowsky. Thank you, Mr. Chairman.
Mr. Armstrong, just let me say this. I am in my 22d year in
Congress and have relied heavily on the GAO all that time in
getting the kind of nonpartisan, and accurate, and helpful
information in so many different ways. And I just want to put
that on the record, how much it is appreciated.
Mr. Armstrong. Thank you, ma'am. I will pass that on to the
Comptroller General.
Ms. Schakowsky. Thank you.
Mr. Armstrong. Thank you.
Ms. Schakowsky. And I know that even the Supreme Court and
other federal courts have cited decisions of the GAO. I wonder,
you refer to some, but I wonder if you could summarize the ways
in which Congress might help or that we may even pass some laws
that would make your work more effective?
I know that you cited a couple of things, but if you could
give us the guidance right now in summary, I would really
appreciate that.
Mr. Armstrong. Yes. We have a pretty long wish list, so to
speak, that we can sit down with staff and walk through that.
Among the things that I consider to be higher priority would be
ensuring legislatively no impoundments during the final 45 days
of a fiscal year. Requiring that agencies report Antideficiency
Act violations, even if they disagree with GAO's findings.
Making clear that a violation of a spending restriction enacted
in permanent law, rather than an Appropriations Act, does need
to be reported to Congress. And something that may be seemingly
mundane as requiring agents to--the agencies to be responsive
to GAO.
Ms. Schakowsky. Mm-hmm.
Mr. Armstrong. You know, as part of our regular process,
when we open up a case, one of the first things we do is we
send a letter to the general counsel or the agency whose
appropriation has been questioned. And sometimes it takes
months to get responses to those letters.
A fairly notorious case was last year in September we
issued a decision on Department of Interior activities during
the fiscal 2019 lapse in appropriations. We ended up issuing
the decision without a response from Interior. We sent a letter
to the solicitor of the department and three months later, they
still had not replied. Curiously, the day after we issued the
decision, we got their reply.
Ms. Schakowsky. Mm-hmm.
Mr. Armstrong. And we issued the decision anyway because we
were confident with the information we had been able to develop
publicly, and information that we were able to develop from
members' offices, too, the correspondence that Interior had
with Members.
Ms. Schakowsky. Ostensibly, are they required to answer in
a timely way or is there just this lack of assistance?
Mr. Armstrong. There is no legislation that requires it,
but there has been a long-standing practice. I will tell you, I
have been at GAO doing this work for 42 years and we have never
had the problem to this extent. And there are times when an
agency will come back to us and say, ``We need a little bit
more time.'' And we understand that, and we are willing to work
with that, so long as they eventually do respond to us.
Now that is something that seems rather mundane, but
remember, our role is to provide you the information, legal
views, and legal conclusions that you need to exercise your
oversight of executive spending activity.
Ms. Schakowsky. Has that ever prevented you from making a
decision because there has not been a response?
Mr. Armstrong. No. But it has seriously delayed the issuing
of decisions.
Ms. Schakowsky. Sure.
Mr. Armstrong. Because when we do not get a response, we
try other ways to get the information we need. What we do not
have, when an agency refuses to respond, is we do not have that
agency's legal views. And we want to be fair. We are
nonpartisan, so I want to know what the other agency thinks. I
want to know what their lawyers--how their lawyers defend and
explain their actions. That informs our decision.
Ms. Schakowsky. Of course.
Mr. Armstrong. And without a reply from, in this case, the
solicitor, we are not so informed. I will tell you that when we
did get that reply the day after we issued the decision, there
was nothing in the decision that would have changed our
conclusion.
Ms. Schakowsky. OK. My time has just expired.
Mr. Armstrong. Oh, I am sorry. Yes.
Ms. Schakowsky. But I appreciate the answer and hope in a
bipartisan way we can work with you to make those improvements
in the law. Thank you.
I yield back.
Mr. Armstrong. Yes. Well I am willing to talk more about
it.
Ms. Schakowsky. OK.
Chairman Yarmuth. That is good. The gentlewoman's time has
just expired. And now I recognize the gentleman from Texas, Mr.
Flores, for five minutes.
Mr. Flores. Thank you, Mr. Chairman.
I would also like to thank the panel for joining us today.
I think this has been helpful. I could belabor the point about
the fact that this Committee has not passed a budget, but I
think that has been done adequately so far.
One of the areas where the federal budget struggles is
because Congress continues to appropriate money for programs
where the authorization has lapsed. And based on the latest
numbers I have seen, it is about $300 plus billion a year
which, any way you put it, is 30 percent of the trillion dollar
deficit. So that would be one easy way for Congress to address
a substantial part of the deficit.
So there are tools that have been talked about to deal with
this issue and I would like to bounce that off of you moving
forward. I am going to direct my questions to Mr. Armstrong and
to Dr. Joyce.
Do you agree that the amount of money we spend on
unauthorized programs is a problem, Mr. Armstrong?
Mr. Armstrong. You know, the lack of an authorization
removes the oversight committees from the process. And I will
say that when Congress enacts an appropriation and there is no
authorization, the appropriation does stand as the
authorization. So the failure of an authorization is the
failure to get the input of the oversight committees.
Mr. Flores. Correct.
Mr. Armstrong. Now that is Congress' choice. You know, a
GAO does not have a position on that. As a lawyer, I can tell
you that when Congress enacts an appropriation, the president,
under the Constitution, is supposed to execute that law. And
executing an appropriations act is obligating and spending the
money, so it does not legally need an authorization.
Mr. Flores. But it is still Congress abdicating its
responsibility for oversight.
Mr. Armstrong. Yes, it removes the Oversight Committee's
fundamental process.
Mr. Flores. Dr. Joyce.
Dr. Joyce. Well unconstrained by having to be nonpartisan,
I will say, I do have an opinion, which is that, you know, I
think this is a problem and it is a longstanding problem.
I worked at CBO from 1991 to 1996. CBO is required every
year to do a report on expiring authorizations and unauthorized
appropriations. And as I recall, the number on the domestic
discretionary side, the percentage has been consistently about
40 percent, you know, almost forever.
And I agree entirely that what that means is the Congress
is failing to exercise effective oversight. That is one of the
things I talked about in my testimony. When I say ``effective
oversight'' I mean trying to actually figure out whether
programs are working or not.
Mr. Flores. Right.
Dr. Joyce. I do not mean just hauling somebody before a
committee because, you know, a story appeared on the front page
of the Washington Post.
Mr. Flores. Right. Now there is a set of tools that have
been introduced that would deal with this issue, so I would
like to get the feedback of each of you. And let me run through
the tools, first, and then get your feedback.
The first tool would be mandatory sequesters on sunsets for
unauthorized programs. Specifically, you had initially put the
unauthorized programs on a pathway to sunset in three years,
which would be enforced by reduction of the overall budget
authority based on the total value of the unauthorized
programs.
The second would be to establish a commission that would
have three tools in its portfolio. One is to establish a full
authorization schedule of all discretionary programs at
agencies for Congress to use as tool to keep track of these.
Second, is to conduct a review of all mandatory spending
programs with a view toward the third item, and that is to
the--in the event there is an unexpired program that is
reauthorized by Congress, and the commission would identify the
resources to restore the funding by identifying custom
mandatory programs to use as budget offsets for that restored
funding.
So Dr. Joyce, what do you think about those particular
tools to address this issue?
Dr. Joyce. Well I mean, I have not thought about
sequestration of mandatory spending. I think the idea has merit
with respect to discretionary spending.
Mr. Flores. Well this would be for the--on the
discretionary side.
Dr. Joyce. Oh, that is right. Yes, on the discretionary
side, then I think, you know, anything that you could do that
would turn up the heat, you know, which I think this would do.
Mr. Flores. Mm-hmm.
Dr. Joyce. Because it would say something bad is going to
happen if you do not actually reauthorize the program.
In terms of--you know, I have always had mixed feelings
about setting up sort of, you know, extra procedural committees
in order to do something that the Congress should be doing
itself.
Mr. Flores. Exactly. I do, too.
Dr. Joyce. And so, you know, it--that would be--that is a
relatively desperate step which does not mean it might not be
necessary, it just means I would rather have the Congress do
what it is supposed to do.
Mr. Flores. And Mr. Armstrong, I am down to 14 seconds. So
what I will do is ask you to supplementally answer this, or
just, unless you can give me a yes or no answer; would these
tools be helpful?
Mr. Armstrong. We will supply something for the record.
Mr. Flores. OK, great. Thank you.
Mr. Armstrong. Thank you.
Mr. Flores. I yield back the balance of my time.
Chairman Yarmuth. The gentleman yields back. I now
recognize the gentleman from New York, Mr. Morelle, for five
minutes.
Mr. Morelle. Thank you, Mr. Chairman. And thank you to
the--you and the Ranking Member for holding this important
conversation.
My colleague and friend, Mr. Woodall, and I sat through a
Rules Committee hearing last week to talk about Article I
prerogatives. And so this is very timely that we will be
talking about--and as it relates to the power of the purse. So
I appreciate that, and I appreciate the witnesses bringing
their historical perspective, as well as, their legal
perspective on this issue.
I am pretty new to this process. My first term in the House
and I suffer because I--my point of reference is state
budgeting where I spent two decades in the New York state
legislature. And as my friend, Mr. Horsford, and I were just
talking about it since we both share state legislative
backgrounds, this is a much different process.
So for me, I am--want to ask some basic questions.
Professor Chafetz, did I say that right? Close enough?
Mr. Chafetz. Oh, yes.
Mr. Morelle. When the president and the Congress disagree
about the legality of an appropriations law, like a funding
restriction written into a section of the appropriations law,
how does that get resolved?
Mr. Chafetz. So for the most part, the Justice Department,
through its Office of Legal Counsel, resolves that for the
executive branch. The executive branch treats OLC opinions as
binding. And then in many cases, that is largely going to be
effectively the final word.
There is sort of no--unless Congress wants to come back and
do something about that, it is--in many cases, these will be
non-justiciable, they will not work their way into the court.
And so OLC's judgment on that will sort of stand as the final
word.
Mr. Morelle. So is that like the Red Sox and Yankees
dispute a call and the Yankee umpire gets to choose?
Mr. Chafetz. Something like that.
Mr. Morelle. Is that a bad analogy?
Mr. Chafetz. No, not bad at all.
Mr. Morelle. Do you have a--would you suggest a different
process or a way to resolve that? Because it does seem to me as
though--and not only this Justice Department, but any Justice
Department would, I think, be more inclined to agree with the
executive. I do not know if that has been the historical trend,
but it certainly seems to me that I would expect that to
happen. Is there a better way to do that?
Mr. Chafetz. You are absolutely right that the Justice
Department OLC does tend to side with the executive view on
that, and they actually see that as their, in some sense, as
their mission. That they take a--they try to interpret the law
but with an executive-centered account of the law.
One of the things I suggest in my testimony is what we call
non-severability clauses which is to say if you have an
appropriation that comes with a rider, you say that, you know,
you either take them both or leave them both, right, that you
cannot take the appropriation and leave the rider.
And sort of making that explicit in appropriations statutes
would then present a much harder choice to the executive
branch, right, and for the most part they want these
appropriations.
I mean, we talked about the Impoundment Control Act.
Sometimes they don't want the appropriations, but assuming they
want the appropriation, now they really have to make a harder
choice, and that might sort of force them to make a little bit
more honest of a choice.
I also think that raises a greater likelihood that you
could actually get judicial review of some of these decisions.
Because if they don't spend the money, then there are
potentially private beneficiaries who would have standing--who
would have gotten some of that money who would then have
standing to sue and say, ``Why didn't we get the money?'' And
the government will have to say, ``Well because we determined
that the rider was unconstitutional, and therefore, the
appropriation is unconstitutional,'' and then the court would
have the authority to resolve that dispute.
Mr. Morelle. Very good.
Professor Pasachoff. Did I do justice to--I am really
killing names this morning, I apologize.
Ms. Pasachoff. Pasachoff, but again----
Mr. Morelle. Pasachoff. If an agency or OMB violates a
budget or appropriations law, what happens and how do we find
out about those violations?
Ms. Pasachoff. So some of that is just happenstance. So
sometimes something happens to get disclosed and then GAO does
its work and writes a report about it and the matter is brought
to Congress and the public's attention then.
But when things are not disclosed, there is not sort of an
automatic source of----
Mr. Morelle. There is no systematic way to do it.
Ms. Pasachoff. There is not an automatic source of
knowledge. So one of the things that I write a little bit about
in the testimony----
Mr. Morelle. Yes.
Ms. Pasachoff [continuing]. the written testimony that I
have talked a little bit about today is the importance of
transparency and for Congress to claim more tools to force the
executive to make transparent some of its spending decisions
through, for example, apportionment and through what it does
with reprogramming and transfer.
Mr. Morelle. Yes. Could you talk about that just a little
bit? Expand on that. Well I only have about 30 seconds, but can
you give us some specificity to that?
Ms. Pasachoff. Sure. So Congress has granted OMB the
authority to further specify the appropriations that Congress,
you know, passes into law. And when OMB further specifies,
those have the force of law that the agencies have to follow,
but Congress--those are not public. Congress never sees what
the apportionments--final apportionments are.
Mr. Morelle. So your recommendation would be a report back
to the Congress to----
Ms. Pasachoff. Exactly.
Mr. Morelle [continuing]. delineating or detailing what
those apportionments are?
Ms. Pasachoff. Exactly. That all apportionments be made
public.
Mr. Morelle. Very good.
Thank you, Mr. Chairman. I yield back.
Thank you to the panel.
Chairman Yarmuth. The gentleman's time is expired.
May I ask the witnesses, I know it is kind of weird when
you are talking to the extremities of the dais here, to make
sure you speak into the microphone. I think they had a little
trouble hearing you, Mr. Chafetz.
I now recognize the gentleman from Oklahoma, Mr. Hern, for
five minutes.
Mr. Hern. Mr. Chairman, thank you.
Witnesses, thank you for being here today. I have been in
countless meetings and hearings over the last two weeks, being
critical of the President's budget, yet, I hear no criticism of
this Committee not doing its budget. And some may argue, ``Well
that is not the rule of law.'' But I want to read the
responsibility of this Committee as on our website.
``The Committee's chief responsibility is to draft an
annual, concurrent resolution on the budget that provides
congressional framework for spending and revenue levels.'' It
goes on to talk about that, so we ought to be critical of this
Committee and we ought to be focusing on this Committee's lack
of performance.
You know, I do not blame the Chairman. The Chairman is a
great guy, he really is, I think he wants to do a fantastic
job. We got it out of Committee last year, but what I do blame
is the Speaker, the leader of the House, for not allowing it to
get to the floor.
First of all, this year, not even, you know, just basically
being up front and not wasting any time because we are not
going to even do one. She understands what is going on, we see
it in the Presidential candidates' very divided on their side
of the aisle, and I get it.
But still, it was the Speaker who says, ``Show us your
budget and show your values.'' It goes on in our
responsibilities. It says, ``In the Committee, we pass a budget
that''--it reflects our value system, and yet we are not even
going to pass a budget.
And so I know, based on what I am hearing here, there is
some criticism of the President, and I am not saying there
shouldn't be. But this should be focused on the criticism of
this Committee because that is what we have control of, is this
Committee.
You know, the budget process must be broken because we have
only done it four times since 1974, full appropriations
process, both through the resolution process. It is very
frustrating. I have talked about it. I am a business guy, there
is not a person in here that, when they get into a spending
problem, does not create a budget.
So we have got to live within a budget. There is no
business that does not do that. There is no state, maybe with
the exception of a couple.
We all have balanced budget amendments, programs in our
states. The only place that we can continue to do this and
point fingers at other people for being the problem, is in
Congress. The People's House. And it is a real problem that,
you know, we need to get after.
We keep talking about this, you know, this fix of the
budget process. Say Republican Members, as described earlier,
worked on this process to change it, and unfortunately, those
bills will never see the light of day. I voted for the process
as well. It is just really disappointing for so many of us. And
I believe that if you took all the Members here and you took us
out in the hallway and you interviewed us individually, we
would all say, ``We have got to do a budget.''
Yet, as I described earlier, the politics does not allow
that to happen and the American people, quite frankly, are
paying the price. So when we have trillion dollar deficits, it
is not the President that is creating trillion dollar deficits,
it is the U.S. Congress, us in this room. This is our job.
Now Dr. Joyce, since taking the House, Democrats have
failed to write a budget resolution. The budget resolution is
the only legislative vehicle which Congress can establish a
comprehensive framework for us to legislate priorities and map
a vision to allocate its necessary resources.
Do you believe a budget--creating a budget is necessary? We
will take Congress out of it. Is it necessary for anything,
anyone's long-term fiscal responsibility and important to
governing?
Dr. Joyce. Absolutely. And I would expand by saying that I
think there is a tendency, and I think this is true--this is
not just true recently. There is a tendency to sort of think
forward and think about the fact that, for example, the House
and Senate could not possibly agree on a budget, so therefore,
one should not be done.
The, you know, the purpose of the Congressional Budget Act,
and the reason that the budget resolution was established, was
so--the Congress had no way to articulate an overall vision for
the budget, it was only dealing with the details. The budget
resolution is the only place to look comprehensively at a
budget and establish one. And when you do not do that, it is
not--it is losing an opportunity to offer what is an alternate
point of view to the point of view expressed by the president,
regardless of who the president is.
Mr. Hern. So I want to ask you a question. I only have 48
seconds left. I am just going to--I am going to skip past you
because I would assume you are going to answer ``yes'' to this.
I am sorry. I can't see him, Dr. Armstrong I think, or Mr.
Armstrong, do you think the Budget Committee, you know, let's
say in the past 10 years, has done its job appropriately based
on the responsibilities laid out here, regardless if Republican
or Democrat? I will make it easy on you.
Mr. Armstrong. Well let me just say that----
Mr. Hern. I have only got 23 seconds left. I am trying to
get everybody.
Mr. Armstrong. GAO is not in the position to audit the
Budget Committee.
Mr. Hern. I am not asking you to audit, I am just asking if
we--did we--have produced a budget for you all to be critical
of the President and compare budgets?
Mr. Armstrong. I think that is a factual question and I
would have to look to see how often a budget resolution has
been prepared.
Mr. Hern. You have been there 42 years and you do not know
if in the last 10 years there has been a budget produced?
Mr. Armstrong. My focus in appropriations law is really
transactional. And that is what I look for. I know that there
have been----
Mr. Hern. Sir, I have been here 14 months and I can tell
you there has not been a budget passed.
Mr. Armstrong. And well let me just say that I understand.
It is clear in the Congressional Budget Act that a budget
resolution is an expectation of the act. The Congressional
Budget Act though, simply sets rules for the Congress and the
Congress can choose how to apply those.
Mr. Hern. I agree with you. And I read that, and you are
right, it does not require that we produce a budget. You are
right. But our responsibility is laid out by the leadership
that says we should produce a budget.
And so that is--that was my point in asking that question.
The question, if I had another 10 minutes, is to ask you if
this Budget Committee should even exist because we are not
doing the job.
Thank you all.
Chairman Yarmuth. The gentleman's time has expired. Now I
recognize the gentlewoman from Washington, Ms. Jayapal, for
five minutes.
Ms. Jayapal. Thank you, Mr. Chairman.
And thank you all for being here. This has been a really
interesting hearing. I think you have all articulated very well
how Congress' power of the purse is under threat. And I think
this Administration, but as we have talked about other
administrations, have successfully utilized executive power and
taken away some of the power that really should be with us in
Congress.
Certainly this Administration has clearly demonstrated how
that unchecked executive power can be abused and also exposed
the gaps that all of you have spoken about in law that do
require congressional action to allow any executive, not just
this one, but ones in the future, to truly be required to
uphold that balance of powers that our founders envisioned.
Some of the most egregious examples of this recent abuse of
executive power have included the following: on February 14,
2019, Congress passed the 2019 Appropriations Bill after the
longest partial government shutdown in history. And the
sticking point was Donald Trump's demand for $5 billion in
taxpayer dollars to build a wall. Ultimately, Congress
appropriated $1.3 billion, and the very next day, the President
declared a national emergency to divert billions of additional
dollars to pay for the wall.
Seven months later, the Pentagon revealed the specific
military construction projects that would lose $3.6 billion to
pay for that wall. And in February 2020, one year after the
emergency declaration, the Pentagon announced another diversion
of $3.8 billion in military funds.
So Mr. Armstrong, under current law, what requirements
exist for the White House or relevant agencies to consult with
Congress on the projects that are canceled to divert funds for
military construction under the national emergency declaration
or on specific projects undertaken or on progress of any of
those projects?
Mr. Armstrong. The Administration is required to provide
Congress notice before it takes an action like that. With
regard to the border wall, the Administration and law has
authority to transfer money, but it is tied to a notice to
Congress. And when Congress gets that notice, you guys can
decide what to do with it. But it is--all it requires is a
notice before they take the action.
Ms. Jayapal. And just to pick up on Representative
Moulton's questions earlier, you would not be able to declare a
national emergency just for policy purposes or would you?
Mr. Armstrong. I have never addressed that and GAO would
stay out of whether or not something is properly declared as a
national emergency. When Mr. Moulton and I were talking about
an Administration's policy considerations, we were talking
about an Administration taking action that was outlawed by the
Impoundment Control Act.
Ms. Jayapal. Yes. The question still remains. And I
understand that you would not weigh in on it, but the question
of what determines a national emergency--I do not know,
Professor Pasachoff, if you want to comment on that at all?
Ms. Pasachoff. Oh, thank you. So I do not have the text of
the provision in front of me right now, so I cannot refer,
specifically. But I will say that there are tools that Congress
could put in place using its current authorities, and also new
tools that Congress could put in place.
So using its current authorities, Congress could tighten
these transfer restrictions. Congress could tighten the
reprogramming restrictions, lowering the sums of money that are
able to be moved around. Congress could impose--could put in
riders, limiting--very specifically saying that no sum can be
spent on ``X'', so these are all within Congress' current
powers.
Ms. Jayapal. And tightening the transfer restrictions, can
you--do you have more detail on what that would look like?
Ms. Pasachoff. Sure. So throughout appropriations law there
are general provisions that say that different agencies have
the ability to transfer up to certain sums of money without
notice--without notifying Congress. And then over that amount
of money they do have to notify Congress. And similar things
are true in reprogramming.
So a Congress that wanted to restrict those things could
simply lower the amounts that were required for notice, and
could also just strongly limit the amount that is allowed for
reprogramming or moving around at all, or state that it can
only be done under certain very specific conditions that
Congress sets, and could forbid other kinds of restrictions.
If I could just say one more thing Congress could do within
its current power, is respond to actions that the executive has
taken that it deems unacceptable in the next year's
appropriation cycle. So----
Ms. Jayapal. Thank you. And I only have six minutes, so I
did not get to the migrant protection protocols, but I just
wanted to say that this implementation of it was something that
Congress appropriated zero for in the February appropriations
deal. And so I had some questions around that, but I will have
to save that for the next time.
Thank you all very much.
Chairman Yarmuth. The gentlewoman's time has expired. I now
recognize the gentleman from Pennsylvania, Mr. Meuser, for five
minutes.
Mr. Meuser. Thank you, Mr. Chairman.
I thank you all for being here with us today. A little
earlier, unfortunately, the majority's vice chair tends to use
this forum for political purposes and as political theater. But
he earlier generated a question that I am going to pose to Mr.
Armstrong.
Based upon your earlier statement about breaking the law,
would--can it then be said that a threat made by a senior
Member of the White House to withhold funding from a sovereign
nation or else, basically? Would that also be against the law?
Mr. Armstrong. A threat to withhold money would not violate
the Impoundment Control Act. But an actual withholding of the
money would violate the act. What we found when we looked at
Ukraine, and then the decision we issued in January, was that
OMB had apportioned the money to withhold it, and that was
clear in the apportionment schedules, and the OMB General
Counsel acknowledged that in his reply to my letter. And his
explanation for the withholding was not one that was acceptable
by the--.
Mr. Meuser. And one was proven and the other was not, of
course. Thank you for your very inequitable response.
I would like to move on to Dr. Joyce. Dr. Joyce, this
congressional seating of budget and appropriations power; When
did this start? I mean, the Eisenhower Administration? Kennedy?
Johnson?
Dr. Joyce. Well I mean, it is a complicated answer because
there was a time prior to 1980 when, for example, the failure
to actually enact appropriations on time did not actually
result in the threat of a government shutdown. And then there
was a decision in 1980 that there had to be appropriations or
agencies had no legal authority to operate.
So that is when the heat really got turned up on the
appropriations process. But again, as I said earlier, in only
three of the last 44 years, and that is a bipartisan problem,
has the appropriations process worked the way it is supposed
to.
Now in terms of the budget resolution, as I said in my
testimony, the first 20 years of the Budget Act, there was a
budget resolution every year. And in the last 20 years, there
has only been a budget resolution about half the time.
So if we are looking at the budget resolution itself, I
would say it is a problem that has risen, mostly in the last 20
years.
Mr. Meuser. Is it more of a legal authority, a regulatory
authority, or traditional authority that rings true here? Or
untrue?
Dr. Joyce. Well I mean, there is, you know, there is
nothing--there is no sanction for the failure to adopt a budget
resolution, for example. So I would say that, you know, my view
on this is that the Congress, it--when it does not enact a
budget resolution--and again, as I said earlier, there are
proposals that would say we only do a budget resolution every
two years at the beginning of the Congress.
But on some kind of regular routine basis, it is my opinion
that there should be budget resolution. And when that does not
happen, what essentially is occurring is that the Congress is
forgoing its ability to respond to the president's budget.
Mr. Meuser. Some budget committees and congresses were more
successful in accomplishing a budget than others.
Dr. Joyce. Right.
Mr. Meuser. Why do you think that is?
Dr. Joyce. I think there are two possible circumstances
where it was easier to pass a budget resolution. One is in
situations of unified government. When the House and Senate are
controlled by the same party, we do not have this issue of one
house deciding not to enact a budget resolution because it
cannot imagine the other house ever agreeing with it because it
is supposed to be a concurrent resolution.
The other is when there is something big that the Congress
has decided it wants to accomplish. In 1990, and again, in
1993, there were big, multi-year deficit reduction packages.
Those were bicameral and they also had the agreement of both
the Congress and the President, and the budget resolution was
used because the reconciliation process is such an effective
tool in order to make something like that happen.
Mr. Meuser. You and I probably cannot--I am new to
Congress, so understand this, just as my constituents do not.
The lack of courage of the minority to--if they are in
leadership in the House--to provide a budget that perhaps would
be questioned and needs to show some fortitude for what is best
for the overall rather than scoring political points.
But I am out of time. So I yield back, Mr. Chairman.
Chairman Yarmuth. The gentleman yields back. I now
recognize the gentleman from Virginia, Mr. Scott, for five
minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman. I just
wanted to remind everyone of this chart that I put up
frequently. We have heard about fiscal responsibility. This
chart shows that every Republican president since Nixon has
ended up with the worst deficit position than they started.
Every Democrat has--every Democratic president has ended up
with a better deficit position than they started off with.
And this Administration is well on its way to maintaining
that pattern. I also have heard comments about proposals on the
Democratic side. I would remind the Republicans that under
Democratic leadership in the House, we have PAYGO.
So if we are going to enact one of those proposals, like
Obamacare, it will be paid for. Obamacare was paid for, unlike
proposals on the other side of the aisle, like the prescription
drug benefit, you just pass it and do not worry about it.
So I think it is one side--if one side is going to take
claim for fiscal responsibility, I think this chart shows which
side it ought to be.
Professor Pasachoff, you mentioned appropriations moving
money around and notifying Congress. Is that notice or
permission, and exactly where does that come from?
Ms. Pasachoff. So there is two different ways that the
executive branch can move money around. One is through a
transfer of money, which moves money between different
appropriations. There has to be specific statutory authority
for the executive branch to do a transfer.
Mr. Scott. Without that authority it can't take place?
Ms. Pasachoff. Without the authority it can't take place.
Reprogramming, which moves money around within a single
appropriations, is generally understood to be something that
the executive branch can do, that is part of what Congress
allows it to do, when it gives a lump sum authority unless it
makes more specific limitations on that.
You asked about notice and permission. So because of the
Supreme Court decision that said that one house, one committee
cannot be formally--cannot actually give permission because
that does not count as legislation, it has got to just be
notice. It can be permission, but sort of in a loose,
traditional sense; not actually in a mandatory, legal sense.
Mr. Scott. The suggestion was made that violations of
Antideficiency should be a criminal offense.
Ms. Pasachoff. So in the current Antideficiency Act, any
officer or employee who violates certain provisions of the
Antideficiency Act might face administrative penalties like
loss of a job or loss of some pay. Knowing and willful
violations could become a criminal at.
Mr. Scott. Under present law?
Ms. Pasachoff. Under present law. So the suggestion is that
currently, it is not that people are routinely charged under
those--with violations. But that allows civil servants to say
to political people of whatever party, ``I won't do that. It is
against the law. I do not want to go to jail for this.''
So the idea is that there are no criminal penalties. There
is no administrative penalties currently in place in the
Impoundment Control Act which leaves civil servants really at a
loss for how to push back.
Mr. Scott. And Professor Chafetz, you were talking about
the Antideficiency Act, too. Who has standing to complain after
the OLC makes the declaration? Who has standing to complain?
Mr. Chafetz. Well that would be sort of appropriation
specific. So if there is some party that would have--or this
would be under the Impoundment Control Act. If there is some
party that would have received a--an appropriation that then
does not receive that appropriation, they would have standing
to raise that in court.
Mr. Scott. In court?
Mr. Chafetz. Yes.
Mr. Scott. Several of the committees having challenges
getting cabinet secretaries to come before their committees to
defend their budget. What should the legislative reaction be to
failure of a cabinet secretary to show up?
Mr. Chafetz. Well I think, you know, the House in recent
years, under both Republican and Democratic leadership, has
made increasing use of the contempt of Congress mechanism. I
think that is certainly available after repeated attempts to
get someone to come forward.
And then, you know, one way to enforce contempt of Congress
is through the power of the purse, is through saying, ``You
know what? If you are in contempt of Congress, we are not going
to pay your salary next year,'' or ``we are going to tighten
your department's budget in various ways for next year'' in
ways that sort of really amp up the pressure----
Mr. Scott. Can you aim that sanction at a specific
position?
Mr. Chafetz. Absolutely. You can zero-out a specific salary
in appropriations.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Yarmuth. The gentleman's time has expired. And now
I recognize the gentleman from Georgia, Mr. Woodall, from--for
five minutes.
Mr. Woodall. Thank you, Mr. Chairman. I was watching Mr.
Scott's eyes get wide at the professor's suggestion. I do not
remember his same enthusiasm during the Obama Administration
when we were going down that same path of zeroing out salaries.
But we might not have been as close then.
Mr. Scott. And what is your point?
[Laughter.]
Mr. Woodall. The point that I would like for you all to
talk a little bit off topic is, you know, we go back and we
look at 1974 and the Budget Act, and we look at 1976, the
National Emergencies Act. We were kind of united here as an
Article I institution reacting against the overreaches of
Article II.
I have read your testimony, I have looked at all of your
suggestions. But those are largely moot if we are going to
continue to operate as a parliamentary institution where the
President's party supports the President, and you are a
Republican or Democrat first and a member of the Article I
second. Being willing to zero out the Trump Administration
salaries and not Obama Administration salaries would be one of
those things, and the shoe would be on both feet there.
Take me back to when we had a good President from the great
state of Georgia, six funding lapses in four years, but no one
went without a paycheck, no government services went unmet. I
know you might not be able to express an opinion, Mr.
Armstrong, but--the opinion helps us in Article I, empowers us
in Article I or diminishes us in this funding dance that
happens on Capitol Hill? You mentioned it, Dr. Joyce.
Dr. Joyce. I think it helps you, but it only helps you if
you want it to, you know, and what I mean by that is that it
basically says that agencies cannot just continue to spend
money when the Congress has not provided for that spending. But
the record is not very good, as you know, of, you know, having
that actually lead to more timely appropriations.
And I think the focus often gets on government shutdowns.
And government shutdowns are bad. But the routine practice of
continuing resolutions in one's--in my mind is worse. And it is
worse because it is more invisible, what the sort of insidious,
you know, eating away at the effectiveness of the executive
branch is.
And there are all kinds of--GAO actually did a really good
study in 2009 that really documented what the problem was that
was created by late appropriations being--quite aside from
whether there were shutdowns or not.
Mr. Woodall. Do my two academics share that belief that it
is not inherently disadvantageous to Article I and could be a
positive? Professor, just----
Ms. Pasachoff. If I may add, I would just say that it could
be even more advantageous if you would import some of it into
actual law and specify, for example, what are the--the
executive branch can read, very broadly, under different
administrations what constitutes the necessarily implied by
law. And so the Article I could take even more power back if it
would clearly specify examples that you think are--fall into
that category and that do not.
Mr. Woodall. Thank you.
Mr. Chafetz. I also agree, and I would point out that while
shutdowns are bad, I agree that sort of taking them off the
table is worse. And one thing I would point to, for example, is
2011 there was very nearly a shutdown. I think we came within
about an hour or two, and that resulted in massive policy
concessions across the board from Democrats who controlled both
the Senate and the presidency to Republicans, right, that was
an example of budget brinksmanship that created massive policy
shifts.
And whether or not, you know, various people agree with
those policy shifts or not, it was an example of sort of
successful tugging on certain powers.
But I agree with Professor Pasachoff, that some of the
constraints need to be tightened. And in particular, in the
Antideficiency Act, the language that it actually uses is
emergencies involving human life or property. And that then, in
OLC opinions, becomes essential government personnel, which
then becomes manipulated by presidents of both parties to cover
huge swaths of the government, but then to exclude things where
they want to concentrate pain.
One thing I would urge Congress to do is tighten up the
definition of what voluntary services can be accepted during a
lapse in appropriations.
Mr. Woodall. I appreciate that, and I appreciate the focus
in so many of your testimoneys about the Antideficiency Act. We
have been having administration witnesses come forward to
testify on their budgets in this Committee, and those folks
have gotten a lot of severe tongue lashings for the ideas they
have laid out there. And as my colleagues have mentioned, we
have not laid out any ideas; always easy to target folks who
have laid ideas out.
All of these things we complain about, we could just fix,
right, the chart that Bobby Scott loves to put on the TV of
presidents and who is spending what. Presidents do not spend
money, right, the question is who was in control of Congress
during those times, because the only person who could spend a
dime is the U.S. Congress.
We like to target blame, which brings me to the Impoundment
Act and adding of the criminal penalties. I do not like putting
civil servants in jail. I do not like threatening civil
servants with jail. Knowing and willfully, the only standard
that would be acceptable. Talk to me about how we have used
that threat in the Antideficiency Act, because I do not think
kicking public--kicking civil servants is a sport on Capitol
Hill. I do not think we need to do that, but we do need better
policy outcomes.
Ms. Pasachoff. May I answer? I see we are----
Chairman Yarmuth. You may answer.
Ms. Pasachoff. So it has actually taken me a long time to
come to terms with this because my initial instinct is I, too,
do not want to be punishing civil servants for the hard work
that they do on behalf of the American people every day.
Where I have eventually come to is that the--it acts as a
deterrent. It actually is--it empowers civil servants to say,
``I will not violate the law.'' And so that is the good effect
that those penalties have. Administrative first, and then
criminal for knowing and willful only.
They allow civil servants to push back on supervisors who
may be enticing them to break the law. And that kind of
parallel penalty structure would empower civil servants in the
same way. Not punish them but empower them to resist being
forced to violate the law.
Mr. Woodall. Thank you.
Thank you for your indulgence, Mr. Chairman.
Chairman Yarmuth. All right. You thought you had 10 minutes
again. The gentleman's time has expired. I now recognize the
gentleman from California, Mr. Panetta, for five minutes.
Mr. Panetta. Thank you, Mr. Chairman.
And before I get into my opening, I just want to followup
on that, Professor Pasachoff. I mean, so you would recommend
criminal penalties be in place, and you recommend it as a
deterrent it sounds like.
Ms. Pasachoff. Right. So first, again, just to be clear,
these are the same penalties that already exist in the
Antideficiency Act, and no one is ever criminally charged,
right, so just to be very clear----
Mr. Panetta. They never have been in history?
Ms. Pasachoff. GAO actually probably has more information
about that than I do, but it is not anywhere near a current--
anywhere near a common occurrence. What these penalties allow
civil servants to do is say, ``I cannot take that action
because it would violate the law.'' So those are the kinds of
parallel things I am talking about for the----
Mr. Panetta. Understood, understood. And what about the
Impoundment Control Act? Are there any--I mean you--earlier you
talked about administrative criminal which you mentioned just
now. In the Impoundment Control Act, what are the penalties?
Ms. Pasachoff. There are not any.
Mr. Panetta. Would you recommend there being the same set
of penalties starting off with the administrative and starting
off with the criminal? In your opinion, would you recommend
that?
Ms. Pasachoff. I would recommend that because it would
protect civil servants and allow them to do their job while
following the rule of law.
Mr. Panetta. And when you say ``criminal,'' so you would
actually think about fines and incarceration?
Ms. Pasachoff. I would import exactly the same structure
that it currently exists in the Antideficiency Act with the
recognition that it acts as a shield, not a sword.
Mr. Panetta. OK. Great, great.
Professor Pasachoff and all of you, thank you for being
here. I appreciate this opportunity in which you can sort of
remind us legislators, reinforce the fact that the Constitution
is clear, is that we do have the power of the purse and that it
is us and not the president that should determine how our
government and its programs are funded.
As we have seen, presidents throughout the years have
sought to gain more influence over spending. Past presidents
have gone beyond simply presenting just a budget, but instead,
seeking to move funds for their own priorities, are choosing
not to spend them at all against the wishes of this legislative
body.
And I think as you are hearing today, clearly, this really
is not a partisan issue, and not a partisan issue here in this
budget room; whereas, Republicans and Democrats should both be
willing to stand up for the authority of Congress, really no
matter which party has the power of the executive branch.
And so as we examine the ways to protect Congress' power of
the purse, I am glad that we are having this type of hearing,
and I do hope that this session can better inform and motivate
us, and our legislative efforts.
Now, one of the areas I think it was briefly mentioned,
what I heard just for the first time--and I came in late, so I
apologize--were shutdowns. Something that obviously we do not
like mentioning too often, but unfortunately, it does happen as
I have experienced in my just very limited time here.
Professor Chafetz, what powers and flexibilities does the
executive branch have during a shutdown and how might we want
to curtail or maybe expand them if possible?
Mr. Chafetz. Right. So the executive power during a
shutdown is determined by this language in the Antideficiency
Act allowing for the acceptance of voluntary services, either
when authorized by law, so in some specific statute, or when
the--when necessary to preserve human life or property.
Now that could be understood very narrowly, right, you
could understand, sort of, necessary to preserve human life or
property as being sort of limited to just some subset of the
traditional law enforcement agencies or something like that.
Presidents have consistently understood it and relying on
OLC opinion since the early 1980's, understood it as a much
broader set of civil servants, and exactly how broad is
elastic. And basically, OLC has been allowed to have the last
word on just how broad that category is. And you can sort of
sense their success and the fact that we do not even use that
language in ordinary discourse. We do not talk about
emergencies involving life or property, we talk about essential
government personnel. That language doesn't come from statute,
that comes from OLC.
Mr. Panetta. All right, great. Thank you. Now obviously,
you know, in this body you have got hundreds of members and you
have thousands of legislative issues. But unfortunately, the
time when we think about spending comes just during the
appropriation season or when a budget is released it seems
like.
And so I would ask, Professor Chafetz, what recommendations
do you have as to how we can do a better job in conducting
oversight of executive spending actions?
Mr. Chafetz. Well a big part of that is--I would say is
increase in congressional capacity. And as I mentioned earlier,
I think the proposals adopted yesterday coming out of the
Modernization Committee are a step in that direction.
But if you look at the number of staff, both member staff,
committee staff, and staff at organizations like GAO, CBO, CRS,
it is way down from its highs in the 1980's and 1990's. Staff
tenure is down, staff real pay is down. Staffers are actually
paid less in real dollars today than they were two decades ago.
That really makes it much harder for Congress, as an
institution, to do effective and continuing oversight. So my
biggest piece of advice in this realm is just that Congress
needs to bulk itself up. The administrative state has--is huge
and has been growing, not only in absolute terms, but very much
relative to Congress, and therefore, relative to Congress'
ability to keep tabs on it.
Mr. Panetta. Thank you. And thanks to all of you.
I yield back.
Chairman Yarmuth. The gentleman yields back. I now
recognize the gentleman from Texas, Mr. Crenshaw, for five
minutes.
Mr. Crenshaw. Thank you, Mr. Chairman.
And thank you, everybody, for being here on this very
important topic. It has been a really thoughtful discussion and
I really appreciate a lot of the interesting suggestions that
everyone on the panel has offered.
Oversight to me means a couple things. It is ensuring that
we are spending the money properly; ensuring that the executive
branch is executing our authorizations properly. And we talked
a lot about that. I think on the other hand, oversight also
means making sure that we are not saddling our next generation
with a burdensome debt, and I want to talk about that in the
latter part of my questioning here.
But first, Dr. Joyce, your testimony mentions portfolio
budgeting. This is one of the reforms included in the Senate's
Bipartisan congressional Reform Act. Can you please explain
what portfolio budgeting is and how many portfolios you would
envision in a budget resolution?
Dr. Joyce. Well I mean, essentially, what portfolio
budgeting does, and this is an idea that was first advanced by
Steven Redburn who used to work at OMB, and the late Paul
Posner from George Mason University. And the idea is that, you
know, we get pretty focused on whether something is mandatory
spending, or discretionary spending, or tax expenditures, for
example.
But what is essentially happening is that we have an area
like housing and there are a number of different tools that we
have in the housing area. And some of them are in the tax code,
and some of them are mandatory, and some of them are
discretionary. And what this really does is encourages more
thinking about which of those tools are most effective in a
particular policy area.
So the focus is on the policy area; it is not on whether
something happens to be discretionary, or mandatory, or a tax
expenditure.
Mr. Crenshaw. Right. And that would be somewhat of a change
to the process. And I mean, are--you mentioned earlier though,
that the problem is the operation of the process.
Dr. Joyce. Right.
Mr. Crenshaw. Not the process itself. Does that mean--I'm
just curious--does that mean we are doomed to never pass a
budget correctly, no matter what the process is? I mean, what
are your thoughts on that?
Dr. Joyce. I have thought about what the, you know, what
the incentives might be to actually using the process as it was
intended. You know, essentially, what has happened in the past
is that the process has been used at times when the moon and
the stars, you know, sort of aligned and people decided that
they wanted to do something.
I mean, what happened in, you know, 1990 that led to the,
you know, what was the Budget Enforcement Act, which is where
pay as you go came from. For example, was that, you know, the
two parties actually got together, and they said, ``The deficit
is a problem and we want to do something about it.''
So it has to start there. And I think that often, there is
a tendency to think that there is some cute procedural trick
that we can come up with to make people do things that they do
not want to do. But I think that they have to want to do them,
first, and then the process can be used as a vehicle to make
those things happen.
Mr. Crenshaw. I was hoping you could also expand on the
wording you used in your testimony about how we need a more
difficult but important kind of oversight and--what does
effective oversight of the executive branch look like?
Dr. Joyce. I think effective oversight of the executive
branch is asking the hard questions about what it is that the
Congress intended when it established this program, and is that
program accomplishing what it is that the Congress wanted it to
do. And that is much harder to do than the kind of oversight
that I think you see too much of, which is, you know, somebody
did something wrong or someone thinks that somebody did
something wrong----
Mr. Crenshaw. Mm-hmm, right.
Dr. Joyce [continuing]. and they get hauled before a
committee and they get yelled at. Well you know, that is good
theater, but it does not--it is not that helpful in terms of
making sure the programs operate better.
Mr. Crenshaw. Right. And that feeds into the suggestion we
heard just a minute ago about expanding our own resources to
actually identify whether a program is doing well.
On the other side of oversight, I believe, fundamentally is
again, getting ahold on the growth of our debt. And as we all
know, the numbers are not in dispute. Mandatory spending is by
far, the biggest driver of our debt. How can we wrap that into
the budget process? What would be a reasonable suggestion to
make?
Dr. Joyce. Well I mean, it is wrapped into the budget
process in the sense that it is the budget resolution and the
reconciliation process that is the most effective tool in terms
of the ability of the Congress to actually change that path.
And so if you do not have a budget resolution, you do not
have reconciliation. And if you do not have reconciliation,
then it is very difficult to change the path of mandatory
spending. I will say at the same time that, you know, that when
you have a debt of this size, the answer is not whether you are
going to cut mandatory spending or discretionary spending, or
whether you are going to cut spending or raise taxes. The
answer is all of the above.
And you know, and so I think in the budget resolution, we
would have to get to a place where there are changes in
mandatory spending and discretionary spending and consideration
of revenue increases in order to get out of a hole the size of
which we have dug ourselves.
Mr. Crenshaw. I have run out of time, and of course it is
up to the Chairman, but I would love to hear the other
panelists' answers to those questions as well.
Chairman Yarmuth. Does anybody want to chime in? Well I
will allow it if anybody wants to comment on that.
[No verbal responses.]
OK. The gentleman's time has expired. I now recognize the
gentleman from Nevada, Mr. Horsford, for five minutes.
Mr. Horsford. Thank you, Mr. Chairman, and to the Ranking
Member for holding this hearing, and to our experts.
You know, my constituents and most Americans want Congress
to do its job. And I believe the budget process is one of those
areas; it is one of the reasons I am honored to be a Member of
this Committee.
My colleagues on the other side have said a number of times
today, and during previous hearings, that the House Democrats
have not done its job. And yet, on August--or excuse me, on
July 25, 2019, the House passed Public Law 11637 by a vote of
284 to 149; 65 Republicans voted for that bill including the
Ranking Member and several Members of this Committee. That bill
set the spending limits through 2021, and it was done in a
bipartisan way with both chambers, and it was signed into law
by the President of the United States.
So the misleading information that continues to come out
from the other side about the House not doing its job, you
voted with us to set these spending limits. So let's be
accurate about that with the American public.
My question to the panel first is does the Constitution
give Congress the power of the purse? Yes or no to all the
panelists. Quickly.
Mr. Chafetz. Yes. It requires expenditures to be made by
law. Congress is the one that passes laws. Obviously, there is
Presidential participation in that process, but fundamentally
first and foremost, the responsibility rests with Congress, and
first and foremost, with this House because of the origination.
Mr. Horsford. And that power was not given to any
president, correct?
Mr. Chafetz. Correct.
Mr. Horsford. So the core goal of the U.S. Constitution is
to divide powers between all three branches of government in
order to prevent any one branch from gaining dominance. The
Appropriations Clause in the Constitution states that, ``No
money shall be drawn from the Treasury, but in consequence, if
appropriations made by law.''
Mr. Chafetz, you mentioned in your statement that once the
Constitution was ratified and the new national government was
up and running, the earliest congresses made clear that they
understood themselves to have special responsibility for
matters of the purse.
Can you expound upon how the first three departments:
Foreign Affairs, War and Treasury were set up? And I am
specifically interested in how and why Treasury was set up the
way it was.
Mr. Chafetz. Sure. And one of the first things that the
first Congress does when it assembles is creates these first
three executive departments--or those first three departments.
In the organic statutes, both Foreign Affairs and War, are
referred to as executive departments. They are created with the
secretary and the secretary's given the authority to hire a
clerk, but basically no staff beyond that, and they are
required to take direction from the president.
The organic statute for the Treasury Department is
different. It does not refer to it as an executive department;
it creates a lot more personnel. So in addition to a secretary,
it creates a treasurer, a comptroller, and several other
officers, and it does not say anything about taking direction
from the president.
But it does say that the--it does require all kinds of
reporting to Congress, each of these different officers is
given special reporting requirements to Congress.
I think what we can take away from that difference in these
organic statutes is that the Treasury was seen as being closer
to an arm of the legislature than to--than something like
Foreign Affairs or War, which were seen as purely executive.
So there is this idea that Congress had this special
responsibility right from the beginning for matters of
spending.
Mr. Horsford. I think that is a very important distinction
and something that the structure of the separation of powers is
key for all of us to understand. I want to turn finally to the
Impoundment Control Act. The Congressional Budget and
Impoundment Control Act of 1974 responded to President Nixon's
abuse of the apportionment process.
The law reassorted Congress' power of the purse by
prohibiting the president from apportioning funds for policy
reasons, and by establishing procedures to prevent the
president and other government officials from unilaterally
substituting their own funding decisions from those of
Congress.
Right now, the current President has made unilateral
decisions to move congressionally approved funding for various
military projects after the House and the Senate agreed, in a
bipartisan basis, to not fully fund his request multiple times.
We gave him some money to repair fencing along the border, but
he wanted even more money to build an ineffective wall which he
eventually took from the Defense Department's budget.
I, for one, believe this is an abuse of power. Do you have
any recommendations for changes that we should make to the
statutes or institutions that shape federal spending decisions?
What can we do to protect the separations of powers and make
sure the executive branch follows the law when it comes to
spending?
Mr. Chafetz. May I answer this one?
So one of the big problems in my view with the National
Emergencies Act is that when the president does declare an
emergency and transfer power, Congress then has the ability to
pass a resolution of disapproval. And as you know, both houses
did, in fact, pass such a resolution, but not with vetoproof
majorities.
I would suggest flipping the burden, so that is to say,
have the National Emergencies Act where the president can
declare an emergency for a brief period of time, say 60 days,
and unless Congress comes in and ratifies that within 60 days,
then the emergency goes away, rather than saying that Congress
has to come in and undermined the declaration of emergency.
And that would, I think, allow the sort of necessary
flexibility for true emergencies, but prevent the abuse of the
emergency power for things that really just seem like policy
disagreements.
Mr. Horsford. Thank you for your indulgence, Mr. Chairman,
I yield back.
Chairman Yarmuth. All right. The gentleman's time has
expired. I now recognize the gentleman from Texas, Mr. Roy, for
five minutes.
Mr. Roy. Thank you, Mr. Chairman.
I thank all the witnesses for taking your time for being
here and spending time with us here today.
I appreciate having somebody who is a, I guess, a visiting
professor at the University of Texas. I am proud to represent
West Campus, which is of course, pretty much fraternities and
apartments. I do not have the academic portion; I have the more
fun portion of the campus, but I am delighted to have somebody
here from Austin.
I introduced, about a year ago, I have to go back and look
at the date, H.R. 1755, the Article I Act. It is the companion
bill to a bill introduced by Senator Mike Lee in the U.S.
Senate. The purpose of which is to sort of reset the way we
deal with national emergencies.
Many of you know that there are--I think there has been 59
total emergencies since 1976 declared 33 are still in effect.
That is absurd. I mean, it is absurd that we have got
emergencies that are--that were declared, and that are still
operating, and in effect since the Carter Administration, I
believe, if I am correct.
And so I would invite my Democratic colleagues to look at
H.R. 1755. It is an effort to, again, reset the way we deal
with it by essentially saying in all cases, the president's
emergency declaration would unlock emergency authorities for an
interim period lasting no more than 30 days. It would basically
reverse where we currently just--it kind of continues, and if
we do not act, it just keeps going. It would say it ends. And
then we have to--Congress has to act or the emergency
terminates. I think that would be a better way to go about it,
right, is the sort of inherent definition of emergency. So I
would be happy to work on a bipartisan basis to try to address
that.
Now, I would say that from my standpoint, the power of the
purse--and I am wondering how Dr. Joyce feels about this. If we
want to exercise the power of the purse to restore the balance
of power, if we think that there is a balance of power problem,
whether it was under the Obama Administration if you are
Republicans, vice versa. Or if we are not even wearing our
partisan hats, and we just say, ``Look, we just want to try to
restore the balance of power between Congress and the executive
branch,'' we always have the ability to act.
We can come together as Congress and say, ``Do not fund
that,'' and fill in the blank, whatever it is. We can choose to
do that, if we will go through the appropriations process and
act.
And just frankly, our real problem is that we do not have
an appropriations and/or budget process combined that has us
ever sit down as a group of individuals around a table like our
families, or any businesses do, and actually do our job.
You know, my family, we all have to sit around and decide,
``Well, I mean, our kid is going to do this. Go to this
school.'' ``Are we going to have these cars?'' ``Are we going
to,'' you know, ``make these choices?'' ``Do we take a vacation
this year? Do we not?'' You know, whatever it is. ``Are we
going to pay for this healthcare?''
And you have to make choices. But we never do, ever. We
literally never make a choice. We just keep spending into
oblivion. And now we are at $23.4 trillion in debt. We are at
$110 million an hour. The White House and this body, no matter
what I protest and vote against, which I probably will, is
about to spend an ungodly amount of money in the name of
stimulus that won't likely stimulate a damn thing. Not unlike
the alleged stimulus from 2009 or 2010.
And what are we going to do? We are going to have, instead
of a trillion-dollar deficit this year, we are going to have a
$1.6789 trillion deficit. We have got to stop just going to our
partisan corners and shooting at each other by saying, ``OK. We
want defense spending. We want non-defense discretionary. What
the hell? Let's just raise it all, raise the caps.''
I respectfully disagree with the gentleman. I just voted
against those caps. I voted against those cap increases. I am
out right now because of time. I appreciate it. I would like to
have a dialog, I would. And we should have a roundtable
discussion on this. Let's sit down and just roll our sleeves up
and work like any American family does and figure out how to
spend within our means. What are the dollars that are going to
come in the door and then make the tough decisions that you
have to do.
If we do that, I would pause it that Article I would be
stronger. That Article I would then be put in a position of
balance against Article II. Because right now, we just throw
money at the wind and we let those bureaucrats run with it no
matter which party is in the White House.
Dr. Joyce, I will just leave it to you to see if you agree
or disagree, if you have anything to say on that.
Dr. Joyce. Well so, I teach budgeting, and I have been
public budgeting, and I have been doing it for a long time. And
my kids say, ``That's a job?'' But you know, it is.
And so, you know, I have studied a little bit what
effective budgeting looks like. And the thing is, that
effective budgeting always involves compromise. And what
compromise means is that nobody gets exactly what they want.
And when, as you suggest, people just go to their partisan
quarters, and you have a group of people that are opposed to
one kind of change unalterably, and another group of people as
opposed to another kind of change, unalterably. All that means
is that you are not able to, you know, to get to agreement.
And so I think we have a budget that is more less on
automatic pilot, and automatic pilot is not working. And so,
you know, I do not know. Because, you know, if you--I am not a
political scientist and it is dangerous for me to pretend to be
one. But, you know, we have this sort of disappearance of the
moderates, and the moderates used to be the people that
actually sort of helped make things happen.
Mr. Roy. Do not imply that I am a moderate or some people
back home are going to get a little concerned. I am just
kidding.
Thank you, Mr. Chairman.
Chairman Yarmuth. Certainly. The gentleman's time has
expired. I now recognize the gentleman from Pennsylvania, Mr.
Boyle, for five minutes.
Mr. Boyle. Thank you, Mr. Chairman. And given the last
exchange, let me just say thank you to President Obama and
pragmatic Republicans like Hank Paulson and Ben Bernanke. We
thank God did not listen to those voices who were preaching
austerity and pushed through with the stimulus that helped save
our economy--the worldwide economy, and lead to this historic
11-year economic expansion, the longest in American history,
right up until this latest crisis with the coronavirus. And I
hope that we will all learn the lessons from that history and
not retreat to ideological camps.
Now, Mr. Chairman, I want to applaud you for having the
vision to hold a hearing like this because too often around
here, we spend 99.9 percent of our time dealing with the urgent
issue of right now and not taking a step back to have a more
thoughtful discussion process-wise about how we can improve
things for the future.
In my six years now here, probably the most asinine thing
we do are these government shutdowns. So as I went to work on
attempting to positively come up with a constructive solution,
in my own research, I discovered that this a relatively new
phenomenon. That it is only because of a legal interpretation
by the Attorney General in the Carter Administration that we
even have the concept of government shutdowns.
I introduced legislation that would--that is simply called
the ``Ban Shutdown Act'' that would prevent all future
government shutdowns. The way it would work is simply when the
appropriation expires, things would continue on autopilot until
there was a new appropriation.
Now, I recognize the limitation in that approach. It is
certainly not ideal. But my view, it is far superior to this
endless cycle of government shutdowns that actually cost us
more money and have a negative effect on the economy.
So I would like to ask you what you think about that
approach, and frankly, if you could suggest--if you have any
suggestions on how we could end this cycle of government
shutdowns. If you do not like my legislative approach, then
certainly interested in hearing any and all good ideas to once
and for all, solve this completely needless problem. And that
is open-ended to any one of you.
Dr. Joyce. I will say that I definitely agree with you
about government shutdowns. My concern about automatic
continuing resolutions is that what we could end up doing in
the first place is taking away, you know, what is--what I would
view to be sort of an essential, you know, stick that can be
used, which is the threat of a shutdown.
And I think if we get to the place where we are just
encouraging more and longer continuing resolutions, that has an
effect that is not as visible, but is none the less harmful.
So I really understand your motivation. I do not know if
you have seen the bill that Senator Lankford has introduced in
the Senate, but he has a similar kind of bill. And the
difference in that bill that I have seen is that he not only is
prohibiting government shutdowns, but he is actually also doing
things like prohibiting all congressional travel until a--you
know, until an actual appropriation bills are enacted.
So in my mind, you would have to couple the automatic
continuing resolution with some kind of sanctions that force
people to come to the table.
Ms. Pasachoff. If----
Mr. Boyle. While at the same time not going down the sort
of gimmicky----
Dr. Joyce. Right.
Mr. Boyle [continuing]. road that sounds great in a
populist way but does not actually achieve anything.
Dr. Joyce. Yes, yes. Not doing things like, you know, just
saying people are not going to get paid.
Mr. Boyle. Yes, that is what I am implying. Yes.
Professor----
Ms. Pasachoff. So I worry about giving away too much
Congress' power of the purse if you would go down that route.
So respectfully, that is my concern.
Mr. Boyle. Yes.
Ms. Pasachoff. I will say that I think a stronger mechanism
might be to make it harder for the executive branch to operate
during a shutdown. Not again to punish anybody, but when
government is allowed to continue funding services and bringing
in lots of people which it did during the last shutdown. And
different administrations can make different choices. It
reduces incentive to compromise. And I think that what you need
to end a shutdown, and what you need to get to some kind of
work that serves theAmerican people, is to compromise more.
So I would say importing some of those restrictions that we
talked about from the OLC memos into law, and further
tightening them so that it limits what the executive branch can
do to keep a government going, even when there is a shutdown.
Mr. Chafetz. If I could just come in real quickly on this.
I think also it is worth remembering that government shutdowns
are not always caused by congressional failure to pass
appropriations.
So the 1994, 1995 shutdowns were passed by President
Clinton vetoing appropriations bills, right, so then sort of
suggests that it is necessarily Congress' fault. The problem
with an automatic CR in my view, is that it basically massively
strengthens the president's hand in any kind of bargaining with
Congress, right, it says to the president, ``As long as you
prefer the current levels of spending to whatever Congress
might come up with on its own, then just refuse to work with
Congress, you will get your automatic CR and it is better.''
The only way to move off of the status quo on that view would
be to move toward the president.
That, in my view, would be a huge abdication of
congressional power of the purse. And something like Senator
Lankford's proposal does not actually solve that either. It
just makes it harder for Congress to stick to its guns. So this
would be a massive transfer of power, I think, to the executive
branch.
Chairman Yarmuth. The gentleman's time has expired. I now
recognize the gentleman from Michigan, Mr. Kildee, for five
minutes.
Mr. Kildee. Thank you, Mr. Chairman, for holding this
really important hearing.
Like Mr. Roy, I do share the concern about Congress
reasserting its authority. And while we may occasionally travel
different paths, and sometimes wind up in vastly different
places, when we do come to the same conclusion, even if it is
from different motivations, I think we are obligated to work
together.
So if that possibility is open, I think we need to pursue
it. So I appreciate comments. I do think it is important that
we take care to scrutinize not only the spending decisions that
we make, and the impact that they have on the national deficit,
but the choices that we make about revenue policy, and tax
policy, which also have those detrimental impacts.
And so we just need to be honest with ourselves about the
effect that our decisions have. Obviously, Congress needs to
assert its constitutional authority. The only way that our
democracy survives is if we adhere to the rules set forth by
our founders in the Constitution. And that means acting when a
president fails to adhere to the same set of rules, no matter
who that president might be.
The Constitution is clear, the president cannot spend money
that is not appropriated by the Congress for specific purposes,
and that the president must, must spend those dollars
appropriated by Congress for the purposes that we intend.
People in communities all across the country rely on that,
not just because of the imperatives that the Congress think, in
its collective wisdom, are important priorities, but because
that means we are adhering to the rule of law. We are doing
what the framers anticipated.
Dr. Joyce, you wrote in the Washington Post that the CBO
has put Congress on a more equal footing with the President and
made the budget process more transparent. And as a person who
long admired Alice Rivlin and, I think, much of her legacy is
built upon the foundational work that she did in this space to
protect the independents of Congress by ensuring that the CBO
played that important role.
Can you, maybe with that as backdrop, offer some thoughts
about how the CBO itself promotes a more appropriate balance of
power and transparency in this process with the executive
branch?
Dr. Joyce. Well I mean, thank you for having read that, and
also, so this is a dangerous question to ask because I wrote an
entire book about the CBO, but I will try to do it in a minute.
You know, prior to the existence of CBO, the Congress had
no way of systematically challenging information and numbers,
really, that came out of the executive branch. And the history
of CBO is a history of CBO empowering the Congress to respond
to Presidential proposals, both policy proposals and budget
proposals. And that was true with the Carter Energy Policy in
1976, it was true with the Reagan budgets in the early 1980's.
And so this enables the Congress to be able to effectively
challenge the executive branch. It also very importantly, gives
the Congress a nonpartisan source of information on just what
the effects of various policies are.
Prior to the existence of CBO, if you wanted to ask how
much a bill cost, then there were two sources of information
for that. There was either the committee that produced the
bill, which had every incentive to downplay the cost of the
bill, or there was the executive branch, which miraculously,
thought bills that it didn't like cost a lot of money. And
bills that it did like, did not cost much money at all.
Mr. Kildee. I wonder if you might comment. This may have
been covered before I arrived, it has been a busy day. And what
tools you might suggest that the CBO be granted----
Dr. Joyce. Mm-hmm.
Mr. Kildee [continuing]. in order to more effectively deal
with what we have had recent examples of. And to be fair, I am
sure there are examples that cross the span of time, but there
have been more egregious examples of the Administration
withholding money that Congress appropriated for a specific
purpose, or spending money that Congress did not approve for a
specific purpose. Can you talk to any of the tools that you
think CBO, specifically----
Dr. Joyce. Right.
Mr. Kildee [continuing]. or any other agents of government
should have in their hands to prevent that?
Dr. Joyce. Well I mean, you know, it is really GAO that is
in the position of, you know, opining in terms of whether the
Administration has effectively followed the law or not. Because
it is GAO that gets involved in the, really, the budget
execution process. You know, CBO is more sort of upfront when
you are making decisions on what to do.
You know, I am hesitant to say that CBO should have any
enforcement authority because I think the whole idea of being a
nonpartisan agency and then having enforcement authority is
just going to get it in a lot of trouble.
So CBO is about providing information, and then it is up to
the Congress how it wants to use that information.
Mr. Kildee. Thank you.
My time is expired. I yield back.
Chairman Yarmuth. The gentleman's time has expired, and I
yield myself 10 minutes for questions.
And once again, let me thank the entire panel for your
testimony and your responses. It has been one of the, I think,
most impressive presentations by--nonpartisan presentations of
a group of witnesses we have had since I have been Chair.
And I just want to reference one thing Mr. Roy said about
how we should all sit around and talk about this. We did that
in 2018; that was the joint select committee, 16 of us, the
entire year, and virtually every question or point that has
been made here about possible proposals, and so forth, was made
then.
And for one reason or another, we could not get 10 votes
out of 16 to do it. And that was also a very, very nonpartisan
process. Everybody on that group, the eight Democrats and eight
Republicans, four each from the Senate and the House, was very
interested in solutions and not gaining partisan advantage.
And so it was a very, I think, a useful discussion. And I
think virtually everyone who came out of that discussion, out
of that process of almost a year's duration, said, I think as
you may have said, Dr. Joyce, it was not the process, it is the
will of the Members of Congress.
And that is one of the things that in my--this is now my
12th year on the Committee, and that has been very frustrating,
but so obvious about the budget resolution process that we have
had because it has been basically just an opportunity for
scoring partisan points.
The process was never really designed to be a governing
process, and I think that is symptomatic of what confronts this
government right now--this Congress right now, is that we do
not really have a governing mentality here. We have an
electoral mentality. Almost regardless of what the issue is,
the strategy is, ``How do I get an electoral advantage on this
issue?'' Not, ``What is the best policy for moving the country
forward or solving a problem?''
And I do not know how we get past that, but until we do,
and actually begin to govern, I think--I was a staffer here in
the 1970's when you had virtually the entire philosophical
spectrum in both parties. And I was a staffer on the Senate
side. And so you were always working across the aisle because
there was always somebody who agreed with you across the aisle.
And a party was not nearly as significant. We have become very
tribal as everyone says, and so it is a different environment.
I want to focus on one thing though. And believe me, I have
great empathy with the Republicans on the Committee and in the
House because I spent eight years in the minority. Nobody on
this Committee, until last year, has spent any time in the
minority and it is frustrating. It is frustrating.
So you do things like batter the Committee for not passing
a budget resolution, when in fact, of course, Senator McConnell
announced early this year that they were never going to bring a
budget resolution to the floor in the Senate.
But one of the things I am curious about, and to see if
any--I will leave it open to any of you--is if there are any
changes you might see in the 1974 Act that would help? And that
is specific, one point I would question you about is the idea
that ever since we have been here, every budget resolution that
has been proposed, whether it has been passed or not, was a 10
year resolution.
I think the act requires us to do five years. In this day
and age, there is no way to write a budget for 10 years. A
budget resolution that is meaningful in any respect. And both
sides have played incredible games with the budget to make it
look good.
I remember one time when we were in the minority, but
Republicans proposed a budget and they had some 600 and
something million dollar category. And we asked them what that
was. And they said, ``Well we just made up a number. We had to
get that number.''
So they put the number in, and then, you know, lots of
gimmicks on estimates of growth and so forth. You know,
president's budget estimates 3 percent growth right now what
looks like to--everyone's prediction was it would be no more
than 2. Now it looks like it is going to be zero the rest of
the year and 1 percent next year. That was unforeseen.
So the question I have is would that make sense to say,
``You just have to do a budget?'' One-year budget or a 2-year
budget resolution or any other changes you might see in the
Budget Act that might help?
Dr. Joyce. Well if I could respond first, I think--you
know, I was--I do not remember what year it was, but there was
a year in which, you know, we moved from five years to 10
years. And the reason as I recall we moved from five years to
10 years is because people were always doing things where the
costs exploded in year six, right?
Chairman Yarmuth. Right.
Dr. Joyce. And it is sort of more difficult to do things
where the costs explode in year 11. I mean, it is so far you
know, into the future. But I think obviously the downside of
doing 10 years is that it is so hard, you know, to--with any
kind of reliability to say what is going to happen in 10 years.
I would be concerned about going much shorter than five,
only because I think you do create those incentives that if you
do a 2-year resolution, then magically, you know, people are
going to create programs where the costs get a lot bigger in
year three, for example.
Chairman Yarmuth. Has anybody ever had a sense of that? Or
any other aspect of the budget?
Dr. Joyce. And I would just say that in terms of the--in
terms of changes to the Budget Act itself, you know, the one
that I suggested in my testimony, and I think it is worth
considering, is just whether there are things that we could do
to make this Committee more powerful.
And obviously, making it more powerful if the Committee is
not going to actually exercise that power does not do a lot of
good. But you know, ideas like, do you want to actually, you
know, put Chairs and Ranking Members of the, you know,
important money committees on this Committee? Do you want to
sort of, you know, strengthen the budget resolution itself, the
enforcement procedures behind it, things like that.
Chairman Yarmuth. Yes. I was impressed by that
recommendation. I would love to have a--chair a committee on
government priorities. That would be a pretty interesting thing
to do.
One of the things that we have done this year, because we
have limited jurisdiction and the budget resolution process is
not working, was to actually consider this Committee the
oversight on the budget.
So we have had hearings on various things like--and Mr.
Johnson said we had a hearing on the Green New Deal. We did
not. We had a hearing on climate change and how it is going to
impact--how it is impacting the budget and how it might impact
the budget. We are going to have a hearing later this year on
artificial intelligence and how that may impact the budget. We
have had immigration reform and how that affects the budget.
And those are--and the idea was to assemble information that
might be useful to the legislating committees of those areas--
the committees of jurisdiction.
But I think you are very right on point that this Congress
has to do a better job of oversight in every respect. I wrote
an op-ed about that several years ago and said that--and this--
that we have had--you look at the Communications Act of 1934.
There is still things on the books from the 1934 Communications
Act.
And I mentioned to--when I was on the Energy and Commerce
Committee, I mentioned to the chairman then that if he wanted
to sponsor a bill to basically eliminate everything in the
Communications Act that was not passed prior to 1996 that--
which was the prior--last prior reauthorization, I would be
happy to cosponsor it with him because you cannot--nothing can
be relevant to today's world that was passed before that.
So that is something that this Congress absolutely has to
do if we are going to advance legislation--and I think, Mr.
Roy, we are talking to you about including your recommendation
in that--that deals with the issues that we have had here.
This hearing was designed to be kind of a prelude to that
legislation. And a lot of the recommendations that were in your
testimony are going to be a part of that and we appreciate
that.
But if there were one thing that you would think is the
most important change we can make in order to reassert our
power of the purse, what would it be? The most important
recommendation.
Mr. Chafetz. I would say limitations. I mean, this may be
fighting the question because it will be a little broader than
one specific thing. But limitations on the president's ability
to either transfer funds, reprogram funds without some serious
indication of congressional acquiescence, or refuse to spend
funds that have been transferred that is--that have been
appropriated.
That is to say, to tighten up both the Impoundment Control
Act and to, as Mr. Roy suggested, flip the burden on emergency
spending and on transfer authority under that.
Ms. Pasachoff. I think the number one important thing to do
is to make things more transparent. So you cannot hold--you
keep talking about--we have talked a lot about oversight today.
It is impossible for Congress to hold--to have oversight over
the executive branch if you do not know what the executive
branch is doing.
So I think that apportionment transparency, making the
apportionments public, they are final legal documents. I do not
understand how in a rule of law country we can have things with
the force of law that are not transparent, that are not public.
And some sort of compendium, some sort of greater requirement
for transparency of reprogramming and transferring actions.
Chairman Yarmuth. Mr. Armstrong.
Mr. Armstrong. I agree with both of the professors here,
but one thing I would add is, as has been made clear in the
hearing, the Antideficiency Act is the only fiscal statute
which carries penalties for violation of the act. I think that
the Committee might want to consider imposing penalties for
other fiscal statutes like the Impoundment Control Act, but
also like the purpose statute.
I know that criminal penalties sound somewhat Draconian,
but Professor Pasachoff is right in that, what we have seen
over history is, even though the Department of Justice has
never prosecuted anyone for a criminal violation of the act, it
is a deterrent. And that is why GAO gets tons of requests every
year for appropriations law training, because the people who
actually have to execute the budget want to make sure that they
are doing the right thing.
And we hear in just about every class we teach, ``I do not
look good in orange stripes.'' Things like that, you know, and
so it gets attention and collateral. To that, I think I would
expand the executive officials who have a right to ask for a
decision from GAO. Currently it is heads of agencies and agency
components, as well as, some offices called Accountable
Offices. But if you expand it to the budget people, you expand
it to contracting officers.
I think we are more likely, even if we do not get the
request for decisions, and I hope it does generate into request
for decisions, but even if we do not get that, we are available
for informal technical assistance and people are more likely to
reach out. And when they reach out, we are making sure that
they are acting in compliance of the laws that you guys enact.
Chairman Yarmuth. Thank you.
Dr. Joyce. May I?
Chairman Yarmuth. Yes, Dr. Joyce.
Dr. Joyce. So I want to say I agree with all of these. The
one I would add, I would go back to something Professor Chafetz
said, which is that if you are going to do effective oversight,
and you are going to be a strong counterbalance to the
president, you need the resources to do that. You need the
staff to do that.
And it is sometimes very hard, politically, for the
Congress to spend money on itself. But when it doesn't spend
money on itself and it--and its support agencies and its staff,
you know, you are really at a competitive disadvantage.
And you know, one of the reasons Congress does not do
better oversight is perhaps because it does not have incentives
to do so, but also because it takes a lot of resources, a lot
of staff resources, in order to actually figure out what is
going on in these executive agencies. And I think that is a
very--that would be a very important thing to do.
Chairman Yarmuth. Well once again, my time is long expired,
but I have the gavel, so----
[Laughter.)
But I wanted to hear those responses, and once again, thank
you for your contributions, they have been very useful. And if
there is no further business, the hearing is adjourned.
Hold on I'm sorry, it is not adjourned yet. I have a
housekeeping act that I neglected earlier.
As a reminder, Members can submit written questions to be
answered later in writing. Those questions and your answers
will be made part of the formal hearing record. Any Members who
wish to submit questions for the record may do so within seven
days.
With that, this hearing is adjourned.
[Whereupon, at 12:23 p.m., the Committee was adjourned.]
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