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Fixing the Authorization Process: Restoring Checks and Balances

Summary

As the branch of government closest to the people, Congress has the obligation to set national policy through authorization bills, which create departments, agencies and programs; and then fund these policies through appropriations legislation. Both the House and Senate have rules to separate these processes, but in recent decades, Congress has too often failed to complete the authorization process. Failure to authorize is one of the primary ways Congress surrenders power to the Executive Branch, since it is the means by which it holds the Administration accountable for its actions, and make policy corrections when necessary. Although the current authorization process has atrophied, Congress can use its rules currently in place to adopt new procedural mechanisms, like those proposed in the Unauthorized Spending Accountability (U.S.A.) Act, to restore the authorization process.

Introduction
Authorizations, Appropriations and Unauthorized Appropriations
Why the Fuss over Unauthorized Appropriations?
What’s the State of Unauthorized Appropriations Today?
Restoring Regular Order: Relying on Current Rules Against Unauthorized Appropriations
Unauthorized Spending Accountability (U.S.A.) Act
The Bigger Picture: Unauthorized Appropriations and Congressional Reform

Introduction

This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. – James Madison, Federalist Papers, No. 58, 1788

As the branch of government closest to the people, Congress has the obligation to set national policy through authorization bills, which create departments, agencies and programs; and then fund these policies through appropriations legislation. Both the House and Senate have rules to separate these processes, but in recent decades, Congress has too often failed to complete the authorization process. Failure to authorize is one of the primary ways Congress surrenders power to the Executive Branch, since it is the means by which it holds the Administration accountable for its actions, and make policy corrections when necessary. Although the current authorization process has atrophied, Congress can use its rules currently in place to adopt new procedural mechanisms, like those proposed in the Unauthorized Spending Accountability (U.S.A.) Act, to restore the authorization process.

Authorizations, Appropriations and Unauthorized Appropriations

For the Executive Branch to administer a program or agency, Congress must first complete two separate, but related, legislative processes: authorization and appropriation. In the authorization process, committees draft authorization bills, which create agencies and programs and which contain policies on subjects under their jurisdiction. The annual Department of Defense authorization bill, for instance, determines how much to pay the armed forces, what kinds of supplies may be purchased, what weapons will be procured and the like. In addition to policy provisions, authorization bills include “authorizations of appropriations” which explicitly allow Congress to pass separate appropriations bills to provide money for the activities in question. Authorizations of appropriations may come in a couple forms. An authorization bill may say, “There are authorized to be appropriate such sums as are necessary to carry out this section.” Such a provision is usually called a “such sums” authorization of appropriation. It essentially provides the Appropriations Committee members with discretion to provide as much money as they think is required. The second kind of authorization of appropriations includes a specific dollar amount. For instance, one law states, “There is authorized to be appropriated to carry out this section, $22,000,000 for each of fiscal years 2014 through 2018.” Authorizations of appropriations, or entire authorization bills themselves, can be either permanent or temporary, lasting a specified number of years.

An authorization bill alone, even one specifying a sum that is authorized to be appropriated, is not sufficient for the Executive Branch to spend money. Rather, an appropriations bill provides budget authority, meaning it allows the government to draw money from the U.S. Treasury for its activities. During the appropriations process, the Appropriations Committees in the House and Senate draft bills that give budget authority to the Executive Branch, and these bills must go through the entire legislative process before the Administration can spend money. When drafting spending bills, the Appropriations Committees sometimes provides a program as much as the authorizing committees recommend but often times chooses a different amount.

One common analogy to explain the difference between authorizations and appropriations is that of a pitcher and water. An authorization is like deciding the qualities of a custom-made pitcher: its height, length, and width; whether it should be curved; the slope of its spout; the material it is made of; its color; etc. Appropriating funds is the decision on how much water to pour into this pitcher. Or, authorizing is like building a car, and appropriating is like filling up the gas tank.

As the pitcher-and-water and car-building analogies suggest, Congress should pass an authorization bill before it passes a separate appropriation bill to fund the activities in question. This requirement comes from House and Senate rules that were put in place to ensure that policy and funding decisions were debated separately. House rule XXI, section 2(a)(1) says:

An appropriation may not be reported in a general appropriation bill, and may not be in order as an amendment thereto, for an expenditure not previously authorized by law, except to continue appropriations for public works and objects that are already in progress.

Senate rule XVI, section 1 says:

On a point of order made by any Senator, no amendments shall be received to any general appropriation bill the effect of which will be to increase an appropriation already contained in the bill, or to add a new item of appropriation, unless it be made to carry out the provisions of some existing law, or treaty stipulation, or act or resolution previously passed by the Senate during that session; or unless the same be moved by direction of the Committee on Appropriations or of a committee of the Senate having legislative jurisdiction of the subject matter, or proposed in pursuance of an estimate submitted in accordance with law.

Additionally, each Chamber has developed precedents to guide how the rules will be interpreted, since determining whether an appropriation is authorized can be tricky. Generally, if an appropriation funds something that does not have a current authorization or authorization of appropriation, or if the appropriation exceeds the amount authorized, the appropriation is said to be “unauthorized.” Assuming the rule against unauthorized appropriations has not been waived, when debating bills containing unauthorized appropriations, Members may raise points of order to the Chair, which, if sustained, results in the unauthorized funds being cut from the bill. If the unauthorized appropriation is not restored somehow, they agency would not be able to carry out the functions that require the stricken funds.

Why the Fuss over Unauthorized Appropriations?

Despite the rules against unauthorized appropriations, Members of Congress routinely pass them, preferring to ignore this procedural requirement rather than shut down all or part of the government due to the failure to pass appropriation bills on time. The House works around the rules prohibiting unauthorized appropriations by using the Rules Committee to waive points of order against them or dispensing with them other ways. With a few exceptions, Article I, section 5 of the U.S. Constitution grants each Chamber the power to determine how it will operate, so Congress is well within its rights to dispense with the rules against unauthorized appropriations. But it’s a fool’s errand since by doing so, Congress reduces its own constitutional power to hold the Executive Branch accountable.

The sheer size and scope of the Federal Government and the complexity of the authorization process means Congress often fails to authorize for some programs before the new fiscal year. As a practical matter, Congress frequently works around the rule on authorizations to prevent a government shutdown. But since the purpose of the authorization process is to ensure oversight, accountability, as well as create new programs and eliminate ineffective ones, the use of these waivers signifies a failure in the budget process.  Efficiency is not always the same as effectiveness.

Additionally, the point of order against unauthorized appropriations can be a powerful way for authorizing committee members to prevent appropriators from making end runs around their committee’s jurisdiction by stopping money being spent on programs not vetted or rejected by the committee. In other words, the rule protects the integrity of the authorization process.

The fact that appropriations are unauthorized might seem like a parliamentary triviality, but authorization bills provide instructions to agency officials. In the absence of authorizations, bureaucrats have greater influence over how an agency will carry out the its mission – and if the committee persists in its failure to pass authorizations, an agency eventually stops paying much attention to it.  Although there may be some capable and well-intentioned public servants in the Executive Branch, the Constitution gives the responsibility for setting policy and spending money to Members of Congress, since citizens can hold them accountable at the ballot box.

Aside from setting policy, the authorization process is the key to Congress exercising Executive Branch oversight. In theory, authorizing committees can exercise oversight powers independent of the authorization process, but few things change how an agency is run like the prospect of losing money or being subjected to a grilling at a public committee hearing. Today, with unauthorized appropriations routinely flowing to government agencies, there is no incentive for these agencies to respond to authorizing committees, since these committees cannot turn off their funds if they do not reauthorize and cannot enforce those authorizations. According to former Pennsylvania Representative Bob Walker, who frequently raised points of order against unauthorized appropriations, “If Congress enforced their rules against unauthorized appropriations, departments and agencies would demand authorizations. Now, they don’t care.”[i]

When now retired John Dingell of Michigan was Chairman of the House Energy and Commerce Committee, he would frequently summon Executive Branch employees to appear before his Committee to be grilled about how they were running a program or how some abuse of power had happened.  Agency officials so feared these letters that they became known as “Dingell-grams” as hundreds of them were sent every year. The fear of receiving a Dingell-gram had the effect of keeping federal agencies in line with Congress’ intentions.

A vigorous authorization process allows Congress to aspire towards government programs that are useful and efficient, and where officials act in a manner that is honest, trustworthy and competent. For instance, an authorizing committee can review a department’s programs to weed out duplication and inefficiency. Every Student Succeeds Act, the overwhelmingly bipartisan update of the 1965 Elementary and Secondary Education Act, cut 49 “ineffective or duplicative federal education programs.” Although cutting programs is typically associated with the Republicans, many Democrats voted for the bill, which passed 85-12 in the Senate and 359-64 in the House. Similarly, authorizing committees can ensure that money going to non-government actors is not wasted. Representative Walker, who was the Chairman of the House Science Committee from 1995 to 1997, recalled one instance where an unauthorized earmark for research at an Indiana university was placed in an appropriation bill. The Science Committee contacted the university for more information about the project. University officials said that they had no idea what the Committee was talking about and that the research did not make sense, but if they got the money, they would make it work.[ii] In other words, this spending was not properly reviewed before being placed into the bill. Requiring that spending be authorized—i.e., requiring that committee experts review it—increases the likelihood that Congress is regularly reviewing programs and trying to hold the Executive Branch of government accountable.

One notable exception to Congress’ inability to reauthorize entire agencies is the national defense authorization bill. Congress has passed the defense authorization bill annually for over half a century. During the markup of the draft bill, Members offer amendments on important or controversial topics. For instance, during the House Armed Services Committee markup for the fiscal year 2017 authorization bill, Representative Duncan Hunter of California offered an amendment requiring women to sign up for the draft. He reportedly offered the amendment to spark a discussion on the Pentagon’s decision to admit women to all combat roles, and he himself voted against it; however, the amendment actually passed by two votes (32-30). The opportunity to amend authorization bills is important because, in keeping with the authorization-appropriations distinction, congressional rules limit policy changes in appropriations bills (although there are various ways to work around such rules).[iii] Additionally, the defense authorization process has allowed Congress to try to hold government agencies to account for their activities. For instance, former New Hampshire Sen. Kelly Ayotte pointed out that she and her former colleagues in the Senate Armed Services Committee “spend a tremendous amount of time going through each of the programs, each of the weapons systems, the pay and compensation for our troops,” and, in the end, they approve a bipartisan bill. When it comes time for the full House and Senate to vote on the final bill, a majority in both parties in both Chambers typically supports it. For instance, the fiscal year 2016 bill passed the House 370-58 and the Senate 91-3. Likewise, the fiscal year 2015 bill passed 300-119 in the House and 89-11 in the Senate. The National Defense Authorization Act is proof that Congress can enact authorizations in a timely, bipartisan manner.

President George W. Bush signs the FY 2007 National Defense Authorization Act. Congress has adopted the defense authorization annually for over 50 years. White House photo by Eric Draper

The responsibility of authorizing committees is also important for protecting the interests of Members not on the committee.  This is because committee members act as agents of the Congress, acting on behalf of the entire body and allowing non-committee members to trust that their colleagues are protecting them from a bad proposal or program or potentially embarrassing political problem.  It is common for Members not on a committee to seek out the authorizers to ask questions about an authorization bill’s contents.  With the multitude of bills and issues before Congress, Members cannot be experts on everything.  And so, they rely on their colleagues to protect them from issues they personally know little about, but that may become controversial.

What’s the State of Unauthorized Appropriations Today?

Although a strong authorization process is critical for good government, today, the authorization process is on the rocks for many policy areas. If Congress strictly enforced the rules against unauthorized appropriations, wide swathes of the government would shut down. The amount of money appropriated for unauthorized programs has generally increased from year to year. According to the Congressional Budget Office, for fiscal year 2016, Congress passed about $310 billion in unauthorized appropriations. That is almost a third of the $1.1 trillion discretionary funding for fiscal year 2016. In fact, since the defense appropriation for fiscal year 2016 was $573 billion, nearly 60 percent of all non-defense appropriations were unauthorized.

Unauthorized appropriations have grown significantly since the Congressional Budget Office began reporting on them pursuant to the Balanced Budget and Emergency Deficit Control Act of 1985. For fiscal year 1987, Congress provided over $33 billion without authorizations of appropriations. Adjusted for inflation, this amounts to nearly $73 billion today. For fiscal year 1988, the number climbed to almost $45 billion. Adjusted for inflation, this is approximately $99 billion in 2017. Compare that to recent years. For fiscal year 2015, Congress made $294 billion worth of unauthorized appropriations and $310 billion for fiscal year 2016. As the years have gone on, Congress has generally been unable, or unwilling, to limit the growth of unauthorized appropriations.

The sheer amount of unauthorized appropriations each year affects large sectors of the government. In fact, many agencies go unauthorized each year—some for many years—and some unauthorized appropriations are for agencies and programs that are controversial or critical to the country’s wellbeing. For instance, the Department of Homeland Security has not been reauthorized since it was created in 2003. The last reauthorization of the Federal Election Commission was over three decades ago, in 1981. Sections of the 9/11 Commission Act have not been authorized since the late years of the last decade and the early years of this one. The State Department went from 2002 until 2016 without reauthorizations enacted. Congress has also provided unauthorized funds to government programs created by controversial legislation like No Child Left Behind, the Dodd-Frank financial services reform act, or the Patient Protection and Affordable Care Act (better known as Obamacare).[iv] Despite rules to the contrary, a large number of  government activities, including some of its most vital agencies, remain unauthorized.

Since authorizations are essential to accountability and good governance, Members of Congress should restore the authorization process. The Armed Services Committees’ stellar record of passing the annual National Defense Authorization Act (NDAA) and the 2016 passage of Every Student Succeeds Act, which reauthorized the Elementary and Secondary Education Act and replaced the No Child Left Behind Act, prove that Congress can reauthorize when it wants to, even in contentious political environments like today’s. It may not be feasible, or perhaps even desirable, for Congress to reauthorize every program every year, as it does with the NDAA, but it should learn from the House and Senate Armed Services Committees’ commitment to shaping defense policy. With the authorization process on the rocks for so many programs, the question is: How can Congress encourage the reauthorization of other programs?

Restoring Regular Order: Relying on Current Rules Against Unauthorized Appropriations

One approach to combatting unauthorized appropriations is for Members of each Chamber to rely on the long-standing rules and vigorously raise points of order to strip unauthorized funding from spending bills. In theory, the threat of a shutdown due to appropriation bills not being passed by the beginning of the fiscal year could put enough pressure on Congress to authorize programs could induce the affected agency to cooperate with, and be accountable to Congress. Pressure to reauthorize would mount since in many cases, large numbers of people would feel the funding loss: the authorizing committees with jurisdiction over the affected agency, the Appropriations Committees that draft the bills, Executive Branch officials, and private stakeholders. If a program has broad enough support, it should stand a good chance of being reauthorized in the face of a renewed use of the point of order against unauthorized appropriations.

For the renewed use of the point of order against unauthorized appropriations to succeed, Members would need to change several other aspects of the legislative process. One is that the House would need to refrain from waiving its rule against unauthorized appropriations, which renders the point of order moot. The House would not need to make any procedural changes to restore the point of order: Special rules could be written so as not to waive the rule, or the Chamber could reject special rules that waive rule XXI. Or, as a hedge against the ease with which the House can waive its rules, the Chamber could adopt a formal rule requiring a super-majority to waive the rule against unauthorized appropriations, meaning that in a typical Congress, a number of minority Members would have to agree.  While none of these three options are likely, they are options the House could consider right now.

Even if the House did suddenly enforce its rule against unauthorized appropriations, another condition for the reform to be successful is that the Senate rules would have to be strengthened against unauthorized appropriations. Senate rules are more lenient than House rules, which limits the strength of the point of order against unauthorized appropriations. The point of order applies to amendments offered by individual Senators on the Floor, not to Appropriations Committee bills or amendments offered by the committees with jurisdiction over the subject matter of the bill.[v] To combat unauthorized appropriations effectively, the Senate would have to change its rules to correspond more closely with the House rule. However, bringing the Senate rule in line with the House rule would place more restrictions on Senators and rules changes in the Senate are especially difficult to achieve, so this is unlikely to happen.

Aside from the difficulty of changing congressional rules, there is another practical obstacle to using points of order to restart the authorization process. As mentioned previously, almost one-third of discretionary spending is unauthorized. For fiscal year 2016, a little over half of discretionary spending was for defense, and the rest was for the government’s non-defense activities. Assuming the Defense Department’s annual authorization covers all its activities, the overwhelming majority of the unauthorized appropriations are for non-defense programs. It is unlikely that Congress will leave so much of the government’s activities exposed to cuts due to points of order. Members of Congress would use whatever means they could to avoid such cuts, such as overruling the decision of the presiding officer if they sustained a point of order. Using the rules against unauthorized appropriations is unlikely to be especially effective.

Unauthorized Spending Accountability (U.S.A.) Act

Since simply using the rules against unauthorized appropriations will not be likely restart the authorization process, Congress must find a different way to do so. Rep. Cathy McMorris Rodgers of Washington state has offered an idea that would probably be more effective. In March 2016, she introduced the Unauthorized Spending Accountability (U.S.A.) Act, which, among other things, would create an annual sequester of funds for unauthorized programs and agencies. In the first fiscal year that a program or office is unauthorized, it would receive 90 percent of the funding of the last authorized year. If it remained unauthorized in the following fiscal year, it would receive only 85 percent of the funding granted in the last authorized year. In the third unauthorized year, it would still receive 85 percent of the funding, but would be eliminated (“sunsetted”) at the end of the fiscal year. A program that is reauthorized within the three years is not subject to the cuts. The Act would also establish a commission to study “all Federal programs funded through direct spending.” The commission would also be required to draft a “reauthorization schedule” for programs funded by discretionary spending. The schedule would establish a three-year timeframe in which each program that receives discretionary funds would have a deadline for reauthorization. A certain set of programs would need to be reauthorized in the first year of the schedule; a different set in the second year; and another set in the final year. If a program is not authorized on time, it would be subject to the cuts and sunsetting described above.

Like a point of order against unauthorized appropriations, the U.S.A. Act allows the Executive and Legislative Branches and outside groups to feel the sting of losing funds. In fact, the U.S.A. Act would be superior to the simple point of order against unauthorized appropriations, in a number of ways. The first and most obvious benefit is the use of sequesters. Sequesters are not popular with Congress, but they are useful in forcing Washington to restructure the country’s spending. Plus, if programs only gradually lose funds, the government can ease into reform; a program would not lose all its funding as it would with a point of order. Second, the fact that it is automatic and government-wide is a bonus, for two reasons. With the rule against unauthorized appropriations, a Member must raise a point of order at the right time; if no objection is raised, the point of order against unauthorized spending will not be enforced. So, for a point of order to work on a wide scale, Members would have to repeatedly raise them and have both the Chair and the Chamber sustain them.

The U.S.A. Act takes this burden off Members and makes action against unauthorized appropriations automatic. Similarly, reforming unauthorized appropriation relies less on political good will than points of order do. With every point of order, each Chamber will be tempted to overrule the Member raising it. Having an automatic sequester means Congress needs only to make the hard choice once, when it passes the U.S.A. Act. In other words, it is a hedge against Congress backsliding into its old ways. A third benefit of the U.S.A. Act is that it balances the interests of the authorizers and appropriators. Historically, appropriators and authorizers are not usually legislative allies. There is an old quip on Capitol Hill that there are three parties in Congress: the Republicans, the Democrats, and the Appropriators. The rule against unauthorized appropriations gives the authorizers a check against the power of appropriators. The U.S.A. Act evens the playing field since, while it does take away power from the appropriators in the form of the sequester, the reauthorization timetable and the sunsetting also pinches the authorizers, since the programs under their jurisdiction lose money and could be eliminated if they persistently do not act in a timely fashion. The threat of a sequester also gives the President a powerful incentive to cooperate with the authorization process.  Under the current situation, the lack of authorization arguably provides significant “wiggle room” for the administration to spend unauthorized appropriated funds.  The U.S.A. Act would reverse the incentive and reduce the appropriations available for the affected agencies.  Suddenly, steady streams of program heads would go to the Capitol to explain why their agency deserves to be reauthorized. All of this makes the U.S.A. Act a potent tool to help restore the authorization process by reversing the incentives for inaction.

If the U.S.A. Act is effective at revivifying the authorization process, is there any need to strengthen the point of order against unauthorized appropriations? The U.S.A. Act alone might be sufficient, but both are beneficial. As previously stated, the U.S.A. Act targets all unauthorized programs. However, if the point of order against unauthorized appropriations remains in place, members of authorizing committees can still use it if they determine a given appropriation bill absolutely must not provide an unauthorized appropriation. Plus, the point of order against unauthorized appropriations can be raised against spending that the U.SA. Act does not affect. If an authorizing committee authorizes funding at one level, but the Appropriations Committee provides funding at a higher level, the excess is considered unauthorized. Since the U.S.A. Act would not target such spending, a legislator should be empowered to raise a point of order against it. In other words, they can be even more aggressive in defending their prerogatives as legislators. The U.S.A. Act and a point of order against unauthorized appropriations can work together to encourage Congress to complete authorization bills.

Parliamentary tools like the U.S.A. Act and the point of order against unauthorized appropriations are negative incentives to spur the Members of Congress to action. Such procedures have their place, but they can only take Congress so far, since procedural obstacles can be easily overcome, particularly in the House. For the sustained success of the authorization process, Members must make reauthorizing part of the regular budget process again.

The Bigger Picture: Unauthorized Appropriations and Congressional Reform

As Members address the need to reauthorize programs, they should not lose sight of the wider context. The budget process is riddled with problems. For example, Congress regularly struggles to pass appropriations bills, and the process that the Budget Act of 1974 created is almost entirely neglected. The breakdown of both the authorization and appropriations processes parallel each other, so Congress should resolve both issues. One way to take on both authorization and budget failures is to switch to a biennial budget, where Congress adopts a two-year budget resolution and annual appropriations. This would allow authorizers two years to pass regular reauthorization bills, even as appropriators continue their annual process.  It could also consider shifting the fiscal year from October 1 to January 1. All of these reforms aim to provide Congress more time to complete its work by the statutory deadlines. (See “Everyone Seems to Want It—So What Is the Hold-Up on the Biennial Budget?” and “Happy New Year: The Fiscal Year Should Start on January 1st” for extensive discussions on these ideas.)

Congress could adopt piecemeal reforms of unauthorized appropriations and the budget process at any time, but an ideal way to do so would be in the context of overall legislative reform by a Joint Committee on the Organization of Congress. In the past seventy years, Congress has created three bipartisan, bicameral committees to study and recommend ways the Legislature could be modernized and strengthened. These committees met in 1945-1946, 1965-1966, and 1992-1993, and each produced recommendations that reformed Congress significantly. They had the authority to examine virtually every aspect of the legislative process, including the committee system and Floor debate, both of which are central to the issue of unauthorized appropriations. Today Congress faces similar systemic challenges. Members of Congress, experts, and the general public have criticized various aspects of the legislative process, including budgeting, debate, and committee structures. These issues all intersect, so Congress should examine them as a whole. A new Joint Committee would allow Members to once again thoughtfully and thoroughly reform the Legislature. If Congress creates a Joint Committee on the Organization of Congress, and if it takes concrete steps to reanimate the authorization process, Congress will be restored to its rightful place as the policy makers and Treasury stewards. Congress has left too many programs unauthorized for too long. Over $300 billion in authorized appropriations is too much. Adopting the principles of the U.S.A. Act and returning to regular order will help get Congress back on track.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

[i] Robert S. Walker, interview by author, Washington, DC, August 3, 2016.

[ii] Robert S. Walker, interview by author, Washington, DC, August 3, 2016.

[iii] See House Rule XX(2)(c) and Senate Rule XVI(4).

[iv] See, for instance, the Congressional Budget Office’s reports on unauthorized appropriations and expiring authorizations for FY 2014, 2015, and 2016. No Child Left Behind was replaced by Every Student Succeeds Act in late 2015.

[v] Floyd M. Riddick and Alan S. Frumin. Riddick’s Senate Procedure. Washington: U.S. Government Printing Office, 1992. Page 194.

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