“Much of what is wrong with Washington is the manner in which Congress has exercised, or failed to exercise, its most basic Constitutional responsibilities with regard to policy and spending.”
BILLY PITTS
Today’s critical public policy issues flow from the “power of the purse” – that is, our government’s authority to tax and spend. James Madison characterized this power in Federalist No. 58 as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”
The new Joint Select Committee on Deficit Reduction will have tremendous authority to alter public policy and to make programmatic and fiscal changes. This unusual licensure gives the Select Committee another opportunity to go beyond debt reduction and address some of the fundamental failings of the governmental process that contributed to the crisis the Committee has been charged with ending.
Much of the crisis and — to be broader and more exact — much of what is wrong with Washington is the manner in which Congress has exercised, or failed to exercise, its most basic Constitutional responsibilities with regard to policy and spending. Thorough deliberations need to take place within Congress that address these fundamental elements of our legislative system. The people’s representatives need the time and the process to oversee and execute the will of the people.
There needs to be less ceding of responsibility to the Executive Branch and an unbundling of unauthorized policy initiatives, new legislation, and ever increasing spending out from the regular and routine use of “mega,” or “omni,” bills.
The temporary Select Committee should also consider and recommend changes in law that would affect how Congress responds and reacts, in a timelier manner, to dramatic changes in the economic conditions. The Select Committee should also examine the extent to which Congress has strayed from past practices and whether new initiatives should be undertaken to return the legislative process back to its Constitutional roots and democratic framework.
The law creating the Select Committee contemplated that Congressional procedure would be examined, but that “any change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be considered to be merely advisory.” This does not mean ignoring the role procedure plays in the ultimate outcome in an effort to achieve new budgetary goals.
The Committee should also recommend procedures designed to preserve the prerogatives of the Legislative Branch, in the words of the General Accounting Office in 1962: “to prohibit executive officers, unless otherwise authorized by law, from … involving the Government in obligations for expenditures or liabilities beyond those contemplated and authorized within the amount of the appropriation under which they are made.”
There are four important actions that the committee should consider to potentially achieve these ends, or at a minimum, begin the process of discussion:
- Changing the start of the fiscal year to January 15th.
- Instituting “Biennial Budget Resolutions” – Adoption of one Budget Resolutions that covers two years.
- Strengthening the Anti-deficiency Act – Each year, there are still many programs that are unauthorized but funded anyway, thus giving the Administration too much discretion in exactly how the funds are to be spent.
- Strengthening and enforcing rules addressing the conferencing of appropriations between the House and Senate — The dramatic break during the last two decades from what had been the established practice for resolving differences on spending bills has resulted in just one up-or-down vote in each chamber on the version reported from conference containing all compromises in one report. This radical change has prohibited both bodies from working their will on conference agreements by limiting consideration and prohibiting separate votes.
What would be the result of these actions if the Joint Committee were to put them into effect? For one thing, changing the start of the Federal Government’s fiscal year from October 1st to January 15th would allow more time for Congress to act on the 12 individual appropriations bills. The time for the President to submit his budget would also be changed, to mid-February.
Prior to 1974 and the enactment of the Congressional Budget and Impoundment Control Act, the fiscal year began in July. But the Budget Act changed this to October, beginning in 1976, claiming that it would “provide more time for appropriations bills” after congressional budgets are considered and resolved.
The current October 1st start of the fiscal year is not providing enough time to act on many budget items, given its proximity to the annual Congressional August recess. The current fiscal year start doesn’t provide the President with much opportunity to act on his February budget submission items, such as proposed rescissions of current spending, because the fiscal year is nearly half over by the time any action might be taken.
Historically, Congress spent much of its time in session each year considering appropriations bills. This was a reflection of the importance placed on the execution of federal spending policies and the manner in which the priorities of our country were translated into the disbursal of federal tax dollars.
Unfortunately, during the last session of Congress, no individual appropriations bills were enacted. Only two bills actually passed the House, and not one was passed by the full Senate. Since the Congressional Budget Process was put in place in 1974, the Congress has, with increasing frequency, failed to separately enact individual appropriation bills.
The Budget Act of 1974 anticipated annual budget resolutions with annual appropriations caps and the potential for authorizing committees to act through a reconciliation process. This annual budgeting should become a two-year process, including two-year appropriation aggregates; however, an annual appropriation process should remain to facilitate more oversight. Budget resolutions during election years have become harder to adopt and reconcile between the two Houses, and in many instances are ignored altogether. A two-year process would allow more time to act on individual appropriations, and to complete any proposed reconciliation instructions. If the Congress determines that the economy dictates the need to revise their budget, the Budget Act allows additional resolutions to revise the last adopted budget pursuant to section 304 of the Act.
Congress created the Anti-Deficiency Act, exerting its power of the purse that was established by Article I, section 9 of the Constitution, which states: “No money shall be drawn from the treasury but in consequence of appropriations made by law…”
There is actually no single act called the “Anti-Deficiency Act,” but that has been the name given to its collective enactments over the years. Most place its beginning in 1870, when agencies were spending funds exceeding appropriated amounts. It has been strengthened several times requiring better apportionment, reporting and compliance. It was added to in the early 1900s, mid-1950s, and as late as the 1980s. Many believe this to be the Congress’s greatest check on the power of the Executive Branch.
To that end, the Act should be better defined to limit Executive Agency discretionary excesses and reprogramming authority, particularly in the absence of any authorizing language in law. Incentives should be built in to force the authorizing committees to examine the programmatic intent of the proposed expenditure to decide whether it should in fact be reauthorized, changed, or eliminated.
The committee should examine what had been the established practice under the rules and precedents for resolving differences between the two Houses on appropriations. This process was enabled by the long-standing practice under which the Senate acted on House passed appropriation bills by offering separate amendments to the bill. The Senate Clerk numbered each of the perfecting changes made to the House bill when the bill was passed, engrossed and returned to the House.
In the late 1980s, the Senate started offering an amendment in the nature of a substitute incorporating all their changes instead of sending back to the House “numbered Senate amendments.” This resulted in the House Rules Committee regularly waiving all points of order against appropriations conference reports. The House and Senate Appropriations Committees began to expect such a waiver and the practice became the norm. It was asserted that this was the only way to resolve the differences between the houses in a timely manner, but, in fact, it gave the conferees extraordinary power to include almost anything in their conference reports.
This regularly resulted in just one up-or-down vote in each chamber on the version reported from conference containing all compromises in one report. The rank and file membership didn’t have the opportunity to address any new legislation or unauthorized spending included and reported from conference.
Long ago, the Congress chose to separate the policy and spending functions by forming separate authorizing and appropriations committees. The authorizing committees were designed to determine and create the policies and programs in law and the appropriations committee was to provide the funds necessary to execute them. At the same time, the Congress has increased its propensity to create new appropriations, while spending tax dollars on programs whose authorizations have lapsed or have not been authorized by the relevant authorization committees.
The American people want the legislative process to return to the basic principles of representative government under the Constitution. For most of its history, the Congress has adopted and adhered to rules and precedents designed to meet those principles. Over the past century the Congress has adopted rules and established precedents to maintain a separation of policy from spending such as prohibiting unauthorized appropriations or changes in existing law on general appropriation bills.
In the past, if House conferees wanted to consider unauthorized appropriations or insert legislative language they would report them in disagreement, as the rules prohibited them from being included in any report from a conference. By reporting amendments in “technical disagreement” the conferees had a mechanism to resolve their differences while operating within the rules that govern what conferees may include in general appropriation bills Conference Reports.
When there are amendments reported in disagreement, the partial conference agreement would be considered and if adopted, each amendment in disagreement – either true or technical — would usually be disposed of by a prearranged separate motion. On all these amendments in disagreement, both houses would then act on them separately and work their will, allowing the membership the opportunity to vote on each. In this way public policy will better reflect the will of the people in that it will be the product of the full consent of the governed.
This process was enabled by the long-standing practice under which the Senate acted on House passed appropriation bills by offering separate amendments to the bill. When the Senate bill was passed and engrossed to be returned to the House, the Senate Clerk numbered each of the perfecting changes made to the House bill.
This change in practice may be arcane, but it was and is, in fact, a dramatic transformation in how federal spending is enacted into law which places serious restrictions on individual legislator’s ability to exercise their will and that of their constituents on legislation.
Billy Pitts is the former Staff Director of the House Rules Committee and aide to the House Republican Leader. He is also a member of the Editorial Board of The Ripon Forum.
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The Ripon Society is a public policy organization that was founded in 1962 and takes its name from the town where the Republican Party was born in 1854 – Ripon, Wisconsin. One of the main goals of The Ripon Society is to promote the ideas and principles that have made America great and contributed to the GOP’s success. These ideas include keeping our nation secure, keeping taxes low and having a federal government that is smaller, smarter and more accountable to the people.