The United States is headed full steam into one of the most catastrophic collisions of politics and public policy in decades, maybe in all of our lifetimes. The collision involves a number of legislative trains, all on separate tracks, and all headed for the same intersection at the end of the year — the Lame Duck session of Congress.
The debt ceiling, expiring tax provisions, a massive sequester of public spending, and unfinished appropriations, all in the absence of a federal budget, are just a few of the governmental failures we will face. These critical public policy issues all flow from our government’s authority to tax and spend — what is reverently referred to as the “power of the purse.” 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.”
Unfortunately, in recent years it seems that we have turned this weapon on ourselves. The pundits blame partisanship for the current political dysfunction and the winner-take-all mentality of Republican and Democratic legislators. While partisanship has clearly risen, one of the more chronic problems with congressional decision-making in recent years is procedural dysfunction. Indeed, many of the crises we now face can be traced back to the manner in which Congress has exercised — or failed to exercise — its most basic Constitutional responsibilities with regard to policy and spending.
While partisanship has clearly risen, one of the more chronic problems with congressional decision-making in recent years is procedural dysfunction.
Congress has continually failed to authorize and reauthorize federal programs in a timely manner and sometimes not at all, leaving appropriators with the opportunity to overextend their authority and create and modify programs rather than just fund them. Appropriations are almost always late and bundled at the last minute prior to the end of the fiscal year and now routinely done without any budget in place.
To address these failures, Congress needs to establish a new Joint Committee on Congressional Reform to examine what have become structural procedural deficiencies in the manner in which Congress exercises its “power of the purse.” This Joint Committee would consider and recommend changes in rules and in law that would affect how Congress responds and reacts, in a timelier manner, to dramatic changes in the economic conditions. The Committee would 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.
Beyond this, the Committee could recommend procedures designed to preserve the prerogatives of the Legislative Branch to prohibit, in the words of the General Accounting Office in 1962, “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 could consider to potentially achieve these ends, or at a minimum, begin the process of discussion:
1. Changing the start of the fiscal year to January 15th — 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, with the intent being to “provide more time for appropriations bills” after congressional budgets are considered and resolved.
As it has turned out, the current October 1st start of the fiscal year does not provide enough time to act on many budget items, given its proximity to the annual Congressional August recess. The current start of the fiscal year also 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.
Changing the start of the 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 need to be changed to mid-February.
To address these failures, Congress needs to establish a new Joint Committee on Congressional Reform to examine what have become structural procedural deficiencies in the manner in which Congress exercises its “power of the purse.”
2. Instituting “Biennial Budget Resolutions” – Since the Congressional Budget Process was put in place in 1974, the Congress has, with increasing frequency, failed to separately enact individual appropriation bills. Budget resolutions during election years have become especially harder to adopt and reconcile between the two Houses. In many instances, they are ignored altogether.
A two-year budget 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.
3. Strengthening the Anti-Deficiency Act – Congress’ power of the purse is set forth in 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…” In the face of encroaching Executive authority, Congress has over time passed and updated the Anti-Deficiency Act. Many believe this to be the Congress’s greatest check on the power of the Executive Branch.
To that end, the Act should be updated again to better define and limit Executive Agency discretionary excesses particularly in the absence of any authorizing language in law. Incentives should be built in to force the authorizing committees to decide whether programs should in fact be reauthorized, changed, or eliminated.
4. Strengthening and enforcing rules addressing the conferencing of appropriations between the House and Senate – For more than a century, congressional consideration of appropriations bills followed a traditional and predictable path. The House and Senate would meet in a conference committee, the bills would be reviewed paragraph by paragraph, and “amendments reported in disagreement” would be separated out to for further discussion and review. This detailed review enabled Members to fully engage in the legislative process, and helped ensure that policy changes — such as adding a new law or funding a new program that hadn’t been authorized — were not slipped into appropriation bills without the opportunity for individual votes. In short, it made for good legislation.
For the past two decades, the path followed by appropriations bills has been anything but traditional. In fact, the current process — – which has given birth to that legislative monstrosity known as “The Omnibus” — is a circumvention of established rules and procedures that were designed to place policy and spending on different tracks. It has forced Members and staff to address differences out of the public view, and has resulted in the “ping ponging” of major legislation back and forth across the Capitol. When the bill is finally considered, the rules have usually been waived and only one vote allowed, usually just before recess when time has run out.
Reforming this process and returning appropriations it to its traditional path of consideration would not only restore the Members’ right and responsibility to fully participate in the legislative process, but restore the authorizing committees to their rightful place as the shapers of public policy. In the process, it would also help restore to the appropriations process a degree of transparency, accountability, and effectiveness – three principles that have been lacking in recent years, but ones that will be essential if the budget challenges we face are to be overcome. RF
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Billy Pitts is a former House Leadership staffer and serves as a member of The Ripon Forum’s editorial board.