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Capitol Comment

    Capitol Comment 269 - Pull the Plug on Unauthorized Spending

    03/09/2000

    Republican House and Senate leaders are under tremendous pressure from Bill Clinton and many of their colleagues to bust the discretionary spending caps established by the 1997 balanced budget agreement. But the leadership has a weapon that, if they are willing to use it, could undermine many of Clinton’s pet initiatives while tempering the spending frenzy of their colleagues. All the leadership needs to do is enforce the congressional rules that prohibit spending money on unauthorized programs.

    The leadership could undermine many of Clinton’s pet initiatives by enforcing the congressional rules that prohibit spending money on unauthorized programs.

    Blocking the funding of unauthorized programs would not only save taxpayers money, it would also restore lawmakers’ oversight responsibilities and wrest power back from executive agencies. Many of these unauthorized, but funded, agencies are engaged in questionable activities that, in some cases, trample on the rights of honest citizens and businesses.

    The practice of funding unauthorized programs is clearly out of hand. Last year alone, reports the Congressional Budget Office, lawmakers appropriated $120 billion for hundreds of programs that lack authorization in law or whose legal authorization had expired. (This is a huge increase from the $102 billion in unauthorized programs funded for FY 1999.) Had lawmakers simply funded these programs at 80 percent of the previous year’s level, they would have saved taxpayers more than $24 billion.

    House rules allow any member of Congress to raise a parliamentary challenge, known as a "point of order," against any bill containing such funding. Unfortunately, the leadership routinely "waives" these rules, thus denying fiscally conservative lawmakers the chance to challenge the continued funding of questionable programs.

    As a consequence, dozens of programs that have long been conservative targets for elimination – such as the National Endowment for the Arts, the Legal Services Corporation, the Corporation for Public Broadcasting, and Americorps – are given a free pass from serious scrutiny.

    Some lawmakers will say that funding unauthorized programs is not such a big deal. (If this were true, we should just shut down the authorizing committees and save taxpayers million of dollars.) However, the authorizing language sets the legal parameters for what a program can and cannot do in order to fulfill its mandate. If a program steps outside of its legal boundaries, citizens should be able to challenge that unauthorized behavior in court.

    Another important check on a program’s behavior is the fact that its authorizing language typically contains an expiration or “sunset” date. This expiration date, and the requirement that programs be re-authorized to get funding, is intended to force lawmakers to periodically review a program’s performance and modify its authorizing language to meet today’s needs.

    Sadly, this rarely, if ever, happens. Why? Lawmakers are not doing their job in overseeing these programs. As a result, programs are never given the scrutiny they deserve and, through sheer inertia, they become immortalized in the federal budget.

    A more serious consequence of Congress’s failure to review these programs is that it cedes power away from the legislative branch to the executive agencies. Even with a valid authorizing statute, the bureaucratic culture is prone to taking Congress’s policy directives in unanticipated directions. Without the force of a valid authorizing statute, this behavior raises some very serious legal issues.

    For example, most of the major divisions within the Department of Justice - including the Antitrust Division, the U.S. Attorneys, and the Federal Bureau of Investigation - were last authorized in 1980. As lawmakers know, the unauthorized Antitrust Division is engaged in litigation against Microsoft. This raises two questions: (1) Does an unauthorized agency have the legal authority to sue a private sector business? And, (2) Why doesn’t Congress act to rewrite the Carter-era statutes now governing Justice and the Antitrust Division, with new authorizing language that reflects the competitive nature of the new, digital economy?

    Similarly, more than half of the Department of Commerce’s $7 billion appropriation goes to agencies with expired authorizations, including the National Oceanic and Atmospheric Administration (NOAA), the National Institutes for Science and Technology (NIST), and the International Trade Administration.

    Interestingly, one NOAA division, the National Marine Fisheries Service (NMFS), is in charge of enforcing certain aspects of the Endangered Species Act, which expired in 1992. This raises a troubling question: can an unauthorized agency promulgate an unauthorized law? The people of Seattle, Wash., and Portland, Ore., surely want to know the answer to this question. Recently, NMFS ruled that in order to protect certain endangered salmon sub-species, citizens throughout Washington and Oregon must limit private development, change their zoning laws, and enforce other land-use restrictions.

    Lastly, the Federal Communications Commission is also operating under an expired authorization (it was last authorized in 1990). One of the FCC’s responsibilities is to enforce the E-rate tax on telecommunications -- also known as the "Gore tax." This raises the question: How can the unauthorized FCC step around the Constitution and raise taxes - a power reserved for Congress - as it did last year? The millions of consumers affected by this tax deserve a real answer.

    The congressional leadership can control the spending agenda this year by (1) limiting funding of unauthorized programs to 80 percent of the previous year’s level, and (2) allowing fiscally conservative members to challenge their funding on the floor. To be sure, these are difficult steps, but the long-term benefits to taxpayers and the legislative branch of government make it worth a try.