Inappropriate Appropriations: How Congress spends without authorization

Washington

Congress spent $310 billion last year on some 250 agencies and programs that were no longer — as required under the law and Congress’s own rules — authorized to receive and spend funds. This problem of “expired authorizations” has grown with the ever-expanding size of government; and it contributes to that expansion by undoing long-established restrictions on spending.

Some of the unauthorized expenditures, documented in a recent Congressional Budget Office report, are for small-budget programs. Among hundreds of items, there is $22.5 million in grants for bulletproof vests for police and $3 million for implementing the Interjurisdictional Fisheries Act, neither of which has been author-ized since 2013.

But more significant are the large, expensive, and consequential agencies that have been operating for years without proper authorization bills. The State Department has been unauthorized since 2004, the Federal Trade Commission since 1999. And then there’s the Federal Elections Commission, which has set a dubious record by operating without an authorization since 1982.

An authorization is the first part of a two-step process Congress is supposed to follow in spending taxpayer dollars. Congress authorizes an agency or program, detailing why, how, when, and (a maximum of) how much money is to be spent. When Congress wanted to fund research and development in solar air-conditioning, for example, it authorized (in Section 606 of the Energy Independence and Security Act of 2007) a certain set of activities (such as “Advancing solar thermal collectors”) to be supported in grants totaling no more than a limited amount of money ($2.5 million per year) for certain years (2008 to 2012).

The plan for spending money, the authorization, should be in place before the spending itself, the appropriation, happens. At least that’s the idea. But as the CBO report shows, Congress regularly shovels money into programs regardless.

The two-step approach to congressional spending, now falling by the wayside, has a long history. In 1837 the House adopted a practice of authorizing expenditures and enacting appropriations separately. The aim was to avoid delays in appropriations — that is, to make sure the government paid its bills — by getting dicey policy issues resolved first in the authorization. The Senate followed suit in 1850. Soon both the House and the Senate had established separate committees for authorizing and appropriating funds.

This congressional practice, with some deviations, was followed for more than a century and became the basis of the 1974 Congressional Budget Act that’s supposed to govern spending today. Both the Senate and the House have rules to enforce the policy. “An appropriation,” House Rule XXI(2)(a)(1) baroquely intones, “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.” This is why, each January, the CBO sends Congress a list of agencies and programs the authorizations of which have expired or are soon to expire.

There are good reasons to authorize and appropriate funds separately. Having to complete two steps, rather than one, makes spending harder— always a good idea. With two bills that must complete the arduous path to the president’s desk, the process should encourage fiscal restraint and, in theory, help keep budget deficits down. Congress might authorize trillions in federal spending any one year, but can always appropriate fewer dollars if revenues (e.g., taxes) are expected to be less than that.

Government growth also might be curbed, legislators imagined, if programs’ ability to receive funds timed out. If Congress and the president could not agree to reauthorize a program, it would die. Requiring that programs and agencies be reauthorized offers regular opportunities to rethink and revise policies. It’s a cornerstone of congressional oversight.

Alas, Congress these days often skips the authorization process, and in so doing undermines its own oversight power. Since 2006, annual unauthorized appropriations have nearly doubled and the number of programs operating under expired authorizations has increased more than 45 percent. Another two dozen authorizations are set to expire this year, which will add billions of dollars more to the sum of unauthorized funds.

Congress has come up with various ways to dodge its own two-step process. Most commonly, each chamber simply votes to waive its rules against appropriating funds for unauthorized purposes. That leaves legislators free to say “yea” to massive spending bills that allow zombie programs and failed agencies to live on.

“If we relinquish our responsibility to regularly review and reform these programs, all of our government funding will essentially operate on auto-pay,” Senate Budget Committee chairman Mike Enzi said at a February hearing on the broken budget process.

The explosion in unauthorized appropriations is, in part, a product of the relentless growth of government. Every year, new programs are created, adding more and more reauthorizations to Congress’s to-do list. There is not enough time to examine every expiring program before appropriating funds.

It’s also politically easier that way. Every program has its congressional defenders. For leadership, skipping reauthorization averts costly legislative fights. Which means, of course, that not only is unauthorized spending a function of big government, it in turn contributes to bigger government by making it easier to spend money.

Most of all, unauthorized appropriations are a symptom of the general breakdown of the congressional budget process. It’s been more than 20 years since Congress managed to enact all 12 of its annual spending bills on time. Instead, lawmakers have increasingly relied on shortcuts — continuing resolutions or enormous omnibus spending bills — passed in the dark of night, usually at the last moment before a looming government shutdown. This has become the new normal, and we all are the poorer for it.

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