04.27.2017 0

Department and agency budgets should have automatic sunsets, and require Congress to act affirmatively to fund them

By Peter Hong

I learned my first lesson about the federal spending process as a college intern on Capitol Hill.  I recommended that my congressman vote against an appropriations spending bill, noting that the bill funded several programs whose legal authorization had expired.   After the congressman voted for the bill, I asked why my recommendation had been rejected; after all, weren’t programs supposed to be authorized by Congress before tax dollars could be spent on them?

I never forgot the answer: “That’s the way it’s supposed to work.”

Decades later, we are still seeking a government that works the way it’s supposed to work.  Under Article I, Section 9 of the U.S. Constitution, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Dating back to the first Congress in 1789, Congress separated the process of making legislation of substantive law (authorization) and that of appropriations.  In its authorizing capacity, Congress is supposed to exercise its oversight duties, such as terminating programs that have grown obsolete or counterproductive; fixing programs that are necessary, but not properly functioning; and weeding out duplicative federal programs and agencies.  Once a program or agency is properly authorized by Congress, it can be funded by the appropriations process until it is due for another checkup, overhaul or termination.

At least, that’s the way it’s supposed to work – and with good reason.  Having to complete a two-stage process generally makes it harder for Congress to spend more money.  Left to their own devices, congressional appropriators would spend money faster than a government bureaucrat hits the exit on a Friday afternoon.  Without the accountability check of the authorization process, appropriators would aimlessly spend tax dollars without any legal constraints on the programs and agencies they fund.  Because Congress has neglected its oversight duties for so long, it has left behind a billion-dollar trail of appropriated, yet unauthorized, programs and agencies:  “zombie” appropriations.

The numbers spell it out.  According to the Congressional Budget Office, in 2016, Congress appropriated $310.4 billion for 256 of these unauthorized programs and activities.  Citizens Against Government Waste notes that just two decades ago, unauthorized appropriations, at $35 billion, represented 10% of overall discretionary spending; today, that figure is 30% — and growing.

You’d be surprised to learn which programs and agencies fall under this category of unauthorized “zombie” appropriations.  Surely, Congress would not fund major federal agencies or programs and let them run on virtual autopilot, right?

As noted by Danny Vinik at Politico, consider the U.S. State Department, which is funded at an annual level of $38 billion, but was last reauthorized in 2003.   Or consider the billions of dollars spent on federal law enforcement agencies, like the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, and Firearms – none of which have been reauthorized since 2009.  The Federal Election Commission has regulated our federal election financing system without congressional reauthorization since 1981 — the beginning of the Reagan Administration!

And you can place the blame squarely on Congress for failing to carry out its oversight responsibilities, thereby allowing the administrative state to operate on autopilot and expand its fiefdom without statutory constraints.  Through neglect and inaction, Congress has voluntarily diminished its constitutional authority to hold federal agencies accountable for results – and it shows.

What if Congress were to seriously reassert its oversight powers and impose a legal expiration date for every federal department and agency and every new federal law and regulation?  If this expiration date, or “sunset” clause, were to have the effect of law, every activity of the federal government would be forced to regularly justify its existence or die.  And if Congress were forced to scrutinize the entire scope of the federal government, perhaps that would temper the desire in Washington to pass more laws or waste more money.

Congress can take a constructive step in this direction if House Republican Conference Chair Cathy McMorris Rodgers of Washington has her way.  She just introduced the “Unauthorized Spending Accountability (USA) Act of 2017,” which would establish a three-year schedule to automatically cut the budgets for all unauthorized programs.  Under the USA Act, if a program remains unauthorized after three years, it would be sunset.

“Congress needs to reclaim its power of the purse to provide oversight on the structure, outcomes, and purpose of taxpayer-funded programs. This is why I re-introduced the USA Act this year,” said McMorris Rodgers.

Americans for Limited Government and a host of other free-market organizations have lent their support for the USA Act as a “thoughtful approach to increasing accountability, which will result in reducing unnecessary federal spending.”  Its passage would effectively end the reckless practice of appropriating funds for the unauthorized federal “zombies,” which currently roam through the administrative state like something out of The Walking Dead.  More importantly, it would signal that Congress is finally ready to clean up the federal spending process by establishing rules of the road with some real teeth.

After all, the quality of the process determines the quality of the product; if you want better lawmaking, you’d better start first with fixing the process.  And that’s the way it’s supposed to work.

Peter Hong is a contributing reporter at Americans for Limited Government.

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