Unauthorized

Meet your unauthorized federal government

Amazingly, more than $300 billion of Washington programs are running on autopilot. Why is Congress ignoring its key oversight tool?

By Danny Vinik

The Federal Bureau of Investigation, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, Firearms and Explosives have not been reauthorized by Congress since 2009. The State Department hasn’t been reauthorized since 2003. For the Federal Trade Commission and National Weather Service, it’s 1998 and 1993, respectively. The Federal Election Commission has been operating with an expired authorization since way back in 1981.

Every federal agency is supposed to operate under congressional authorization—the set of rules that define the priorities and activities of the government. When they expire, it’s a chance to reconsider an agency’s mission, modernize it and impose some accountability on what could otherwise become multi-billion-dollar zombie government programs.

But increasingly, Congress is just letting those bills languish. Annual reports from the Congressional Budget Office show that a growing number of agencies and programs operate each year without congressional authorization. In the 2016 fiscal year, Congress funded more than $300 billion in programs that lawmakers have not reauthorized—more than a quarter of discretionary spending. That’s a huge jump from two decades ago, when unauthorized programs were closer to $35 billion, just 10 percent of the budget.

On Wednesday, this growing problem will receive congressional attention when the Senate Budget Committee holds a hearing to examine CBO’s most recent report, bringing some formal attention to an issue that tends to languish in bureaucratic obscurity.

Congress’ failure to pass reauthorizations doesn’t prevent government agencies from functioning; an agency can keep operating as long as it gets money in the budget. But critics say the inattention demonstrates a failure to uphold one of the most basic responsibilities of the legislative branch: oversight. This negligence, they say, has allowed ineffective programs to continue for years, wasting taxpayer money and foregoing much-needed modernization efforts to ensure the government has the resources and legal authority to address the top issues facing the country.

“The oversight doesn’t get done,” said Allen Schick, a professor at the University of Maryland who has written one of the most comprehensive books on the budget process. “That’s a good part of the rationale for temporary authorizations of appropriations. [Congress said,] ‘Let’s reauthorize them and at the point of reauthorization, let’s look over and see how they’re doing.’ But oversight is not exactly a booming business in Congress.”

The traditional way Congress creates and funds a new government program is by passing a law, then appropriating money for it. This process dates back to the very first Congress, in 1789, which passed a law establishing the War Department and a separate law funding it. The goal was to separate the money and policy decisions, out of worries that disagreements over policy would delay the flow of money, and that pressure to appropriate would lead lawmakers to pass legislation without proper scrutiny—what we called “riders” today.

Implicit in this budget process is a middle step: Congress granting the authority for money to be spent. Historically, these so-called “authorizations” were permanent, and for many years in the 19th century, they weren’t even put in writing. They were simply assumed. It wasn’t until after World War II that Congress began putting an expiration date on its authorizations, ensuring that lawmakers would regularly reevaluate programs and agencies.

Some programs are supposed to be reauthorized every year, like the defense spending bill; others operate on multiyear calendars, like the farm bill, which Congress typically reauthorizes every five years. But increasingly often, authority lapses and Congress fails to pass reauthorizations at all.

“They tried to clamp down on [permanent reauthorizations] because they thought if we quit doing that, we’ll have to actually stop and take the time and do reauthorizations, which is really well-intended,” said Kevin Kosar, a senior fellow at the R Street Institute and former analyst at the Congressional Research Service. He added: “And they just failed at it.”

Each January, the Congressional Budget Office releases a report outlining every program that is operating with unauthorized appropriations. The budget office’s most recent report, released about two weeks ago, found that in the 2016 fiscal year, Congress has appropriated $310 billion under 260 laws with expired authorizations.

Some of the authorizations are skipped because they’d open a can of worms just too messy to be shut, such as the Federal Election Commission, which Democrats and Republicans have both steered away from reauthorizing for more than three decades.

“Imagine if Congress had to reauthorize FEC,” said Schick. “Should they be in the business of it? Should there be limits on campaign finance? Is it too politicized? What kinds of limits? What about super PACs? The list is endless. The better part of discretion is to do nothing.”

In other cases, Congress simply doesn’t care enough to spend time going through a reauthorization process, like the National Ocean Service or the United States Commission on Civil Rights, important but obscure agencies that have been operating without authorization for years.

“There’s a lot of other stuff that’s not inherently political on the CBO list. Stuff where you look and say this is just a pet project or this seems like God, mom and apple pie,” Kosar said. “Why would you not reauthorize that? The answer is you don't have to. If you don't have to, it doesn't get done, because nobody polices it.”

For members of Congress, the political consequences of failing to pass these reauthorizations are almost nonexistent. The courts have ruled that appropriations in absence of an authorization are legal, relieving pressure on lawmakers.

“The more you appropriate for an expired authorizations, the less incentive you have to reauthorize,” said Schick. “Nothing bad happens.”

The agencies themselves are affected in different ways. Some, like the FEC, have become so accustomed to their status that they effectively operate on autopilot, with little guidance from Congress.

“If there is any impact of us not having [authorization], there would be no way for me to know that,” said Ann Ravel, chair of the FEC, in an interview. ”But I don’t believe there is. … Apparently, nobody has ever felt the need to try to make a change in this situation.”

Ravel, in fact, said she hadn’t realized the FEC’s authorization ran out. “I had no idea that was the case until you asked about it,” she said. “So, it’s interesting because I’ve been in the finance committee meetings and the like and it has never been raised at the commission level.”

In fact, some agencies are not especially eager to be reauthorized because new legislation could restrict their powers or give them more responsibilities without increased funding. And often, agencies already feel they face enough oversight from Congress, even without an authorization.

“Honestly, no,” said Sean O’Keefe, the administrator of NASA from 2001 to 2005, when asked whether the lack of an authorization was a sign that Congress did not provide effective oversight. “In my time at NASA, I had more than enough oversight, thank you very much.”

When Congress does tackle authorizations, it's a moment for reconsidering agency priorities and evaluating the effectiveness of different government programs. Each year for the past 54 years, for instance, lawmakers have passed a defense authorization bill that sets the policies around defense spending. This year, the law changed the military retirement system and reformed the defense acquisition system; Congress also continued to include language that prohibited President Barack Obama from closing the detention facilities at Guantánamo Bay. This past December, Congress passed a reauthorization of No Child Left Behind, the Bush-era law regarding secondary and lower education that expired in 2007. The new version transfers power back to the states while continuing federally mandated testing.

Why do some authorizations get such attention each year while other government programs go unnoticed? Some observers trace it to campaign donations.

“I'm going to be a little cynical here, but there aren’t as many contractors involved with the FBI and the Justice Department as there are with DOD,” said budget expert Stan Collender, who has worked for both House and Senate budget committees. “Half the budget is procurement and research and development. What they’re looking for is what's important to the contractors and therefore what's important to Congress because of campaign contributions.”

Congressional aides and agency staffers are quick to point out that not reauthorizing an agency is not the same as not conducting any oversight. Committees hold hearings and undertake investigations into different programs without regard to the authorization status of a program. Agency leaders frequently testify on Capitol Hill.

“There is precedent, in this case for over 30 years, that reauthorization is not required for effective oversight,” said Brian Hart, a spokesman for the Senate Rules Committee, which has jurisdiction over the FEC. “The Senate Rules Committee continues to monitor the FEC and will continue to do so.”

But many experts still contend that reauthorizations are a critical feature of the budget process that ensures Congress evaluates small programs and agencies. The FEC, for instance, has been widely derided as dysfunctional as its three Democratic and three Republican commissioners have repeatedly deadlocked on key decisions. Five of the six commissioners are serving even though their terms have expired, waiting until Congress confirms a replacement. One commissioner’s term expired in 2007.

“The last time the agency was reauthorized, no one had heard of the Internet,” said Lawrence Norton, the former general counsel at the FEC from 2001 to 2007, who is now a partner at the law firm Venable. “Now there are all sorts of new technologies and implications for the raising and spending of money that haven't been addressed in the law.”

“Certainly in the time that I’ve been on the commission,” Ravel said, “the only actual interest that Congress has shown was when there was an investigation or looking into the issue of Lois Lerner. … But with respect to any actual oversight, I haven’t observed any.”

Without regular attention to the normal authorization calendar, budget experts say Congress ends up conducting mostly “fire alarm” oversight, holding hearings and digging into the weeds of an issue only after it has been discovered, often in the media. Better oversight would involve investigating and evaluating agencies even when a major scandal hasn’t been discovered. The idea is to have them be more like a performance review, less like crisis management—a chance to end or adjust programs that weren’t performing well, or to increase funding for ones that were exceeding expectations.

“It undermines the capacity of agency to govern,” said James Thurber, the director of the Center for Congressional and Presidential Studies at American University, who is scheduled to testify at the hearing Wednesday.

But getting lawmakers interested in this routine oversight is difficult. The political benefits are almost nonexistent, and the centralization of power among congressional leaders has further reduced incentives for committee chairmen to do the dirty work of “cop-on-the-beat” oversight.

In the vacuum, appropriators have become even more influential in funding decisions for different agencies and programs. If you ask appropriators, that’s a perfectly fine outcome. But many experts contend that cutting authorizers out of this process produces less-informed funding decisions because appropriators are responsible for determining budgets across the entire government, whereas authorizers are focused on their specific areas of jurisdiction.

And as multi-authorizations have become more prevalent, the appropriation levels have increasingly diverged from the authorization levels. NASA, for instance, was reauthorized for three years under a 2010 law called the America COMPETES Act. In the 2011 fiscal year, appropriations were just 3 percent lower than the authorization. But the following year, they were 9 percent lower, and in fiscal year 2013, they were 12 percent lower. Funding has followed the same pattern for other agencies, like the National Science Foundation.

“Those authorization levels are really important to us,” said Amanda Greenwell, head of the office of legislative and public affairs at the National Science Foundation, which hasn’t been reauthorized since 2013. She added, “A lot of times the committee will not put any authorizations in at all, and that really worries us because then you’re putting in all these new requirements [and] there's nothing in there to say this is what the [funding] level should be for this agency.”

What can be done to ensure lawmakers enact reauthorizations and conduct effective oversight? Not much, from the outside. It’s mostly up to Congress itself. Empowering committee chairs would encourage them to become more deeply involved in their issues, experts say. Many authorizers say that congressional leaders’ disinterest in passing authorization bills has discouraged authorizers from even trying to pass bills out of committee. There’s some good news on that front: Speaker Paul Ryan (R-Wis.) has said he wants to return power to individual lawmakers and move to a more normal budget process. Whether that will lead to better oversight is yet to be seen, but lawmakers are hopeful.

“Oversight and authorizations are one thing that Congress has failed over the past decade to do,” said Sen. Cory Gardner (R-Colo.). “And I think going through regular order and an appropriations process will allow us to do a better job of oversight.”

If that doesn’t work, it’s hard to see what will. Ultimately, Congress takes action when the political stakes are high. And experts say that’s almost never the case for day-to-day oversight of smaller government agencies and programs. Until the media and public take a greater interest in these issues, lawmakers can continue to ignore them—and the number of unauthorized programs will continue to grow.

“Congress spending money that it’s not authorized to spend and it's a collective shrug, man. It's just wow,” said Kosar with a laugh. “Isn't that telling?”