[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                 HEARING ON PROTECTING CONGRESS' POWER.
                    OF THE PURSE AND THE RULE OF LAW

=======================================================================

                                HEARING

                               BEFORE THE

                        COMMITTEE ON THE BUDGET
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

            HEARING HELD IN WASHINGTON, D.C., MARCH 11, 2020

                               __________

                           Serial No. 116-25

                               __________

           Printed for the use of the Committee on the Budget
           
           
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]           


                       Available on the Internet:
                            www.govinfo.gov
                            
                                __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
41-966                      WASHINGTON : 2020                     
          
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                        COMMITTEE ON THE BUDGET

                  JOHN A. YARMUTH, Kentucky, Chairman
SETH MOULTON, Massachusetts,         STEVE WOMACK, Arkansas,
  Vice Chairman                        Ranking Member
HAKEEM S. JEFFRIES, New York         ROB WOODALL, Georgia
BRIAN HIGGINS, New York              BILL JOHNSON, Ohio,
BRENDAN F. BOYLE, Pennsylvania         Vice Ranking Member
ROSA L. DELAURO, Connecticut         JASON SMITH, Missouri
LLOYD DOGGETT, Texas                 BILL FLORES, Texas
DAVID E. PRICE, North Carolina       GEORGE HOLDING, North Carolina
JANICE D. SCHAKOWSKY, Illinois       CHRIS STEWART, Utah
DANIEL T. KILDEE, Michigan           RALPH NORMAN, South Carolina
JIMMY PANETTA, California            KEVIN HERN, Oklahoma
JOSEPH D. MORELLE, New York          CHIP ROY, Texas
STEVEN HORSFORD, Nevada              DANIEL MEUSER, Pennsylvania
ROBERT C. ``BOBBY'' SCOTT, Virginia  DAN CRENSHAW, Texas
SHEILA JACKSON LEE, Texas            TIM BURCHETT, Tennessee
BARBARA LEE, California
PRAMILA JAYAPAL, Washington
ILHAN OMAR, Minnesota
ALBIO SIRES, New Jersey
SCOTT H. PETERS, California
JIM COOPER, Tennessee
RO KHANNA, California

                           Professional Staff

                      Ellen Balis, Staff Director
                  Becky Relic, Minority Staff Director
                                
                                
                                CONTENTS

                                                                   Page
Hearing held in Washington, D.C., March 11, 2020.................     1

    Hon. John A. Yarmuth, Chairman, Committee on the Budget......     1
        Prepared statement of....................................     4
    Hon. Steve Womack, Ranking Member, Committee on the Budget...     6
        Prepared statement of....................................     8
    Josh Chafetz, Professor of Law, Cornell Law School, and 
      Visiting Professor at the University of Texas at Austin 
      School of Law..............................................    11
        Prepared statement of....................................    14
    Eloise Pasachoff, Associate Dean and Agnes N. Williams 
      Research Professor, Georgetown Law.........................    75
        Prepared statement of....................................    77
    Thomas H. Armstrong, General Counsel, U.S. Government 
      Accountability Office......................................    85
        Prepared statement of....................................    87
    Philip G. Joyce, Professor of Public Policy and Senior 
      Associate Dean, University of Maryland, School of Public 
      Policy.....................................................    97
        Prepared statement of....................................    99
    Hon. Sheila Jackson Lee, Member, Committee on the Budget, 
      statement submitted for the record.........................   147
    Hon. John A. Yarmuth, Chairman, Committee on the Budget, 
      questions submitted for the record.........................   154
    Answers to questions submitted for the record................   156

 
                         HEARING ON PROTECTING
                      CONGRESS' POWER OF THE PURSE
                          AND THE RULE OF LAW

                              ----------                              


                       WEDNESDAY, MARCH 11, 2020

                          House of Representatives,
                                    Committee on the Budget
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m. in room 
210, Cannon House Office Building, Honorable John A. Yarmuth 
[Chairman of the Committee] presiding.
    Present: Representatives Yarmuth, Moulton, Higgins, Boyle, 
Doggett, Schakowsky, Kildee, Panetta, Morelle, Horsford, Scott, 
Jayapal, Sires, Peters; Womack, Woodall, Johnson, Smith, 
Flores, Hern, Roy, Meuser, Crenshaw, and Burchett.
    Chairman Yarmuth. The hearing will come to order.
    Good morning, and welcome to the Budget Committee's hearing 
on Protecting Congress' Power of the Purse and the Rule of Law.
    I want to welcome our witnesses here with us today. This 
morning we will be hearing from Professor Josh Chafetz, a 
Professor of Law at Cornell Law School, and Visiting Professor 
at the University of Texas at Austin School of Law; Professor 
Eloise Pasachoff, Associate Dean and Agnes N. Williams Research 
Professor at Georgetown Law; Mr. Thomas Armstrong, General 
Counsel of the U.S. Government Accountability Office; and Dr. 
Philip Joyce, Professor of Public Policy and Senior Associate 
Dean at the University of Maryland, School of Public Policy. 
Welcome to all of you.
    I now yield myself five minutes for an opening statement. 
In Federalist 51, James Madison said that if we were governed 
by angels, ``Neither external nor internal controls on 
government would be necessary.''
    Since that is not the case, our founders purposely embedded 
a structure of checks and balances into our Constitution to 
ensure a separation of powers. After fighting a war to rid 
themselves of a king, the core goal of our Constitution was to 
divide powers between the branches in order to prevent one 
branch from gaining dominance and creating a new monarchy.
    The founders knew that money, and who controls it, is 
fundamentally important in a democratic government. They were 
adamant that Congress control the power of the purse since it 
can act as a critical check on the president, and because of 
the House's biannual elections for Members, it is the branch 
most accountable to the people.
    Congress has carried out this constitutional responsibility 
to control spending by enacting foundational laws to prevent 
the executive branch from misspending; laws like the 
Antideficiency Act and the Empowerment Control Act.
    But despite Congress' commitment to fulfilling its role, 
its ability to follow through and conduct oversight of 
executive spending has been increasingly challenged over time 
as presidents and agencies have sought to claim more control 
over spending. They have circumvented the law, ignored the law, 
and even broken the law, often without repercussions.
    This threat to the American experiment transcends 
presidents, parties, or politics. And if defending our 
institution and the basic premise of our democracy is not 
reason enough to strengthen our laws, then I would point to the 
hundreds of millions of people impacted by executive 
misspending and overreach: the American people.
    The erosion of our nation's separation of powers poses 
tangible and destructive impacts for constituents, states and 
localities, and the operation of government. Our communities 
count on the funds we appropriate whether it is disaster 
relief, infrastructure investments, improving our military 
bases and housing, or strengthening our education and 
healthcare systems.
    The American people need to know that when their 
representatives in Congress pass an appropriations bill and it 
is signed into law, a structure is in place to ensure that 
money gets to the people who need it. That is why the growing 
lack of transparency about how the executive branch uses non-
public apportionments to exert control over agencies' spending 
is a major problem.
    Too often, this leaves the American people and our allies 
abroad wondering whether, when, and how they will get the 
support they need and were promised by Congress.
    To help protect and enforce its spending decisions, 
Congress established the General Accountability Office, a 
nonpartisan legislative office charged with investigating and 
reporting on violations of budget and appropriations laws.
    Since its inception, GAO has uncovered numerous instances 
of executive misspending and impoundment. But even this 
nonpartisan agency has faced executive stonewalling, 
underscoring the need for stronger laws that demand compliance.
    For Congress to remain a coequal branch of government and 
fulfill its constitutional responsibility to control how the 
people's tax dollars are spent, we must reassert Congress' 
control over spending and ensure we are the ones holding the 
purse strings. Increasing transparency and accountability will 
enable Congress to provide the oversight of the executive 
branch that our founders intended.
    We are holding this hearing at a time when there is a 
growing interest in strengthening our constitutional checks and 
balances; but our nation's separation of powers did not break 
down over night. Decades of presidents and federal agencies 
testing the limits of their executive powers, a changing world 
that requires quick government action and access to resources, 
and an increasingly divided Congress more focused on what 
divides us than what can bring us together, have all 
exacerbated this clear and present threat to our democracy.
    But recent and high-profile executive abuses of budget and 
appropriations laws, including withholding foreign aid, 
diverting domestic disaster relief, and reprogramming defense 
funds, have brought Congress' power of the purse into the 
spotlight; and as a result, the American people are demanding 
action.
    Today we will have the opportunity to explore reforms that 
will help our government better serve the people and operate 
more like the democracy our founders envisioned. I look forward 
to what our expert witnesses have to say.
    [The prepared statement of Chairman Yarmuth follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    And I now yield five minutes to the Ranking Member.
    Mr. Womack. I thank the Chairman for this hearing, and 
thank you to today's witnesses for being here to discuss what I 
consider to be a very important topic.
    One of the most significant responsibilities afforded to 
Congress is the power of the purse, clearly stated in our 
Constitution. Our nation's founding document makes clear that 
budgeting is not a secondary part of governance, but 
fundamental to it. There is no escaping the fact that a 
breakdown in the budget process has exacerbated our dire fiscal 
situation and the ensuing policy challenges. This Committee has 
felt this dysfunction firsthand.
    Democrats did not produce a budget resolution last year, 
and they will not do a budget resolution this year. American 
families and businesses budget every day. They set budgets for 
the day, the month, the week, and the year. And my guess is 
families across America are reevaluating those budgets, based 
on the current COVID-19 situation.
    Yet here in the People's House, at the House Budget 
Committee, we won't do a budget. And while my Democrat 
colleagues on this Committee continually attempt to justify the 
inaction, some of their colleagues seem to recognize the 
problem at hand.
    In fact, just this week, the Blue Dog Coalition submitted a 
letter to Chairman Yarmuth calling on the Budget Committee to 
produce a budget resolution. They recognized the serious fiscal 
situation we face and how a budget resolution is the critical 
tool that can establish the appropriate framework for the 
entire federal government.
    The inability to complete the most basic part of the 
congressional budget process is telling of a much larger 
problem. Whether you are a Republican or Democrat, it makes no 
difference. There is no denying that both chambers have 
relinquished power and failed to adhere to the budget process 
prescribed by law.
    Congress has not followed regular order; that is, adopting 
a budget resolution conference report and separate annual 
appropriations bills before the start of the Fiscal Year since 
1995. That is nearly 25 years of dysfunction, 25 years of a 
diminished role in policymaking authority. And let me just add, 
it creates what is--I call a ``new normal'' for new Members of 
Congress to think that this is a normal way of doing business.
    While this is a concern of mine and one that needs to be 
addressed by Congress, there is a much larger issue here. One 
of the greatest problems we face is the fact that we have 
surrendered our authority to unchecked mandatory spending.
    A majority of federal spending is currently running on 
autopilot without limit or approval; it is exactly the opposite 
of what our Constitution prescribes. We need to reclaim our 
authority and bring credibility back to the budget and 
appropriations process. Our budget process was written in the 
1970's; it does not align with the dynamics of the modern 
Congress.
    The Joint Select Committee on Budget and Appropriations 
Process Reform, of which I served as co-chair, examined this 
very issue during the 115th Congress. We ultimately produced a 
bipartisan, bicameral package of reforms, one supported by my 
colleague, Chairman Yarmuth. Unfortunately, we were unable to 
achieve the required super-majority to affirmatively report the 
legislation out of committee.
    Although the outcome was not what I had hoped, I remain 
committed to enacting comprehensive reform that improves our 
budget and appropriations process. This should be a bipartisan 
priority and one that includes collaboration by both parties 
and both chambers.
    In 2019, Senate Budget Committee Chairman Enzi was 
successful in reporting a bipartisan and comprehensive budget 
process reform out of his Committee. I applaud Chairman Enzi, 
all of the Committee Republican and Democrat senators, 
Whitehouse, Kaine, Van Hollen, and Warner for putting aside 
partisan politics in producing much needed legislation.
    We, in the House, must continue building on the bipartisan 
efforts of the Senate and the Joint Select Committee. It is my 
hope that today's hearing provides insight on ways to address 
the dysfunction in our budget and appropriations process. It is 
not only important to the effectiveness of Congress, but also 
to the country's long-term fiscal health.
    With that, I yield back the balance of my time.
    [The prepared statement of Steve Womack follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Yarmuth. Thank you for your opening statement. In 
the interest of time, if other Members have opening statements, 
you may submit those statements in writing for the record.
    Once again, I would like to thank our witnesses for being 
here this morning. The Committee has received their written 
statements, and they will be made part of the formal hearing 
record. Each of you will have five minutes to give your oral 
remarks.
    Professor Chafetz, you may begin when you are ready.

   STATEMENT OF JOSH CHAFETZ, PROFESSOR OF LAW, CORNELL LAW 
 SCHOOL, AND VISITING PROFESSOR AT THE UNIVERSITY OF TEXAS AT 
                      AUSTIN SCHOOL OF LAW

    Mr. Chafetz. Chairman Yarmuth, Ranking Member Womack, and 
Members of the Committee, thank you very much for the 
opportunity to testify today regarding the scope and 
implications of the congressional power of the purse.
    The power of the purse is one of the most potent tools in 
the congressional toolbox. Not only does the Constitution give 
Congress, and preeminently this House, the lion's share of 
power over matters of taxing and spending, but that control 
over budgetary matters also gives Congress significant latitude 
when bargaining with the executive branch over collateral 
policy matters.
    This was a hard-won lesson for the generation that drafted 
and ratified the Constitution. They were intimately familiar 
with 17th Century conflict between the English Parliament and 
the Stuart Crown, much of which centered around who would have 
the power to tax and spend money.
    After the glorious revolution in which a Stuart Monarch was 
deposed for the second time in less than 50 years, Parliament 
ensured that the Crown would thereafter be almost wholly 
dependent on the legislature for funds. And that was one of the 
most significant steps in the democratization of the English 
Constitution.
    Well Colonial American assemblies, who were, after all, at 
the time English subjects in the 18th Century, knew this 
history intimately and they looked to it for resources in their 
battle with royal Governors and royal judges. Zeroing out 
executive and judicial salaries, and even refusing to pay rent 
on the royal Governor's house, were among the Assembly's 
favorite tools of resistance to royal authority.
    Indeed, the fact that the Crown took to paying Colonial 
judges' salaries out of Imperial funds so as to diminish the 
Assembly's power of the purse, was one of the complaints 
memorialized in the Declaration of Independence. That is to 
say, one of the justifications for the American Revolution that 
the Colonists offered was that the Crown was paying its own 
judges.
    Small wonder then, that in the years after independence, 
both the Republican State Constitutions and the New Federal 
Constitution drafted in 1787 ensured that the power of the 
purse remained firmly lodged in the legislature. And in 
particular, in the House of the legislature closest to the 
people.
    Indeed, the fact that Congress held the purse strings was 
one of the most common Federalist rejoinders to Anti-Federalist 
fears of a monarchical presidency. That is to say, it was one 
of the most important talking points in favor of the 
Constitution as the sort of fledging Americans were debating 
whether or not to adopt this new instrument of governance.
    Subsequent developments, ranging from the insistance on 
annual appropriations to the creation of the Treasury in 1789, 
to the creation of the standing House Ways and Means Committee 
in 1795, to the Miscellaneous Receipts Statute and the 
Antideficiency Act in the 19th Century all involved efforts by 
Congress to preserve and defend the leverage that the power of 
the purse gives it in interbranch negotiations.
    But Congress gave away some of that power in a nod to the 
growth of the administrative state in the 1921 Budget Act. But 
half-a-century of experience convinced it to take a good bit of 
it back with the 1974 Budget and Impoundment Control Act.
    In short, Congress has repeatedly reacted against the 
attempts to encroach on its power of the purse and it may well 
be time for the next episode of congressional reassertion in 
this sphere.
    In particular, let me briefly mention six ways, which in my 
view, Congress' power of the purse could be strengthened. And 
each of these are more fully elaborated in the written 
testimony I have submitted, as is the historical development 
that I have just outlined.
    First, greater use should be made of zeroing out some item 
or salary as a way of combatting executive overreach, and 
especially, as a way of enforcing contempt of Congress 
citations. If the South Carolina Colonial Legislature could 
refuse to pay the rent on the royal Governor's house, then 
Congress can refuse to pay the salary of a contumacious 
executive official.
    Second, appropriations bills should be drafted so as to 
make clear that riders are not severable from appropriations. 
If OLC wants to declare a rider unconstitutional, the executive 
should have to sacrifice the underlying spending. Moreover, the 
loss of the entire appropriation is more likely to create a 
justiciable case or controversary than the loss of the rider 
alone. And so non-severability may be a way in which Congress 
can enlist the courts as allies in the battle over budgetary 
control.
    Third, criminal penalties should be added to the 
Impoundment Control Act just as they already exist in the 
Antideficiency Act. Illegal impoundments are serious matters 
and the code should reflect that.
    Fourth, the Antideficiency Act itself should be tightened 
to prevent executive gamesmanship around the essential/non-
essential personnel distinction during a lapse in 
appropriations.
    Fifth, both houses of Congress should engage in significant 
capacity building. Both bulking up the number and pay of Member 
and Committee staff, as well as, the staff at non-partisan 
institutions like GAO, CBO, and CRS. It is impossible to check 
the executive without the capacity to adequately monitor the 
executive.
    And I would add that the work done by the Modernization 
Committee, and in particular, the resolution passed yesterday, 
is a significant step in this direction.
    Finally, I agree with the Ranking Member, that Congress 
should seek to return to the regular orthodox annual budget 
process laid out in the 1921 and 1974 Acts. That process was 
built to harness the expertise on both this Committee and the 
Appropriations Committee in the service of granular 
congressional control over spending. The turn to continuing 
resolutions and omnibus bills has diminished ongoing 
congressional control over budgetary matters.
    The power of the purse is one of the most significant 
congressional tools that the Constitution gives to Congress, 
and Congress should ensure that it's using it to its full 
potential.
    Thank you very much.
    [The prepared statement of Josh Chafetz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Yarmuth. Thank you for your testimony, and I will 
recognize Professor Pasachoff for five minutes.

  STATEMENT OF ELOISE PASACHOFF, ASSOCIATE DEAN AND AGNES N. 
          WILLIAMS RESEARCH PROFESSOR, GEORGETOWN LAW

    Ms. Pasachoff. Chairman, Ranking Member Womack, and Members 
of the Committee, thank you for the invitation to testify 
today.
    I would like to make three points this morning. First, 
presidents have many tools to shape spending after the 
appropriations process in Congress has come to an end. And in 
general, these tools play a useful role in ensuring efficient 
spending of taxpayer dollars within the bounds of the law.
    Second, like any tool of implementation, these tools can be 
misused, and they recently have been.
    Third, there are a number of opportunities for Congress to 
cabin the misuse of these tools while still recognizing their 
value in the ordinary case.
    And in the rest of my time, I will illustrate these points 
by walking through recent experiences with three key 
Presidential budget tools.
    The first tool that I will discuss is apportionment under 
the Antideficiency Act. This is the authority to specify by 
time period and by project, how agencies may spend their 
appropriations.
    The purpose of apportionment is effective funds management; 
it is not an independent source of executive policy 
development. But the current Administration seems to be 
developing an expansive view of apportionment as a tool of 
Presidential control.
    The most prominent example of this occurred last summer, 
when OMB placed holds on some foreign aid funding, including to 
Ukraine. Now, these apportionments became central to the 
impeachment inquiry, but that is a completely different issue 
from the one that concerns us today, which is the 
Administration's broad view of its apportionment power.
    In defending these apportionments, OMB attempted to place 
the President's apportionment authority in the context of his 
constitutional duty, to take care that the laws be faithfully 
executed. But as GAO correctly explained, faithful execution of 
the law does not permit the President to substitute his own 
policy priorities for those that Congress has enacted into law.
    So Congress could usefully clarify these limits on 
apportionment, and it could also require that apportionments be 
made public, rather than letting the executive keep them 
secret.
    The second tool I will discuss is rescission and deferral 
under the Impoundment Control Act. Congress passed this act to 
limit Presidential attempts to unilaterally withhold funds, 
sometimes called policy impoundments.
    Under this act, a president who wants to cancel certain 
spending must make a rescission proposal to Congress, and 
Congress must affirmatively pass a rescission bill within 45 
session days or the president must release the funds. And a 
president who wants to defer certain spending for operational 
reasons, not for policy reasons, must tell Congress about the 
delay.
    Here, too, the Administration is engaging in expansive 
interpretation of Presidential authority. On rescission, the 
OMB has claimed that the act permits the President to 
unilaterally cancel any spending he wishes if Congress does not 
have time to act on a rescission proposal before the end of the 
fiscal year.
    But this is not right as GAO has explained. To read the act 
to allow the Administration to cancel spending without 
congressional approval is to ignore the limits that the law 
clearly places on Presidential efforts to impound funds.
    The Administration's expansive view of deferral is no 
stronger. It has tried to expand a category that GAO has 
distinguished from deferral called ``a programmatic delay.'' 
And the Administration has essentially argued that something is 
a programmatic delay whenever the President says it is.
    It is also argued that executive branch policy decisions 
can justify a programmatic delay. But again, this just is not 
right. OMB's reading would allow the category of programmatic 
delay which is not even mentioned in the Impoundment Control 
Act; it clips the controls that Congress put on--put in place 
in that act.
    OMB's reading would also mean that the Administration is 
the only one policing itself for compliance with the 
Impoundment Control Act, which again, is not how the rule of 
law operates. Congress could usefully reject both of these 
arguments with amendments to the Impoundment Control Act.
    The last tool I will discuss is transfer and reprogramming. 
A transfer moves funds between different appropriations while a 
reprogramming changes the allocation of funds within a single 
appropriation. And here, too, the Administration is taking a 
particularly broad view under these authorities.
    It has been actively using these tools, not just through 
the emergency declaration and not just in building the wall, 
but more generally, in other areas of domestic and foreign 
policy as well.
    The lack of transparency in these actions, too, makes it 
difficult to monitor and hold the executive branch accountable 
so Congress could, again, usefully place more specific 
restrictions on transfer and reprogramming, and could also 
require more transparency around the use of these tools.
    Thank you for your time and your attention to these 
important issues.
    [The prepared statement of Eloise Pasachoff follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Yarmuth. Thank you very much.
    I now recognize Mr. Armstrong for five minutes.

    STATEMENT OF THOMAS H. ARMSTRONG, GENERAL COUNSEL, U.S. 
                GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Armstrong. Good morning. Thank you, Mr. Chairman, 
Ranking Member Womack, and Members of the Committee for this 
opportunity to speak with you about the work we do at GAO.
    Since GAO was established in 1921, we have prepared audits, 
investigations, and legal decisions for the Congress. What I 
want to focus on this morning are the--is the legal work we do, 
the legal decisions that we issue.
    We do a number of things in this area that--and it is all 
designed to support your constitutional prerogatives of the 
purse. We issue decisions to Members of Congress and Committees 
of Congress. We issue decisions to executive branch officials; 
in fact, some executive branch officials have a statutory right 
to a decision from GAO and that is very important because it is 
through our decisions that we establish standards to ensure 
compliance with the appropriations acts and with fiscal 
statutes. We are kind of on the front line for the Congress.
    We also have responsibilities under the Antideficiency Act. 
For example, we maintain the official repository of reports by 
executive agencies of ADA violations, and we report annually to 
the Congress on what we have found in the previous fiscal year. 
And shortly, you will be getting a report from us about Fiscal 
Year 2019.
    As I think everybody knows by now, we have certain very 
significant responsibilities under the Impoundment Control Act. 
Another thing that we do, and this is where we help the 
Congress make sure that things are running as they should be in 
the executive branch is, we have something that we call the 
``Red Book.'' It is the ``Principles of Federal Appropriations 
Law''; it is a multi-volume treatise on appropriations law.
    It is called the Red Book because in hard cover, it is red, 
and you know, attorneys are kind of clever like that. So it is 
the Red Book. But that is a compendium of 99 years of case law 
based on 99 years of experience and expertise, and that is 
regularly referred to throughout the executive branch, and it 
is referred in--by the federal judiciary.
    There are some things that have happened in the past few 
years that I think would compel legislative action on your part 
that would strengthen our role. Because if you strengthen our 
role, you are really strengthening your oversight of executive 
spending activity and we can provide you information, legal 
views, legal conclusions that I think are so very important to 
you as you work through the appropriations process and you make 
choices. I think it is important to you as you carry out your 
own oversight of executive activity.
    Mr. Yarmuth, you and Mr. Womack may remember that a little 
over a year ago, you asked us for an opinion whether the 
Impoundment Control Act allowed a president to propose a 
rescission during the last 45 days of a Fiscal Year when the 
money that would be proposed for rescission would expire by 
operation of law before the end of that 45 day period.
    We said, no, that the Administration did not have the 
authority to do that, and that is something where you might 
want to make clear in the Impoundment Control Act. We do have 
recent experience where the current make-up of the Office of 
Management and Budget has advised executive general counsels 
that they do not need to listen to GAO's decisions and 
opinions. So to ensure this, you can put it in law.
    In that regard, something else that I would mention is that 
OMB regularly gives instructions annually to federal agencies 
on the budget process, and specifically, on the Antideficiency 
Act. Until last summer, OMB, for decades, had instructed 
agencies if GAO concludes that you violated the Antideficiency 
Act, you need to report that violation. You can and should 
report your disagreement with violation if you disagree, but 
you should report it.
    Last summer, OMB revised that instruction and said you only 
have to report a violation if we, OMB, and you, the agency, 
agree with GAO.
    So we sent a letter to executive general counsels and said 
if we conclude that there is a violation of the Antideficiency 
Act, and you do not report it, we are reporting it. I think 
that is information that the Congress should have as the 
Congress oversees executive spending, and as the Congress makes 
its choices in the appropriations process.
    And if I could take just one more minute, one other point I 
would make is some years ago, the Office of Legal Counsel over 
at the Department of Justice basically told agencies if you 
violate a spending restriction and that spending restriction 
was enacted by Congress into permanent law, as opposed to an 
appropriations act, you do not need to report that violation to 
Congress.
    In effect, it is a rather anomalous policy of Congress gets 
information depending on the legislative vehicle Congress has 
chosen. If it is in an appropriations act, the Office of Legal 
Counsel says you have to report it. If the restriction is not 
in an appropriations act, you do not have to report it. And 
again, when we uncover things like that, we do report it.
    I am going to read a quote because when I think about these 
legislative ideas we have, and when I think about the topic 
with--of this hearing, I am reminded again, James Madison in 
the Federalist Papers in 1788, when he was talking about the 
power of the purse and that it should be housed in the 
legislature. He made the point that allowing it in the 
legislature will help reduce ``all the overgrown prerogatives 
of the other branches of government.'' I think that is the 
power of the purse.
    Thank you very much and I am sorry for going over time.
    [The prepared statement of Thomas H. Armstrong follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Yarmuth. Thank you for your testimony.
    Dr. Joyce, you are recognized for five minutes.

 STATEMENT OF PHILIP G. JOYCE, PROFESSOR OF PUBLIC POLICY AND 
SENIOR ASSOCIATE DEAN, UNIVERSITY OF MARYLAND, SCHOOL OF PUBLIC 
                             POLICY

    Dr. Joyce. Thank you very much, Chairman Yarmuth, Ranking 
Member Womack, Members of the Budget Committee. I appreciate 
you inviting me to share my views on the role of Congress in 
the budget process.
    I believe a strong congressional budget presence is crucial 
to the health of our democracy, and that ineffective 
congressional budgeting invariably strengthens the executive 
and weakens the Congress.
    In my testimony, I am going to discuss how we got to this 
place, in addition to articulating some steps that are talked 
about in more detail in my written testimony that might be 
taken to shift the balance of power to a place where the 
Congress can be on a more consistently equal footing with the 
executive.
    I would start by saying that I testified before this 
Committee in May 2016 in a very similar hearing. And I tried to 
avoid quoting myself, but I am going to. I read in that 
testimony a sentence that said, ``It might be particularly 
fruitful to talk about this now since we do not know which 
party will occupy the White House in January 2017.''
    And all I had to do was change the date to 2021. But I 
think the sentiment still applies, which is that you may be 
able to think about the protection of congressional 
prerogatives as I think you should, relatively unconstrained by 
knowledge of who would control the presidency and the Congress.
    It is important, I think, to start by reiterating the 
reason that the 1974 Act gave us budget committees, and the 
budget resolution, and CBO. And it is because they were viewed 
as essential to the Congress reclaiming the power that had 
shifted too much to the president.
    And some parts of the law have worked well. I think CBO has 
given the Congress the analytical power to challenge the 
executive, and reconciliation has proved a very useful tool for 
the Congress to cut the deficit when it wants to.
    However, the budget resolution itself has only been passed 
about half the time in the last two decades after being passed 
every year for the first two decades after the 1974 Budget Act. 
This suggests the possibility that the problem is not at least 
wholly procedural.
    In fact, in 2011 I testified before this Committee with its 
former chairman, Jim Nussle, and he suggested to the Committee 
that, ``Before you search for new budget procedures to fix the 
current process, actually give the current process a try.''
    I agree, and I think that the Congress basically had it 
right in 1974 when it created these committees, and CBO, and 
the budget resolution. In my testimony, I do suggest several 
changes in either law or practice that could assist the 
Congress in reasserting its congressional--or its 
constitutional role in budgeting.
    First, I would change the Budget Committees into committees 
on national priorities to include the Chairs and Ranking 
Members of the appropriations, tax writing committees, and also 
other major authorizing committees. I think this would lead to 
the budget resolution being taken more seriously.
    Second, I would make the resolution itself stronger by 
thinking more comprehensively about how all the resources 
devoted to particular policy aims would be used, and how they 
are traded off against each other, rather than focusing on 
distinctions which are largely driven by committee jurisdiction 
between discretionary spending, mandatory spending, and tax 
expenditures.
    Third, I do think it is important for the Congress to 
articulate a path for the budget on a routine basis. This does 
not necessarily mean passing a budget resolution every year. I 
am sort of agnostic about biennial budget resolutions versus 
annual budget resolutions. But as a matter of routine, I think 
having to confront the future path of the budget and deciding 
whether to use the tools available to you, primarily 
reconciliation, is a very important thing to do.
    Fourth, I think the abysmal record of the Congress on 
appropriations contributes to the general loss of public regard 
for the Congress. This puts you in a weakened position relative 
to the president, and is a completely self-inflicted wound 
given that in only three of the last 44 years, have all the 
appropriations been passed and signed into law before the 
beginning of the fiscal year.
    Fifth, I think Congress should take its oversight role 
seriously by attempting to figure out how well programs and 
policies are working, and how they might be changed in order to 
be more effective.
    Sixth, I think that Congress should support and defend the 
analytical institutions, especially CBO and GAO, that assist it 
in performing its constitutional responsibilities.
    And finally, I think that Congress should stand up for 
itself in the appropriations process by asserting its 
prerogatives to decide on the details of spending, ensuring in 
particular, that the provisions of the Impoundment Control Act 
are followed.
    In conclusion, Article I of the Constitution comes first 
for a reason, and the Congress is called the first branch 
because of the desire of the founders; the policies and laws 
being initiated by the representatives of the People.
    The budget process is the central means of deciding who 
will pay for government and what government will do. Power 
abhors a vacuum, however, and if the Congress does not reassert 
its authority through law and action, it will inevitability 
lead to the further transfer of power to the executive.
    Thank you very much.
    [The prepared statement of Philip G. Joyce follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Yarmuth. I thank the gentleman. We will now begin 
our question and answer session, and we are going to depart 
from our customary pattern, and I am going to recognize the 
Ranking Member, Mr. Womack, for 10 minutes.
    Mr. Womack. I thank the Chairman for giving me this 
opportunity early in the hearing because I do have a couple of 
other hearings that I have to depart for. And I appreciate, 
again, the testimony, and quite frankly, the education that we 
have received from these experts that are seated before us.
    Dr. Joyce, question for you. We all know that our 
democratic government is based on a system of checks and 
balances. And as I mentioned, in the hearing we had yesterday 
with the DoD Deputy Secretary Norquist, I have some serious 
concerns about the executive branch's recent decision to 
substitute its judgment on key defense funding decisions that 
were made by the Congress of the United States.
    So regarding discretionary spending that is provided by 
Congress and the appropriations process, what are the checks 
and balances that we have over the executive branch to ensure 
the Administration implements the bills that are--that fund the 
government in accordance with the intent of Congress?
    Dr. Joyce. Well partly, I think what you have to do is 
think about exactly how much detail and direction you want to 
provide in law in those appropriation bills. I mean, often 
where the gray area comes in might be where there is guidance 
that is in report language, or guidance that is in, you know, 
something that is said on the floor but it is not necessarily 
in the bill itself.
    So I think you, in some sense, have no choice in that kind 
of situation but to try to make the law more strict in terms of 
what you are permitting and not permitting to happen.
    Mr. Womack. You have done extensive work in this area, and 
as you indicated in your opening, you testified before this 
Committee in 2016 about this broken budget process. With that 
said, it is extremely frustrating to me, and probably to you, 
that we have not been successful in fixing this process over 
time.
    Dr. Joyce. Right.
    Mr. Womack. We gave it a good try in 2018 as was mentioned 
in my opening. The Chairman was with me. The guy that sits 
here, to my right, was with me during this process. We got very 
close to the finish line but fell just a little bit short. And 
now Congress continues to rely on a harmful practice such as 
CRs, omnibuses, and budget deemers to fund the federal 
government.
    So in your opinion, why have we failed? And let me just add 
this. When the vote was taken, the threshold was a super-
majority. We had to have five, and five out of the sixteen-
member Committee. Four Republicans each, Republican, Democratic 
House and Senate. Four of my Democrat colleagues voted present 
on the final vote.
    Dr. Joyce. Mm-hmm.
    Mr. Womack. Why have we failed?
    Dr. Joyce. I think in part, I think it is always hard to 
change the status quo because the people who are present at any 
given point in time might feel like they are getting some 
benefit from the status quo. I think also, you know, there is a 
serious question in my mind, you know, given the overall fiscal 
situation we are in. How much budget process changes themselves 
can help us get out of the, you know, $23 trillion worth of 
debt.
    The Congress does not tend to--the budget process is not 
good at forcing the Congress to do things that it does not want 
to do. And I think the places where the budget process could be 
changed, and where I think some of the sort of fruitful kinds 
of process changes that you would consider, are places where it 
would give the Congress more information and it would help the 
Congress to better stay on its--on the schedule that it has 
established for itself.
    I think people confuse having the budget process get us out 
of the fiscal mess with having the budget process sort of 
helping the Congress to be able to have a more effective means 
of making those decisions. And maybe it is difficult for people 
to sort of separate those, too.
    I thought that you--your committee did a very good job of 
doing that, actually, of keeping the procedural fixes where 
they ought to be. I do think that the, you know, in that 
particular case, the rules that were set up in advance, which I 
understand why they were, but they required such a, you know, a 
super-majority that it--the hurdle was very high in getting 
something out of that committee.
    Mr. Womack. That may have been intentional on their part.
    Dr. Joyce. Right.
    Mr. Womack. I do not know, but we got very close.
    Professor, I have a quick question for you. It, in my 
opinion--and thank you for the history lesson, that was very 
instructive to me and I need to read more of that.
    But to me, it is grossly antithetical for instead of doing 
a budget resolution and doing what we call--all of us call 
regular order, that we would kick the decision to four people 
basically, the leaders of the House and the Senate, to 
basically decide what those numbers that our appropriators are 
going to write to and have nothing to do, by the way, with 
mandatory spending.
    That's a whole other subject, but for the--for four people 
to have to come to some agreement on what the appropriators 
302(a)'s should look like. Do you agree with that?
    Mr. Chafetz. I do agree with that. One of the things that 
the rise of continuing resolutions and omnibus bills certainly 
does is shift control from committees generally, and especially 
this Committee, to leadership.
    And, you know, you asked Dr. Joyce why previous efforts had 
failed. I would point you there, right, leadership has--you 
know, cameral leadership has relatively little incentive to try 
to decentralize power to committees when it can sort of 
maintain that power in itself.
    And so you have a situation where leadership of both 
parties is much more invested in something like the continuing 
resolution omnibus way of going about things than in the 
regular order.
    Mr. Womack. Any of you that followed the Joint Select 
Committee knows that we struggled. They had a lot of discussion 
about, and struggled with, the old carrots and sticks idea. 
Personally, I think that there have to be some consequences for 
the failure to do your job.
    In the private sector, failing to do your job means you 
probably don't have a job. But up here it is a little bit 
different. You talked in your recap of history that there were 
consequences where there was the withholding of either rent or 
pay or something. Some benefit that would accrue to the people 
that are violating the terms.
    Is it going to be necessary for us to have some serious 
consequences ultimately for the Congress not to do its job?
    Mr. Chafetz. I think it is important for this Committee to 
sort of decide how much of that power it really wants to wield, 
and how much it wants to cede to leadership. There are the 
consequences for, sort of the Congress as an institution, 
right, in terms of the sacrifice of its power to the executive.
    I think equally there should be consequences for the 
executive. You know, a lot of what I talked about in the sort 
of historical recap was situations in which the executive 
branch tried to seize appropriations power, or tried to wield 
appropriations power on its own without the legislature, and 
the ways that various legislatures have pushed back on that. 
And I think Professor Pasachoff pointed us to a lot of ways 
that is happening today as well.
    So in thinking about what there should be consequences for, 
I would point first to consequences for sort of an executive 
branch usurpation. And maybe one way that Congress can go about 
implementing those consequences is through revamping its own 
procedures, and perhaps one of those would be a return to 
regular order.
    Mr. Womack. I thank the panel for your testimony here 
today. I wish I could sit through all of it. I will get a 
report back for what else transpires here today.
    And again, Mr. Chairman, I want to thank you for your hard 
work on the Joint Select Committee. I thought we did really, 
really good stuff and maybe have a blueprint for how things can 
go forward.
    But this is, in my serious opinion, one of the most 
pressing issues facing the Congress of the United States. And 
that is to get back to some regular order on budgets and 
appropriations. Because while there may not be consequences for 
us failing to do our jobs, there are consequences for this 
country eventually, and that is yet to be determined.
    And I yield back.
    Chairman Yarmuth. The gentleman yields back. I now 
recognize the Vice Chairman of the Committee, the gentleman 
from Massachusetts, Mr. Moulton, for five minutes.
    Mr. Moulton. Thank you, Mr. Chairman. And as the Vice 
Chairman of the Committee, which sounds like a much bigger deal 
than it actually is, I would like to thank both the Ranking 
Member and the Chairman for their work on that Joint Select 
Committee. And I do wish they had been successful, and it is an 
effort that we should try to do again.
    Thank you all for joining us here today. You know, I think 
you may not realize it, but you are actually very fortunate to 
be here today in the hotseats because I cannot remember a time 
when there has been more bipartisan consensus on this Committee 
and bipartisan concern.
    And you know, I think that we would be a better Congress if 
that happened more often. Because in the midst of a very 
difficult divisive time in politics here in Washington, we 
cannot forget why we are here and the solemn oath that each of 
us swore not to the Speaker of the House or the President of 
the United States, not to this party or that party, but to the 
Constitution. To the Constitution that we all hold dear.
    We do not spend enough time thinking about that oath and 
understanding the Constitution and the laws; those wise 
restraints that make us free that support it. Certainly, one 
issue of bipartisan concern here is the diminishing role of 
Congress and our diminishing willingness to exercise our 
authority when it comes to oversight of the executive.
    At the beginning of the year, the Government Accountability 
Office determined that the Administration violated the law when 
it withheld military assistance from Ukraine.
    Mr. Armstrong, I have a feeling you played a role in making 
that determination. Can you share briefly how you came to that 
conclusion?
    Mr. Armstrong. You know, Mr. Moulton, that was really a 
fairly straightforward legal analysis. The Impoundment Control 
Act is the only authority that a president has to withhold 
funds from obligation. The president doesn't have any 
constitutional authority to withhold; doesn't have any inherent 
authority to withhold. And the Impoundment Control Act permits 
a withholding for policy reasons only if the president submits 
a rescission proposal and waits 45 days. And if Congress does 
not act to rescind during that 45-day period, the president 
must release the money.
    What we found was that this Administration withheld funds 
from obligation for almost two months. And when we asked the 
Office of Management and Budget the reason for it, OMB told us 
that it was to ensure the money was going to be spent 
consistent with the President's policy considerations.
    There is no authority in the Impoundment Control Act to 
withhold for policy reasons; it is really clear. And so there 
was not--that was not that difficult a legal decision to come 
to. The difficulty we had in the time we had, was developing 
the information we needed to establish the facts, and to 
analyze those facts because we apply the law to facts, and we 
go where the law takes us.
    Mr. Moulton. So I mean, hearing that a president might 
withhold money for policy reasons, I imagine sounds to many 
like a reasonable thing to do; it doesn't seem totally out of 
the ordinary. But the problem is that, as you say, it is 
against the law.
    Mr. Armstrong. Yes.
    Mr. Moulton. Is that safe to say?
    Mr. Armstrong. Yes, that is right. Yes.
    Mr. Moulton. And is there anyone on the panel who would 
disagree with that?
    [No verbal responses.]
    Professor Chafetz, you are the constitutional historian, or 
at least one of them here today. What might have concerned the 
antiFederalists like Jefferson and Madison about power shifting 
more and more to the executive under modern presidents, both 
Democrat and Republican? And in this particular example, how 
would their interpretation of the necessary and proper clause 
of the Constitution inform these concerns?
    Mr. Chafetz. Well just to be clear, when we are talking 
about the antiFederalists, we are talking sort of earlier--a 
little bit earlier time period. We are talking about the people 
that actually opposed ratification of the Constitution, so 
people like Patrick Henry and Luther Martin. And their main 
concern when they looked at the structure of the presidency was 
that it looked a lot like the British Crown. You know, you have 
got this person, and admittedly, elected only for a term of 
years. But who has control over the military? Who has a role in 
the legislative process with the veto?
    They were concerned about a sort of overbearing presidency. 
And the response they kept getting from people like Madison and 
Hamilton was you do not need to worry as much about the 
president because Congress will always have the power of the 
purse.
    And in particular, there is a provision in Article I that 
says no appropriations for the Army can last for more than two 
years. They said, ``Look. Every new Congress will have the 
opportunity to defund the military if we see the president 
using it in an oppressive way.''
    So the idea that the power of the purse was the central 
reason that you could trust the new Constitution against this 
fear that the president would become a monarch; that was the 
sort of big concern there.
    Mr. Moulton. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Yarmuth. The gentleman's time has expired. I now 
recognize the gentleman from Ohio, Mr. Johnson, for five 
minutes.
    Mr. Johnson. Well thank you, Mr. Chairman.
    I would like to echo what the Ranking Member said earlier. 
Your work on that--the bicameral budget reform group, I wish we 
had actually produced some things. I have tremendous respect 
for you and the work that you do, but I am a little bit 
confused, you know, because today this hearing is called, 
``Protecting Congress' Power of the Purse and the Rule of 
Law.'' But I wish instead it was titled, ``Exercising Congress' 
Power of the Purse and Complying with the Law'' because we are 
doing neither.
    We are not here to mark up a budget because, Mr. Chairman, 
you have not been able to bring your colleagues around to 
produce a budget. In fact, this is the second year in a row; 
and I might remind that the last time that my colleagues had 
control of the House for four years they did not do a budget. 
There is just a--there is a philosophy on that side of the 
aisle that says budgeting is not important.
    It is the chief responsibility of this Committee to write a 
budget resolution. Instead, over the last year we have convened 
hearings to talk about things like Medicare for All, the Green 
New Deal, and the need for comprehensive immigration reform. 
But we have not come together to do what we are sent here to 
do: to pass a budget. To put it simply, we have not done what 
the American people sent us here to do and what the law 
requires us to do.
    The failure of this Committee to write a budget resolution 
is a failure of our constitutional duty. In other countries, 
the refusal or inability to pass a budget leads to motions of 
no confidence, resignations of prime ministers, and snap 
elections. But not here, not in Congress. Thank God it does not 
work that way, or we would all be out on our ears.
    My colleagues are well aware that there are no consequences 
for inaction, even though the Budget Act establishes the 
various steps and deadlines of the congressional budget 
process. Instead, Congress relies on continuing resolutions and 
omnibus appropriations to fund our federal government.
    Just yesterday, the Deputy Secretary of Defense testified 
before this Committee and gave many examples of how CRs create 
uncertainty for our men and women in uniform and weaken our 
military readiness. And yet, Congress will likely rely on 
another CR this year.
    I would like one good reason why we should rely on CRs and 
why we are not passing a budget. I have asked that question but 
not--I have not gotten an answer. You cannot. You cannot 
reconcile that because there is no good reason why Congress is 
failing to pass a budget.
    I respectfully remind my colleagues, my Democrat 
colleagues, about failing to write a budget resolution for 
Fiscal Year 2020. They have essentially violated the Budget 
Control Act--the Budget Act.
    And so if this Committee wants to have a meaningful 
discussion on Congress' power of the purse and the rule of law, 
then we should start by following the law. Produce a budget. 
Let's have a markup. Or at the very least, let's convene a 
hearing to discuss the need for bipartisan, bicameral budget 
process reform.
    This is the House Budget Committee, so let's do what the 
law requires us to do and what the American people expect us to 
do. OK.
    Dr. Joyce, the last time Congress successfully observed the 
process, adopted a budget resolution, and conference report 
followed by separate appropriations bills before the beginning 
of the subsequent fiscal year, was in 1995. How effective do 
you think the Budget Act has been in enhancing Congress' 
control over the budget?
    Dr. Joyce. I think in practice it has not been very 
effective; it certainly has not been very effective since that 
point. When it was most effective was, I would say, in the 
first half of the 1990's when reconciliation was used to 
actually try to get a handle on the large fiscal problems that 
were facing the country. But without using those tools, I think 
the Budget Act cannot be very effective.
    Mr. Johnson. Do you have any thoughts about how Congress 
can improve the current congressional budget process?
    Dr. Joyce. I think most of the issues around the failure of 
congressional budgeting do not have to do with the process. 
They have to do----
    Mr. Johnson. It has to do with complying with the process.
    Dr. Joyce. They have to do with the operation of the 
process, not what the process says in law.
    Mr. Johnson. OK. What elements of the Budget Act do you 
believe should be retained as we move through potential budget 
process reform?
    Dr. Joyce. Well I mean, I do think that the role of CBO is 
very important. I think CBO has empowered the Congress in a way 
that it was not empowered prior to that point, and I think the 
budget resolution when used, and reconciliation, are powerful 
tools.
    As I suggested in my testimony, you know, I would actually 
strengthen both the budget resolution and the Budget 
Committees.
    Mr. Johnson. OK. Well I thank you.
    And Mr. Chairman, I yield back.
    Chairman Yarmuth. Yes. The gentleman's time has expired. 
Now I recognize the gentlewoman from Illinois, Ms. Schakowsky, 
for five minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    Mr. Armstrong, just let me say this. I am in my 22d year in 
Congress and have relied heavily on the GAO all that time in 
getting the kind of nonpartisan, and accurate, and helpful 
information in so many different ways. And I just want to put 
that on the record, how much it is appreciated.
    Mr. Armstrong. Thank you, ma'am. I will pass that on to the 
Comptroller General.
    Ms. Schakowsky. Thank you.
    Mr. Armstrong. Thank you.
    Ms. Schakowsky. And I know that even the Supreme Court and 
other federal courts have cited decisions of the GAO. I wonder, 
you refer to some, but I wonder if you could summarize the ways 
in which Congress might help or that we may even pass some laws 
that would make your work more effective?
    I know that you cited a couple of things, but if you could 
give us the guidance right now in summary, I would really 
appreciate that.
    Mr. Armstrong. Yes. We have a pretty long wish list, so to 
speak, that we can sit down with staff and walk through that. 
Among the things that I consider to be higher priority would be 
ensuring legislatively no impoundments during the final 45 days 
of a fiscal year. Requiring that agencies report Antideficiency 
Act violations, even if they disagree with GAO's findings. 
Making clear that a violation of a spending restriction enacted 
in permanent law, rather than an Appropriations Act, does need 
to be reported to Congress. And something that may be seemingly 
mundane as requiring agents to--the agencies to be responsive 
to GAO.
    Ms. Schakowsky. Mm-hmm.
    Mr. Armstrong. You know, as part of our regular process, 
when we open up a case, one of the first things we do is we 
send a letter to the general counsel or the agency whose 
appropriation has been questioned. And sometimes it takes 
months to get responses to those letters.
    A fairly notorious case was last year in September we 
issued a decision on Department of Interior activities during 
the fiscal 2019 lapse in appropriations. We ended up issuing 
the decision without a response from Interior. We sent a letter 
to the solicitor of the department and three months later, they 
still had not replied. Curiously, the day after we issued the 
decision, we got their reply.
    Ms. Schakowsky. Mm-hmm.
    Mr. Armstrong. And we issued the decision anyway because we 
were confident with the information we had been able to develop 
publicly, and information that we were able to develop from 
members' offices, too, the correspondence that Interior had 
with Members.
    Ms. Schakowsky. Ostensibly, are they required to answer in 
a timely way or is there just this lack of assistance?
    Mr. Armstrong. There is no legislation that requires it, 
but there has been a long-standing practice. I will tell you, I 
have been at GAO doing this work for 42 years and we have never 
had the problem to this extent. And there are times when an 
agency will come back to us and say, ``We need a little bit 
more time.'' And we understand that, and we are willing to work 
with that, so long as they eventually do respond to us.
    Now that is something that seems rather mundane, but 
remember, our role is to provide you the information, legal 
views, and legal conclusions that you need to exercise your 
oversight of executive spending activity.
    Ms. Schakowsky. Has that ever prevented you from making a 
decision because there has not been a response?
    Mr. Armstrong. No. But it has seriously delayed the issuing 
of decisions.
    Ms. Schakowsky. Sure.
    Mr. Armstrong. Because when we do not get a response, we 
try other ways to get the information we need. What we do not 
have, when an agency refuses to respond, is we do not have that 
agency's legal views. And we want to be fair. We are 
nonpartisan, so I want to know what the other agency thinks. I 
want to know what their lawyers--how their lawyers defend and 
explain their actions. That informs our decision.
    Ms. Schakowsky. Of course.
    Mr. Armstrong. And without a reply from, in this case, the 
solicitor, we are not so informed. I will tell you that when we 
did get that reply the day after we issued the decision, there 
was nothing in the decision that would have changed our 
conclusion.
    Ms. Schakowsky. OK. My time has just expired.
    Mr. Armstrong. Oh, I am sorry. Yes.
    Ms. Schakowsky. But I appreciate the answer and hope in a 
bipartisan way we can work with you to make those improvements 
in the law. Thank you.
    I yield back.
    Mr. Armstrong. Yes. Well I am willing to talk more about 
it.
    Ms. Schakowsky. OK.
    Chairman Yarmuth. That is good. The gentlewoman's time has 
just expired. And now I recognize the gentleman from Texas, Mr. 
Flores, for five minutes.
    Mr. Flores. Thank you, Mr. Chairman.
    I would also like to thank the panel for joining us today. 
I think this has been helpful. I could belabor the point about 
the fact that this Committee has not passed a budget, but I 
think that has been done adequately so far.
    One of the areas where the federal budget struggles is 
because Congress continues to appropriate money for programs 
where the authorization has lapsed. And based on the latest 
numbers I have seen, it is about $300 plus billion a year 
which, any way you put it, is 30 percent of the trillion dollar 
deficit. So that would be one easy way for Congress to address 
a substantial part of the deficit.
    So there are tools that have been talked about to deal with 
this issue and I would like to bounce that off of you moving 
forward. I am going to direct my questions to Mr. Armstrong and 
to Dr. Joyce.
    Do you agree that the amount of money we spend on 
unauthorized programs is a problem, Mr. Armstrong?
    Mr. Armstrong. You know, the lack of an authorization 
removes the oversight committees from the process. And I will 
say that when Congress enacts an appropriation and there is no 
authorization, the appropriation does stand as the 
authorization. So the failure of an authorization is the 
failure to get the input of the oversight committees.
    Mr. Flores. Correct.
    Mr. Armstrong. Now that is Congress' choice. You know, a 
GAO does not have a position on that. As a lawyer, I can tell 
you that when Congress enacts an appropriation, the president, 
under the Constitution, is supposed to execute that law. And 
executing an appropriations act is obligating and spending the 
money, so it does not legally need an authorization.
    Mr. Flores. But it is still Congress abdicating its 
responsibility for oversight.
    Mr. Armstrong. Yes, it removes the Oversight Committee's 
fundamental process.
    Mr. Flores. Dr. Joyce.
    Dr. Joyce. Well unconstrained by having to be nonpartisan, 
I will say, I do have an opinion, which is that, you know, I 
think this is a problem and it is a longstanding problem.
    I worked at CBO from 1991 to 1996. CBO is required every 
year to do a report on expiring authorizations and unauthorized 
appropriations. And as I recall, the number on the domestic 
discretionary side, the percentage has been consistently about 
40 percent, you know, almost forever.
    And I agree entirely that what that means is the Congress 
is failing to exercise effective oversight. That is one of the 
things I talked about in my testimony. When I say ``effective 
oversight'' I mean trying to actually figure out whether 
programs are working or not.
    Mr. Flores. Right.
    Dr. Joyce. I do not mean just hauling somebody before a 
committee because, you know, a story appeared on the front page 
of the Washington Post.
    Mr. Flores. Right. Now there is a set of tools that have 
been introduced that would deal with this issue, so I would 
like to get the feedback of each of you. And let me run through 
the tools, first, and then get your feedback.
    The first tool would be mandatory sequesters on sunsets for 
unauthorized programs. Specifically, you had initially put the 
unauthorized programs on a pathway to sunset in three years, 
which would be enforced by reduction of the overall budget 
authority based on the total value of the unauthorized 
programs.
    The second would be to establish a commission that would 
have three tools in its portfolio. One is to establish a full 
authorization schedule of all discretionary programs at 
agencies for Congress to use as tool to keep track of these.
    Second, is to conduct a review of all mandatory spending 
programs with a view toward the third item, and that is to 
the--in the event there is an unexpired program that is 
reauthorized by Congress, and the commission would identify the 
resources to restore the funding by identifying custom 
mandatory programs to use as budget offsets for that restored 
funding.
    So Dr. Joyce, what do you think about those particular 
tools to address this issue?
    Dr. Joyce. Well I mean, I have not thought about 
sequestration of mandatory spending. I think the idea has merit 
with respect to discretionary spending.
    Mr. Flores. Well this would be for the--on the 
discretionary side.
    Dr. Joyce. Oh, that is right. Yes, on the discretionary 
side, then I think, you know, anything that you could do that 
would turn up the heat, you know, which I think this would do.
    Mr. Flores. Mm-hmm.
    Dr. Joyce. Because it would say something bad is going to 
happen if you do not actually reauthorize the program.
    In terms of--you know, I have always had mixed feelings 
about setting up sort of, you know, extra procedural committees 
in order to do something that the Congress should be doing 
itself.
    Mr. Flores. Exactly. I do, too.
    Dr. Joyce. And so, you know, it--that would be--that is a 
relatively desperate step which does not mean it might not be 
necessary, it just means I would rather have the Congress do 
what it is supposed to do.
    Mr. Flores. And Mr. Armstrong, I am down to 14 seconds. So 
what I will do is ask you to supplementally answer this, or 
just, unless you can give me a yes or no answer; would these 
tools be helpful?
    Mr. Armstrong. We will supply something for the record.
    Mr. Flores. OK, great. Thank you.
    Mr. Armstrong. Thank you.
    Mr. Flores. I yield back the balance of my time.
    Chairman Yarmuth. The gentleman yields back. I now 
recognize the gentleman from New York, Mr. Morelle, for five 
minutes.
    Mr. Morelle. Thank you, Mr. Chairman. And thank you to 
the--you and the Ranking Member for holding this important 
conversation.
    My colleague and friend, Mr. Woodall, and I sat through a 
Rules Committee hearing last week to talk about Article I 
prerogatives. And so this is very timely that we will be 
talking about--and as it relates to the power of the purse. So 
I appreciate that, and I appreciate the witnesses bringing 
their historical perspective, as well as, their legal 
perspective on this issue.
    I am pretty new to this process. My first term in the House 
and I suffer because I--my point of reference is state 
budgeting where I spent two decades in the New York state 
legislature. And as my friend, Mr. Horsford, and I were just 
talking about it since we both share state legislative 
backgrounds, this is a much different process.
    So for me, I am--want to ask some basic questions. 
Professor Chafetz, did I say that right? Close enough?
    Mr. Chafetz. Oh, yes.
    Mr. Morelle. When the president and the Congress disagree 
about the legality of an appropriations law, like a funding 
restriction written into a section of the appropriations law, 
how does that get resolved?
    Mr. Chafetz. So for the most part, the Justice Department, 
through its Office of Legal Counsel, resolves that for the 
executive branch. The executive branch treats OLC opinions as 
binding. And then in many cases, that is largely going to be 
effectively the final word.
    There is sort of no--unless Congress wants to come back and 
do something about that, it is--in many cases, these will be 
non-justiciable, they will not work their way into the court. 
And so OLC's judgment on that will sort of stand as the final 
word.
    Mr. Morelle. So is that like the Red Sox and Yankees 
dispute a call and the Yankee umpire gets to choose?
    Mr. Chafetz. Something like that.
    Mr. Morelle. Is that a bad analogy?
    Mr. Chafetz. No, not bad at all.
    Mr. Morelle. Do you have a--would you suggest a different 
process or a way to resolve that? Because it does seem to me as 
though--and not only this Justice Department, but any Justice 
Department would, I think, be more inclined to agree with the 
executive. I do not know if that has been the historical trend, 
but it certainly seems to me that I would expect that to 
happen. Is there a better way to do that?
    Mr. Chafetz. You are absolutely right that the Justice 
Department OLC does tend to side with the executive view on 
that, and they actually see that as their, in some sense, as 
their mission. That they take a--they try to interpret the law 
but with an executive-centered account of the law.
    One of the things I suggest in my testimony is what we call 
non-severability clauses which is to say if you have an 
appropriation that comes with a rider, you say that, you know, 
you either take them both or leave them both, right, that you 
cannot take the appropriation and leave the rider.
    And sort of making that explicit in appropriations statutes 
would then present a much harder choice to the executive 
branch, right, and for the most part they want these 
appropriations.
    I mean, we talked about the Impoundment Control Act. 
Sometimes they don't want the appropriations, but assuming they 
want the appropriation, now they really have to make a harder 
choice, and that might sort of force them to make a little bit 
more honest of a choice.
    I also think that raises a greater likelihood that you 
could actually get judicial review of some of these decisions. 
Because if they don't spend the money, then there are 
potentially private beneficiaries who would have standing--who 
would have gotten some of that money who would then have 
standing to sue and say, ``Why didn't we get the money?'' And 
the government will have to say, ``Well because we determined 
that the rider was unconstitutional, and therefore, the 
appropriation is unconstitutional,'' and then the court would 
have the authority to resolve that dispute.
    Mr. Morelle. Very good.
    Professor Pasachoff. Did I do justice to--I am really 
killing names this morning, I apologize.
    Ms. Pasachoff. Pasachoff, but again----
    Mr. Morelle. Pasachoff. If an agency or OMB violates a 
budget or appropriations law, what happens and how do we find 
out about those violations?
    Ms. Pasachoff. So some of that is just happenstance. So 
sometimes something happens to get disclosed and then GAO does 
its work and writes a report about it and the matter is brought 
to Congress and the public's attention then.
    But when things are not disclosed, there is not sort of an 
automatic source of----
    Mr. Morelle. There is no systematic way to do it.
    Ms. Pasachoff. There is not an automatic source of 
knowledge. So one of the things that I write a little bit about 
in the testimony----
    Mr. Morelle. Yes.
    Ms. Pasachoff [continuing]. the written testimony that I 
have talked a little bit about today is the importance of 
transparency and for Congress to claim more tools to force the 
executive to make transparent some of its spending decisions 
through, for example, apportionment and through what it does 
with reprogramming and transfer.
    Mr. Morelle. Yes. Could you talk about that just a little 
bit? Expand on that. Well I only have about 30 seconds, but can 
you give us some specificity to that?
    Ms. Pasachoff. Sure. So Congress has granted OMB the 
authority to further specify the appropriations that Congress, 
you know, passes into law. And when OMB further specifies, 
those have the force of law that the agencies have to follow, 
but Congress--those are not public. Congress never sees what 
the apportionments--final apportionments are.
    Mr. Morelle. So your recommendation would be a report back 
to the Congress to----
    Ms. Pasachoff. Exactly.
    Mr. Morelle [continuing]. delineating or detailing what 
those apportionments are?
    Ms. Pasachoff. Exactly. That all apportionments be made 
public.
    Mr. Morelle. Very good.
    Thank you, Mr. Chairman. I yield back.
    Thank you to the panel.
    Chairman Yarmuth. The gentleman's time is expired.
    May I ask the witnesses, I know it is kind of weird when 
you are talking to the extremities of the dais here, to make 
sure you speak into the microphone. I think they had a little 
trouble hearing you, Mr. Chafetz.
    I now recognize the gentleman from Oklahoma, Mr. Hern, for 
five minutes.
    Mr. Hern. Mr. Chairman, thank you.
    Witnesses, thank you for being here today. I have been in 
countless meetings and hearings over the last two weeks, being 
critical of the President's budget, yet, I hear no criticism of 
this Committee not doing its budget. And some may argue, ``Well 
that is not the rule of law.'' But I want to read the 
responsibility of this Committee as on our website.
    ``The Committee's chief responsibility is to draft an 
annual, concurrent resolution on the budget that provides 
congressional framework for spending and revenue levels.'' It 
goes on to talk about that, so we ought to be critical of this 
Committee and we ought to be focusing on this Committee's lack 
of performance.
    You know, I do not blame the Chairman. The Chairman is a 
great guy, he really is, I think he wants to do a fantastic 
job. We got it out of Committee last year, but what I do blame 
is the Speaker, the leader of the House, for not allowing it to 
get to the floor.
    First of all, this year, not even, you know, just basically 
being up front and not wasting any time because we are not 
going to even do one. She understands what is going on, we see 
it in the Presidential candidates' very divided on their side 
of the aisle, and I get it.
    But still, it was the Speaker who says, ``Show us your 
budget and show your values.'' It goes on in our 
responsibilities. It says, ``In the Committee, we pass a budget 
that''--it reflects our value system, and yet we are not even 
going to pass a budget.
    And so I know, based on what I am hearing here, there is 
some criticism of the President, and I am not saying there 
shouldn't be. But this should be focused on the criticism of 
this Committee because that is what we have control of, is this 
Committee.
    You know, the budget process must be broken because we have 
only done it four times since 1974, full appropriations 
process, both through the resolution process. It is very 
frustrating. I have talked about it. I am a business guy, there 
is not a person in here that, when they get into a spending 
problem, does not create a budget.
    So we have got to live within a budget. There is no 
business that does not do that. There is no state, maybe with 
the exception of a couple.
    We all have balanced budget amendments, programs in our 
states. The only place that we can continue to do this and 
point fingers at other people for being the problem, is in 
Congress. The People's House. And it is a real problem that, 
you know, we need to get after.
    We keep talking about this, you know, this fix of the 
budget process. Say Republican Members, as described earlier, 
worked on this process to change it, and unfortunately, those 
bills will never see the light of day. I voted for the process 
as well. It is just really disappointing for so many of us. And 
I believe that if you took all the Members here and you took us 
out in the hallway and you interviewed us individually, we 
would all say, ``We have got to do a budget.''
    Yet, as I described earlier, the politics does not allow 
that to happen and the American people, quite frankly, are 
paying the price. So when we have trillion dollar deficits, it 
is not the President that is creating trillion dollar deficits, 
it is the U.S. Congress, us in this room. This is our job.
    Now Dr. Joyce, since taking the House, Democrats have 
failed to write a budget resolution. The budget resolution is 
the only legislative vehicle which Congress can establish a 
comprehensive framework for us to legislate priorities and map 
a vision to allocate its necessary resources.
    Do you believe a budget--creating a budget is necessary? We 
will take Congress out of it. Is it necessary for anything, 
anyone's long-term fiscal responsibility and important to 
governing?
    Dr. Joyce. Absolutely. And I would expand by saying that I 
think there is a tendency, and I think this is true--this is 
not just true recently. There is a tendency to sort of think 
forward and think about the fact that, for example, the House 
and Senate could not possibly agree on a budget, so therefore, 
one should not be done.
    The, you know, the purpose of the Congressional Budget Act, 
and the reason that the budget resolution was established, was 
so--the Congress had no way to articulate an overall vision for 
the budget, it was only dealing with the details. The budget 
resolution is the only place to look comprehensively at a 
budget and establish one. And when you do not do that, it is 
not--it is losing an opportunity to offer what is an alternate 
point of view to the point of view expressed by the president, 
regardless of who the president is.
    Mr. Hern. So I want to ask you a question. I only have 48 
seconds left. I am just going to--I am going to skip past you 
because I would assume you are going to answer ``yes'' to this. 
I am sorry. I can't see him, Dr. Armstrong I think, or Mr. 
Armstrong, do you think the Budget Committee, you know, let's 
say in the past 10 years, has done its job appropriately based 
on the responsibilities laid out here, regardless if Republican 
or Democrat? I will make it easy on you.
    Mr. Armstrong. Well let me just say that----
    Mr. Hern. I have only got 23 seconds left. I am trying to 
get everybody.
    Mr. Armstrong. GAO is not in the position to audit the 
Budget Committee.
    Mr. Hern. I am not asking you to audit, I am just asking if 
we--did we--have produced a budget for you all to be critical 
of the President and compare budgets?
    Mr. Armstrong. I think that is a factual question and I 
would have to look to see how often a budget resolution has 
been prepared.
    Mr. Hern. You have been there 42 years and you do not know 
if in the last 10 years there has been a budget produced?
    Mr. Armstrong. My focus in appropriations law is really 
transactional. And that is what I look for. I know that there 
have been----
    Mr. Hern. Sir, I have been here 14 months and I can tell 
you there has not been a budget passed.
    Mr. Armstrong. And well let me just say that I understand. 
It is clear in the Congressional Budget Act that a budget 
resolution is an expectation of the act. The Congressional 
Budget Act though, simply sets rules for the Congress and the 
Congress can choose how to apply those.
    Mr. Hern. I agree with you. And I read that, and you are 
right, it does not require that we produce a budget. You are 
right. But our responsibility is laid out by the leadership 
that says we should produce a budget.
    And so that is--that was my point in asking that question. 
The question, if I had another 10 minutes, is to ask you if 
this Budget Committee should even exist because we are not 
doing the job.
    Thank you all.
    Chairman Yarmuth. The gentleman's time has expired. Now I 
recognize the gentlewoman from Washington, Ms. Jayapal, for 
five minutes.
    Ms. Jayapal. Thank you, Mr. Chairman.
    And thank you all for being here. This has been a really 
interesting hearing. I think you have all articulated very well 
how Congress' power of the purse is under threat. And I think 
this Administration, but as we have talked about other 
administrations, have successfully utilized executive power and 
taken away some of the power that really should be with us in 
Congress.
    Certainly this Administration has clearly demonstrated how 
that unchecked executive power can be abused and also exposed 
the gaps that all of you have spoken about in law that do 
require congressional action to allow any executive, not just 
this one, but ones in the future, to truly be required to 
uphold that balance of powers that our founders envisioned.
    Some of the most egregious examples of this recent abuse of 
executive power have included the following: on February 14, 
2019, Congress passed the 2019 Appropriations Bill after the 
longest partial government shutdown in history. And the 
sticking point was Donald Trump's demand for $5 billion in 
taxpayer dollars to build a wall. Ultimately, Congress 
appropriated $1.3 billion, and the very next day, the President 
declared a national emergency to divert billions of additional 
dollars to pay for the wall.
    Seven months later, the Pentagon revealed the specific 
military construction projects that would lose $3.6 billion to 
pay for that wall. And in February 2020, one year after the 
emergency declaration, the Pentagon announced another diversion 
of $3.8 billion in military funds.
    So Mr. Armstrong, under current law, what requirements 
exist for the White House or relevant agencies to consult with 
Congress on the projects that are canceled to divert funds for 
military construction under the national emergency declaration 
or on specific projects undertaken or on progress of any of 
those projects?
    Mr. Armstrong. The Administration is required to provide 
Congress notice before it takes an action like that. With 
regard to the border wall, the Administration and law has 
authority to transfer money, but it is tied to a notice to 
Congress. And when Congress gets that notice, you guys can 
decide what to do with it. But it is--all it requires is a 
notice before they take the action.
    Ms. Jayapal. And just to pick up on Representative 
Moulton's questions earlier, you would not be able to declare a 
national emergency just for policy purposes or would you?
    Mr. Armstrong. I have never addressed that and GAO would 
stay out of whether or not something is properly declared as a 
national emergency. When Mr. Moulton and I were talking about 
an Administration's policy considerations, we were talking 
about an Administration taking action that was outlawed by the 
Impoundment Control Act.
    Ms. Jayapal. Yes. The question still remains. And I 
understand that you would not weigh in on it, but the question 
of what determines a national emergency--I do not know, 
Professor Pasachoff, if you want to comment on that at all?
    Ms. Pasachoff. Oh, thank you. So I do not have the text of 
the provision in front of me right now, so I cannot refer, 
specifically. But I will say that there are tools that Congress 
could put in place using its current authorities, and also new 
tools that Congress could put in place.
    So using its current authorities, Congress could tighten 
these transfer restrictions. Congress could tighten the 
reprogramming restrictions, lowering the sums of money that are 
able to be moved around. Congress could impose--could put in 
riders, limiting--very specifically saying that no sum can be 
spent on ``X'', so these are all within Congress' current 
powers.
    Ms. Jayapal. And tightening the transfer restrictions, can 
you--do you have more detail on what that would look like?
    Ms. Pasachoff. Sure. So throughout appropriations law there 
are general provisions that say that different agencies have 
the ability to transfer up to certain sums of money without 
notice--without notifying Congress. And then over that amount 
of money they do have to notify Congress. And similar things 
are true in reprogramming.
    So a Congress that wanted to restrict those things could 
simply lower the amounts that were required for notice, and 
could also just strongly limit the amount that is allowed for 
reprogramming or moving around at all, or state that it can 
only be done under certain very specific conditions that 
Congress sets, and could forbid other kinds of restrictions.
    If I could just say one more thing Congress could do within 
its current power, is respond to actions that the executive has 
taken that it deems unacceptable in the next year's 
appropriation cycle. So----
    Ms. Jayapal. Thank you. And I only have six minutes, so I 
did not get to the migrant protection protocols, but I just 
wanted to say that this implementation of it was something that 
Congress appropriated zero for in the February appropriations 
deal. And so I had some questions around that, but I will have 
to save that for the next time.
    Thank you all very much.
    Chairman Yarmuth. The gentlewoman's time has expired. I now 
recognize the gentleman from Pennsylvania, Mr. Meuser, for five 
minutes.
    Mr. Meuser. Thank you, Mr. Chairman.
    I thank you all for being here with us today. A little 
earlier, unfortunately, the majority's vice chair tends to use 
this forum for political purposes and as political theater. But 
he earlier generated a question that I am going to pose to Mr. 
Armstrong.
    Based upon your earlier statement about breaking the law, 
would--can it then be said that a threat made by a senior 
Member of the White House to withhold funding from a sovereign 
nation or else, basically? Would that also be against the law?
    Mr. Armstrong. A threat to withhold money would not violate 
the Impoundment Control Act. But an actual withholding of the 
money would violate the act. What we found when we looked at 
Ukraine, and then the decision we issued in January, was that 
OMB had apportioned the money to withhold it, and that was 
clear in the apportionment schedules, and the OMB General 
Counsel acknowledged that in his reply to my letter. And his 
explanation for the withholding was not one that was acceptable 
by the--.
    Mr. Meuser. And one was proven and the other was not, of 
course. Thank you for your very inequitable response.
    I would like to move on to Dr. Joyce. Dr. Joyce, this 
congressional seating of budget and appropriations power; When 
did this start? I mean, the Eisenhower Administration? Kennedy? 
Johnson?
    Dr. Joyce. Well I mean, it is a complicated answer because 
there was a time prior to 1980 when, for example, the failure 
to actually enact appropriations on time did not actually 
result in the threat of a government shutdown. And then there 
was a decision in 1980 that there had to be appropriations or 
agencies had no legal authority to operate.
    So that is when the heat really got turned up on the 
appropriations process. But again, as I said earlier, in only 
three of the last 44 years, and that is a bipartisan problem, 
has the appropriations process worked the way it is supposed 
to.
    Now in terms of the budget resolution, as I said in my 
testimony, the first 20 years of the Budget Act, there was a 
budget resolution every year. And in the last 20 years, there 
has only been a budget resolution about half the time.
    So if we are looking at the budget resolution itself, I 
would say it is a problem that has risen, mostly in the last 20 
years.
    Mr. Meuser. Is it more of a legal authority, a regulatory 
authority, or traditional authority that rings true here? Or 
untrue?
    Dr. Joyce. Well I mean, there is, you know, there is 
nothing--there is no sanction for the failure to adopt a budget 
resolution, for example. So I would say that, you know, my view 
on this is that the Congress, it--when it does not enact a 
budget resolution--and again, as I said earlier, there are 
proposals that would say we only do a budget resolution every 
two years at the beginning of the Congress.
    But on some kind of regular routine basis, it is my opinion 
that there should be budget resolution. And when that does not 
happen, what essentially is occurring is that the Congress is 
forgoing its ability to respond to the president's budget.
    Mr. Meuser. Some budget committees and congresses were more 
successful in accomplishing a budget than others.
    Dr. Joyce. Right.
    Mr. Meuser. Why do you think that is?
    Dr. Joyce. I think there are two possible circumstances 
where it was easier to pass a budget resolution. One is in 
situations of unified government. When the House and Senate are 
controlled by the same party, we do not have this issue of one 
house deciding not to enact a budget resolution because it 
cannot imagine the other house ever agreeing with it because it 
is supposed to be a concurrent resolution.
    The other is when there is something big that the Congress 
has decided it wants to accomplish. In 1990, and again, in 
1993, there were big, multi-year deficit reduction packages. 
Those were bicameral and they also had the agreement of both 
the Congress and the President, and the budget resolution was 
used because the reconciliation process is such an effective 
tool in order to make something like that happen.
    Mr. Meuser. You and I probably cannot--I am new to 
Congress, so understand this, just as my constituents do not. 
The lack of courage of the minority to--if they are in 
leadership in the House--to provide a budget that perhaps would 
be questioned and needs to show some fortitude for what is best 
for the overall rather than scoring political points.
    But I am out of time. So I yield back, Mr. Chairman.
    Chairman Yarmuth. The gentleman yields back. I now 
recognize the gentleman from Virginia, Mr. Scott, for five 
minutes.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. I just 
wanted to remind everyone of this chart that I put up 
frequently. We have heard about fiscal responsibility. This 
chart shows that every Republican president since Nixon has 
ended up with the worst deficit position than they started. 
Every Democrat has--every Democratic president has ended up 
with a better deficit position than they started off with.
    And this Administration is well on its way to maintaining 
that pattern. I also have heard comments about proposals on the 
Democratic side. I would remind the Republicans that under 
Democratic leadership in the House, we have PAYGO.
    So if we are going to enact one of those proposals, like 
Obamacare, it will be paid for. Obamacare was paid for, unlike 
proposals on the other side of the aisle, like the prescription 
drug benefit, you just pass it and do not worry about it.
    So I think it is one side--if one side is going to take 
claim for fiscal responsibility, I think this chart shows which 
side it ought to be.
    Professor Pasachoff, you mentioned appropriations moving 
money around and notifying Congress. Is that notice or 
permission, and exactly where does that come from?
    Ms. Pasachoff. So there is two different ways that the 
executive branch can move money around. One is through a 
transfer of money, which moves money between different 
appropriations. There has to be specific statutory authority 
for the executive branch to do a transfer.
    Mr. Scott. Without that authority it can't take place?
    Ms. Pasachoff. Without the authority it can't take place. 
Reprogramming, which moves money around within a single 
appropriations, is generally understood to be something that 
the executive branch can do, that is part of what Congress 
allows it to do, when it gives a lump sum authority unless it 
makes more specific limitations on that.
    You asked about notice and permission. So because of the 
Supreme Court decision that said that one house, one committee 
cannot be formally--cannot actually give permission because 
that does not count as legislation, it has got to just be 
notice. It can be permission, but sort of in a loose, 
traditional sense; not actually in a mandatory, legal sense.
    Mr. Scott. The suggestion was made that violations of 
Antideficiency should be a criminal offense.
    Ms. Pasachoff. So in the current Antideficiency Act, any 
officer or employee who violates certain provisions of the 
Antideficiency Act might face administrative penalties like 
loss of a job or loss of some pay. Knowing and willful 
violations could become a criminal at.
    Mr. Scott. Under present law?
    Ms. Pasachoff. Under present law. So the suggestion is that 
currently, it is not that people are routinely charged under 
those--with violations. But that allows civil servants to say 
to political people of whatever party, ``I won't do that. It is 
against the law. I do not want to go to jail for this.''
    So the idea is that there are no criminal penalties. There 
is no administrative penalties currently in place in the 
Impoundment Control Act which leaves civil servants really at a 
loss for how to push back.
    Mr. Scott. And Professor Chafetz, you were talking about 
the Antideficiency Act, too. Who has standing to complain after 
the OLC makes the declaration? Who has standing to complain?
    Mr. Chafetz. Well that would be sort of appropriation 
specific. So if there is some party that would have--or this 
would be under the Impoundment Control Act. If there is some 
party that would have received a--an appropriation that then 
does not receive that appropriation, they would have standing 
to raise that in court.
    Mr. Scott. In court?
    Mr. Chafetz. Yes.
    Mr. Scott. Several of the committees having challenges 
getting cabinet secretaries to come before their committees to 
defend their budget. What should the legislative reaction be to 
failure of a cabinet secretary to show up?
    Mr. Chafetz. Well I think, you know, the House in recent 
years, under both Republican and Democratic leadership, has 
made increasing use of the contempt of Congress mechanism. I 
think that is certainly available after repeated attempts to 
get someone to come forward.
    And then, you know, one way to enforce contempt of Congress 
is through the power of the purse, is through saying, ``You 
know what? If you are in contempt of Congress, we are not going 
to pay your salary next year,'' or ``we are going to tighten 
your department's budget in various ways for next year'' in 
ways that sort of really amp up the pressure----
    Mr. Scott. Can you aim that sanction at a specific 
position?
    Mr. Chafetz. Absolutely. You can zero-out a specific salary 
in appropriations.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman Yarmuth. The gentleman's time has expired. And now 
I recognize the gentleman from Georgia, Mr. Woodall, from--for 
five minutes.
    Mr. Woodall. Thank you, Mr. Chairman. I was watching Mr. 
Scott's eyes get wide at the professor's suggestion. I do not 
remember his same enthusiasm during the Obama Administration 
when we were going down that same path of zeroing out salaries. 
But we might not have been as close then.
    Mr. Scott. And what is your point?
    [Laughter.]
    Mr. Woodall. The point that I would like for you all to 
talk a little bit off topic is, you know, we go back and we 
look at 1974 and the Budget Act, and we look at 1976, the 
National Emergencies Act. We were kind of united here as an 
Article I institution reacting against the overreaches of 
Article II.
    I have read your testimony, I have looked at all of your 
suggestions. But those are largely moot if we are going to 
continue to operate as a parliamentary institution where the 
President's party supports the President, and you are a 
Republican or Democrat first and a member of the Article I 
second. Being willing to zero out the Trump Administration 
salaries and not Obama Administration salaries would be one of 
those things, and the shoe would be on both feet there.
    Take me back to when we had a good President from the great 
state of Georgia, six funding lapses in four years, but no one 
went without a paycheck, no government services went unmet. I 
know you might not be able to express an opinion, Mr. 
Armstrong, but--the opinion helps us in Article I, empowers us 
in Article I or diminishes us in this funding dance that 
happens on Capitol Hill? You mentioned it, Dr. Joyce.
    Dr. Joyce. I think it helps you, but it only helps you if 
you want it to, you know, and what I mean by that is that it 
basically says that agencies cannot just continue to spend 
money when the Congress has not provided for that spending. But 
the record is not very good, as you know, of, you know, having 
that actually lead to more timely appropriations.
    And I think the focus often gets on government shutdowns. 
And government shutdowns are bad. But the routine practice of 
continuing resolutions in one's--in my mind is worse. And it is 
worse because it is more invisible, what the sort of insidious, 
you know, eating away at the effectiveness of the executive 
branch is.
    And there are all kinds of--GAO actually did a really good 
study in 2009 that really documented what the problem was that 
was created by late appropriations being--quite aside from 
whether there were shutdowns or not.
    Mr. Woodall. Do my two academics share that belief that it 
is not inherently disadvantageous to Article I and could be a 
positive? Professor, just----
    Ms. Pasachoff. If I may add, I would just say that it could 
be even more advantageous if you would import some of it into 
actual law and specify, for example, what are the--the 
executive branch can read, very broadly, under different 
administrations what constitutes the necessarily implied by 
law. And so the Article I could take even more power back if it 
would clearly specify examples that you think are--fall into 
that category and that do not.
    Mr. Woodall. Thank you.
    Mr. Chafetz. I also agree, and I would point out that while 
shutdowns are bad, I agree that sort of taking them off the 
table is worse. And one thing I would point to, for example, is 
2011 there was very nearly a shutdown. I think we came within 
about an hour or two, and that resulted in massive policy 
concessions across the board from Democrats who controlled both 
the Senate and the presidency to Republicans, right, that was 
an example of budget brinksmanship that created massive policy 
shifts.
    And whether or not, you know, various people agree with 
those policy shifts or not, it was an example of sort of 
successful tugging on certain powers.
    But I agree with Professor Pasachoff, that some of the 
constraints need to be tightened. And in particular, in the 
Antideficiency Act, the language that it actually uses is 
emergencies involving human life or property. And that then, in 
OLC opinions, becomes essential government personnel, which 
then becomes manipulated by presidents of both parties to cover 
huge swaths of the government, but then to exclude things where 
they want to concentrate pain.
    One thing I would urge Congress to do is tighten up the 
definition of what voluntary services can be accepted during a 
lapse in appropriations.
    Mr. Woodall. I appreciate that, and I appreciate the focus 
in so many of your testimoneys about the Antideficiency Act. We 
have been having administration witnesses come forward to 
testify on their budgets in this Committee, and those folks 
have gotten a lot of severe tongue lashings for the ideas they 
have laid out there. And as my colleagues have mentioned, we 
have not laid out any ideas; always easy to target folks who 
have laid ideas out.
    All of these things we complain about, we could just fix, 
right, the chart that Bobby Scott loves to put on the TV of 
presidents and who is spending what. Presidents do not spend 
money, right, the question is who was in control of Congress 
during those times, because the only person who could spend a 
dime is the U.S. Congress.
    We like to target blame, which brings me to the Impoundment 
Act and adding of the criminal penalties. I do not like putting 
civil servants in jail. I do not like threatening civil 
servants with jail. Knowing and willfully, the only standard 
that would be acceptable. Talk to me about how we have used 
that threat in the Antideficiency Act, because I do not think 
kicking public--kicking civil servants is a sport on Capitol 
Hill. I do not think we need to do that, but we do need better 
policy outcomes.
    Ms. Pasachoff. May I answer? I see we are----
    Chairman Yarmuth. You may answer.
    Ms. Pasachoff. So it has actually taken me a long time to 
come to terms with this because my initial instinct is I, too, 
do not want to be punishing civil servants for the hard work 
that they do on behalf of the American people every day.
    Where I have eventually come to is that the--it acts as a 
deterrent. It actually is--it empowers civil servants to say, 
``I will not violate the law.'' And so that is the good effect 
that those penalties have. Administrative first, and then 
criminal for knowing and willful only.
    They allow civil servants to push back on supervisors who 
may be enticing them to break the law. And that kind of 
parallel penalty structure would empower civil servants in the 
same way. Not punish them but empower them to resist being 
forced to violate the law.
    Mr. Woodall. Thank you.
    Thank you for your indulgence, Mr. Chairman.
    Chairman Yarmuth. All right. You thought you had 10 minutes 
again. The gentleman's time has expired. I now recognize the 
gentleman from California, Mr. Panetta, for five minutes.
    Mr. Panetta. Thank you, Mr. Chairman.
    And before I get into my opening, I just want to followup 
on that, Professor Pasachoff. I mean, so you would recommend 
criminal penalties be in place, and you recommend it as a 
deterrent it sounds like.
    Ms. Pasachoff. Right. So first, again, just to be clear, 
these are the same penalties that already exist in the 
Antideficiency Act, and no one is ever criminally charged, 
right, so just to be very clear----
    Mr. Panetta. They never have been in history?
    Ms. Pasachoff. GAO actually probably has more information 
about that than I do, but it is not anywhere near a current--
anywhere near a common occurrence. What these penalties allow 
civil servants to do is say, ``I cannot take that action 
because it would violate the law.'' So those are the kinds of 
parallel things I am talking about for the----
    Mr. Panetta. Understood, understood. And what about the 
Impoundment Control Act? Are there any--I mean you--earlier you 
talked about administrative criminal which you mentioned just 
now. In the Impoundment Control Act, what are the penalties?
    Ms. Pasachoff. There are not any.
    Mr. Panetta. Would you recommend there being the same set 
of penalties starting off with the administrative and starting 
off with the criminal? In your opinion, would you recommend 
that?
    Ms. Pasachoff. I would recommend that because it would 
protect civil servants and allow them to do their job while 
following the rule of law.
    Mr. Panetta. And when you say ``criminal,'' so you would 
actually think about fines and incarceration?
    Ms. Pasachoff. I would import exactly the same structure 
that it currently exists in the Antideficiency Act with the 
recognition that it acts as a shield, not a sword.
    Mr. Panetta. OK. Great, great.
    Professor Pasachoff and all of you, thank you for being 
here. I appreciate this opportunity in which you can sort of 
remind us legislators, reinforce the fact that the Constitution 
is clear, is that we do have the power of the purse and that it 
is us and not the president that should determine how our 
government and its programs are funded.
    As we have seen, presidents throughout the years have 
sought to gain more influence over spending. Past presidents 
have gone beyond simply presenting just a budget, but instead, 
seeking to move funds for their own priorities, are choosing 
not to spend them at all against the wishes of this legislative 
body.
    And I think as you are hearing today, clearly, this really 
is not a partisan issue, and not a partisan issue here in this 
budget room; whereas, Republicans and Democrats should both be 
willing to stand up for the authority of Congress, really no 
matter which party has the power of the executive branch.
    And so as we examine the ways to protect Congress' power of 
the purse, I am glad that we are having this type of hearing, 
and I do hope that this session can better inform and motivate 
us, and our legislative efforts.
    Now, one of the areas I think it was briefly mentioned, 
what I heard just for the first time--and I came in late, so I 
apologize--were shutdowns. Something that obviously we do not 
like mentioning too often, but unfortunately, it does happen as 
I have experienced in my just very limited time here.
    Professor Chafetz, what powers and flexibilities does the 
executive branch have during a shutdown and how might we want 
to curtail or maybe expand them if possible?
    Mr. Chafetz. Right. So the executive power during a 
shutdown is determined by this language in the Antideficiency 
Act allowing for the acceptance of voluntary services, either 
when authorized by law, so in some specific statute, or when 
the--when necessary to preserve human life or property.
    Now that could be understood very narrowly, right, you 
could understand, sort of, necessary to preserve human life or 
property as being sort of limited to just some subset of the 
traditional law enforcement agencies or something like that.
    Presidents have consistently understood it and relying on 
OLC opinion since the early 1980's, understood it as a much 
broader set of civil servants, and exactly how broad is 
elastic. And basically, OLC has been allowed to have the last 
word on just how broad that category is. And you can sort of 
sense their success and the fact that we do not even use that 
language in ordinary discourse. We do not talk about 
emergencies involving life or property, we talk about essential 
government personnel. That language doesn't come from statute, 
that comes from OLC.
    Mr. Panetta. All right, great. Thank you. Now obviously, 
you know, in this body you have got hundreds of members and you 
have thousands of legislative issues. But unfortunately, the 
time when we think about spending comes just during the 
appropriation season or when a budget is released it seems 
like.
    And so I would ask, Professor Chafetz, what recommendations 
do you have as to how we can do a better job in conducting 
oversight of executive spending actions?
    Mr. Chafetz. Well a big part of that is--I would say is 
increase in congressional capacity. And as I mentioned earlier, 
I think the proposals adopted yesterday coming out of the 
Modernization Committee are a step in that direction.
    But if you look at the number of staff, both member staff, 
committee staff, and staff at organizations like GAO, CBO, CRS, 
it is way down from its highs in the 1980's and 1990's. Staff 
tenure is down, staff real pay is down. Staffers are actually 
paid less in real dollars today than they were two decades ago.
    That really makes it much harder for Congress, as an 
institution, to do effective and continuing oversight. So my 
biggest piece of advice in this realm is just that Congress 
needs to bulk itself up. The administrative state has--is huge 
and has been growing, not only in absolute terms, but very much 
relative to Congress, and therefore, relative to Congress' 
ability to keep tabs on it.
    Mr. Panetta. Thank you. And thanks to all of you.
    I yield back.
    Chairman Yarmuth. The gentleman yields back. I now 
recognize the gentleman from Texas, Mr. Crenshaw, for five 
minutes.
    Mr. Crenshaw. Thank you, Mr. Chairman.
    And thank you, everybody, for being here on this very 
important topic. It has been a really thoughtful discussion and 
I really appreciate a lot of the interesting suggestions that 
everyone on the panel has offered.
    Oversight to me means a couple things. It is ensuring that 
we are spending the money properly; ensuring that the executive 
branch is executing our authorizations properly. And we talked 
a lot about that. I think on the other hand, oversight also 
means making sure that we are not saddling our next generation 
with a burdensome debt, and I want to talk about that in the 
latter part of my questioning here.
    But first, Dr. Joyce, your testimony mentions portfolio 
budgeting. This is one of the reforms included in the Senate's 
Bipartisan congressional Reform Act. Can you please explain 
what portfolio budgeting is and how many portfolios you would 
envision in a budget resolution?
    Dr. Joyce. Well I mean, essentially, what portfolio 
budgeting does, and this is an idea that was first advanced by 
Steven Redburn who used to work at OMB, and the late Paul 
Posner from George Mason University. And the idea is that, you 
know, we get pretty focused on whether something is mandatory 
spending, or discretionary spending, or tax expenditures, for 
example.
    But what is essentially happening is that we have an area 
like housing and there are a number of different tools that we 
have in the housing area. And some of them are in the tax code, 
and some of them are mandatory, and some of them are 
discretionary. And what this really does is encourages more 
thinking about which of those tools are most effective in a 
particular policy area.
    So the focus is on the policy area; it is not on whether 
something happens to be discretionary, or mandatory, or a tax 
expenditure.
    Mr. Crenshaw. Right. And that would be somewhat of a change 
to the process. And I mean, are--you mentioned earlier though, 
that the problem is the operation of the process.
    Dr. Joyce. Right.
    Mr. Crenshaw. Not the process itself. Does that mean--I'm 
just curious--does that mean we are doomed to never pass a 
budget correctly, no matter what the process is? I mean, what 
are your thoughts on that?
    Dr. Joyce. I have thought about what the, you know, what 
the incentives might be to actually using the process as it was 
intended. You know, essentially, what has happened in the past 
is that the process has been used at times when the moon and 
the stars, you know, sort of aligned and people decided that 
they wanted to do something.
    I mean, what happened in, you know, 1990 that led to the, 
you know, what was the Budget Enforcement Act, which is where 
pay as you go came from. For example, was that, you know, the 
two parties actually got together, and they said, ``The deficit 
is a problem and we want to do something about it.''
    So it has to start there. And I think that often, there is 
a tendency to think that there is some cute procedural trick 
that we can come up with to make people do things that they do 
not want to do. But I think that they have to want to do them, 
first, and then the process can be used as a vehicle to make 
those things happen.
    Mr. Crenshaw. I was hoping you could also expand on the 
wording you used in your testimony about how we need a more 
difficult but important kind of oversight and--what does 
effective oversight of the executive branch look like?
    Dr. Joyce. I think effective oversight of the executive 
branch is asking the hard questions about what it is that the 
Congress intended when it established this program, and is that 
program accomplishing what it is that the Congress wanted it to 
do. And that is much harder to do than the kind of oversight 
that I think you see too much of, which is, you know, somebody 
did something wrong or someone thinks that somebody did 
something wrong----
    Mr. Crenshaw. Mm-hmm, right.
    Dr. Joyce [continuing]. and they get hauled before a 
committee and they get yelled at. Well you know, that is good 
theater, but it does not--it is not that helpful in terms of 
making sure the programs operate better.
    Mr. Crenshaw. Right. And that feeds into the suggestion we 
heard just a minute ago about expanding our own resources to 
actually identify whether a program is doing well.
    On the other side of oversight, I believe, fundamentally is 
again, getting ahold on the growth of our debt. And as we all 
know, the numbers are not in dispute. Mandatory spending is by 
far, the biggest driver of our debt. How can we wrap that into 
the budget process? What would be a reasonable suggestion to 
make?
    Dr. Joyce. Well I mean, it is wrapped into the budget 
process in the sense that it is the budget resolution and the 
reconciliation process that is the most effective tool in terms 
of the ability of the Congress to actually change that path.
    And so if you do not have a budget resolution, you do not 
have reconciliation. And if you do not have reconciliation, 
then it is very difficult to change the path of mandatory 
spending. I will say at the same time that, you know, that when 
you have a debt of this size, the answer is not whether you are 
going to cut mandatory spending or discretionary spending, or 
whether you are going to cut spending or raise taxes. The 
answer is all of the above.
    And you know, and so I think in the budget resolution, we 
would have to get to a place where there are changes in 
mandatory spending and discretionary spending and consideration 
of revenue increases in order to get out of a hole the size of 
which we have dug ourselves.
    Mr. Crenshaw. I have run out of time, and of course it is 
up to the Chairman, but I would love to hear the other 
panelists' answers to those questions as well.
    Chairman Yarmuth. Does anybody want to chime in? Well I 
will allow it if anybody wants to comment on that.
    [No verbal responses.]
    OK. The gentleman's time has expired. I now recognize the 
gentleman from Nevada, Mr. Horsford, for five minutes.
    Mr. Horsford. Thank you, Mr. Chairman, and to the Ranking 
Member for holding this hearing, and to our experts.
    You know, my constituents and most Americans want Congress 
to do its job. And I believe the budget process is one of those 
areas; it is one of the reasons I am honored to be a Member of 
this Committee.
    My colleagues on the other side have said a number of times 
today, and during previous hearings, that the House Democrats 
have not done its job. And yet, on August--or excuse me, on 
July 25, 2019, the House passed Public Law 11637 by a vote of 
284 to 149; 65 Republicans voted for that bill including the 
Ranking Member and several Members of this Committee. That bill 
set the spending limits through 2021, and it was done in a 
bipartisan way with both chambers, and it was signed into law 
by the President of the United States.
    So the misleading information that continues to come out 
from the other side about the House not doing its job, you 
voted with us to set these spending limits. So let's be 
accurate about that with the American public.
    My question to the panel first is does the Constitution 
give Congress the power of the purse? Yes or no to all the 
panelists. Quickly.
    Mr. Chafetz. Yes. It requires expenditures to be made by 
law. Congress is the one that passes laws. Obviously, there is 
Presidential participation in that process, but fundamentally 
first and foremost, the responsibility rests with Congress, and 
first and foremost, with this House because of the origination.
    Mr. Horsford. And that power was not given to any 
president, correct?
    Mr. Chafetz. Correct.
    Mr. Horsford. So the core goal of the U.S. Constitution is 
to divide powers between all three branches of government in 
order to prevent any one branch from gaining dominance. The 
Appropriations Clause in the Constitution states that, ``No 
money shall be drawn from the Treasury, but in consequence, if 
appropriations made by law.''
    Mr. Chafetz, you mentioned in your statement that once the 
Constitution was ratified and the new national government was 
up and running, the earliest congresses made clear that they 
understood themselves to have special responsibility for 
matters of the purse.
    Can you expound upon how the first three departments: 
Foreign Affairs, War and Treasury were set up? And I am 
specifically interested in how and why Treasury was set up the 
way it was.
    Mr. Chafetz. Sure. And one of the first things that the 
first Congress does when it assembles is creates these first 
three executive departments--or those first three departments. 
In the organic statutes, both Foreign Affairs and War, are 
referred to as executive departments. They are created with the 
secretary and the secretary's given the authority to hire a 
clerk, but basically no staff beyond that, and they are 
required to take direction from the president.
    The organic statute for the Treasury Department is 
different. It does not refer to it as an executive department; 
it creates a lot more personnel. So in addition to a secretary, 
it creates a treasurer, a comptroller, and several other 
officers, and it does not say anything about taking direction 
from the president.
    But it does say that the--it does require all kinds of 
reporting to Congress, each of these different officers is 
given special reporting requirements to Congress.
    I think what we can take away from that difference in these 
organic statutes is that the Treasury was seen as being closer 
to an arm of the legislature than to--than something like 
Foreign Affairs or War, which were seen as purely executive.
    So there is this idea that Congress had this special 
responsibility right from the beginning for matters of 
spending.
    Mr. Horsford. I think that is a very important distinction 
and something that the structure of the separation of powers is 
key for all of us to understand. I want to turn finally to the 
Impoundment Control Act. The Congressional Budget and 
Impoundment Control Act of 1974 responded to President Nixon's 
abuse of the apportionment process.
    The law reassorted Congress' power of the purse by 
prohibiting the president from apportioning funds for policy 
reasons, and by establishing procedures to prevent the 
president and other government officials from unilaterally 
substituting their own funding decisions from those of 
Congress.
    Right now, the current President has made unilateral 
decisions to move congressionally approved funding for various 
military projects after the House and the Senate agreed, in a 
bipartisan basis, to not fully fund his request multiple times. 
We gave him some money to repair fencing along the border, but 
he wanted even more money to build an ineffective wall which he 
eventually took from the Defense Department's budget.
    I, for one, believe this is an abuse of power. Do you have 
any recommendations for changes that we should make to the 
statutes or institutions that shape federal spending decisions? 
What can we do to protect the separations of powers and make 
sure the executive branch follows the law when it comes to 
spending?
    Mr. Chafetz. May I answer this one?
    So one of the big problems in my view with the National 
Emergencies Act is that when the president does declare an 
emergency and transfer power, Congress then has the ability to 
pass a resolution of disapproval. And as you know, both houses 
did, in fact, pass such a resolution, but not with vetoproof 
majorities.
    I would suggest flipping the burden, so that is to say, 
have the National Emergencies Act where the president can 
declare an emergency for a brief period of time, say 60 days, 
and unless Congress comes in and ratifies that within 60 days, 
then the emergency goes away, rather than saying that Congress 
has to come in and undermined the declaration of emergency.
    And that would, I think, allow the sort of necessary 
flexibility for true emergencies, but prevent the abuse of the 
emergency power for things that really just seem like policy 
disagreements.
    Mr. Horsford. Thank you for your indulgence, Mr. Chairman, 
I yield back.
    Chairman Yarmuth. All right. The gentleman's time has 
expired. I now recognize the gentleman from Texas, Mr. Roy, for 
five minutes.
    Mr. Roy. Thank you, Mr. Chairman.
    I thank all the witnesses for taking your time for being 
here and spending time with us here today.
    I appreciate having somebody who is a, I guess, a visiting 
professor at the University of Texas. I am proud to represent 
West Campus, which is of course, pretty much fraternities and 
apartments. I do not have the academic portion; I have the more 
fun portion of the campus, but I am delighted to have somebody 
here from Austin.
    I introduced, about a year ago, I have to go back and look 
at the date, H.R. 1755, the Article I Act. It is the companion 
bill to a bill introduced by Senator Mike Lee in the U.S. 
Senate. The purpose of which is to sort of reset the way we 
deal with national emergencies.
    Many of you know that there are--I think there has been 59 
total emergencies since 1976 declared 33 are still in effect. 
That is absurd. I mean, it is absurd that we have got 
emergencies that are--that were declared, and that are still 
operating, and in effect since the Carter Administration, I 
believe, if I am correct.
    And so I would invite my Democratic colleagues to look at 
H.R. 1755. It is an effort to, again, reset the way we deal 
with it by essentially saying in all cases, the president's 
emergency declaration would unlock emergency authorities for an 
interim period lasting no more than 30 days. It would basically 
reverse where we currently just--it kind of continues, and if 
we do not act, it just keeps going. It would say it ends. And 
then we have to--Congress has to act or the emergency 
terminates. I think that would be a better way to go about it, 
right, is the sort of inherent definition of emergency. So I 
would be happy to work on a bipartisan basis to try to address 
that.
    Now, I would say that from my standpoint, the power of the 
purse--and I am wondering how Dr. Joyce feels about this. If we 
want to exercise the power of the purse to restore the balance 
of power, if we think that there is a balance of power problem, 
whether it was under the Obama Administration if you are 
Republicans, vice versa. Or if we are not even wearing our 
partisan hats, and we just say, ``Look, we just want to try to 
restore the balance of power between Congress and the executive 
branch,'' we always have the ability to act.
    We can come together as Congress and say, ``Do not fund 
that,'' and fill in the blank, whatever it is. We can choose to 
do that, if we will go through the appropriations process and 
act.
    And just frankly, our real problem is that we do not have 
an appropriations and/or budget process combined that has us 
ever sit down as a group of individuals around a table like our 
families, or any businesses do, and actually do our job.
    You know, my family, we all have to sit around and decide, 
``Well, I mean, our kid is going to do this. Go to this 
school.'' ``Are we going to have these cars?'' ``Are we going 
to,'' you know, ``make these choices?'' ``Do we take a vacation 
this year? Do we not?'' You know, whatever it is. ``Are we 
going to pay for this healthcare?''
    And you have to make choices. But we never do, ever. We 
literally never make a choice. We just keep spending into 
oblivion. And now we are at $23.4 trillion in debt. We are at 
$110 million an hour. The White House and this body, no matter 
what I protest and vote against, which I probably will, is 
about to spend an ungodly amount of money in the name of 
stimulus that won't likely stimulate a damn thing. Not unlike 
the alleged stimulus from 2009 or 2010.
    And what are we going to do? We are going to have, instead 
of a trillion-dollar deficit this year, we are going to have a 
$1.6789 trillion deficit. We have got to stop just going to our 
partisan corners and shooting at each other by saying, ``OK. We 
want defense spending. We want non-defense discretionary. What 
the hell? Let's just raise it all, raise the caps.''
    I respectfully disagree with the gentleman. I just voted 
against those caps. I voted against those cap increases. I am 
out right now because of time. I appreciate it. I would like to 
have a dialog, I would. And we should have a roundtable 
discussion on this. Let's sit down and just roll our sleeves up 
and work like any American family does and figure out how to 
spend within our means. What are the dollars that are going to 
come in the door and then make the tough decisions that you 
have to do.
    If we do that, I would pause it that Article I would be 
stronger. That Article I would then be put in a position of 
balance against Article II. Because right now, we just throw 
money at the wind and we let those bureaucrats run with it no 
matter which party is in the White House.
    Dr. Joyce, I will just leave it to you to see if you agree 
or disagree, if you have anything to say on that.
    Dr. Joyce. Well so, I teach budgeting, and I have been 
public budgeting, and I have been doing it for a long time. And 
my kids say, ``That's a job?'' But you know, it is.
    And so, you know, I have studied a little bit what 
effective budgeting looks like. And the thing is, that 
effective budgeting always involves compromise. And what 
compromise means is that nobody gets exactly what they want. 
And when, as you suggest, people just go to their partisan 
quarters, and you have a group of people that are opposed to 
one kind of change unalterably, and another group of people as 
opposed to another kind of change, unalterably. All that means 
is that you are not able to, you know, to get to agreement.
    And so I think we have a budget that is more less on 
automatic pilot, and automatic pilot is not working. And so, 
you know, I do not know. Because, you know, if you--I am not a 
political scientist and it is dangerous for me to pretend to be 
one. But, you know, we have this sort of disappearance of the 
moderates, and the moderates used to be the people that 
actually sort of helped make things happen.
    Mr. Roy. Do not imply that I am a moderate or some people 
back home are going to get a little concerned. I am just 
kidding.
    Thank you, Mr. Chairman.
    Chairman Yarmuth. Certainly. The gentleman's time has 
expired. I now recognize the gentleman from Pennsylvania, Mr. 
Boyle, for five minutes.
    Mr. Boyle. Thank you, Mr. Chairman. And given the last 
exchange, let me just say thank you to President Obama and 
pragmatic Republicans like Hank Paulson and Ben Bernanke. We 
thank God did not listen to those voices who were preaching 
austerity and pushed through with the stimulus that helped save 
our economy--the worldwide economy, and lead to this historic 
11-year economic expansion, the longest in American history, 
right up until this latest crisis with the coronavirus. And I 
hope that we will all learn the lessons from that history and 
not retreat to ideological camps.
    Now, Mr. Chairman, I want to applaud you for having the 
vision to hold a hearing like this because too often around 
here, we spend 99.9 percent of our time dealing with the urgent 
issue of right now and not taking a step back to have a more 
thoughtful discussion process-wise about how we can improve 
things for the future.
    In my six years now here, probably the most asinine thing 
we do are these government shutdowns. So as I went to work on 
attempting to positively come up with a constructive solution, 
in my own research, I discovered that this a relatively new 
phenomenon. That it is only because of a legal interpretation 
by the Attorney General in the Carter Administration that we 
even have the concept of government shutdowns.
    I introduced legislation that would--that is simply called 
the ``Ban Shutdown Act'' that would prevent all future 
government shutdowns. The way it would work is simply when the 
appropriation expires, things would continue on autopilot until 
there was a new appropriation.
    Now, I recognize the limitation in that approach. It is 
certainly not ideal. But my view, it is far superior to this 
endless cycle of government shutdowns that actually cost us 
more money and have a negative effect on the economy.
    So I would like to ask you what you think about that 
approach, and frankly, if you could suggest--if you have any 
suggestions on how we could end this cycle of government 
shutdowns. If you do not like my legislative approach, then 
certainly interested in hearing any and all good ideas to once 
and for all, solve this completely needless problem. And that 
is open-ended to any one of you.
    Dr. Joyce. I will say that I definitely agree with you 
about government shutdowns. My concern about automatic 
continuing resolutions is that what we could end up doing in 
the first place is taking away, you know, what is--what I would 
view to be sort of an essential, you know, stick that can be 
used, which is the threat of a shutdown.
    And I think if we get to the place where we are just 
encouraging more and longer continuing resolutions, that has an 
effect that is not as visible, but is none the less harmful.
    So I really understand your motivation. I do not know if 
you have seen the bill that Senator Lankford has introduced in 
the Senate, but he has a similar kind of bill. And the 
difference in that bill that I have seen is that he not only is 
prohibiting government shutdowns, but he is actually also doing 
things like prohibiting all congressional travel until a--you 
know, until an actual appropriation bills are enacted.
    So in my mind, you would have to couple the automatic 
continuing resolution with some kind of sanctions that force 
people to come to the table.
    Ms. Pasachoff. If----
    Mr. Boyle. While at the same time not going down the sort 
of gimmicky----
    Dr. Joyce. Right.
    Mr. Boyle [continuing]. road that sounds great in a 
populist way but does not actually achieve anything.
    Dr. Joyce. Yes, yes. Not doing things like, you know, just 
saying people are not going to get paid.
    Mr. Boyle. Yes, that is what I am implying. Yes. 
Professor----
    Ms. Pasachoff. So I worry about giving away too much 
Congress' power of the purse if you would go down that route. 
So respectfully, that is my concern.
    Mr. Boyle. Yes.
    Ms. Pasachoff. I will say that I think a stronger mechanism 
might be to make it harder for the executive branch to operate 
during a shutdown. Not again to punish anybody, but when 
government is allowed to continue funding services and bringing 
in lots of people which it did during the last shutdown. And 
different administrations can make different choices. It 
reduces incentive to compromise. And I think that what you need 
to end a shutdown, and what you need to get to some kind of 
work that serves theAmerican people, is to compromise more.
    So I would say importing some of those restrictions that we 
talked about from the OLC memos into law, and further 
tightening them so that it limits what the executive branch can 
do to keep a government going, even when there is a shutdown.
    Mr. Chafetz. If I could just come in real quickly on this. 
I think also it is worth remembering that government shutdowns 
are not always caused by congressional failure to pass 
appropriations.
    So the 1994, 1995 shutdowns were passed by President 
Clinton vetoing appropriations bills, right, so then sort of 
suggests that it is necessarily Congress' fault. The problem 
with an automatic CR in my view, is that it basically massively 
strengthens the president's hand in any kind of bargaining with 
Congress, right, it says to the president, ``As long as you 
prefer the current levels of spending to whatever Congress 
might come up with on its own, then just refuse to work with 
Congress, you will get your automatic CR and it is better.'' 
The only way to move off of the status quo on that view would 
be to move toward the president.
    That, in my view, would be a huge abdication of 
congressional power of the purse. And something like Senator 
Lankford's proposal does not actually solve that either. It 
just makes it harder for Congress to stick to its guns. So this 
would be a massive transfer of power, I think, to the executive 
branch.
    Chairman Yarmuth. The gentleman's time has expired. I now 
recognize the gentleman from Michigan, Mr. Kildee, for five 
minutes.
    Mr. Kildee. Thank you, Mr. Chairman, for holding this 
really important hearing.
    Like Mr. Roy, I do share the concern about Congress 
reasserting its authority. And while we may occasionally travel 
different paths, and sometimes wind up in vastly different 
places, when we do come to the same conclusion, even if it is 
from different motivations, I think we are obligated to work 
together.
    So if that possibility is open, I think we need to pursue 
it. So I appreciate comments. I do think it is important that 
we take care to scrutinize not only the spending decisions that 
we make, and the impact that they have on the national deficit, 
but the choices that we make about revenue policy, and tax 
policy, which also have those detrimental impacts.
    And so we just need to be honest with ourselves about the 
effect that our decisions have. Obviously, Congress needs to 
assert its constitutional authority. The only way that our 
democracy survives is if we adhere to the rules set forth by 
our founders in the Constitution. And that means acting when a 
president fails to adhere to the same set of rules, no matter 
who that president might be.
    The Constitution is clear, the president cannot spend money 
that is not appropriated by the Congress for specific purposes, 
and that the president must, must spend those dollars 
appropriated by Congress for the purposes that we intend.
    People in communities all across the country rely on that, 
not just because of the imperatives that the Congress think, in 
its collective wisdom, are important priorities, but because 
that means we are adhering to the rule of law. We are doing 
what the framers anticipated.
    Dr. Joyce, you wrote in the Washington Post that the CBO 
has put Congress on a more equal footing with the President and 
made the budget process more transparent. And as a person who 
long admired Alice Rivlin and, I think, much of her legacy is 
built upon the foundational work that she did in this space to 
protect the independents of Congress by ensuring that the CBO 
played that important role.
    Can you, maybe with that as backdrop, offer some thoughts 
about how the CBO itself promotes a more appropriate balance of 
power and transparency in this process with the executive 
branch?
    Dr. Joyce. Well I mean, thank you for having read that, and 
also, so this is a dangerous question to ask because I wrote an 
entire book about the CBO, but I will try to do it in a minute.
    You know, prior to the existence of CBO, the Congress had 
no way of systematically challenging information and numbers, 
really, that came out of the executive branch. And the history 
of CBO is a history of CBO empowering the Congress to respond 
to Presidential proposals, both policy proposals and budget 
proposals. And that was true with the Carter Energy Policy in 
1976, it was true with the Reagan budgets in the early 1980's.
    And so this enables the Congress to be able to effectively 
challenge the executive branch. It also very importantly, gives 
the Congress a nonpartisan source of information on just what 
the effects of various policies are.
    Prior to the existence of CBO, if you wanted to ask how 
much a bill cost, then there were two sources of information 
for that. There was either the committee that produced the 
bill, which had every incentive to downplay the cost of the 
bill, or there was the executive branch, which miraculously, 
thought bills that it didn't like cost a lot of money. And 
bills that it did like, did not cost much money at all.
    Mr. Kildee. I wonder if you might comment. This may have 
been covered before I arrived, it has been a busy day. And what 
tools you might suggest that the CBO be granted----
    Dr. Joyce. Mm-hmm.
    Mr. Kildee [continuing]. in order to more effectively deal 
with what we have had recent examples of. And to be fair, I am 
sure there are examples that cross the span of time, but there 
have been more egregious examples of the Administration 
withholding money that Congress appropriated for a specific 
purpose, or spending money that Congress did not approve for a 
specific purpose. Can you talk to any of the tools that you 
think CBO, specifically----
    Dr. Joyce. Right.
    Mr. Kildee [continuing]. or any other agents of government 
should have in their hands to prevent that?
    Dr. Joyce. Well I mean, you know, it is really GAO that is 
in the position of, you know, opining in terms of whether the 
Administration has effectively followed the law or not. Because 
it is GAO that gets involved in the, really, the budget 
execution process. You know, CBO is more sort of upfront when 
you are making decisions on what to do.
    You know, I am hesitant to say that CBO should have any 
enforcement authority because I think the whole idea of being a 
nonpartisan agency and then having enforcement authority is 
just going to get it in a lot of trouble.
    So CBO is about providing information, and then it is up to 
the Congress how it wants to use that information.
    Mr. Kildee. Thank you.
    My time is expired. I yield back.
    Chairman Yarmuth. The gentleman's time has expired, and I 
yield myself 10 minutes for questions.
    And once again, let me thank the entire panel for your 
testimony and your responses. It has been one of the, I think, 
most impressive presentations by--nonpartisan presentations of 
a group of witnesses we have had since I have been Chair.
    And I just want to reference one thing Mr. Roy said about 
how we should all sit around and talk about this. We did that 
in 2018; that was the joint select committee, 16 of us, the 
entire year, and virtually every question or point that has 
been made here about possible proposals, and so forth, was made 
then.
    And for one reason or another, we could not get 10 votes 
out of 16 to do it. And that was also a very, very nonpartisan 
process. Everybody on that group, the eight Democrats and eight 
Republicans, four each from the Senate and the House, was very 
interested in solutions and not gaining partisan advantage.
    And so it was a very, I think, a useful discussion. And I 
think virtually everyone who came out of that discussion, out 
of that process of almost a year's duration, said, I think as 
you may have said, Dr. Joyce, it was not the process, it is the 
will of the Members of Congress.
    And that is one of the things that in my--this is now my 
12th year on the Committee, and that has been very frustrating, 
but so obvious about the budget resolution process that we have 
had because it has been basically just an opportunity for 
scoring partisan points.
    The process was never really designed to be a governing 
process, and I think that is symptomatic of what confronts this 
government right now--this Congress right now, is that we do 
not really have a governing mentality here. We have an 
electoral mentality. Almost regardless of what the issue is, 
the strategy is, ``How do I get an electoral advantage on this 
issue?'' Not, ``What is the best policy for moving the country 
forward or solving a problem?''
    And I do not know how we get past that, but until we do, 
and actually begin to govern, I think--I was a staffer here in 
the 1970's when you had virtually the entire philosophical 
spectrum in both parties. And I was a staffer on the Senate 
side. And so you were always working across the aisle because 
there was always somebody who agreed with you across the aisle. 
And a party was not nearly as significant. We have become very 
tribal as everyone says, and so it is a different environment.
    I want to focus on one thing though. And believe me, I have 
great empathy with the Republicans on the Committee and in the 
House because I spent eight years in the minority. Nobody on 
this Committee, until last year, has spent any time in the 
minority and it is frustrating. It is frustrating.
    So you do things like batter the Committee for not passing 
a budget resolution, when in fact, of course, Senator McConnell 
announced early this year that they were never going to bring a 
budget resolution to the floor in the Senate.
    But one of the things I am curious about, and to see if 
any--I will leave it open to any of you--is if there are any 
changes you might see in the 1974 Act that would help? And that 
is specific, one point I would question you about is the idea 
that ever since we have been here, every budget resolution that 
has been proposed, whether it has been passed or not, was a 10 
year resolution.
    I think the act requires us to do five years. In this day 
and age, there is no way to write a budget for 10 years. A 
budget resolution that is meaningful in any respect. And both 
sides have played incredible games with the budget to make it 
look good.
    I remember one time when we were in the minority, but 
Republicans proposed a budget and they had some 600 and 
something million dollar category. And we asked them what that 
was. And they said, ``Well we just made up a number. We had to 
get that number.''
    So they put the number in, and then, you know, lots of 
gimmicks on estimates of growth and so forth. You know, 
president's budget estimates 3 percent growth right now what 
looks like to--everyone's prediction was it would be no more 
than 2. Now it looks like it is going to be zero the rest of 
the year and 1 percent next year. That was unforeseen.
    So the question I have is would that make sense to say, 
``You just have to do a budget?'' One-year budget or a 2-year 
budget resolution or any other changes you might see in the 
Budget Act that might help?
    Dr. Joyce. Well if I could respond first, I think--you 
know, I was--I do not remember what year it was, but there was 
a year in which, you know, we moved from five years to 10 
years. And the reason as I recall we moved from five years to 
10 years is because people were always doing things where the 
costs exploded in year six, right?
    Chairman Yarmuth. Right.
    Dr. Joyce. And it is sort of more difficult to do things 
where the costs explode in year 11. I mean, it is so far you 
know, into the future. But I think obviously the downside of 
doing 10 years is that it is so hard, you know, to--with any 
kind of reliability to say what is going to happen in 10 years.
    I would be concerned about going much shorter than five, 
only because I think you do create those incentives that if you 
do a 2-year resolution, then magically, you know, people are 
going to create programs where the costs get a lot bigger in 
year three, for example.
    Chairman Yarmuth. Has anybody ever had a sense of that? Or 
any other aspect of the budget?
    Dr. Joyce. And I would just say that in terms of the--in 
terms of changes to the Budget Act itself, you know, the one 
that I suggested in my testimony, and I think it is worth 
considering, is just whether there are things that we could do 
to make this Committee more powerful.
    And obviously, making it more powerful if the Committee is 
not going to actually exercise that power does not do a lot of 
good. But you know, ideas like, do you want to actually, you 
know, put Chairs and Ranking Members of the, you know, 
important money committees on this Committee? Do you want to 
sort of, you know, strengthen the budget resolution itself, the 
enforcement procedures behind it, things like that.
    Chairman Yarmuth. Yes. I was impressed by that 
recommendation. I would love to have a--chair a committee on 
government priorities. That would be a pretty interesting thing 
to do.
    One of the things that we have done this year, because we 
have limited jurisdiction and the budget resolution process is 
not working, was to actually consider this Committee the 
oversight on the budget.
    So we have had hearings on various things like--and Mr. 
Johnson said we had a hearing on the Green New Deal. We did 
not. We had a hearing on climate change and how it is going to 
impact--how it is impacting the budget and how it might impact 
the budget. We are going to have a hearing later this year on 
artificial intelligence and how that may impact the budget. We 
have had immigration reform and how that affects the budget. 
And those are--and the idea was to assemble information that 
might be useful to the legislating committees of those areas--
the committees of jurisdiction.
    But I think you are very right on point that this Congress 
has to do a better job of oversight in every respect. I wrote 
an op-ed about that several years ago and said that--and this--
that we have had--you look at the Communications Act of 1934. 
There is still things on the books from the 1934 Communications 
Act.
    And I mentioned to--when I was on the Energy and Commerce 
Committee, I mentioned to the chairman then that if he wanted 
to sponsor a bill to basically eliminate everything in the 
Communications Act that was not passed prior to 1996 that--
which was the prior--last prior reauthorization, I would be 
happy to cosponsor it with him because you cannot--nothing can 
be relevant to today's world that was passed before that.
    So that is something that this Congress absolutely has to 
do if we are going to advance legislation--and I think, Mr. 
Roy, we are talking to you about including your recommendation 
in that--that deals with the issues that we have had here.
    This hearing was designed to be kind of a prelude to that 
legislation. And a lot of the recommendations that were in your 
testimony are going to be a part of that and we appreciate 
that.
    But if there were one thing that you would think is the 
most important change we can make in order to reassert our 
power of the purse, what would it be? The most important 
recommendation.
    Mr. Chafetz. I would say limitations. I mean, this may be 
fighting the question because it will be a little broader than 
one specific thing. But limitations on the president's ability 
to either transfer funds, reprogram funds without some serious 
indication of congressional acquiescence, or refuse to spend 
funds that have been transferred that is--that have been 
appropriated.
    That is to say, to tighten up both the Impoundment Control 
Act and to, as Mr. Roy suggested, flip the burden on emergency 
spending and on transfer authority under that.
    Ms. Pasachoff. I think the number one important thing to do 
is to make things more transparent. So you cannot hold--you 
keep talking about--we have talked a lot about oversight today. 
It is impossible for Congress to hold--to have oversight over 
the executive branch if you do not know what the executive 
branch is doing.
    So I think that apportionment transparency, making the 
apportionments public, they are final legal documents. I do not 
understand how in a rule of law country we can have things with 
the force of law that are not transparent, that are not public. 
And some sort of compendium, some sort of greater requirement 
for transparency of reprogramming and transferring actions.
    Chairman Yarmuth. Mr. Armstrong.
    Mr. Armstrong. I agree with both of the professors here, 
but one thing I would add is, as has been made clear in the 
hearing, the Antideficiency Act is the only fiscal statute 
which carries penalties for violation of the act. I think that 
the Committee might want to consider imposing penalties for 
other fiscal statutes like the Impoundment Control Act, but 
also like the purpose statute.
    I know that criminal penalties sound somewhat Draconian, 
but Professor Pasachoff is right in that, what we have seen 
over history is, even though the Department of Justice has 
never prosecuted anyone for a criminal violation of the act, it 
is a deterrent. And that is why GAO gets tons of requests every 
year for appropriations law training, because the people who 
actually have to execute the budget want to make sure that they 
are doing the right thing.
    And we hear in just about every class we teach, ``I do not 
look good in orange stripes.'' Things like that, you know, and 
so it gets attention and collateral. To that, I think I would 
expand the executive officials who have a right to ask for a 
decision from GAO. Currently it is heads of agencies and agency 
components, as well as, some offices called Accountable 
Offices. But if you expand it to the budget people, you expand 
it to contracting officers.
    I think we are more likely, even if we do not get the 
request for decisions, and I hope it does generate into request 
for decisions, but even if we do not get that, we are available 
for informal technical assistance and people are more likely to 
reach out. And when they reach out, we are making sure that 
they are acting in compliance of the laws that you guys enact.
    Chairman Yarmuth. Thank you.
    Dr. Joyce. May I?
    Chairman Yarmuth. Yes, Dr. Joyce.
    Dr. Joyce. So I want to say I agree with all of these. The 
one I would add, I would go back to something Professor Chafetz 
said, which is that if you are going to do effective oversight, 
and you are going to be a strong counterbalance to the 
president, you need the resources to do that. You need the 
staff to do that.
    And it is sometimes very hard, politically, for the 
Congress to spend money on itself. But when it doesn't spend 
money on itself and it--and its support agencies and its staff, 
you know, you are really at a competitive disadvantage.
    And you know, one of the reasons Congress does not do 
better oversight is perhaps because it does not have incentives 
to do so, but also because it takes a lot of resources, a lot 
of staff resources, in order to actually figure out what is 
going on in these executive agencies. And I think that is a 
very--that would be a very important thing to do.
    Chairman Yarmuth. Well once again, my time is long expired, 
but I have the gavel, so----
    [Laughter.)
    But I wanted to hear those responses, and once again, thank 
you for your contributions, they have been very useful. And if 
there is no further business, the hearing is adjourned.
    Hold on I'm sorry, it is not adjourned yet. I have a 
housekeeping act that I neglected earlier.
    As a reminder, Members can submit written questions to be 
answered later in writing. Those questions and your answers 
will be made part of the formal hearing record. Any Members who 
wish to submit questions for the record may do so within seven 
days.
    With that, this hearing is adjourned.
    [Whereupon, at 12:23 p.m., the Committee was adjourned.]
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