[Senate Hearing 116-132]
[From the U.S. Government Publishing Office]
S. Hrg. 116-132
RISE OF THE ZOMBIES:
THE UNAUTHORIZED AND UNACCOUNTABLE GOVERNMENT YOU PAY FOR
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HEARING
BEFORE THE
SUBCOMMITTEE ON FEDERAL SPENDING
OVERSIGHT AND EMERGENCY MANAGEMENT
OF THE
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
OCTOBER 30, 2019
__________
Available via http://www.govinfo.gov
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
_________
U.S. GOVERNMENT PUBLISHING OFFICE
38-897 PDF WASHINGTON : 2020
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
David M. Weinberg, Minority Staff Director
Laura W. Kilbride, Chief Clerk
Thomas J. Spino, Hearing Clerk
SUBCOMMITTEE ON FEDERAL SPENDING OVERSIGHT AND EMERGENCY MANAGEMENT
RAND PAUL, Kentucky, Chairman
RICK SCOTT, Florida MAGGIE HASSAN, New Hampshire
MICHAEL B. ENZI, Wyoming KAMALA D. HARRIS, California
JOSH HAWLEY, Missouri KRYSTEN SINEMA, Arizona
Greg McNeill, Staff Director
Harlan Geer, Minority Staff Director
Kate Kielceski, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Hassan............................................... 3
Senator Paul................................................. 4
Prepared statement:
Senator Paul................................................. 21
Senator Hassan............................................... 24
WITNESSES
Wednesday, October 30, 2019
Hon. Cathy McMorris Rodgers, a Represenative in Congress from the
State of Washington............................................ 1
Kevin R. Kosar, Vice President of Policy, R Street Institute..... 6
Jonathan Bydlak, President, Institute for Spending Reform........ 8
James A. Thurber Ph.D., Distinguished Professor of Government,
American University............................................ 10
Alphabetical List of Witnesses
Bydlak, Jonathan:
Testimony.................................................... 8
Prepared statement........................................... 29
Kosar, Kevin:
Testimony.................................................... 6
Prepared statement........................................... 25
Thurber, James A. Ph.D.:
Testimony.................................................... 10
Prepared statement........................................... 34
APPENDIX
Chart............................................................ 30
RISE OF THE ZOMBIES:.
THE UNAUTHORIZED AND UNACCOUNTABLE GOVERNMENT YOU PAY FOR
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WEDNESDAY, OCTOBER 30, 2019
U.S. Senate,
Subcommittee on Federal Spending,
Oversight and Emergency Management,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:55 p.m. in
room 342, Dirksen Senate Office Building, Hon. Rand Paul,
Chairman of the Subcommittee, presiding.
Present: Senators Paul, Scott, and Hassan.
Senator Paul. I call this hearing to order.
The first witness is the Honorable Cathy McMorris Rodgers
of the U.S. House of Representatives.
OPENING STATEMENT OF THE HONORABLE CATHY MCMORRIS RODGERS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Ms. Rodgers. Thank you, Chairman Paul and Ranking Member
Hassan, for this opportunity. I would like to talk about the
Unauthorized Spending Accountability (USA) Act, that I have
been a champion of in the House, along with many other co-
sponsors. I appreciate you giving me some time to shine the
light on these solutions that I believe would be helpful in
helping to control our out-of-control government spending, and
to bring accountability that is so desperately needed.
Right now there are hundreds of programs within the Federal
Government that are unauthorized. They are on autopilot. They
are runaway programs that have not been reviewed or
reauthorized by the people's representatives in Congress, in
some cases for decades.
A few years ago, Jake Tapper called these unauthorized
programs ``zombie programs,'' and it is a perfect description.
Now I just learned that it is actually Kevin Kosar who
originally called them zombie programs, and you are going to
hear from him a little bit after me.
But these zombie programs account for roughly $310 billion
in government spending. That is hundreds of billions of
dollars. Often it is part of the untold frustration that we
often hear from the citizens, the hard-working taxpayers that
we represent. Congress is not using its power to exercise the
power of the purse to hold these programs accountable on a
regular basis, and it needs to change.
That is why I have introduced, and I am leading, the USA
Act. The USA Act will sunset zombie spending. It will require
the people's representatives to review, rethink, or possibly
eliminate government programs that no longer serve their
mission. It would really ensure that we are doing our job to
rethink, review, bring these programs into the 21st Century at
times, and make sure that every dollar is spent wisely.
First, it requires Congress to either end or reauthorize
programs that do not have current reauthorization, enforcing
this requirement through an annual spending cut for 3 years. On
the third year, if the program has not been reauthorized, then
it will sunset.
The USA Act lays out a fiscally sound but feasible schedule
for the Federal bureaucracy to defend their need for taxpayer
dollars. It provides flexibility for authorizers to get their
work done while maintaining spending discipline. Because
Congress is reviewing programs, it ensures that necessary
programs are improved and updated.
We all hear the frustration. People are frustrated by out-
of-control spending. They are frustrated by record debt, record
deficit, and they are frustrated because their elected
representatives seem powerless at times, against the unelected
bureaucrats in the Executive Branch and judges who legislate
from the bench. There is a breakdown of trust as people see so
much government waste, no accountability, and agencies that
have lost sight of their mission.
My goal with the USA Act is to rein in this runaway zombie
spending and ensure that the American people can trust they are
empowered through their elected representatives who are doing
their job, the good government solution to restore the
separation of powers.
Article 1 gives Congress the exclusive power to write laws
and set the funding priorities. Our founders established this
by design. They put decisionmaking power where it is closest
and most accountable to we, the people. That is what makes
America the greatest experiment in self-governance the world
has ever known. To keep this experiment alive, Congress needs
to rebuild trust, restore Article 1 power, and keep
decisionmaking close to the people. A good way to start is by
putting an end to these zombies that are feasting off of broken
spending process in Congress.
I am grateful to my friends and colleagues in the Senate
for this opportunity to highlight the USA Act with all of you.
I hope we can continue to work together on more solutions to
restore the power of the purse, bring accountability, and rein
in government spending.
Thank you very much.
Senator Paul. Thank you for coming. I think we promised not
to ask questions, but what if we broke our promise and asked
one or two?
Ms. Rodgers. That is great, yes.
Senator Paul. They are friendly questions. At least mine
are.
Ms. Rodgers. Yes.
Senator Paul. But anyway, do you have a Democrat co-
sponsor?
Ms. Rodgers. I am working on it.
Senator Paul. OK. We have done the same. We have
reintroduced a similar bill and we have not had one yet. Have
you gotten feedback from the other side as far as whether or
not you have a chance or what the obstacles are?
Ms. Rodgers. Right. I have worked on this legislation now
for several years. We introduced it first, I believe two
Congresses ago, and are continuing to build awareness, build
support. There is some hesitancy putting Congress on this
schedule, but I believe that we need that. We need something
that is going to force Congress to make the tough decisions.
Senator Paul. My point is we look back to William Proxmire,
who was a Democrat, who pointed out these sort of wasteful
projects from back in the 1970s, and we said, why are we still
doing this? Part of the answer, at least, is maybe we look at
these programs and see where we are spending the money. We have
given away the authority.
Ms. Rodgers. Yes. It is an opportunity for us to update a
program that was put in place in the 1990s. It was a very
different time in the 1990s than where we are in 2019. It is
absolutely important that we are updating these programs,
looking through the lens of 2019. How often do we meet with
someone that is working within the Federal Government that
feels like their hands are tied? They are saying, ``Well, this
is the law, these are the rules. We do not have the flexibility
to do what we really should be doing within the program or this
agency.''
That is where if Congress was actually doing this on a more
regular basis, and making sure that it is not decades that go
by before a program is reviewed, and we can rethink it, it
would also empower those that are really working hard on the
front lines and want to spend taxpayer dollars wisely.
Senator Paul. Senator Hassan.
OPENING STATEMENT OF SENATOR HASSAN\1\
Senator Hassan. Thank you for your testimony and for your
work and interest in this area. I share a lot of the concerns
that you outlined. I probably have a different approach, in
terms of how you might go about holding programs accountable
and making decisions about reauthorization. It may not be a
different approach, but I wonder what you think about it.
Senator Shaheen, my senior Senator, and I were both on a bill
in the past that would do Federal budgeting much more like the
way States do it.
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\1\ The prepared statement of Senator Hassan appears in the
Appendix on page 24.
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We would suggest biennial budgeting, so in the first year
you actually appropriate funds and authorize programs. The
second year of the biennium you would actually have metrics so
you would be measuring those programs against those metrics,
looking at how they work, and then that would inform the
budgeting process the next year.
Does that sound like something we could find bipartisan
support for?
Ms. Rodgers. Yes. There has been similar legislation
introduced in the House. It is part of a package that I think
many members, bipartisan, believe would help bring
accountability. I have supported that proposal in the House. I
would still come back to the fact that years go by, decades go
by, and you are talking hundreds and hundreds of programs,
agencies, and departments, that are on autopilot, that continue
to get funded every year, whether it is 1 year or 2 years,
without Congress really bringing them in and saying, ``OK, we
need to make sure that you are authorized, and reauthorized.''
Do not let those deadlines go by. Often they have deadlines,
but we have just allowed those deadlines to go by.
Senator Paul. One other comment on that would be that we
have groups of people we call appropriators, and then there is
the rest of us. They tend to have all of this power, and it is
supposed to be somewhat split with authorizers who are supposed
to watch the appropriators, and then there would be more of a
check and a balance.
I think we need to figure out a way, and all I would say
from my point of view is if there was something that we could
find agreement on to figure out how to force authorization, on
the details of my bill, I am open to compromise on, if we could
find a common ground.
Ms. Rodgers. Yes, and we really need to figure out that
piece between the appropriators and the authorizers, because,
yes, I thought that was--yes, we need to figure out. That is
the piece that I believe is missing, and this is one attempt.
Senator Paul. Thank you for coming over.
Ms. Rodgers. OK. Thank you. Good to be with you.
Senator Paul. We will go ahead and have the second panel
come forward, and we will start with our opening statements
now.
OPENING STATEMENT OF SENATOR PAUL\1\
Senator Paul. We are here the day before Halloween to talk
about zombies. These are not the kind of zombies we see on the
Walking Dead or what we might see on our doorstep tomorrow
evening. In many ways, these zombies are far scarier. These are
zombie government programs that have sometimes not been
reauthorized for decades.
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\1\ The prepared statement of Senator Paul appears in the Appendix
on page 21.
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Since the mid 19th Century, and reaffirmed in the 1974
Budget Act, Congress separated spending bills from the
authority, and we were supposed to have checks and balance
between appropriators and authorizers. In recent decades,
though, Congress has failed in its oversight by not
reauthorizing the programs it creates.
What are these zombie programs? They are programs Congress
created long ago that have since expired and yet somehow live
on, continuing to receive appropriations. How big is the
problem? Some might say, ``Well, surely it cannot be more than
a few dozen programs, or maybe just a few million dollars.''
Actually, it is over 1,000 programs and $300 billion. It is a
huge problem.
What are these zombie programs? Some are ridiculous and
well out of date. For example, the Inter-American Foundation
spent taxpayer dollars on such things as a clown college in
Argentina, welfare in Brazil, and jump-starting the Haitian
film industry. When I point these things out people always ask
me how such ridiculous things continue to get funded. Part of
the answer is unauthorized spending. The Inter-American
Foundation was created in the 1960s and last authorized more
than 30 years ago. It is no wonder a lot of people ask, ``What
is the Inter-American Foundation?''
It is not just bad programs, though. There is a lot of
conversation these days about election security. But it would
surprise people to learn that the Federal Election Commission
(FEC) was last reauthorized in the 1980s, before there was the
Internet or electronic voting machines. That means the FEC does
not have the proper powers, authorities, or guidance to address
current needs, or worse, they are making up their own rules as
they go.
I put forward a solution, a zombie cure, called the
Legislative Performances Review Act. This bill would require
programs to be reauthorized every 4 years, creates a targeted
point of order against funding such programs, it provides for
an orderly wind-down of expired programs, and it asks
committees to consider performance evaluations, which Congress
has been mandating but ignoring for the past 25 years, when
authorizing programs.
Some say that sufficient oversight happens in the spending
committees, with the appropriators. I do not think that is
true. If we are to look at this program and look at this
problem, I think we really have to have some sort of parameters
that force authorization to happen, or some kind of punishment
to the program that does not allow it to continue on.
I, for one, think there is need for reform. I also am very
open to compromising with anyone on the Democrat side who wants
to have reform, this is something, eminently, we would
compromise on if we can find common ground.
Thank you, and with that I recognize Senator Hassan.
Senator Hassan. Thank you, Mr. Chairman. I appreciate your
work and your staff's work on this hearing, and I also want to
thank the witnesses for being here today to provide their
expertise on these issues.
Today's hearing focuses on the issue of government spending
on programs that have expired and that Congress has failed to
reauthorize, but continue to operate through mandates in
appropriations bills.
Earlier this year, the Congressional Budget Office (CBO)
reported that in fiscal year (FY) 2019, 971 programs continue
to operate despite an expired authorization of appropriations.
These programs cost $307 billion and accounted for roughly 25
percent of all discretionary funding in fiscal year 2019.
There are critically important programs among those
identified by the CBO. These are large programs like medical
services and hospital care for veterans, and those established
under the Violence Against Women Act (VAWA), as well as smaller
programs dedicated to civil rights, environmental protection,
and the promotion of science and the arts. These programs are
vital to the health and safety of our constituents, and that is
all the more reason that they should be subject to
congressional oversight through the reauthorization process, so
we can be assured that they are working as Congress intended
and so that we can identify opportunities for improvement.
I am proud to have introduced and supported a number of
bipartisan bills to help Congress fulfill its oversight duties
in an efficient, data-driven way, including the Foundations of
Evidence-Based Policymaking Act, Taxpayers Right to Know Act,
and the Duplication Scoring Act of 2019, which Chairman Paul
and I introduced earlier this year.
While I believe that authorizing committees should
periodically review programs, I disagree with the premise that
programs should automatically lapse or wind down if that does
not happen, even when Congress agrees to fund them. It would do
enormous harm to our constituents if programs to provide
medical services to veterans, or to combat violence against
women ended because Congress appropriated funding but failed to
authorize the programs.
I look forward to hearing from our witnesses today, and
most importantly, I hope our witnesses can help us to identify
ways to continue to improve congressional processes in order to
safeguard taxpayers' dollars, while ensuring that Congress
continues to support essential programs that serve the American
people, and that the American people support.
Thank you again, Mr. Chairman, for holding this hearing,
and to the witnesses for your attendance.
Senator Paul. Thank you, Senator Hassan. This is our second
panel, and our first witness on the second panel is Kevin
Kosar. Mr. Kosar is a Vice President of Policy at the R Street
Institute, overseeing all of the think tank's research. He also
co-directs the nonpartisan Legislative Branch Capacity Working
Group, which aims to strengthen Congress.
Mr. Kosar is the co-editor of the book Congress
Overwhelmed: The Decline in Congressional Capacity and the
Prospects for Reform. His writing has appeared in academic
journals as well as the New York Times, Politico, and the
Washington Post.
Mr. Kosar holds a BA from Ohio State University and a
doctorate in politics from New York University.
Mr. Kosar, you are recognized for your opening statement.
TESTIMONY OF KEVIN KOSAR,\1\ VICE PRESIDENT OF POLICY, R STREET
INSTITUTE
Mr. Kosar. Thank you, Chairman Paul, and Ranking Member
Hassan, and Members of the Subcommittee for holding this
hearing and inviting me to testify. This is an important issue.
I began writing about it a few years ago, and I was alarmed by
what I was seeing, namely that it is a problem which continues
to grow, but Congress has really struggled to prioritize it as
a problem and to devise ways to deal with it.
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\1\ The prepared statement of Mr. Kosar appears in the Appendix on
page 25.
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Now, as mentioned already, this past March, CBO reported
that there were 971 expired authorizations and appropriations,
and those can be found in 257 laws. At the time they amounted
to about $158 billion in annual funding. But most recently,
Congress appropriated some $307 billion toward those same
programs. It is almost as if those authorizations, in statute,
are just irrelevant. They might as well not be written law. But
they are law, and law is supposed to matter.
We have a lot of zombie programs, we have a lot of
spending, and for sure the rise in unauthorized appropriations
are a symptom of a broken congressional budget process. They
also reflect general struggles that our legislature is having
in the 21st Century.
I would not want to weigh the way zombie programs is just a
symptom. I think they are, in an of themselves, troubling and
problematic, and I have four reasons for saying that, the first
of which is Congress is just not following the plan it set out
in the 1974 Budget Act. That law said authorize and
appropriate. That is the law. Not following the law does not
look good to anyone, as far as I can tell.
The second, the rise of the zombie programs gives the
appearance that Congress is abdicating its oversight duties
because it creates programs, says that it is only going to
spend money at a certain level for a certain number of years,
and then proceeds to disregard that. Government watchdogs and
citizens will be forgiven for wondering whether Congress has
checked out and just abdicated its power over the public's
money.
Third, if Congress is not reforming these programs through
reauthorizations, it raises the specter of anachronism. We may
have Federal programs that we do not need. We probably do.
These programs should be de-authorized and de-funded.
Additionally, not reauthorizing statutes may mean we have
Federal programs that are needed, that are important, but they
are designed to solve the problems of yesteryear or they may be
designed in a way to use the techniques of yesteryear. Both
these scenarios, needless to say, are the antithesis of
evidence-based policymaking, which is something that Congress
has been moving toward over the recent years.
Fourth and finally, failing to reauthorize programs
delegates legislative authority to the Executive Branch. In
short, agencies themselves get to decide what the law means,
what the programs should do, and where the money goes.
Now the growth in unauthorized appropriations has been
fueled by a whole lot or factors that I allude to in my written
testimony. Some are way beyond the control of Congress, like
polarization. One factor that gets less consideration than I
think it should is insufficient congressional capacity, vis-a-
vis the Executive Branch. Consider, the Executive Branch has
perhaps 180 agencies which administer untold thousands of
statutes and programs. The sheer giganticism of the Executive
Branch has utterly outstripped Congress' ability to oversee it.
CBO said that in fiscal year 2019 alone there were 130
expiring authorizations for appropriations. That is a lot of
laws to review and update. That is a huge workload. But
Congress' capacity has not kept up with it. It has lagged, in
some cases, if you look at the House. Particularly, it has gone
down. The number of congressional staff has certainly not kept
up. We know they are workhorses in helping do oversight. The
amount of time Congress is in session today and able to hold
hearings is about the same as it was in 1969. Those are
diversion trends, to put it mildly.
I would also say that when it comes to dealing with
unauthorized appropriations, congressional capacity is a key
piece. You have to have the resources, but it is not enough.
You have to have will.
There is, in the 1974 law, kind of an eat-your-spinach
aspect to the reauthorization process. You should do it; it is
the right thing to do. It is proper budgeting technique. That
is in there. But what is the incentive to doing it? Clearly,
Members of Congress, many of whom may feel personally that it
is worth doing, but they do not bother to do it because it is
hard work and it is often unrewarded.
In looking toward reform, my general advice is it would be
great to tackle zombie appropriations and to reduce them, and
that it should be a two-pronged strategy. You need capacity and
you also need to make sure that Members of Congress have the
incentive to get it done.
Thank you.
Senator Paul. Thank you, Mr. Kosar. Our next witness is
Jonathan Bydlak. Mr. Bydlak is Founder and President of the
Institute for Spending Reform and the Coalition to Reduce
Spending, which raises awareness about the need for responsible
fiscal policy and balanced budgets. Mr. Bydlak's work on
spending reform has been featured in columns ranging from
Business Insider to Reason magazine to the Washington Examiner.
He holds a bachelor's degree in economics from Princeton
University. Mr. Bydlak, your opening statement.
TESTIMONY OF JONATHAN BYDLAK,\1\ PRESIDENT, INSTITUTE FOR
SPENDING REFORM
Mr. Bydlak. Thank you, Mr. Chairman, and Ranking Member of
the Subcommittee for the opportunity to speak with you today.
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\1\ The prepared statement of Mr. Bydlak appears in the Appendix on
page 29.
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It is no secret that, over time, Congress has found it
easier and easier to ignore the budgetary instructions that
lawmakers have set for themselves. Most Americans, and
certainly Members on this Subcommittee, are familiar with the
devolution of the budgeting process and the temporary stopgaps,
onerous omnibus legislation, and even shutdowns that have
become a part of modern government.
But often lost in the noise over appropriation standoffs is
the fact that the other side of that proverbial coin, budgetary
authorizations, which is meant to be the first step, has been
increasingly ignored. What is supposed to be a two-step process
in which programs are first authorized before funding is
appropriated, now works, more often than not, by ignoring that
first step entirely.
As we have already talked about, in 2019, Congress spent
about $307 billion on nearly 1,000 agencies and programs that
were no longer authorized. This is about 23 percent of the
discretionary budget, but those numbers look even worse when
you consider that every year we reauthorize the entire Pentagon
budget in one bill, which is half of discretionary spending.
That means that for all other discretionary spending, more than
half is going unauthorized on an annual basis.
As the chart\2\ I put in my written testimony illustrates,
despite some blips up and down, the trend has been unmistakably
moving in the wrong direction. For comparison, unauthorized
spending in the early 1990s hovered under 10 percent of the
discretionary budget. Today we are at typically more than a
quarter.
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\2\ The chart referenced by Mr. Bydlak appears in the Appendix on
page 30.
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Many specific programs have not been authorized, as we have
touched on. My personal favorite is the Federal Election
Commission, just because it has not been reauthorized since 2
years before I was born, since 1981.
Why does this matter? At a basic level, separating
authorizations and appropriations is meant to reflect what I
think we would all agree is a generally good practice, which is
you should have a plan for spending money before you actually
allocate the funds. This is an idea that dates back to the
founding of our republic. Unfortunately, Congress in recent
years, has not really seemed to agree.
Contemporary lawmakers will say that they avoid these
authorization procedures perhaps out of a desire to avoid what
could be messy debate and could halt critical programs. I think
equally likely is an assumption that it is not worth the burden
of the reauthorization process when we have agencies that are
operating without authorization, and there seems not to be any
adverse consequences.
But just because we do not see those consequences openly
does not mean they do not exist. Skipping authorization can
mean that programs intended to sunset continue past their
expiration dates, while no one is the wiser. Whether government
programs operate well is harder to know when Congress does not
take the time to re-evaluate the worthiness of their existence.
Even if only one program were being allowed to exist beyond its
usefulness, no proponent of good government would say it is
acceptable to let that situation continue without oversight.
Abdicating responsibility in one area of the budgeting
process makes it easier to abdicate responsibility elsewhere.
The issue of unauthorized appropriations cannot be easily
separated from the other budgetary problems the Nation
currently faces.
Unauthorized appropriations may not represent the entirety
of the Federal budget, or even of the discretionary budget, but
that does not mean we should forego the opportunity to re-
evaluate and reform this $300 billion, and counting. Consider
that resources are limited, and in the era of tight budgets and
worsening debt, a billion, or even a million, dollars misspent
can represent dollars stripped away from critical national
priorities or the taxpayers' wallets.
Now critics may argue that regardless of whether
appropriations are authorized there is already plenty of
accountability over where Congress, and subsequently agencies
and departments, spend taxpayer funds. I think this view is
overly optimistic at best, but consider an analogy that may be
appropriate.
In 2001, Congress passed the Authorization for the Use of
Military Force (AUMF) in Afghanistan, and in the years since,
many, including some on this Subcommittee, have called for a
new vote, arguing that the 18-year-old AUMF should hardly
provide a blank check for today's overseas engagements. In such
discussions, few accept the argument that because there are
other ways of ensuring wartime accountability that we should
not bother following the rules or reassessing the original
authorization.
It is my contention that the same should hold true in the
case of fiscal rules as well. If Congress, at the time of
originally authorizing a program or agency, does so for a
specified period of time, we should respect those wishes in the
name of ensuring the most efficient use of the societal
resources that we have at our disposal. If the rules are arcane
or no longer useful--certainly one can argue there are plenty
to which that description applies--the correct solution is to
change them, to update them, not to ignore them indefinitely.
Tackling the current problem requires both addressing the
existing programs with expired authorizations and reforming the
process to ensure that kind of spending stops going forward.
A couple of principles that we may want to consider. There
should be meaningful enforcement mechanisms so that
unauthorized spending does not continue unchecked as it has for
decades. Recent legislation, such as that by Representative
McMorris Rodgers, proposed a combination of sunset provisions
and a rolling sequester to gradually reduce the amount of
unauthorized spending. I think that is a good suggestion.
There also must be broader and more holistic effort to
return this body to being a deliberative budgeting entity.
Legislators ultimately have responsibility for making budgeting
decisions, rather than having them arise as a de facto product
of political chaos.
Every Federal agency is supposed to operate under
congressional authorization. These are the rules that define
the priorities and activities of the government. When they
expire, there comes a time to reconsider an agency's mission,
modernize, or end them, if applicable, and impose some
accountability onto the process instead of abdicating
responsibility to open-ended spending.
Reforming unauthorized appropriations is a great place to
start evaluating government spending more broadly. Even so, it
should not be viewed as a cure-all for our budget woes but as
an untapped area of potential reform.
I applaud the Subcommittee's willingness to hold this
hearing and explore solutions before the issue becomes even
more unmanageable, and I look forward to answering your
questions.
Senator Paul. Thank you. Our last witness today is Dr.
James Thurber. Dr. Thurber is the Distinguished Professor of
Government at American University. He is also the Founder of
the Center for Congressional and Presidential Studies and the
Affiliate Distinguished Professor of Public Administration and
Policy at American University.
Since 1976, he has worked for several Members of Congress
on issues including budget process reform and congressional
committee reorganization.
Professor Thurber holds a bachelor's degree in political
science from the University of Oregon and a PhD in political
science from Indiana University. Professor Thurber.
TESTIMONY OF JAMES A. THURBER,\1\ DISTINGUISHED PROFESSOR OF
GOVERNMENT, AMERICAN UNIVERSITY
Mr. Thurber. Thank you very much Chairman Paul and Ranking
Member Hassan, and other Members of the Subcommittee. I have a
statement here that I was going to read. I am not going to do
that. I just want to say a few things.
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\1\ The prepared statement of Dr. Thurber appears in the Appendix
on page 34.
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I first started working in the Senate in 1973. I was here
for the 1974 Congressional Budget and Impoundment Control Act
(CBICA) and worked on it. I have written about it. I have
written a lot about the failures of it. It has only passed four
times on time since 1976, when we fully implemented it. That is
part of this problem.
Second, I worked as a professional staff member on the
Bipartisan Temporary Select Committee to Study the Senate
Committee System. That was the last ime we reduced the number
of committees, realigned jurisdictions, and reduced committee
assignments. It worked pretty well for a while.
The discussion brought back discussions that we had on that
committee. The chairs were Senators Adlai E. Stevenson and Bill
Brock. We talked about merging the Appropriations Committee
with Authorizations--a very controversial thing. But in my
opinion, the appropriators have taken over the power of
authorizing, totally.
To summarize some of my thoughts here rather than reading
it, I think that this is a consequence of extreme partisanship
and gridlock, and the leadership is controversial. But the
leadership does not give the committees the incentive and the
freedom to do the kind of oversight that they should be doing.
Second, the budget for the committees are not there. They
are a part of the reform. In 1976, what we had was we asked
committees to have an oversight agenda, and the committees
would get money related to the oversight that they were doing
or what they did.
I suggest that changing the rules may not work immediately
but there are a bunch of things that you can do in the interim.
One is to return to the regular order. Easy to say. Take a
little bit of power away from the leadership. Give more power
to the chairs of the committees. Let them work their will.
Because some committees are quite bipartisan, by the way.
Energy and Natural Resources Committee is well-known for being
quite bipartisan. I think your committee is also. They can work
their will. They can get some things done.
Third, I think it should be required that every committee
should have a list of all the unauthorized programs within
their jurisdiction. That should be part of their website and it
should maybe create a way to motivate the committee to do a
little bit more on that.
Last, authorizers sometimes do not want to pass a bill
because they cannot get exactly what they want, and so there
are these unholy alliances with appropriators. You know about
it. Maybe you are involved with it. I don't know, where you
can't get something----
Senator Paul. We are not in any unholy alliances.
[Laughter.]
Mr. Thurber [continuing]. When you can't get something
through authorizations so you do a non-transparent agreement. A
quid pro quo? No. A transparent agreement with the
appropriators, and they take care of that little problem that
you have. Make those things more visible to the American
public.
I think that the basic work of the Congress is not getting
done, and we cannot blame it all on polarization or all on the
leadership. Some of it is you, the Tuesday to Thursday Club.
Now I know you do not belong to the Tuesday to Thursday Club,
but people in the permanent campaign that is going on, and all
the people running for the presidency now is something else,
but the permanent campaign, they are out bringing in money,
helping others bring in money, and they are not here doing
their work. If they were here doing their work, and the
leadership tries to do this 3 weeks on, 1 week in the district,
I think you would get much more done. That reform has been
around since the late 1960s, and Congress cannot seem to deal
with it.
The funding of these committees should be directly linked
to their productivity, and maybe, again, as I said before, it
would get more done.
I believe in biennial budgeting. I have published about
that. We really have it anyway. Only about 10 percent of the
budget of the Federal Government is controllable from year to
year. That means you have multi-year budgeting going on anyway.
I would push for that.
In conclusion, unauthorized spending is a symptom of a
broader dysfunction, in the budget process and in Congress,
generally. The ability of Congress in the absence of a hard-
working partisan center--I am from Oregon. We believe in sort
of radical, centrist positions. If you do not have a bipartisan
center you cannot effectively deal with problems like oversight
of these authorizations.
No wonder the public is dissatisfied with what Congress is
doing. No wonder you are at the 14 percent level. But the
public also wants you to confront the opposition. The Pew
Charitable Trust poll of October 19th shows that while they
really want you to do more, and get along, and compromise, but
they want Congress to stand up against the opposition. They
want to go to heaven without dying, really, and you have to
deal with that.
In conclusion, my recommendations are not radical. I think
they are practical. You need to bring the leadership in on this
and get them to agree with this. Now that does not mean,
Senator, that I am against your bill. I am just trying to be
realistic about some procedural things that can be done here to
help out.
Senator Paul. Thank you. Thank you for your testimony.
I think probably there is some agreement on both sides of
the aisle and among the panel and probably the public that we
probably should authorize what we spend, and maybe that having
authorization bills and appropriation bills is a good idea. I
worry about making them the same people and putting them all in
the same hands, because they are different types of
personalities. At least on the Republican side, we see the
appropriators as people who are more inclined to spend money we
do not have, and those of us who are not on the Appropriations
Committee are purposely not put on the Appropriations Committee
because we will not vote for spending.
Really, when you come to Washington, the selection process
on our side is made. Spenders, people who are willing to vote
for spending, are put on the spending committees. The people
who are less inclined, think we spend too much, or that our
budgets should be balanced, are not put on there. Our only
chance to get balance, from the Republican perspective, would
be to have authorization separate from appropriation.
You mentioned the Budget Act of 1974. Not only did we have
the Budget Act of 1974, we had Gramm-Rudman, Hollings, and Pay-
As-You-Go (PAYGO). We have had all of these things to try to
reform at least the accumulation of debt, and they have all
failed. I guess it is because lawmakers make laws and they can
also ignore their own laws. We simply have I think at one
count, Pay-As-You-Go had been ignored thousands of times.
That gets to the next question, and that is a real
pertinent question here. How do you force Congress to do what
they should be doing, even encourage them to do it? But I think
that is why I am for a bill that has a hammer. Now there may be
some disagreement on what the hammer is, but I am willing to
compromise on what the hammer is. If there is concern about a
program completely expiring, let's take that off the table.
We have significant cuts. We have a 20 percent cut after
the first year if it is not authorized, and then a 52 percent
cut. Maybe that is way too dramatic, but if you were willing,
or if the other side was willing to agree to some kind of
hammer, maybe it
is a 1 percent cut, or maybe it is a freeze. Even a freeze
would be--don't you think we would go crazy with a freeze
around here? Even if we froze spending at the last year's level
people would go, ``Oh, my goodness. The world is coming to an
end. We cannot have a freeze.''
I would think that number would be negotiable, what the
hammer is. If the hammer is not acceptable, though, I guess my
question for the panel would be, how do we get Congress to obey
this? Do we need a hammer, and what should the hammer be? If
the hammer is not reducing spending, are there other possible
hammers? Both my bill and the McMorris Rodgers' bill have the
hammer as reducing spending if you do not authorize.
Why do we not start with Mr. Kosar and we will work our way
down.
Mr. Kosar. Thank you. Yes, I think there is some value in
having a statutory source of pressure, and what you just
alluded to, OK, let's not reauthorize. Well, you are frozen.
Nothing dramatic but it does start to create pressure, that
over time would hopefully induce some sort of action.
I think, also, the idea of, in some way, linking committee
budgets to reauthorizations and reauthorization performance, I
think that would be very interesting. I can say that in the
early 1970s, when Congress really seized back a bunch of power,
it started to reach Congress. It was like, hey, we are creating
plans for doing oversight. They worked the process. I mean,
that was the era of joint committee reports being issued. They
took it seriously. But over time that sort of attitude has
fallen away, and you cannot just wave our fingers at them and
chastise them and say, ``Do this more.'' The personal
incentives just do not seem to be there. So, OK, let's use
something simpler--more funding. That may be another way to go.
Senator Paul. Mr. Bydlak.
Mr. Bydlak. Yes, I think as I said in my remarks, I think
you need to have some sort of enforcement mechanism. You can
pass whatever rule you want but if there is no way of actually
enforcing it then it is not really going to make much of a
difference.
I would say, broadly speaking on budgetary issues, if you
look at what is done in the States, or even in some other
countries, it is those places that have some sort of firm
enforcement mechanism that tend to have more responsible
finances. If you look at fiscal rules in Sweden or Switzerland,
for example, we forget about this. Sweden had an entitlement
crisis and they put in place a statutory regime that--obviously
they were not dealing with the problem of unauthorized
appropriations--but they put in place very stringent rules that
dictated what their government was able to spend, and, as a
result, they had more responsible fiscal outcomes, both in
terms of economic well-being and economic distress.
I think with any problem like this that is budgetarily
related, at the core there has to be some way of ensuring that
future Congresses will actually follow that rule.
I should say, one other point: political scientists often
say that there is no way of binding future Congresses. But, in
a sense, that is kind of what we are doing here by not
following through on tackling unauthorized appropriations. We
basically have past Congresses that are authorizing programs,
and then today we are just deciding that we are going to follow
those same rules. We are essentially assuming that Congress
itself is being bound by these past rules. We do not really
accept that in other areas. I think here we probably would be
best not to as well.
Senator Paul. Dr. Thurber, you get a double. We are going
to double down on you because you get to answer the question on
how do we get Congress to authorize and how do we get them to
obey the 1974 Budget Act. Since you helped write it, how do we
get Congress to obey it?
Mr. Thurber. I have to take pharmaceuticals when I look at
how badly it has been implemented. I have written a whole
history of the dysfunction----
Senator Paul. That is not the answer. We want the answer.
How do you force Congress to pay attention to it?
Mr. Thurber. First of all, I like the idea of a hammer and
freezing a program. You cannot zero out veterans programs or
violence against women program--I mean, maybe you could but I
think it is unreasonable--or NASA or all these others. You have
to send a message that if you do not get your act together, we
are going to have a leveling out, a freezing of the program. I
like that.
By the way, it was mentioned that things were better in the
1970s, and I have a whole book on this, about polarization,
where it came from, and its impact. In the 1970s, we had about
third of the House and the Senate that voted together, and we
had Senators Bellmon and Muskie, Chairs of the Budget
Committee, that were two former Governors. Governors know how
budgets are put together and they did a great job. They had a
bipartisan approach and they did a great job, better than the
House, for the first 4 years.
Personality makes a difference, but also the nature of who
is in the body makes a difference. Right now we have 4 percent
of the members that regularly vote together. Congress has a
bimodal distribution of ideology. Nobody in the middle. That is
one of the reasons why Congress cannot get the work done. But
that is why I gave you these incremental, not-very-sexy ideas
about changing the process, getting members to work, getting
people together in committees to talk with each other and work
problems out. That is not really going on.
The Budget Impoundment Control Act. Whenever it failed,
Congress changed the rules--you mentioned three of them--and
that continually goes on. It is going on this year. When you
have omnibus continuing resolution (CR) going on, it is really
sort of changing the rules.
Senator Paul. Just to interrupt you for a second--every
time--a lot of people do not realize this--whenever we pass
CRs, we have to pass an exemption to a lot of the rules you are
talking about. I think the Pay-As-You-Go is a rule. We are
supposed to absolutely do that. We exempt ourselves from it.
Every time we vote for CR, it's in the language.
Mr. Thurber. A former student of mine helped write the
PAYGO rule as a staff member. I am very proud of that.
One thing I do is teach my students about how bad the debt
and the deficit are, and how this is failing, and that they
should get engaged up here with staff members. I have over 180
former students working as Congressional staff members, and
four Members of Congress. Some of the Members of Congress have
forgotten what they learned in my class maybe.
But I hope I have answered your question. I do not think I
did. [Laughter.]
Senator Paul. Senator Hassan.
Senator Hassan. I want to thank you again, Senator Paul,
for convening this hearing, and I want to thank our witnesses
for your very insightful and thoughtful testimony.
Dr. Thurber, I want to drill down a little bit with you,
and I am going to ask these questions and then I am going to
apologize because I am supposed to check in at one more hearing
before we have a meeting.
But, Dr. Thurber, I have real concerns that we have all
talked about with our lack of authorizations, to be sure, but
real concerns for the Senate's failure to take up attempts to
reauthorization appropriations for some of the government's
most important programs, and you just talked about a couple of
them.
For example, the Violence Against Women Reauthorization Act
passed the House in April. The House actually has reauthorized
it. It contains a number of provisions that reauthorization
expired programs that provide vital services for all Americans.
But it is now stalled on the Senate floor. Can you elaborate?
You talked about the attractiveness of some sort of hammer or
consequence, but I think it is really important when we talk in
the abstract about that to also talk about the harm that
results from not reauthorizing these programs. Can you
elaborate on what not reauthorizing the Violence Against Women
Act, what kind of impact that would have?
Mr. Thurber. First of all, it is disruptive in terms of
running a program.
Senator Hassan. Right.
Mr. Thurber. You, as a Governor, understand that. I worked
with Sandia and Los Alamos Labs, and when the government shuts
down or it looks like they are not going to be funded, the
Energy Department was last authorized in 1984, it really
disrupts things. It is the same with the VAWA, and those
programs are very important not only to women but to the
elderly, to a variety of local groups that are helping people
that are in danger. The Stalker Reduction Database gets shut
down and you have to get it started again, and the Sexual
Assault Services Programs throughout the United States. Right
now that really serves an important topic, and it is really
sending the wrong message. But there is an elder abuse grant
program that would get cutoff.
The question is, if you are running a program and you have
these goals and objectives, and it looks like the program is
not going to get the money, it just does not work. You go up
and down like this. Governors know this. The city managers know
this. The National Association of Counties (NACO) knows this.
Senator Hassan. Yes, and it gets very hard to recruit and
retain critical staff to do things like help people who are in
danger.
Another example----
Mr. Thurber. Excuse me, Senator, if I could just mention
one thing.
Senator Hassan. Yes.
Mr. Thurber. Sometimes these programs have one or two
provisions that hold up the authorization. It does not mean
that, Senator Paul, maybe you are not for this. I will just
assume that you are for many of these programs. There are very
narrow provisions that are extremely controversial and it holds
it up. That is where Senators have to get together and you have
to compromise.
Senator Hassan. Right.
Mr. Thurber. And that is not going on.
Senator Hassan. Right. But in some cases--we have the
Violence Against Women Reauthorization Act, which passed the
House is stalled over here. Another example is the Nelson and
Pollard Intelligence Authorization Act, which would reauthorize
funding for the intelligence activities of 16 different
agencies. This authorization expired in 2017. The bill passed
the House 396-31, a huge bipartisan vote, but is yet to be
acted upon in the Senate. A failure to reauthorization
intelligence activities would certainly have an effect on our
national security.
Dr. Thurber, what would you do to encourage Congress to
pursue proactive reauthorizations?
Mr. Thurber. I would suggest that the caucuses, both
caucuses, really push their leadership to do something about
this. These things are not going forward frequently because the
leadership does not want them to go forward, because they think
they have consensus of the caucus. Sometimes they do not. Many
times both parties would like to have things go forward but the
leadership is in the way. I know that is easy to say, and in an
election year it is very hard--every 2 years it is very hard to
get them to move.
But remember, the House is Democratic and it is pretty
progressive and liberal, and so passing this act maybe is
something that the Republican leadership does not want to touch
in an election year.
Senator Hassan. Which I understand, but it passed 396-31.
Mr. Thurber. I know.
Senator Hassan. I have one more question that I do want to
get to, but I also just want to point out, when we talk about
winding down programs that have not been reauthorized, perhaps
the most startling one to me, as a relatively new member of the
Senate, is the spending authorizations for medical services and
hospital care for our veterans expired in 1998. To my
knowledge, no bill has been introduced in this Congress to
reauthorize spending for the health care of 18.2 million
veterans.
I do not think that any of us want to neglect to fund
medical services for veterans, simply because we do not pass
the spending authority for the services. Would you agree with
that?
Mr. Thurber. I would agree, and CBO estimates that $73.3
billion has not been reauthorized for the Veterans Health Care
Eligibility Reform Act, and that is the largest of all of them.
Senator Hassan. I thank you for that. I do have one other
question, and I wanted to get all the witnesses to answer on it
. We have been discussing the broken reauthorization process
but we have yet to hit on the broken appropriations process. It
has been 22 years since Congress last passed all 12 regular
appropriation bills on time. When the appropriations process
breaks down, the government shuts down.
I have been working hard with my colleague, Senator James
Lankford from Oklahoma, to pass the Prevent Government
Shutdowns Act, which implements an automatic continuing
resolution when Congress fails to pass the regular
appropriations bills, and ensures that members stay in
Washington to get an appropriations package passed by
restricting their travels, which simply says we cannot go home,
and neither can our staff, by the way. Nobody can travel.
As we consider how to conduct better oversight of Federal
programs, it is imperative that we work to consider, debate,
and vote on every single appropriations bill. To that end--and
I realize I am just about out of time--for each of our
panelists, how can we ensure that Congress carefully considers
each appropriation bill, as it used to? If you could briefly
give an idea or two and then we can follow up with you in
writing.
Mr. Kosar. Sure. I think your proposal actually speaks to
the personal incentives. That is a hammer, that would change
behavior. The second thing is I think the current
appropriations calendar, as laid out in the 1974 Budget Act, is
undoable. The government is too big, it is too complicated to
ram everything through in that short amount of time.
Senator Paul. Do you think that is fixed by a 2-year
program, a biennial?
Mr. Kosar. It could be fixed by a 2-year biennial program,
but you have to make sure they actually do the work and they do
not save everything until the last minute.
Senator Paul. Right.
Mr. Bydlak. Yes, I think a 2-year biennial can be useful,
depending on the agency or the type of spending that we are
talking about. It may not be appropriate for some. There may be
some departments that you may want to a longer period.
But my concern is that when we have had instances where we,
if you have gotten spending under control or addressed our
debt, or had sort of deals that have addressed the debt, they
have often times come out of some of these conflicts that we
have had. There is this strange situation where, on the one
hand, none of us necessarily want the government to shut down
or want to face these sorts of controversial moments, but the
reality has also been that it has been those moments that have
actually given us some of the mechanisms by which we have
actually addressed our spending and debt.
My personal view is that I think all these solutions should
be on the table, but I would be a little hesitant about having
fewer discussions about spending restraint and our growth in
debt than we currently have.
Mr. Thurber. I will get back to the point. If you look at
the budget, about 10 percent of the budget is relatively
controllable from year to year. If you take into account
mandatory programs, of course, you can get rid of Medicare and
Medicaid and some other programs, but it is unlikely. Net
interest and long-term contracts, the long-term contract with
the Air Force tanker with Boeing of $41 billion, if you cut it
off you will get sued for more than the $41 billion probably.
All of those add up to 90 percent of the budget. So if,
every 2 years, you were really focusing on that 10 percent, I
think you could make some progress in terms of dealing with
unauthorized programs.
I think it is ridiculous that we have not authorized
programs for the veterans, for the 9/11 Commission, or for
NASA. Americans would be shocked if they knew about this.
Senator Hassan. Thank you very much. Thank you, Mr. Chair,
for letting me go over.
Senator Paul. Thank you, and I hope we can maybe get
together. This is just a comparison of the two bills, and if
there is some kind of hammer we could agree to. The only thing
I would say about a hammer is even if the hammer were a freeze
for something that you wanted, I think it would be enough
incentive by those who want it not to be frozen that we would
actually bring it up.
Senator Hassan. Yes, and part of the shutdown bill that
Senator Lankford and I have provides for level spending while
we are being required to stay here in D.C. and hammer out
actual appropriations. It does not allow for a cut, which is
what some people on your side of the aisle want, but some
people on my side of the aisle would want an automatic
increase. It does not do either of those things. It just keeps
it level.
Senator Paul. Right.
Senator Hassan. I look forward to continuing to work with
you on this.
Senator Paul. Thank you.
I want to thank our panel for looking at this, and I think
the problem is bigger than just authorization. As we mentioned
the Budget Act and we mentioned so many rules that we have that
we just ignore, and how do you force people who ignore rules to
follow rules? Do you get better people? That is part of it.
Part of it is the electoral process.
But it seems to go on and on, decade after decade, and the
budget is probably the most noticeable, how many times we have
reached that and how now it is stuck in the bills. It is a
privileged vote that you can bring up, but I have brought up
the privileged vote on the PAYGO. I think the last time I
brought it up we had exceeded it and we did not adhere to the
PAYGO rule. It got 8 votes in favor of enforcing the PAYGO. But
we exceeded it so much that there would have probably been
hundreds of billions of dollars they would have had to cut,
because they are completely exceeding and ignoring all of the
rules.
I want to thank the panel for coming today. Keep working on
this project. Keep in touch with us. If you have specific
suggestions on either my legislation or Representative McMorris
Rodgers' legislation, let us know. We will continue to work
with the other side to see if there has to be an enforcement
mechanism. If there is no enforcement mechanism, I agree we
should encourage leadership, but they do not listen a lot of
times.
Mr. Thurber. Even though they are from the same State?
Senator Paul. Even so. The problem is that there is also a
built-in incentive. You mentioned it briefly. When we do not do
appropriation bills, all the power focuses on one or two people
up there, so it ends up being a deal with the majority leader,
the minority leader, and the President. Three people get
involved, and at that point in time there are special things
that go into bills, but they only happen between those three
people. Not only are the appropriators cut out, all the non-
appropriators--everybody is cut out, and it becomes a Congress
of three people at that point.
Mr. Thurber. You do not know what is in it until it is too
late.
Senator Paul. Yes. It is two or three thousand pages and we
get it that morning. There are all kinds of problems here. I
think we should continue to explore and explore the solutions.
I do not think they necessarily have to be partisan, and I will
work together with Senator Hassan and see if we can come up
with some solutions. But we appreciate your input. Thanks.
[Whereupon, at 2:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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