[Congressional Record Volume 166, Number 19 (Wednesday, January 29, 2020)]
[Extensions of Remarks]
[Pages E105-E106]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  WHY IMPOUNDMENT CONTROL ACT MATTERS

                                 ______
                                 

                               speech of

                          HON. JOHN A. YARMUTH

                              of kentucky

                    in the house of representatives

                       Tuesday, January 28, 2020

  Mr. YARMUTH. Madam Speaker, I include in the Record the December 2019 
House Budget Committee report outlining the timeline of actions taken 
by the Office of Management and Budget (OMB), the seemingly 
unprecedented step of stripping career officials of their normal role 
in the apportionment process, and how the OMB's actions hindered 
agencies' ability to obligate funds by the end of the fiscal year. I am 
submitting this in the Record to help inform the public of the 
Administration's systematic disregard of Congress' constitutional 
authority, separation of powers principles, and the Impoundment Control 
Act.

       On September 27, House Budget Chairman John Yarmuth (KY-03) 
     and House Appropriations Chairwoman Nita Lowey (NY-17) sent a 
     letter to the Trump administration expressing ``serious 
     concerns'' that recent actions taken by the Office of 
     Management and Budget (OMB) constitute unlawful impoundments 
     and are an abuse of the authority delegated to OMB to 
     apportion appropriations. As part of the committees' efforts 
     to ensure Congress maintains the power of the purse, as 
     established in the Constitution, the Chairs requested 
     documents and answers regarding OMB's involvement in the 
     withholding of foreign aid, including nearly $400 million in 
     crucial security assistance funding for Ukraine.
       The committees received a partial production from OMB, 
     however, OMB failed to meet the committees' deadlines and has 
     not provided the bulk of the documents.


                                SUMMARY

       After careful review of the materials provided to the 
     committees, the Chairs have become more concerned that the 
     apportionment process has been abused to undermine Congress's 
     constitutional power of the purse. Specifically:
       1. The timeline of actions taken by OMB (as seen in the 
     provided apportionments, which are legally binding documents) 
     suggest a pattern of abuse of the apportionment process, 
     OMB's authority, and current law.
       2. OMB took the seemingly unprecedented step of stripping 
     career officials of their normal role in the apportionment 
     process and instead vesting a political appointee with that 
     authority. This is a troubling deviation from long-standing 
     procedures.
       3. OMB's actions may have hindered agencies' ability to 
     prudently obligate funds by the end of the fiscal year in 
     violation of the Impoundment Control Act of 1974 (ICA), 
     possibly creating backdoor rescissions.


                                TIMELINE

       June 19, 2019: OMB asserts in our documents that they first 
     inquired with the Department of Defense about the Ukraine 
     Security Assistance Initiative (USAI).
       July 18, 2019: OMB admits in our documents (and it has been 
     reported) that they notified an interagency working group, 
     which included DoD and the State Department, about an 
     instruction to withhold all funds for Ukraine security 
     assistance.
       July 25, 2019 at 6:44pm ET: the first apportionment 
     withholding $250 million in DoD funding for USAI until August 
     5, 2019, is signed by an OMB career official. OMB confirms in 
     our documents that this is the first written apportionment 
     action and states that USAI funds were not made available to 
     DoD until September 12.
       August 3, 2019: a letter apportionment signed by Michael 
     Duffey (the OMB political appointee) withholds State/USAID 
     foreign aid, including $26.5 million in Foreign Military 
     Financing (FMF) funding from the FY18 appropriations act for 
     assistance to Ukraine. The apportionment responsibility for 
     these accounts is not returned to the career official for the 
     remainder of the fiscal year.
       August 6, 2019 at 2:22pm ET: Michael Duffey (the OMB 
     political appointee) signs an apportionment withholding the 
     DoD funding for USAI until August 12, 2019. The apportionment 
     responsibility for this account is not returned to the career 
     official for the remainder of the fiscal year.
       August 9, 2019: The House (majority) and Senate (minority) 
     Appropriations Committees write to OMB and the White House 
     warning the Trump administration that the August 3 letter 
     apportionment for State/USAID foreign aid may constitute an 
     illegal impoundment of funds and urging the administration to 
     adhere to the law and obligate

[[Page E106]]

     the withheld funding. Duffey signs another letter 
     apportionment for State/USAID foreign aid, continuing to 
     withhold the funding withheld by the August 3 Letter by 
     releasing only about 2% of funds each day, preventing the 
     normal spending of these funds. (DoD USAI funds continue to 
     be withheld.)
       August 19, 2019: The House (majority) and Senate (minority) 
     Budget Committees write to OMB and the White House urging the 
     administration to respect Congress's constitutional authority 
     and to comply with appropriations law and the ICA, in 
     particular as it applies to the State/USAID foreign aid 
     withheld by Duffey.
       August 29, 2019: Duffey signs another letter apportionment 
     for the State/USAID foreign aid, continuing to withhold 
     remaining funding previously withheld by the August 3 and 
     August 9 letters by releasing 25% of the funds each Sunday 
     between September 1 and September 22, preventing the normal 
     spending of these funds. (DoD USAI funds continue to be 
     withheld.)
       September 11, 2019: A letter was sent to Congress (dated 
     September 11, 2019) by the State Department notifying the 
     agency's intent to obligate the $141.5 million in FMF funding 
     for Ukraine. Following notification, the funds were held for 
     an additional period before being released by OMB on 
     September 27 ($115 million from the FY19 appropriations act) 
     and September 30 ($26.5 million from the FY18 appropriations 
     act) through apportionments also signed by Duffey.
       September 12, 2019: Subsequent actions by Duffey extended 
     the DoD USAI withholding until September 12.
       September 18, 2019: The House Budget and Appropriations 
     Committees write to OMB expressing concerns over the agency's 
     abuse of its apportionment authorities and questions its 
     compliance with the Antideficiency Act and the Impoundment 
     Control Act of 1974.
       September 27, 2019: The House Budget and Appropriations 
     Committees write to OMB requesting answers and documents 
     related to the withholding of Ukraine aid, State and USAID 
     funds, and possible abuses of the apportionment process.
       September 30, 2019: The fiscal year ends. Preliminary and 
     public reporting from State and USAID indicates that 
     significant amounts of the withheld FMF funding were not 
     obligated before that deadline. Additionally, a portion of 
     the $250 million DoD USAI funding was not obligated. The 2019 
     Continuing Resolution (P.L. 116-59) extended the deadline to 
     obligate any and all of the remaining USAI funding by a full 
     year; preliminary and public reporting from DoD indicates 
     that amount totaled $35.2 million.


                               NEXT STEPS

       Although the committees only received a partial production 
     of the requested materials, OMB's responses and documentation 
     to date confirm that the apportionment process has been 
     misused to withhold Congressionally enacted appropriations. 
     Increased transparency and accountability for the 
     apportionment process would serve both Congress and the 
     public.
       As the committees consider legislative proposals and 
     reforms to rein in OMB's abuse of its apportionment 
     responsibilities (especially in the context of the 
     Impoundment Control Act of 1974 and the annual appropriations 
     acts), these findings--and the pending document requests--are 
     key.

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