Secret Spending Decisions Undermine the Rule of Law: The Biden Cut

Those who are looking to President Joe Biden to usher in a new era of cooperation between the executive branch and Congress will be surprised to hear that Biden seems to have little interest in doing so — at least when it comes to limiting the ability of the White House to issue secret directives about how to spend taxpayer funds.

In June of last year, we highlighted a particular spending tool that the Office of Management and Budget (OMB) uses to allocate taxpayer dollars appropriated by Congress. This tool, called apportionment, is supposed to produce more efficient and timely management of public funds. It is not intended as a mechanism for the president to secretly implement his own policy aims. In fact, doing so would be illegal. Unfortunately, we have seen recent instances where this authority has been used to illegally circumvent the decisions of Congress as they relate to the power of the purse. To address the threat of this kind of abuse, there needs to be transparency in the apportionment process.

In recent years, Congress has focused some of its efforts in the spending transparency arena on requiring the White House to publicly post these apportionment directives when they are issued. This was met with opposition from the Trump White House, which argued that it should not have to disclose apportionments in real time because it would be too difficult and because any such transparency requirements would infringe on its territory as a “co-equal” branch of government, notwithstanding the fact that Congress is the clear decision-maker in tax and spending matters. Neither of these arguments hold much water, as we explained in detail last year.

Undaunted by pushback from the last administration, the House of Representatives once again included apportionment transparency provisions in the Financial Services and General Government funding bill for the 2022 fiscal year. Earlier this year, the House Budget Committee held a hearing during which they examined these same issues, including the specific matter of the need for more transparency and accountability around OMB and its use of apportionments. POGO was glad to be able to testify in support of apportionment transparency and related reforms at that hearing.

Unfortunately, now Biden is opposing apportionment transparency. Although the administration’s statement on the matter begins by asserting that it “shares the [House Appropriations] Committee’s goal of increasing spending transparency,” it goes on to object to changes that “would impose new requirements, limitations, and conditions related to the thousands of apportionment actions processed by OMB each year.”

“These requirements,” the statement continues, “would undermine OMB’s ability to ensure the effective implementation of the law, and efficient use of taxpayer resources. The Administration looks forward to working with the Congress to ensure appropriate levels of transparency while also preserving the Executive Branch’s role in funds management.”

These arguments are similar to those made by the previous administration. And, just as we did then, we are now calling these arguments out for being weak, vague, and inconsistent with the constitutional separation of powers.

Put another way, the Biden administration is essentially saying: “We don’t want to do this because it’s too hard, and it’s none of your business anyway.” Nothing could be further from the truth. Congress is the rightful owner of the power of the purse, and since it is the branch closest and most responsive to the public, ensuring that this power is protected is essential to promoting more integrity in the stewardship of public dollars.

Additionally, the executive branch has offered no evidence that supports the claim that real-time apportionment transparency would hinder “effective implementation of the law” or “efficient use of taxpayer resources.” On the other hand, given that apportionments are issued in the dark and legally binding for federal agencies — giving them the effective force of law — more transparency and disclosure is the only way to protect the rule of law and safeguard against the waste or abuse of precious fiscal resources.

It’s disappointing enough that Biden is taking this untenable position on a vital good government issue. The arguments used to support the administration’s opposition to more spending transparency are even more galling in light of a commitment made by the current acting head of OMB at her confirmation hearing, at which she promised to be more proactively transparent with regard to apportionment.

Our only hope is that Congress will keep up the pressure. These aren’t partisan issues that matter only when it is convenient; they are critical matters of good government and respect for the will of the American people and our hard-earned resources. We again call on the Senate to adopt the same apportionment provisions in its own Financial Services and General Government funding bill as the House.