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Even though President Joe Biden reversed many of the policies of his predecessor Donald Trump, there’s one thing the administration has held on to, much to the chagrin of Congress. The Project on Government Oversight (POGO) says the White House has continued to use the spending tool called apportionment to get around having to tell Congress where it’s allocating appropriated dollars. For more, Federal News Network’s Eric White spoke with POGO’s Government Affairs Manager Dylan Hedtler-Gaudette on Federal Drive with Tom Temin.

Interview transcript:

Dylan Hedtler-Gaudette: So apportionment, that refers to the process where the executive branch and specifically the Office of Management and Budget within the executive branch – this is how they parcel out the appropriated funds that Congress has appropriated to the executive branch. And they appropriate it to specific agencies, like the Commerce Department, or the Department of Labor, or wherever, and they say, okay, so you have to spend this amount of money in a fiscal year on program X or project Y. And so what apportionment is, is where the Office of Management and Budget will send these what they call appointment schedules to the relevant agency, and they’ll say, “OK so you have, 25% of your appropriated funds for the first fiscal quarter. Here it is, here are the things you’re supposed to spend it on. And here’s how it goes,” right? So, but basically a management tool, a budget management tool that Congress gave to the executive branch, and actually told them, they had to use it, because prior to apportionment there were all kinds of issues where federal agencies would burn through its appropriated funds before the fiscal year was up, and then they’d come back to Congress with hat in hand, basically saying, “Oh, we need more taxpayer dollars, because we spent all the money he gave us already.” So apportionment, when it’s used properly, when it’s used for its intended purpose, and when it’s used in a transparent way, it’s actually a perfectly reasonable, perfectly legitimate tool of budget management.

Eric White: And so low and behold, the two branches can’t seem to come to an agreement on the way to use this tool that is supposed to make things easier for both of them. What did you all find in your analysis?

Dylan Hedtler-Gaudette: Yeah, so and this should not be a surprise to anyone who kind of follows the way the federal government works. But when one of the branches, especially the executive branch has a tool that is powerful, they tend to like to use it, and they tend to like to use it in ways that are specific and beneficial to them. And so what has happened over time is that we’ve seen that the apportionment tool has started to be used in a way that is very behind the veil, if you will, behind the veil of the executive branch. So there are no current requirement that the executive branch has to – in real time sort of tell Congress how they’re apportioning funds, and they definitely don’t have to tell the public how they’re apportioning funds. So the Office of Management and Budget will issue these apportionment schedules and they’re behind the scenes. They’re entirely secret, but they have a big impact on the way that taxpayer dollars are being moved around and allocated. And there are even some scandals that will arise from time to time, the biggest example of this being in 2019, when the Trump administration used an apportionment schedule and used the special footnotes in an apportionment schedule to withhold security assistance to Ukraine in violation of the law. And that is an example of how the apportionment process can be misused, because what the Office of Management and Budget can do in an apportionment is they can say, “All right, so you have these funds, but you’re not going to get these funds unless you do X, Y or Z,” which could or could not be in violation of what Congress told them to do. And that’s a big problem, because Congress is supposed to be the ultimate arbiter of what’s called the power of the purse. The Constitution explicitly gives Congress the power to make decisions about tax and spending policy. And so the executive branch is not supposed to use its own ideas than its own policy agenda. All they’re supposed to do is implement what Congress tells them to do with money. And so the apportionment process, because it is secret, and because it is legally binding on federal agencies, federal agencies, they have to comply with whatever OMB tells them in an apportionment, all of a sudden, you’ll see why we have a problem when it comes to the rule of law here, because these apportionment schedules – they have the effect of law, and they’re entirely secret. So that’s where the rubber meets the road and why we have an issue of transparency and rule of law when it comes to the apportionment process.

Eric White: Got it. And with the new administration coming in fairly – well, I guess we can stop calling them the new administration now. But they seem to be committed to more transparency when it came to this sort of stuff but you all found that is not the case. While they’re kind of doing both at the same time supporting transparency, but then saying, we don’t really want to do it?

Dylan Hedtler-Gaudette: Yeah, so we had high hopes that the Biden administration would come in and they would sort of usher in a sort of return to normal. And maybe they’d even raised the bar when it came to transparency and things of that nature. And they even had some of their some of their appointees at confirmation hearings early on, saying that they would in fact be more transparent about things, that specifically the current acting director of OMB, she promised to be more transparent specifically about the apportionment process after a confirmation hearing. But then as soon as the House kind of said, OK, well, here are some provisions that we’re going to include in our appropriations bills for fiscal year 2022 that would require some transparency around apportionment or submit and some enhancement to the happened to the Impoundment Control Act, the administration quickly came out and they oppose those provisions. And then they even basically used the same exact arguments and ideas that would be used by the Trump administration, when the Trump administration was also opposing these same provisions last year, that we found that kind of the more things change, the more they stay the same when it comes to this issue.

Eric White: Yeah. So is this too much of a burden to put on the Office of Management and Budget? Is it easier – I’m sure that they would say, look, we’re just trying to govern. It’s already taken forever, for us to fill our cabinet agencies with these political appointments, maybe this is just a better way or a more efficient way to get the funds to the agencies. What would you say to that?

Dylan Hedtler-Gaudette: Yeah, well, I would say that transparency is always harder than secrecy, right? Because you have to disclose and you have to report and that does require work. But that is not a sufficient argument to not do it, right? There is a basic compact that we that governed have with the government. I think a part of that compact, part of that agreement is that, we have the right to know what you are doing specifically when it comes to our resources and our taxpayer dollars. So for the executive branch and the Office of Management and Budget to say, “It’s actually too hard for us to tell you tell you what’s going on here, to tell you how we’re using your funds.” That is not an acceptable or tenable answer. That’s not something that any of us should be willing to accept.

Eric White: So I imagine that Congress – members of Congress are also not happy about the arrangement. Has there been any action from any legislators regarding this issue?

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Dylan Hedtler-Gaudette: Yes. So I mentioned earlier that the House Appropriations Committee, actually in their financial services in general government funding bill, they actually included some really strong transparency provisions that would require the Office of Management and Budget to in real time post these apportionment schedules and post written explanations about what’s actually in the apportionment schedules and things like that. So there are some really good provisions in there. We also saw the House Budget Committee earlier this year, they held a hearing to examine these exact issues, and they seem very much in favor, at least the majority did. They seem very much in favor of trying to enact some of these additional transparency and disclosure requirements. And that, last year, we also saw the introduction of the Congressional Power of the Purse Act, which is a kind of a sweeping sort of reform bill, that would have some apportionment transparency requirements. But it would also do some additional things like it would empower the Government Accountability Office to really have to have the power to investigate these issues, to be the cop on the beat when it comes to appropriations and budget law, and compliance with those laws that would also have some changes around the other way emergency powers are used and the way the National Emergencies Act framework works. So it’s a very good bill. And we were very supportive of it. And we are confident that we’ll see that bill re-introduced at some point. And we hope that it could be a bipartisan effort because everyone should have an interest, no matter what party you belong to, in trying to hold the executive branch accountable for the ways that it spends these hard-earned taxpayer dollars.

Eric White: I don’t want to ask you to speculate or get inside the president’s mind. But there has been a little bit of people around these these types of issues, saying that the president since he came from the Senate tends to favor the Senate. Is this maybe him looking down on the House and, he would listen to his Senatorial colleagues better than his House counterparts?

Dylan Hedtler-Gaudette: I [don’t] know, that’s a really good question. I would also, as you point out, I do not claim to have any particular insight into the mind of President Joe Biden. But we always hope that because he spent so long as a member of Congress, that he would have some respect for the role that Congress is supposed to play in our system of checks and balances and separation of powers. But as I said earlier, his administration has come out and specifically opposed the provisions. And so we are currently at an inflection point where we’re seeing negotiations on the Senate side in terms of their appropriation bills, and they have the opportunity to include the same provision that the House did. And so we’re calling on the Senate to include those provisions. And we would also be calling on the Biden administration to support those provisions. Because, again, we’re always hoping that every administration is going to be a champion of an open, transparent type of approach to governing, and we still have hope that the Biden administration will be – the old expression that “talk is cheap” really applies here. You can say all the right things on the campaign trail, but until you actually do it, we all have to remain skeptical, and we all have to keep the pressure up here.

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