The power of Congress’s purse is facing heightened scrutiny

This year marks the 50th anniversary of the Congressional Budget and Impoundment Control Act. The act, enacted in July 1974, was the last major piece of legislation that President Nixon signed into law before leaving office under the certainty of impeachment and conviction.  

The act has two parts. One that directly applies to the legislative branch’s “congressional” budget process and the second — its raison d’être — presidential power to impound monies appropriated by Congress.

One can seriously ask — what is there to celebrate on this 50th anniversary of the Congressional Budget Act? I agree. The current congressional process has failed, witnessed most clearly this year with unending continuing funding resolutions likely to stretch nearly three-quarters of the way through the current fiscal year.  

In its 50-year history, Congress performed what was required by the act and adopted a budget 36 times. Over that time, Congress failed 14 times to adopt a budget blueprint to guide spending and revenue decisions. Except for 1999, the breakdown has occurred entirely in this century. Even when Republicans and Democrats controlled both the House and Senate, Congress could not agree to a budget six times. 

Further, when Congress adopted budgets in this century, they were designed to trigger a reconciliation process to advance a partisan agenda and circumvent the 60-vote hurdle in the U.S. Senate. This included a 2017 attempt to repeal the Affordable Care Act, a 2018 attempt to advance major tax cuts, a 2021 resolution to expand services addressing the COVID pandemic and a 2022 resolution to address inflation. It is hard to argue that these partisan budgets did anything to address the larger issue of spiraling deficits and debt. Indeed, quite the contrary.

Admittedly even when Congress agreed to spending and revenue limits, any additional appropriation bills regularly missed being completed by the start of the new fiscal year. Consider that in the past 50 years under the Congressional Budget Act, all regular appropriation bills have been enacted only three times before the Oct. 1 start date. The last time this occurred was 1995, 29 years ago. 

So setting aside the legislative branch’s fiscal follies in this century, what other tools exist to address spending decisions?

Two major federal statutes define Article I of the Constitution’s restrictions that “no money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” Those are the Antideficiency Act of 1870 and the Impoundment Control Act of 1974.  

As part of the 50th anniversary, how successful has the Impoundment Control Act been in addressing the country’s growing debt problem?

According to former President Trump’s campaign, not much. Trump has pledged to “restore executive branch impoundment authority to cut waste, stop inflation and crush the Deep State” by challenging the constitutionality of the Impoundment Control Act in court and working with Congress to “overturn” it. 

The day before Trump left office, Russell Vought, his Office of Management and Budget director, issued a letter to the House Budget Committee stating that the act was “unworkable in practice” because it “micromanages the president’s execution of the laws.” The letter went on to state that final appropriations were ceilings, not floors. 

If this is true, then what would be the purpose of the Impoundment Control Act? A president could simply determine what to spend or not of the monies appropriated by Congress.

In other words, the power of the purse under a second Trump administration could be significantly altered. This is exactly what precipitated the act’s enactment under President Nixon’s historic impoundments.

The Impoundment Control Act gives any president the authority to propose impoundments, or rescissions and notify Congress through a special message. Within 45 days, Congress can approve the request, or the funds must be released. In the act’s history, all presidents except George W. Bush and Obama have proposed to rescind spending to the tune of over $144 billion. Congress accepted $25 billion of these requests but paradoxically went further and on its own rescinded $384 billion in previously appropriated monies.

Certainly, some of those congressional rescissions were reprogrammed to other spending programs but remained within negotiated appropriation caps agreed to outside the normal process of adopting a budget resolution. 

Which brings me back to the Congressional Budget Act.

The Antideficiency Act and the Impoundment Control Act apply only to that portion of government spending that is annually appropriated. This is only 30 percent of all federal spending.  

Congress’s power of the purse would benefit if it would return to adopting a total budget, including the remaining 70 percent of federal spending, and if it met its yearly deadlines.

G. William Hoagland is a senior vice president at the Bipartisan Policy Center; former Senate staff and FNS-USDA administrator.