Budget Counsel Reference
Congressional Budget Process
Welcome to the Budget Counsel Reference website. The intent and design here is to facilitate greater comprehension of Congressional budget law. Of the many responsibilities of the U.S. Congress, perhaps the most essential is its power over the resources of the United States. The law governing the budget process is not a matter of accounting, but the essence of a republican form of government.
Notes from beyond the wall
January 11, 2019
Amidst one of the strangest, silliest really, government shutdowns that has ever occurred, a serious issue has arisen. Government shutdowns, and politics in general, have a predictable dose of egos involved. Its easy to bring that charge against the President, since both he and his predecessor have a rather high opinion of themselves. The sillier part of egoing down the government is on the part of Nancy Pelosi, and to a lesser degree, Chuck Schumer. The newly coronated Speaker Pelosi seems to have read the midterm elections and decided the message is “don’t deal with the President.” She has many years in office, but not that many years in actually making deals, or so it would appear. Why she would want to spend her shiny new Speakership days dealing with the drudgery of a shutdown is mystifying. This should be a time where everything is about vision and changing the House, to “step boldly into the future,” to “make the House look like America,” and to “make the voices of the people heard.” It’s that special time of history where all those type talking points don’t sound so stilted and dumb, a little less so anyway.
The serious issue? That is an intriguing one: Executive power and declaring a national emergency. It is obvious that the President cannot simply spend money on a construction project (such as, say, a border wall) without the authority to obligate budgetary resources. The basic definition of budget authority includes an authority to obligate provided by Congress for an agency to legally commit the Federal Government to transfer to an entity (person, government, corporation, etc.) some sort of consideration (money, services, land, anything of value).
The appropriations are not there in the typical fashion for the construction of a border wall, not in the typical fashion anyway. The term “unobligated balances” is where the President may be looking to get around Congress. This source, though, will have a purpose for which they have been appropriated, and any reappropriation, reprogramming, or transferring, all takes authority. Congress sometimes provides a certain amount of “transfer” authority to help move things along for efficiency purposes, and Administrations love that, and have requested relatively high levels in recent years (particularly under Obama). Still, these conventional methods seem limited and of dubious legality.
The place where budget law becomes less clear is when the President starts talking about his role as Commander in Chief and using money in the Defense Department for purposes Congress may not have envisioned. Military accounts have so much money slogging around in them, undoubtedly enough is available for the relatively small amount causing the shutdown (the difference between $1.6 billion and $5 billion, or thereabout for either).
President Obama was quoted, often, as saying: “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” If a now President Trump believes the kind of help Americans need is a border wall, and is willing to use the magic words “Commander in Chief” to release construction funds controlled by the Pentagon, the political irony will certainly launch many billable hours for high priced legal firms. The courts have shown themselves willing to get involved in spats between Congress and the President, but this is almost dangerous insofar as the Constitution is less than crystal on whether the Courts can trump Trump on his military role. Even the very notion of judicial review technically in the Constitution (that came from Chief Justice John Marshall’s rich imagination), so whether the President feels a court can order him to stop building a wall when he feels it is a national security responsibility is a set up for what they would call a “Constitutional crisis” in law schools.
January 6, 2019
Oddity for Today: In the House Rules and Manual, the various components of the Rules of the House of Representatives are organized by sections. They run from §621, which relates to the Speaker through §1105b, which relates to the authority of the Chairman of the House Budget Committee to advise the presiding officer as to budgetary levels. The oddity is not that the budget advisory comes dead last in the numbering system for the House Rules (though it has a certain symbolic value that’s fun to point out). No, the oddity is that there is no §666, and it certainly makes one wonder if that is the case because of its satanic implications. The oddity is made even more odd in that this particular omitted section number lies exactly between §665, which relates to the Chaplain of the House, and §667, which relates to its Inspector General. In the House, between the priest and the cop, lies the devil, something probably best omitted.
Sort of a mystery, but it’s still not as mysterious as to why the C-Span clock winds down on votes in 9-second increments. No one seems to know why that is. It just does.
January 6, 2019
Since it was by omission (a virtue in this case) rather than by commission (definitely a budgetary sin when first committed), the fact that the new organizing resolution did not extend one of the most budgetarily obnoxious provisions in the history of such law did not immediately jump out. It should have, but then directed scorekeeping placed in the House Rules does not exactly bring out the passion in people like the House Un-American Activities Committee or even Bella Abzug’s hat. H. Res. 5 from the 115th Congress had the ignominy of including this nugget in the Separate in the Separate Orders of the resolution. The text of it is not that complicated, but enough to put at the bottom — it basically means that any bill that transfers Federal property to a state or local government gets a free pass on budget controls.
To begin with, the context is egregious — those enforcing the budget rules fight “directed scoring”, that is placing a direction in a bill as to how it should be scored, all the time. It is a very, very bad thing to do in the budget-verse. It becomes extremely difficult when the powers have written something into the rules governing the House of Representatives that does exactly that.
The second thing, both big and small, it is abysmally written. The large aspect is that it says that any bill that conveys Federal property will not be viewed as costing anything. It does not say “only those provisions providing for such a conveyance” or that a bill “shall only be for the purpose of such a conveyance”. What it did was say that any unrelated provision could have been ridden that conveyance bill right over all the budget rules without hitting a speed bump. Any new entitlement, any appropriation bill, any tax cut bill, anything, could have just plopped a conveyance of some small parcel of Federal property, and boom, no cost to the entire bill.
This means all the big tax bill (or Obamacare for that matter) needed to do to get a score of zero cost was to give some Federally-owned vacant lot somewhere to Puddle Flats in West Virginia (or any city or any state or any Indian Tribe for that matter). Boom like that.
Oh, it also used “mandatory spending” instead of the proper term “direct spending” which shows an ignorance of proper budget terminology.
This is the resolution text in question — from section 3(q) of H. Res. 5:
(1) In general.—In the One Hundred Fifteenth Congress, for all purposes in the House, a provision in a bill or joint resolution, or in an amendment thereto or a conference report thereon, requiring or authorizing a conveyance of Federal land to a State, local government, or tribal entity shall not be considered as providing new budget authority, decreasing revenues, increasing mandatory spending, or increasing outlays.
(A) The term “conveyance” means any method, including sale, donation, or exchange, by which all or any portion of the right, title, and interest of the United States in and to Federal land is transferred to another entity.
(B) The term “Federal land” means any land owned by the United States, including the surface estate, the subsurface estate, or any improvements thereon.
(C) The term “State” means any of the several States, the District of Columbia, or a territory (including a possession) of the United States.
January 4, 2019
A purely budget law standpoint generally means to be policy neutral, as far as that is possible in an intrinsically political institution such as Congress. Still, the governing metaphor is that making a car’s engine run smoothly is not dependent on what its destination is. From such a view, the organizing resolution (H. Res. 6 (116th Congress)) is all told very budget friendly. It did two things right away that were unexpected: It removed the term limits on membership on the House Budget Committee. From the enactment of section 101 (CBA), other committees feared the Budget Committees would push into their jurisdiction, and one way to keep it weak was to prevent a buildup of budget acumen by its member. The Committee has been eviscerated since the departure of Chairman Paul Ryan, so little chance of that happening. Still, its influence waxes and wanes with the energy and influence of its Chair, but the term limits had become an anachronism only preserved by Republican Leadership really to give it the ability to hand out committee assignments.
The other big one is the removal of the appropriations point of order which was sort of a cutgo for discretionary spending — any amendment causing a “net increase” to spending on an appropriation bill would be ruled out of order. This ran counter to the previous system by which such controls were embedded in the budget resolution through the allocation of budget authority under section 302(a) and suballocations to the various HAC subcommittees through subsection (b) of that section. Getting rid of it is a significant return to the way budgeting had always been done. Its adoption in the first place was a confession by Republican Leadership that it had lost control over budgeting in the House.
January 3, 2019
It’s likely crystal clear in the meeting rooms on the second floor of the U.S. Capitol, in the Speaker’s Offices, but why the new Congress is organizing using H. Res. 5 (116th Congress) only to set up the real organizing resolution, which is H. Res. 6 (116th Congress). H. Res. 5 is the usual number for these things, termed an “organizing resolution”, it reestablishes the rules by extending all the rules of the last Congress, including laws and concurrent resolutions. This last is important since it pulls the budget resolution along with it, so while the Concurrent Resolution setting the budget would normally die at the end of the Congress, along with all other measures (not enacted), a budget resolution does not. What does die is a deeming resolution.
This elicits the question: How will the new majority, the new Speaker observe the rules of the House? Though the best way to look at these things is by getting hold of the House Rules from the 115th Congress and compare it with the amendments contained in H. Res. 6 (116th Congress), but to get the gist of what’s going on, the Majority always places a section-by-section (reformatted for BCR) in the Congressional Record. So it will show up in the issue for January 3, 2019.
Items of interest:
Health Care (ACA/Obamacare): Not directly budget oriented, though a costly item, and it was partially enacted using Reconciliation procedures. It was struck down in Texas v. United States since the Tax Cuts and Jobs Act eliminated the tax component of the law on which the Supreme Court relied, the individual health insurance mandate, to find it Constitutional. Since the Administration, normally responsible for defending the constitutionality of the law, has declined to argue in favor of it, the House has done what it can to try and enter the court case through several provisions.
By the way, this Administration’s approach in declining to defend a law it does not like is not new and was done by the Obama Administration previously. It is not an appropriate action by any Administration.
Random thoughts from days past … collectively just called: The Blather File.
Items of Note
The Joint Committee on Budget and Appropriations has a website …
Whither the Budget Committee? Wither the Budget Committee
Biennial Budgeting and the Budget as Law: An Inadvertent Trial Run
The Daft Draft: Wording and Debt Limit Language
Consolidated Appropriations Act, 2018
Bipartisan Budget Act of 2018 (Pub. L. 115-123)
Joint Select Committee on Budget and Appropriations Process Reform (BBA 2018)
H. J. Res. 128, Continuing Resolution (Expiring February 8, 2018)
H. Con. Res. 71 (FY2018 Budget Resolution)
Bad Idea: Directed Scoring Provision
Current services budget deadline missed, again
With a Joint Select Committee on Budget and Appropriations Process Reform established by the Bipartisan Budget Act of 2018, those keenly aware of the overwhelming need for such reform must be encouraged. The specifics of the procedures the Committee must follow are somewhat daunting, but any start is a good start. In particular, two thing make for difficulty: The time frame is short — the Select Committee is given only until the end of the year to finish the task. The other is that not only is a majority required of its members, but a majority of both Republicans and Democrats must be in favor it. With budget reform being difficult and complex, this is a hurdle, but optimism is in order since the topic has arisen and the opportunity for success is welcome.
For some background on the issue of budget reform, the below tractate lays out the basics:
Current Budget Resolution