PRESIDENTIAL SPENDING POWER

The Constitution assigns to Congress the exclusive power to authorize spending. Article I, section 9, prohibits money being drawn from the Treasury "but in Consequence of Appropriations made by law." Nevertheless, the power of the purse is shared with the President because Congress has found it necessary to delegate substantial discretion over the expenditure and allocation of funds.

In his first message to Congress, President thomas jefferson recommended that Congress appropriate "specific sums to every specific purpose susceptible of definition." He quickly recognized the impracticability of this principle, later admitting that "too minute a specification has its evil as well as a too general one." Lump-sum appropriations are routinely passed by Congress, especially during emergency periods. The magnitude of these lump sums, frequently in the billions of dollars, overstates the amount of flexibility available to administrators. Their scope of discretion is narrowed by general statutory controls, nonstatutory controls embedded in committee reports and other parts of the legislative history, and agreements and understandings entered into by Congress and the agencies.

The conflicting needs of administrative flexibility and congressional control are often reconciled by "reprogramming" agreements. An agency is given some latitude to shift funds within an appropriation account, moving them from one program to another. Legislative controls have gradually tightened. Initially the appropriation committees required regular reporting by the agencies, but reprogrammings over a designated dollar threshold must now be approved by appropriations subcommittees and, in some cases, by authorizing committees that have jurisdiction over the program. Although these reprogramming procedures are largely nonstatutory and therefore fall short of legally binding requirements, they have become highly formalized and structured. They are incorporated not only in congressional documents but also in agency directives, instructions, and financial management manuals.

Another form of executive spending discretion results from transfer authority. A transfer involves the shifting of funds from one appropriation account to another (in contrast to reprogramming, where funds remain within an account). Moreover, the authority to transfer funds must be explicitly granted by statute. Transfer authority is usually accompanied by limitations, such as allowing a five percent leeway, that help preserve the general budgetary priorities of Congress. When agencies use transfer or reprogramming authority to spend funds on programs that had been previously rejected by Congress, or to enter into long-term financial commitments, Congress responds by adopting additional statutory and nonstatutory restrictions.

Agencies have access to billions of dollars that are hidden from public and congressional view. Confidential and secret funding collides with the requirement of Article I, section 9, of the Constitution: "A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Confidential funds appeared as early as 1790, when Congress appropriated $40,000 to the President to pay for special diplomatic agents. Congress let the President decide the degree to which these expenditures would be made public. Since that time confidential (unvouchered) funds have been made available to many agencies that have domestic as well as foreign responsibilities.

Confidential funding is overt at least in the sense that the amounts are identified in appropriation or authorization bills. Secret funding is covert at every stage, from appropriation straight through to expenditure and auditing. Appropriations, ostensibly for the Defense Department or other agencies, are later siphoned off and allocated to the Central Intelligence Agency and other parts of the intelligence community. Absent congressional authorization, a federal taxpayer lacks standing to challenge the constitutionality of confidential or secret funding. The establishment of intelligence committees in the 1970s restored some semblance of congressional control. Legislation for the White House and the General Accounting Office has also tightened legislative control over unvouchered funds. With each increase in the scope of executive spending discretion, Congress participates ever more closely in administrative matters.

Louis Fisher
(1986)

(see also: Impoundment of Funds.)

Bibliography

Fisher, Louis 1975 Presidential Spending Power. Princeton, N.J.: Princeton University Press.

Wilmerding, Lucius, Jr. 1943 The Spending Power: A History of the Efforts of Congress to Control Expenditures. New Haven, Conn.: Yale University Press.