As members of Congress and staff dig into President Biden’s 2023 budget request, they have a new tool for tracking when, where, and how the president is authorizing federal agencies to spend money — but Congress, and the public, needs to know this new tool exists. It comes in the form of apportionment transparency, an instrument designed to reinforce Congress’s power of the purse.
In Federalist No. 58, James Madison described the power of the purse — or the legislature’s authority to spend taxpayer dollars — as perhaps “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” The founders intended for lawmakers, not the president, to be in charge of tax and spending decisions.
At present and in practice, though, the executive branch, through the Office of Management and Budget (OMB), controls when and how federal funds are actually spent. OMB exercises this control through apportionments — legally binding documents that specify how much funding from an appropriations bill an agency can spend, how long they have to spend it, and any conditions they must meet to be able to spend it. These documents are one of the key ways that presidents, through OMB, exercise day-to-day control over their administration. But until Congress passed and Biden signed the 2022 spending bill, OMB routinely shielded these documents from public and congressional view.
Section 204 of the 2022 spending bill finally changes that. It requires OMB to implement a system to publicly post each document apportioning an appropriation, together with any conditions OMB has put on the agency’s use of that funding through footnotes. The law gives OMB until mid-July to stand up that system, but requires OMB to make apportionment documents available now to the House and Senate Appropriations and Budget Committees. This means that these committees already have access to a rich source of information about how the Biden administration is managing federal spending.
Apportionments may seem arcane, but they are an essential part of the everyday management of the federal government, borne of lawmakers’ centuries-long struggle to ensure the executive branch spends taxpayer money in accordance with Congress’s statutory instructions. In 1884, Congress passed the Antideficiency Act to prevent executive officials from spending money unless Congress had passed a law to appropriate those funds. This change ensured that agencies no longer could run up bills without lawmakers’ approval and then beg Congress to pay those bills after the fact. Congress also empowered the president to address this problem by giving him the authority to apportion agencies’ funds — literally to give agencies only a portion of their yearly funding at a time to ensure agencies stay on track to spend within the limits of the law.
Unfortunately, presidents of both parties have used apportionments not only to comply with appropriations law but also to take actions in defiance of it. In 2019, for instance, President Trump directed OMB to withhold funds Congress had appropriated for military aid to Ukraine. And in 2013, after President Obama sought and Congress refused to pass an appropriation funding certain Obamacare subsidies, the administration asserted in an OMB memorandum that a different permanent appropriation could provide the necessary funds.
These incidents highlight both the power of apportionments and the importance of ensuring Congress and the public can scrutinize their use. Although OMB has resisted publicly disclosing apportionments in the past, there are encouraging signs the agency is preparing to comply with the new transparency requirements. OMB Director Shalanda Young confirmed at a recent House hearing that OMB has already given the relevant House and Senate committees access to apportionments and is working to comply with the mid-July deadline to post those documents on a public website. Members of Congress in both chambers are monitoring OMB’s progress closely and have publicly raised the importance of OMB’s implementing apportionment transparency.
While these apportionment transparency provisions are a big step forward, they are only temporary. If Congress declines to include them in next year’s appropriations bill, they will expire in September at the end of the current fiscal year — and along with them, the access members of Congress, staff, and the public will have gained to the nuts and bolts of these basic spending decisions will be lost. Fortunately, the House Appropriations Committee approved legislation on Friday that not only extends the requirement for apportionment transparency through 2023, but would make it permanent.
Congress has finally forced OMB to show members, staff, and the public the receipts. In the long run, to ensure Congress and the public continue to have access to this information, Congress should pass the law making these transparency requirements permanent.
Andrew Lautz is the Director of Federal Policy for the National Taxpayers Union.
Cerin Lindgrensavage is a Counsel at Protect Democracy.