Undersupply of Oversight

ongress is very good at creating new programs. And it finds a way to make sure those programs get funded each year. But here's a nasty little secret: The House and Senate are not very good at reviewing programs once they've been created. And they're even worse at updating legislation dealing with the programs.

Each year, the Congressional Budget Office compiles a report detailing how many programs Congress fails to reauthorize-that is, update and approve-once they have been created. Last year, 137 programs were not reauthorized but were still provided a total of $120.9 billion in funding. That's not the way the political science textbooks say it's supposed to work.

Here's how it is supposed to work: Congress passes legislation creating a program and authorizing funding for a certain number of years. Appropriators then provide funding for these programs, which may or may not correspond to the authorized amount. Then, as the authorization expires, the authorizing committees-the panels with the expertise to understand the programs, since they created them in the first place-review and update them, abolishing some and creating others. Like many things on Capitol Hill, it does not work even close to that way.

What often happens is this: the House Appropriations Committee provides funding for programs, regardless of whether they have been reauthorized. And to get around the rules, the House Rules Committee provides waivers that basically allow the House to ignore the reauthorization requirements. The Senate also ignores the lack of authorization.

One might think Congress neglects the reauthorization requirements only for small, insignificant programs that do not have much of a constituency. That's not true, according to the CBO. For example, Congress has failed to reauthorize the Justice Department since 1980. Many programs at the National Institutes of Health remain unauthorized, as does the Community Development Block Grant program, the Improving America's Schools Act and the National Oceanic and Atmospheric Administration.

CBO says 49 programs, totaling $293 billion, are operating under authorizations that will expire at the end of this fiscal year. The largest reauthorization Congress will have to consider is the annual Defense authorization bill.

Congressional analysts say the reauthorization crisis is getting worse. "I think it's a problem in that Congress loses its policy-making process," says Don Wolfensberger, the former Republican staff director of the House Rules Committee and currently director of the Congress Project at the Woodrow Wilson Center, a Washington-based think tank. "You kind of wonder whether committees still retain the ability to do the job that they're supposed to be doing."

Excuses, Excuses

Members of Congress give a variety of excuses for failing to reauthorize programs. Many argue that the budget and appropriations processes take so long that authorizing committees have little time left. Others say they lack the staff to do justice to reauthorizations. Some simply do not bother to consider bills because they know appropriators will extend the programs. And some pieces of legislation are simply too political to rewrite

Take the Older Americans Act, whose authorization expired in 1995. The programs created under the act-ranging from employment for senior citizens to Meals on Wheels-remain extremely popular and are extended each year by appropriations bills. But congressional authorizers have been unable to rewrite the bill. Last year, Rep. Ray LaHood, R-Ill., said senior citizens in his district questioned why the programs were not being updated.

Toward the end of the session last year, the House attempted to reauthorize the act but got in political trouble. Several large groups, including the National Council of Senior Citizens and AARP, have had a part in running the Older Americans Act employment programs. House Republicans tried to build some competition into the programs and lower the share of appropriations the national groups received but touched off a firestorm of protest from seniors affiliated with some of the groups. And GOP leaders put the bill on the so-called "suspension" calendar, which meant a supermajority of two-thirds of those present and voting was needed to pass it. At the last minute, Republican leaders pulled the bill from the floor.

Meanwhile, Clinton administration officials say they would like to update the programs, arguing they are out of date. "The administration has proposed a reauthorization bill since the beginning of the Clinton administration," says Moya Thompson, the director of congressional and public affairs for the Administration on Aging at the Health and Human Services Department. She says the lack of reauthorization "doesn't exactly send a clear signal to older people."

The administration contends that Congress should update the act to conform with new technology and wants Congress to provide assistance to caregivers. "We know there have been a lot of issues that have taken a partisan [bent]," Thompson says. "We'd very much like to get past those issues and get it reauthorized."

The House Education and the Workforce Committee is ready to go to the floor with a reauthorization bill, but "that's up to the leadership," a committee aide says. "This is not an unusual occurrence in Congress," she adds. "There are a lot of programs that are not authorized and are still funded."

One prime example is the Justice Department's programs, which were last reauthorized when Jimmy Carter lived in the White House. Authorizers know they have neglected the agency. "It is, in my view, a matter of significant concern when any major Cabinet department goes for such a long period of time without congressional authorization," said Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, in a January 1999 floor statement. "Such lack of authorization encourages administration drift and permits important policy decisions to be made ad hoc through adoption [of] appropriation bills to special-purpose legislation." Hatch made a commitment to try to pass authorization legislation.

It didn't happen. Instead, last year Justice Department programs were simply funded as part of the Commerce-Justice-State appropriations measure. "We simply ran out of time," says an aide to the House Judiciary Committee. "We're at the head of the line on all crime legislation. Whenever we feel some traction on oversight, we're confronted with a new legislative priority." With the tight schedule Congress is operating under, reauthorization isn't likely to happen this year, either.

The aide says the main problem is that the panel historically has lacked an oversight staff capable of rewriting the law. "It's difficult to do a good job unless it's undertaken with pragmatic oversight," he says.

But there may be a more important reason the panel has failed to act. "These programs are exceedingly controversial," the aide says. "They go to the heart of the most sensitive social concerns." Those concerns would most likely cause huge fights on Capitol Hill and could doom passage. The aide adds, however, that the committee has begun the work necessary to reauthorize the programs in the future. "You've got to commit a lot of resources to oversight, and we are now doing that," he said. "We are creating a body of work that will be helpful to the next Congress."

Political Skittishness

As a longtime observer of congressional behavior and as the former staff director of the House panel responsible for giving waivers for unauthorized programs, Wolfensberger has seen all kinds of explanations for committees failing to do their reauthorization work. Because Republicans have such a slim majority in the House, "they're just politically skittish about taking things to the floor," he says. And authorizers make excuses, such as saying the leadership does not give them floor time for their bills. If the leadership does give authorizers floor time, the committees look for closed rules to keep their legislation from being modified on the floor.

When the authorization process fails, members of authorizing committees often try to attach language for updating programs to appropriations bills. House Appropriations Committee ranking Democrat Rep. David R. Obey, D-Wis., remembers having one group of authorizers ask him to include reauthorization language in the annual foreign operations funding bill, only to find out that another group of authorizers vehemently opposed it. "All of a sudden, I was in the middle of a shooting war with people on the authorizing committee," Obey told National Journal last year.

Appropriators clearly are not happy with having to carry major reauthorization legislation on their bills. "Virtually all of my bill has been unauthorized," says Rep. Harold Rogers, R-Ky., chairman of the House Commerce-Justice-State Appropriations Subcommittee. "It makes my job triply difficult." Other appropriators agree. "One of the reasons appropriators take so much time is because so many programs are unauthorized at the time we consider appropriations bills," House Appropriations Committee Chairman C.W. "Bill" Young, R-Fla., told the House Rules Committee recently. "The controversial legislative issues get inappropriately included in the appropriations bills rather than authorizing bills."

As they have been forced to become authorizers, appropriators are touting their own efforts at oversight of federal programs. Young's panel recently produced a huge list of program terminations and sent a letter to House Speaker J. Dennis Hastert, R-Ill., discussing the 210 oversight hearings his committee held last year.

If authorizers can't get appropriators to help them update programs, they sometimes try to bury provisions in end-of-year omnibus spending bills-another development that displeases appropriators and government reformers. But the annual fall budgetary rush is a major cause of authorizers' woes. "The budgetary squeeze means that between the time Congress completes the budget resolution and the appropriations bills, there's very little time," Wolfensberger says.

One solution Wolfensberger and others have suggested is to develop multiyear authorizing bills. "There are too many bills that require frequent authorizations," he says, adding that Congress began short-term authorizations to keep better tabs on the executive branch. "You've got a lot of things that don't require annual reauthorization, but the authorizers want to maintain control. A lot of these things can be moved to multiyear."

A former key Republican Senate aide agrees. "It would be foolish to say there should be annual reauthorization," he said, going so far as to suggest that certain programs should receive permanent authorizations.

The Two-Year Solution

The reform that is gaining the most steam on Capitol Hill is the idea of two-year budgeting and appropriating. Late last year more than 200 House members signed a resolution supporting the idea, and a bill that would make the change is awaiting action in the Senate. The idea has the backing of Hastert and the White House, as well as some key appropriators who have opposed it in the past. The argument is that the nonbudget years could be devoted to authorizing legislation and oversight of programs.

"A biennial budget process would free up more time on the calendar for thorough consideration of authorizing measures," Hastert recently told the House Rules Committee. "Under House rules, appropriations bills must conform to authorizing legislation. But all too often, we dispense with those rules because the authorization bills don't get enacted. We need to restore the power and the purpose of the authorizing committees." Hastert said that all too often, committee chairmen are told to "get in line behind the appropriators."

Critics do not buy that argument. Obey, for one argues that regardless of authorization issues, Congress does its best oversight work as part of the yearly appropriations process, when it allows federal agencies to stay on a very short leash. "The healthiest single event that occurs in this town each year is the annual budget review," he said. Authorizing committees need to get their bills on the floor between January and May, he says, before appropriators begin moving spending bills.

It is unlikely that Congress could transform the budget process into a two-year event this year, because time is tight due to the looming elections. But some House members are still trying to shine public attention on Congress' inability to reauthorize programs. "It certainly is not a complex issue," says freshman Rep. Tom Tancredo, R-Colo. The process was designed for both authorizations and appropriations, he notes, adding, "I assume there was a rational reason for that conclusion." The current practice "harms the process and it's not a good way to make public policy."

The discussion surrounding the Older Americans Act was "bizarre," Tancredo says. "This is really just nuts." Authorizers should do their work, he argues, or change the process to simply let the appropriators provide funding for programs. Tancredo is looking for support to try to strike unauthorized programs from appropriations bills. In addition, he plans to introduce legislation stating that no unauthorized program may receive more than 90 percent of its current-year funding. But with popular programs like the Older Americans Act and the National Endowment for the Arts remaining unauthorized, it will be difficult to sell his colleagues and the general public on the idea. "It's a tough thing," he admits. "How do you make the general public aware of it? It's an arcane part of House rules."

House Budget Committee Chairman John R. Kasich, R-Ohio, recently released a highly touted report on federal government waste, fraud and abuse but did not address Congress' own management problems. A House Republican aide says Kasich is trying to lead by example in demonstrating areas of waste, but he concedes "it is difficult to get a handle on waste and abuse in a program if there is no reauthorization or oversight."

The aide says there are no plans to consider Tancredo's suggestion, arguing that "it's difficult to attack it from the budget." But he adds, "There is some vulnerability for Republicans if they don't step up to the plate and reauthorize some of these programs."

David Baumann is a staff correspondent at National Journal.