Would you comment further on the nature of the role a joint budget resolution would play in the area of congressional budget enforcement as opposed to the current concurrent resolution? Specifically, how, if at all, do you think this may change?

ANSWER:

I do not believe there would be major changes in the enforcement of aggregate limits on the deficit or surplus, discretionary appropriations, enactment of new direct spending, or reduction of revenues under a joint budget resolution. The application of these Congressional enforcement procedures would simply be based on levels contained in a Joint Resolution rather than levels contained in a Concurrent Resolution.

Would the aggregates contained in a Joint Resolution be enforced more or less stringently than those contained in a Concurrent Resolution? It depends.

It is possible that the Congress and White House could agree on aggregate levels while having considerably different priorities regarding what specific programs and policies those aggregate levels should comprise. This could result in attempts by each side to get its way, with the possible result that enforcement could break down as each Branch tried to reach a political resolution that would enable it to claim victory. Nevertheless, given the considerable bargaining and negotiation that would have to occur even to reach agreement on a Joint Budget Resolution signed by the president, there could well be a greater tendency for both branches to "buy into" the Joint Resolution and vigorously enforce it. It could turn out that Congressional leadership would discourage even more vigorously than they do today any attempts to exploit loopholes or otherwise violate the levels agreed to in the Joint Resolution.

Would you comment on what you view these strengthened enforcement procedures to be in H.R. 853 and if they are not contained in this bill what those procedures may be?

ANSWER:

In addition to the points of order against legislation that would violate Budget Act restrictions, the strengthened enforcement procedures that I had specifically in mind that would help discipline the end game situation were: Reserve fund for emergencies; Requirement that expenditures meet emergency criteria specified in the Budget Act; Budget Committee "traffic cop" role to permit or deny emergency designations in excess of reserve fund; Requiring CBO to score conference reports and to provide 10 year cost estimates for legislation; Requirement that Rules Committee spell out justification for each waiver of Budget Act points of order; and automatic continuing resolution at prior year's level (excluding emergencies).

Given your years of service on Capitol Hill and your hindsight on the creation of the existing emergency spending process back in 1990, would you comment further on the value of the definition utilized in H.R. 853?

Background:

H.R. 853 defines an emergency as:

And defines the term unanticipated as an underlying situation that is:

ANSWER:

It is no easier today than it was in 1990 to develop an air-tight, iron-clad definition of what constitutes an "emergency" for budget enforcement purposes. However, informal criteria have been used since 1991 to justify whether particular expenditures should qualify as emergency spending or should be offset. H.R. 853 proposes to make these informal criteria explicitly part of the formal enforcement. In addition, H.R. 853 sets up a annual reserve fund for emergencies and provides that resources can be released from this fund only for purposes that meet the proposed new criteria. The combination of the reserve fund and the criteria should go a long way to closing the gigantic loophole that emergency spending has become.

The proposed criteria cover what most reasonable taxpayers would consider to be justifiable emergencies. They would however exclude funding for long-standing needs that have been turned down in previous years' discretionary appropriations cycles and ought properly to be funded withing the discretionary caps: embassy security upgrading, military construction, advance defense procurement and preparing the government's computer systems for the year 2000 are examples that come to mind. They would also exclude funding for situations that, While serious, are not so urgent that they could not wait for the next round of annual appropriations.

How would the emergency criteria be applied to the recent supplemental appropriations for Kosovo activities and disaster relief? Emergency appropriations for Kosovo were double the amounts requested by the President. Much of the add-on was for routine, not emergency, spending and would not have met the criteria. Similarly, such items as the loan guarantees for steel companies and loans to small oil and gas producers would not have met the criteria. Proponents of those measures understood that if their provisions were not included in emergency "must pass/must sign" legislation, they had little chance enactment on a stand-alone basis. These are exactly the kind of provisions the emergency definition is aimed at preventing.

Legislation introduced in the Senate proposes creating a 60-vote point of order against any legislation or amendment providing emergency expenditures that violates the proposed criteria. This would be a helpful additional tool to hold emergency spending to the unusual circumstances originally intended in 1990.

Section 412 of the bill attempts to build a bias into the legislative process against creating a new program as an entitlement. It seeks to achieve this objective by providing for the privileged consideration of an amendment on the House floor to transform a proposed new entitlement program into a discretionary program subject to the constraints and oversight of the annual appropriation process. The intent here is to afford Members the opportunity to make that case as to why or why not a new program should be placed in the mandatory sector of the Federal budget.

Could you comment on this idea?

ANSWER:

As I mentioned in my testimony, entitlements are rather like discretionary programs that have "gone to heaven." They hold a permanent "free pass" good until the end of time (or until the rare instances when their entitlements are revoked) for as much funding they need. Therefore, it is understandable that advocates of discretionary programs would almost always prefer entitlement status to discretionary status since funding uncertainty would never again be an issue. The provision in H.R. 853 to provide for privileged consideration of an amendment on the House floor to transform a proposed new entitlement program into a discretionary program is an excellent one. It would raise the bar for creating new entitlements by giving the Chairs of the Budget Committee and the Appropriations Committee (or their designees) an opportunity to offer such an amendment. With such an amendment in their arsenal, the Budget and Appropriations chairs would have additional leverage to work out an accommodation with the proponents of the new entitlement in advance of consideration of legislation on the Floor. Many new entitlements are rather small direct spending provisions rather than major high profile entitlements to benefit large categories of recipients. Such small direct spending changes nevertheless add up and constitute a significant loophole in budget process enforcement. This proposal would make sure they are not permitted to go unnoticed or unchallenged.

One of these proposals would require the Rules Committee to justify any rule that waives Budget Act points of order. Specifically, the Rules Committee would be required to include in its report a description of the waiver, the object of the waiver, any justification for the waiver submitted to the Rules Committee by the committee of jurisdiction, and an estimated cost of the provisions to which the waiver applies.

In reference to this particular provision you stated that “unfortunately, there remains the possibility that such justifications will become just as pro forma as the waivers they are supposed to prevent.”

Would you expand upon this statement, particularly as to what you mean as pro forma and what you would suggest should be done to assure that this new requirement not become pro forma?

ANSWER:

Currently, rules governing consideration of legislation in the House frequently waive budget process points of order that lie against bills coming to the floor. No explanation is given regarding what those points or order are, why they are being waived, the cost implications of doing so, or the rationale for the waivers. Therefore, I am very supportive of the provisions in H.R. 853 that would add all of these requirements. My concern, however, is that if waivers are made so often that their justifications become routine boilerplate rather than rare and highly unusual occurrences, the new requirements may themselves become pro forma. Pro forma is defined in Webster's Dictionary as "carried out in a perfunctory manner or as a formality." Too frequent use of budget process waivers could lead to the explanations and justifications being viewed as merely "committee report fine print."

The best way to avoid this happening would be to reduce the use of budget process waivers, and insisting that legislation and amendments coming to the Floor meet both the letter and the spirit of the Budget Act. This is especially true for waivers that involve issues of money rather than the timing of actions. So long as budget waivers are used infrequently, the new justification requirements will draw the scrutiny intended by the sponsors of H.R. 853.