'Protecting Congress’ Power of the Purse and the Rule of Law,' Hearing Before the House of Representatives Committee on the Budget, 116th Cong. (March 11, 2020)

Abstract

This written testimony was submitted to accompany my appearance before the House Budget Committee concerning the congressional power of the purse. The testimony first lays out the constitutional provisions relating to the power of the purse, explaining the function of each. It then discusses the history of the legislative power of the purse, including seventeenth-century conflict between the Stuart Crown and Parliament, colonial assemblies' use of the power of the purse in their fights with royal officials, early republican state constitutions' assignment of control over budgetary matters to their legislatures, and the role of the congressional power of the purse in the ratification debates over the U.S. Constitution. This section also considers a number of statutes Congress has passed to structure its power of the purse, including the Organic Act for the Treasury Department, the Miscellaneous Receipts Statute, the Antideficiency Act, the Budget Act of 1921, and the Budget and Impoundment Control Act of 1974. Finally, guided by this history, the testimony suggests six reforms to strengthen Congress's power of the purse today: (1) greater—and perhaps more regularized—use of provisions zeroing out funding for some specific office or salary; (2) non-severability clauses in appropriations statutes; (3) the addition of criminal penalties to the Impoundment Control Act; (4) tightening the Antideficiency Act's language surrounding the acceptance of voluntary services in order to diminish executive discretion during lapses in appropriations; (5) congressional capacity-building; and (6) a return to regular order in the budget and appropriations process. These proposals aim at strengthening Congress as an institution by allowing and encouraging it to use the power of the purse to fuller effect. In doing so, they allow it to more fully inhabit the role that it was meant to play in our constitutional order.