The State Department and its secretary, Rex Tillerson, so far have gotten all the criticism for not spending the $120 million appropriated to it to investigate Russian interference in the U.S. elections, but the Republican majority in Congress is equally as guilty for the Trump administration's failure to use these funds.
The Congressional Budget and Impoundment Control Act requires Congress to approve a request by the president not to spend a previously enacted appropriation, that is, an "impoundment." The act was put in place in the early 1970s in large part because President Richard Nixon was refusing to spend appropriations and Congress had no way to force the White House to do it.
Nixon was signing the appropriations but was refusing to spend some of the things he had just approved. The House and Senate huffed and puffed, but Nixon kept impounding funds with absolute impunity.
Nixon was gone by the time the law began to be implemented and, since then, impoundments haven't been much of an issue.
Until now, that is.
Trump's refusal to spend the previously enacted $120 million appropriation is pure Nixonian in its audacity. There is one big difference between what Trump is doing now and Nixon did then, however. This time, the Republican-controlled Congress has the ability to force the president to spend the appropriation and so far has refused to do so. That makes Congress a co-conspirator.
Impoundments come in two flavors.
A rescission is when the president asks Congress to "unappropriate" funds that were previously provided. A deferral is when the president asks permission to delay the spending. Although there are different procedures for each, the bottom line is the same: Congress has the authority to disapprove the request and force the appropriation to be used as originally intended.
What happens if, as I strongly suspect is the case now, the Trump administration doesn't spend an appropriation and -- in a tactic that would make Nixon smile -- doesn't tell Congress what it's doing...or, rather...not doing?
First, not complying with the law by not making a request would mean that Congress wouldn't be told and the formal impoundment control process couldn't begin.
Second, but Congress -- specifically the House and Senate Appropriations Committees -- have a responsibility to know. Their job doesn't end when appropriations are enacted. They also have oversight responsibilities to make sure that the spending laws are complied with fully. Ignorance is not an excuse. Not knowing about the Trump refusal to spend the $120 million absolutely is a congressional failure.
Third, now that the Trump administration's refusal to spend the $120 million appropriation has been reported and the White House's failure to implement the impoundment control procedures is known, the GOP leadership should be taking steps to reassert Congress's legal authority either by approving what the president is not doing or by forcing him to do what was intended when these funds were enacted. The GOP leadership's refusal even to threaten the White House or State Department with some action is also a congressional failure.
If it wants, Congress could correct this over the next two weeks in the fiscal 2018 funding bill that will need to be enacted by March 24. Although the formal impoundment disapproval process probably can't be used without a notification from Trump, Congress does have a number of (admittedly very snarky) options that would make it clear it wants the State Department appropriation to be spent. For example, the next funding bill could:
- Eliminate all funds for the White House office of congressional liaison.
- Eliminate all State Department travel funds.
- Eliminate all funds for the Office of Management and Budget's deputy director for budget.
And, of course,
- Prohibit any spending on a military parade.
Not only isn't the Republican-controlled Congress likely to do any of these things, it's very unlikely to do anything to try to force the Trump administration to do what it previously said it wanted done. And it's certainly not going to have the intestinal fortitude to cancel that appropriation outright.
That's clear evidence of at least tacit congressional complicity and a sure sign that the GOP leadership is collaborating with the Trump White House to make sure the State Department never uses these funds to look into the Russian involvement in U.S. elections.
