helicopter gunships have the capability of patrolling at treetop level, the distinction between air power and "ground troops" begins to disappear.8

83

Some restrictions do remain on the extent of Presidential discretion under the Special Foreign Assistance Act of 1971. For example, the President is prohibited from exercising certain transfer authorities granted to him for the purpose of providing additional assistance to Cambodia unless he notifies the Speaker and the Foreign Relations Committee in writing at least thirty days prior to the date he intends to exercise his authority, or ten days if he certifies in writing that an emergency exists requiring immediate assistance to Cambodia. The notification to the Speaker and the Foreign Relations Committee would include the authority under which he acts and the justification for, and the extent of, the exercise of his authority.84 A more recent act, the Foreign Assistance Act of 1971 contains a provision which prevents the President from exercising his transfer authority under certain sections of the Foreign Assistance Act of 1961, as amended, unless he gives the Congress advance notice prior to the date he intends to exercise those authorities.85

IV
REPROGRAMMING

Reprogramming is a term used to describe the shifting of appropriated funds from the original purpose to a new purpose. Unlike transfers, reprogramming does not depend on statutory authority. Instead, it operates on an informal clearance and reporting procedure worked out by executive agencies and Congressional committees. Furthermore, reprogramming does not involve the shifting of funds from one appropriation account to another (as with transfers), but rather the shifting of funds within an account. For instance, if an appropriation bill provides a billion dollars for a single account, that figure could be broken down into perhaps a hundred separate subaccounts on budget justification sheets or in committee reports. Thus, when funds are shifted from an original purpose to a new purpose, the shift would take place between' these nonstatutory subaccounts rather than between statutory

accounts.

The reprogramming procedure is partly a remedy for the long period of time that exists between an agency's justification of programs and its actual expenditure of funds. During that interval new and better applications of funds come to light. New factors arise to prompt the use of funds in a manner different from that called for in the appropriations act or committee report. The House Appropriations Committee has explained that reprogrammings are effectuated for a number of reasons,

83 Another provision in the Special Foreign Assistance Act of 1971 stipulated that military and economic assistance to Cambodia "shall not be construed as a commitment by the United States to Cambodia for its defense." Id. § 7(b). The discussion in the final section of this article, regarding unauthorized commitments, makes it clear that a commitment nonetheless exists.

including “unforeseen requirements, changes in operating conditions, incorrect price estimates, wage rate adjustments, legislation enacted subsequent to appropriation action, and the like."86 Reprogramming takes place in such areas and agencies as public works, the Atomic Energy Commission, foreign assistance, the District of Columbia, and the Defense Department.

In recent years, military reprogramming has run to more than a billion dollars a year. During fiscal 1970, for instance, the House Appropriations Committee received reprogramming requests from the Defense Department for a total dollar change of more than $4.7 billion (299 increases totaling $2.4 billion and 422 reductions totaling $2.3 billion).87 Although defense reprogramming at the multibilliondollar level is relatively recent, the transition from the Eisenhower to the Kennedy Administrations resulted in heavy use of reprogramming. Budget revisions by the Kennedy Administration brought the fiscal 1961 reprogramming figure for the Defense Department to at least $3.8 billion.88

A. Clearance Procedures

The appropriations committees, while recognizing the need for some degree of flexibility for the executive branch, are also aware that excessive reliance on reprogramming can downgrade the appropriation process. In 1955 the House Committee on Appropriations requested the Defense Department to submit semi-annual reports on all reprogramming actions. The Pentagon responded by issuing a set of instructions to define the scope of reporting requirements and to set forth criteria for what would constitute a "major reprogramming" action.89 The following year the House Appropriations Committee expressed its dissatisfaction with certain reprogrammings. This dissatisfaction arose from such Defense Department practices as describing backlogs in maintenance and repair work and then taking funds appropriated for those purposes and using them for something else. As a result, the committee directed that there be no diversion in the future of funds appropriated for repair and maintenance."

A 1959 report by the House Appropriations Committee observed that while the semi-annual reports had been helpful, they had not been sufficiently timely. Moreover, the practice of having the military services advise the committee informally of major reprogrammings had become "virtually inoperative." As a result, the committee directed that the Defense Department report periodically-but in no case less than thirty days after departmental approval-the approved reprogramming actions involving $1 million or more for operation and maintenance, $1 million or

** H.R. REP. No. 493, 84th Cong., 1st Sess. 8 (1955). ST H.R. REP. No. 1570, 91st Cong., 2d Sess. 6 (1970).

88 HOUSE COMM. ON ARMED SERVICES, 89TH CONG., IST SESS., DEPARTMENT OF DEFENSE REPROGRAMMING OF APPROPRIATED FUNDS: A CASE STUDY 32 (Comm. Print 1965).

** H.R. REP. No. 493, 84th Cong., 1st Sess. 8 (1955); DOD instructions are included in Hearings on Budgeting and Accounting Before the Senate Comm. on Government Operations, 84th Cong., 2d Sess. 113-19 (1956).

** H.R. REP. No. 2104, 84th Cong., 2d Sess. 13 (1956).

90-538 - 73 46

more for research, development, test, and evaluation, and $5 million or more for procurement. New instructions were prepared by the Pentagon to accommodate the Committee's request.91

A report by the House Appropriations Committee in 1962 noted "with some concern" that there had been no revision of Defense Department instructions for reprogrammings since 1959, although "significant changes based on mutual understandings" had occurred since that time. The committee asked that the instructions be revised immediately.92 The revised DOD directive called for prior approval by the committees, not only by the appropriations committees, but also by the authorizing committees. Prior approval of selected items and programs was required of the armed services and the appropriations committees from both houses. In situations where prior approval was not required, the committees were to be "promptly notified” (that is, within two working days) of approved reprogramming actions.93

Current DOD practices include calling for semi-annual reports, obtaining prior committee approval on certain items and programs, and making prompt notification to the committees on other reprogrammings. A DOD directive describes “prior approval" by the committees in the following way: in the event the Secretary of Defense is not informed of approval or disapproval within fifteen days of receipt by the committees of a reprogramming request, it would be assumed that there was no objection to implementing the proposed reprogramming. In actual fact, prior approval means explicit approval, whether it takes the committees fifteen days, a month, or longer.

B. Circumventing Committee Control

94

It is evident that reprogramming can become a convenient means of circumventing the normal authorization and appropriation stages. Instead of obtaining approval from Congress as a whole, agency officials need only obtain approval from a few subcommittees. An agency could request money for a popular program, knowing that Congress would appropriate the funds, and then try to use the money later for a program that might not have survived scrutiny by the full Congress.

Reprogramming is used on occasion to undo the work of Congress and its committees. A recent example concerns the Defense Intelligence Agency. DIA had requested $66.8 million for fiscal 1971. The House Appropriations Committee cut that request by $2 million, in large part on the conviction that DIA was heavily overstaffed. DIA reduced its budget by only $700,000, having successfully prevailed upon the Defense Department to request reprogramming for $1.3 million to make

1 H.R. REP. No. 408, 86th Cong., 1st Sess. 20 (1959); DEPARTMENT OF DEFENSE REPORT ON REPROGRAMMING OF APPROPRIATED FUNDS, DEPARTMENT OF DEFENSE INSTRUCTION No. 7250.5 (Oct. 23, 1959).

92

H.R. REP. No. 1607, 87th Cong., 2d Sess. 21 (1962).

93 DEPARTMENT OF DEFENSE REPROGRAMMING OF APPROPRIATED FUNDS, DEPARTMENT OF DEFENSE DIRECTIVE No. 7250.5 (Mar. 4, 1963).

DEPARTMENT OF DEFENSE REPROGRAMMING OF APPROPRIATED FUNDS, DEPARTMENT OF DEFENSE DIRECTIVE No. 7250.5, at 3 (May 21, 1970). See S. HORN, UNUSED POWER 192-95 (1970).

up the difference. Representative Jamie L. Whitten was incensed by this maneuver: 'Am I to understand that after Congress developed the record and made reductions on that basis, we are to have them come in here and ask for restoration, which is what it amounts to, of funds that the Congress saw fit to eliminate?"'95 House Appropriations allowed the Defense Department to reprogram $700,000 for DIA. Another extraordinary use of reprogramming involved the Defense Special Projects Group (DSPG). The Defense Department wanted to initiate a research project that would cost $4 million. On any new research project of $2 million or more, the Defense Department must submit the request for committee review. In this case, however, DSPG was advised by the Defense Department to use $1 million to begin the project. The Pentagon would then supplement that later by transfering $3 million from the Emergency Fund. By the time the reprogramming request reached Congress, the project was three months underway. Representative Whitten described the attempted circumvention of the $2 million threshold in these terms: "You took a million dollars and got it started, and now you come up here and we are caught across the barrel. You have already started with a million dollars, but the million dollars was part of something which cost more than $2 million and clearly comes within the reprograming agreement.'

96

The House Appropriations Committee rejected this reprogramming request. Not only that, the request helped pique the committee's interest. DSPG was a new name for the Defense Communications Planning Group (DCPG). Congress was under the impression that DCPG-having been responsible for the electronic battlefield ("McNamara Line")—would be disbanded and the program transferred to the military services. Instead, DCPG adopted a new name and dreamed up new research projects to keep itself alive. To the question “What in the world are they doing over there?" the legislative answer was not favorable. The House Appropriations Committee characterized the attempt to perpetuate DSPG as “a classic example of bureaucratic empire building and of the bureaucratic tendency to never end an organization even after the work for which it was created has been concluded." Appropriations committees in both houses agreed to terminate the agency.98

1997

C. Broader Legislative Control

Reprogramming procedures, as they have evolved over the past few decades, now include a larger number of legislators in the review role. In earlier years requests for defense reprogramming were handled by the chairmen and ranking minority members of the defense appropriations subcommittees. At the present time, in House

Hearings on Department of Defense Appropriations for 1972 (part 2) Before the House Comm. on Appropriations, 92d Cong., 1st Sess. 331 (1971).

** Id. at 610.

H.R. REP. No. 666, 92d Cong., 1st Sess. 118-19 (1971).

**Id. at 118; S. REP. No. 498, 92d Cong., 1st Sess. 197 (1971); H.R. REP. No. 754, 92d Cong., 1st Sess. 14 (1971).

Appropriations, approval is granted by the full defense subcommittee. In Senate Appropriations, reprogrammings for minor matters were formerly decided by the chairman and ranking minority member of the defense subcommittee. The ful subcommittee was brought together only for major reprogrammings. Beginning in 1972, all prior-approval reprogrammings-whether major or minor-were brought before the full subcommittee during regular hearings on the defense budget.

With regard to authorizing committees, the full House Armed Services Committee acts on reprogramming requests. In earlier years the Senate Armed Services Committee used to delegate such decisions to the committee chairman, ranking minority member, and committee counsel. In 1970 a separate Subcommittee on Reprogramming of Funds was established. Depending on the issue involved, this five-member subcommittee may decide the request or else pass it on to the ful committee. The tendency has been toward greater involvement by the full committee.

Legislative efforts to monitor reprogramming occasionally go beyond the review responsibilities of designated committees. For instance, early in 1971 Secretary Laird expressed interest in obtaining funds to begin a fourth nuclear-powered carrier (CVAN-70). If it became necessary to submit a budget amendment or initiate a reprogramming request, he would be willing to give up $139.5 million that had been requested for an oil tanker and three salvage ships." Senators Case and Mondale were able to enlist the support of Senator Ellender, chairman of the Appropriations Committee, and of Senator Stennis, chairman of Armed Services. The two chairmen agreed that reprogramming would be an improper technique for providing funds. The Administration would have to follow normal budgetary procedures: a budget request from the President followed by Congressional authorization and appropriation. The Administration decided to postpone making that request until a subsequent fiscal year."

100

Thus, in the case of controversial reprogramming requests, the review role extends beyond the designated committees to involve Congress as a whole. To take another example, the Defense Department submitted a reprogramming request in 1971 for an additional $61.2 million for the Cheyenne helicopter. That covered approximately $35 million to reimburse the contractor for services performed, $9.3 million to continue the development program during fiscal 1972, and approximately $17 million to continue it during fiscal 1973. Since the Cheyenne had been under attack by members of Congress in recent years, only the reimbursement portion of the reprogramming request was approved. The House Appropriations Committee denied the request for fiscal 1973 development on the ground that "it did not seem

"Hearings on Fiscal Year 1972 Authorization for Military Procurement, Research and Development, Construction and Real Estate Acquisition for the Safeguard ABM and Reserve Strengths (part 1) Before the Senate Armed Services Comm., 91st Cong., 1st Sess. 97, 258-59, 978 (1971).

100 N.Y. Times, Apr. 18, 1971, at 40, col. 3; Washington Post, Apr. 28, 1971, at A8, col. 5. The correspondence between Senators Case and Mondale and Senator Ellender is reprinted in Hearings on Department of Defense Appropriations for Fiscal Year 1972 Before the Senate Comm. on Appropriations, 92d Cong., 1st Sess. 1344-45 (1971).