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? 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.'

"196

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.

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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).

In Senate Appropriations, reprogrammings for minor matio were formerly decided by the in and ranking minority member of the defense subcommittee.

Appropriations, approval is granted by the full defense subcommittee. The full 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 carlier 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 full committee. The tendency has been toward greater involvement by the full committce.

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.1

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 proper to anticipate the will of Congress with respect to the Cheyenne program

"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).

that far in advance." "101 With regard to fiscal 1972 development, $9.3 million was placed in the appropriation bill as a separate and identifiable item so that the full Congress could work its will on the request.'

102

A still broader review by Congress over the reprogramming of funds is contemplated in a bill introduced by Senator Lawton Chiles in March 1971.103 His bill would require the Comptroller General to compile information on reprogramming and to furnish such information to all committees and to all members of Congress.

V

TRANSFERS IN TIME

In addition to being transferred from one class of appropriations to another, or within a class, funds may be transferred from one year to the next. Congress enacted legislation in 1795 to restrict this practice. With certain exceptions, any unexpended funds remaining in the Treasury for more than two years were to be transferred to a surplus fund. At that point the appropriation would lapse.10 Nevertheless, administrative actions could nullify the law's intent. For instance, Congress passed legislation in 1819 to suppress the slave trade and to punish crimesof piracy. In so doing, it neglected to appropriate funds to pay for these new responsibilities. President Monroe supplied the necessary vessels by using old balances remaining on the books of the Navy Department. When legislators protested that this violated the two-year limit, they were told that the balances were exempt from the law because they had been in the hands of the Treasurer (who acted as agent for the military departments), rather than being in the Treasury itself.105

An 1820 statute directed the Secretary of the Treasury to place funds that had been left unexpended by the departments of War and Navy into a surplus fund. Implementation of that statute, however, depended on a statement from the secretary of the department that "the object for which the appropriation was made has been. effected."106 By failing to make such a declaration the department could have access to those funds in future years.

A more stringent provision appeared in 1852. Congress directed that any moneys unexpended after two years be carried immediately to a surplus fund, with the appropriation regarded as having ceased. Decisions by the Attorney General quickly diluted the force of that restriction. In cases of contracted items, personal service, or other claims on the government, appropriations would remain available from

101 H.R. REP. No. 666, 92d Cong., 1st Sess. 105 (1971).

102 S. REP. No. 498, 92d Cong., 1st Sess. 18 (1971); H.R. REP. No. 754, 92d Cong., 1st Sess. 13 (1971).

103 S. 1333, 92d Cong., 1st Sess. (1971). A similar bill (H.R. 10429) was introduced by Representative Fascell on August 5, 1971.

104 Act of Mar. 3, 1795, ch. 45, § 16, 1 Stat. 437.

35 ANNALS OF CONG. 807-09 (1819); see L. WILMERDING, supra note 1, at 83-94.

108

106

Act of May 1, 1820, ch. 52, § 1, 3 Stat. 567.

year to year until the obligation was fully discharged. In such situations “unexpended" came to mean "unobligated," and the appropriation did not lapse into the surplus fund.107 In a second decision, the Attorney General held that it was proper for a department to begin a year by first expending old balances. Since old money would be used first, the Attorney General explained that it would be impossible for a balance of two or more years to exist “unless the balance of a previous year exceed in amount the whole expenditure of the present year..

A. No-Year Money

"108

New statutes appeared in 1870 and 1874 to restrict the use of unexpended balances. Specifically excluded from those restrictions, however, were appropriations for projects funded by permanent or indefinite appropriations, such as rivers and harbors, lighthouses, fortifications, and public buildings.109 Current law permits appropriations to “remain available until expended" for public works under the Bureau of Yards and Docks and for public buildings.110 Such appropriations are referred to as no-year money. Appropriations in this form permit the President to release funds when he determines that they can be spent in the most effective manner, depending on the availability of labor and materials and on the state of technical development.

According to article I, section 8, of the Constitution, appropriations to raise and support armies shall not be for a longer term than two years. Yet no-year financing for military procurement has been upheld in several opinions by the Attorney General. A 1904 opinion argued that to raise and support an army was one thing; to equip it was another. The constitutional prohibition applied only to the former. That sounds a little like a distinction without a difference, but the opinion also argued that the power to arm and equip armies followed from the constitutional power to declare war, to raise and support armies, to provide forts, magazines, and arsenals and to levy and collect taxes to provide for the common' defense.111

In the Department of Defense, appropriations for procurement and for research, development, test, and evaluation (R.D.T. & E.) have generally been made available on a no-year basis. For fiscal 1970, the amount of no-year funds for those categories came to $25.5 billion.112 In an effort to bring carryover balances under closer legislative control, the fiscal 1971 appropriation bill for the Defense Department adopted a multi-year approach. Appropriations for major procurement became available for only three fiscal years (except for shipbuilding, which requires a five-year term), while appropriations for R.D.T. & E. were made available for only a two-year period. 113

107

108

Act of Aug. 31, 1852, ch. 108, § 10, 10 Stat. 98; 7 Op. Att'y Gen. 1 (1854).

7 OP. ATT'Y GEN. 14 (1854).

100

110

111

Act of July 12, 1870, ch. 251, § 5. 16 Stat. 251; Act of June 20, 1874, ch. 328, § 5, 18 Stat. 110. 31 U.S.C. §§ 635, 682 (1970).

25 OP. ATT'Y GEN. 105 (1904); see also 40 OP. ATT'Y GEN. 555 (1948). 112 Act of Dec. 29, 1969, Pub. L. No. 91-171, tits. IV & V, 83 Stat. 475-79. 118 Act of Jan. 11, 1971, Pub. L. No. 91-668, § 842(a), 84 Stat. 2037.

B. Carryover Balances

When the Administration accumulates large unobligated balances, the traditional Congressional response is to treat this as a sign of poor financial planning and a threat to legislative control. To a certain extent, the executive branch thereby in fact becomes independent of legislative action. As a result, the appropriations committees have tended to take into account these "carryover balances” in their decisions on new funding requests.

It is to the advantage of the executive branch to report as low a figure as possible for carryover balances, and several techniques have been tried, not always successfully, toward this end. For example, an executive department may try to obligate as much of the funds as possible. Sometimes this means prematurely obligating funds before testing or developmental work has been completed. In the case of weapons systems such as the Sheridan armored vehicle and Cheyenne helicopter, this tactic can prove embarrassing if not counter-productive for the Administration. The House Appropriations Committee has remarked that “Budgetary considerations based on fear of losing funding authority have often dictated such decisions rather than sound technical judgment." Large obligations become especially suspicious when they take place in the closing months of a fiscal year ("June buying"), or when emergency and contingency funds are used at the end of a fiscal year.

Carryover balances can also be minimized by the executive departments by underestimating the amount of unobligated funds that will be carried forward into the next fiscal year. For example, the Army estimated that $30.1 million in unobligated funds for R.D.T. & E. would be carried forward into fiscal 1962; the actual amount carried forward was more than $89 million. For this same period, the comparable figures for R.D.T. & E. in the Navy was $26.7 million estimated and $134.3 million actual. Where there is a pattern of underestimating unobligated balances, the appropriations committees may make budget reductions to avoid overfunding.115 Budget cutbacks may also be made when there is too much unobligated money being carried forward from year to year. One such action occurred in 1967 when the House Appropriations Committee ordered a decrease in weapons procurement funds (primarily Navy) because the military services were maintaining excessive unobligated balances."

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Despite these legislative actions, a huge volume of funds continues to flow from one year to the next. The budget for fiscal 1973 shows an estimated 266.7 billion in unspent authority available from prior years. Of that amount, only $98.3 billion was expected to be spent in fiscal 1973, with the remainder carried forward once

114 H.R. REP. No. 698, 91st Cong., 1st Sess. 48 (1969).

115 H.R. REP. No. 1607, 87th Cong., 2d Sess. 48-49, 51 (1962).
119 H.R. REP. No. 349, 90th Cong., 1st Sess. 35-36 (1967).

95-860 O 73 pt. 2 -36