In the old days, Congress would disagree over the federal budget for a few months before coming together to pass a budget by the start of the new fiscal year on October 1. This changed in the 1990s. The budget has since become a political battleground with Congress rarely passing a budget on time. The current fiscal year is no exception with the Super Committee looking at deficit reductions and elections looming in 2012.
This fiscal year 2012 has started under a Continuing Resolution (CR). CRs are normally a simple pro-rata allocation of the prior fiscal year that funds the government while Congress works toward a solution. For example, the current CR provided 45/365 (Oct. 5 to Nov. 18) of last year’s funding levels, minus 1.5%, to Executive Branch Agencies. Congress passed a “minibus” on Thursday containing three appropriation bills but most of the government is under another CR until December 16.
The development of CRs, in contrast, is not transparent even to those working in Congress and the Executive Branch.”
The challenges of operating under CRs are well-understood. Hiring in the Executive Branch often stops. Federal programs slow their work with only a small fraction of their expected resources; this often causes schedule delays and cost increases. No new projects can be started (See “The New Norm of Continuing Resolutions.” The development of CRs, in contrast, is not transparent even to those working in Congress and the Executive Branch.
Weeks or days before a CR is introduced in Congress, the Committees on Appropriations ask the Executive Branch for CR “anomalies.” This is done through official and unofficial channels. The anomalies inform appropriators of where the CR may causes serious problems, such as unintended layoffs or program cancellations. In general, appropriations maintains a very high standard for anomalies including in legislation a fraction of what the Executive Branch desires.
After a CR is signed into law, the White House’s Office of Management and Budget (OMB) determines the funding levels to be allocated to agencies, known technically as apportionment.
Once OMB apportions funds, agencies send out guidance to their programs establishing funding levels and restrictions. The guidance is imperative to ensure the limited funding will last the duration of the CR.
Missteps in executing a CR by the Executive Branch can also bring about negative consequences from Congress in the next CR or in a future annual appropriation. This is another reason why Executive Branch execution under a CR is so cautious and conservative. Even the best guidance and intent, however, cannot avoid some recurring areas of friction on CR execution between Congress and the Executive Branch.
A CR provides the Executive Branch flexibility to execute funds due to its structure. An annual appropriation has statutory bill language and a detailed conference report. The report specifies funding down to thousands of dollars for sub-programs. CRs do not have a detailed report. They are based on the previous year’s bill language that allocates funding levels in lump sums of million or billion dollar increments.
It is easy to see where the Executive Branch could take advantage of this flexibility to advance priority programs. Depending on the specific legislative vehicle, Congress uses provisions in the front matter of the CR or general provisions to limit Executive Branch flexibility. To avoid the pitfalls of deviating from Congressional intent, the Executive Branch will often adhere to the prior year’s Conference Report or follow the lower of the latest House or Senate marks in its CR execution.
The prohibition on new program or project starts contained in most CRs is also an enduring source of friction. Congress does not permit the Executive Branch to start a new program or project under a CR that it has not approved previously. What qualifies as a new program or project is not as clear as it might seem. Construction, facilities modernization, and research projects, among other activities, may have long-lead procurement, design, and other preparation work before the initiation of major work. When differences of opinion on this issue emerge, an energetic exchange between the Executive Branch and Congress commences on whether the work can proceed.
The collected experience of a decade of CRs has led Congress and the Executive Branch to develop approaches to minimize the disruption of federal programs. There is a new norm of CRs. Still, a greater understanding of CRs is helpful to setting reasonable expectations for what can be accomplished by agencies and their programs under the constraints of CRs.
James Windle is a federal employee who has worked for executive branch agencies, the Executive Office of the President, and Congress. The views and opinions of the writer are his solely and independent from the U.S. Government.