Is Congress losing control over the spending power of the purse?

Terry Gerton There’s some news out, GAO has issued another finding that the administration violated the Impoundment Control Act. So while Congress is out on recess, I thought we’d talk about this instead. This latest one was related to education and health research, but people seem to just be sort of shrugging their shoulders like this is not a big deal. At what point does a violation of the Impoundment Control Act generate some response from Congress?

Loren Duggan Well, this is a classic example of the separation of powers between the two branches, Congress writes the appropriations bill, send them over. The administration executes them. But as we have seen with a lot of moves made by, in particular, this administration and this OMB director Russ Vought, he is challenging some of those strictures between the two parties and what he sees as restrictions on executive power, so you kind of have this clash going on. So even if Congress isn’t taking action immediately, I do think that this is a a trend and a pattern that we could see a lot of discussion about, particularly if there’s a change in control in a few weeks’ time in the election.

Terry Gerton Senator Collins came out and said, well, GAO has the power not only to find a violation of the Empowerment Control Act, but also to sue the administration. What’s she trying to argue for there?

Loren Duggan I mean, that is true. There is this authority that GAO has that if there is a violation of impoundments, they could go to court. That actually came up back in 2025 in the context of the legislative branch appropriations bill, which includes funding for the GAO. Republicans at the time wanted to do some restrictions on that there, kind of part of the broader thinking that they wanted the administration to have some authority there. That language didn’t survive in the final bill but it was an idea that was at least debated and discussed in the context of an appropriations bill. But, you know, there’re plenty of people who would like to see GAO use that authority. We’ll have to see if they do at some point, either now or in the future, but they do have this kind of authority to take the administration to court when it finds a violation.

Terry Gerton What would a lawsuit like that look like? Would it be around a specific violation, or would it be a broader sort of policy authority case?

Loren Duggan I mean, it seems like you usually kind of keep focused on the one thing and maybe the broader interpretation would come from that, but I’m not sure what the strategy would be. But, you know, that would be one way for the legislative branch, of which the GAO is kind of officially a part, to go to court and try to reassert their authority over some of these things.

Terry Gerton One of the other issues here is that GAO is under the leadership of an acting Comptroller General. Part of that is Congress’s fault. They’ve had that vacancy to fill for a long time. But now they’re saying that, well, maybe because there’s an acting head of GAO, they don’t want to engage in the political impact of a court case. Is it really about legal authority? Or is it about permanent leadership? And who’s going to pull that thread?

Loren Duggan It’s a good question. And the process for selecting the next GAO head, the comptroller general, it’s supposed to be a commission, proposes people to the president and the president selects from that. There is kind of this two branch process that they go through on that. Obviously it’s can be better if you have a full-time head than an acting head, although there are plenty of court actions from the executive branch under acting heads that we’ve seen. So it remains to be seen if that. If we have to wait for a regular full-time appointment to see if they’ll go forward with that. But I’m not privy, unfortunately, to all the inside discussions at GAO, but it would be very interesting.

Terry Gerton I’m speaking with Loren Duggan from Bloomberg Government. Well, Loren, speaking about heads of GAO, there was some reporting that Eric Euland, who is the deputy director at OMB, Russ Vought’s deputy, could emerge as a leading GAO candidate. That got some antennas up, but how would people view that? Given his OMB background, his proximity to the administration, how would that affect the GAO oversight responsibility?

Loren Duggan That may augur against his appointment or make it more difficult to get through, just because, you know, coming from OMB, coming from Russ Vought’s perspective, if he is a loyal lieutenant to Russ Vought, some people might see him as that, that could make it more difficult, given this tension between Congress and the administration over the power of the purse and the limits of the executive over that. So I think if that wins over enough members of this congressional body that helps make the recommendations and he could be one of the three names and we would see from there. But I would think there might be some Democrats and maybe even Susan Collins would try to push back, even if she’s not a member of the commission, but given her concerns about what’s gone on with some of these appropriations moves, there could be some pushback there.

Terry Gerton Do you have a sense that the continued violations of the impoundment control act and some of these other issues like the pocket rescissions might be pushing Congress to, when they get back in session, move the process forward for finding a permanent head of GAO?

Loren Duggan It’s a good question and we’ll have to see maybe they’ll want to wait, you know, because later there might be better Democratic support in the Senate or in both, across both chambers to move forward somebody more acceptable to them or somebody whom they might see as more of a neutral party than perhaps somebody coming from an administration position now, but I think the appropriations process will be hanging over lawmakers heads when they come back and maybe this will be part of that dynamic.

Terry Gerton Well, let’s think about that because in last year’s appropriation cycle, there was a lot of talk about we couldn’t find agreement because we couldn’t trust the administration to actually execute the bill as it might be passed. It seems like we’re right back in that foxhole again this time. A lot of concern about whether the administration will actually execute the appropriation law. What are we finding now?

Loren Duggan That will be part of the debate. And there were even members, I think, back in this continuing resolution debate who would have liked stronger language in there restricting the administration. And you hear lawmakers, particularly Democrats, talk about things they might write into bills this year or next year, whether it’s the defense authorization language or something around appropriations to preserve congressional rights. And that includes the appropriations language and other things about access. And other things they’d like to see. So that will be part of the dynamic, whether you need to wait for the Congress to flip or use this lame duck period with other things going on, that remains to be seen. But I think this tussle between the two branches may only get more pronounced as we head into next year.

Terry Gerton Do you think that that’s the same argument than around the pocket rescissions? The rules around that seem to be pretty clear, again, until Russ Vought and the Trump administration really started pushing on it in a different way.

Loren Duggan Yeah, there’s contested interpretations, I guess you would say, of what the 1974 law says and Russ Vought has a legal argument for what he’s done, that he would stand behind, but that does seem like a kind of gray area in the law that you can exploit because if you make the recommendation, but there’s not enough time to do something about it before the end of the fiscal year, then those funds go away. But maybe there will be another look next year at some of those legal authorities to tighten them up. And, you know, that could be a debate, but if there’s a Republican in the White House still, President Trump, who could veto those changes or fight against them, it could be a tussle.

Terry Gerton So we’ve avoided talking about the midterms up until now, but I’ll bring them in just a little bit to think about, well, if control of one chamber or the other does flip, Congress is going to need to take up appropriations bills. The continuing resolution only goes through December. I’ll ask you to look into your crystal ball. What’s your prognosis for getting to resolution on the appropriations, given this kind of mistrust in the air?

Loren Duggan It could be difficult. December 11th is not too long after the election and some sort of legislation needs to be passed by then to prevent a shutdown, whether that’s another continuing resolution or some sort package. We never had a top line agreement in the Senate to help write those bills, to take into negotiations. So that would be a lot to get done, especially if the lame duck agenda gets loaded up with other Republican priorities, a reconciliation bill, the debt limit. Things that we hear members talk about, extra funding for DoD. There’s a lot of things out there that could make it harder to get an agreement on spending bills given that, and then that could slip into next year and a new Congress where you have to start all over again on some level.