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Modern Legislation: Moving from Policy to Practice

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Forging a Constructive Partnership: Why We Shouldn’t Abandon the Foreign Aid Authorization Process

Below is the third piece in our Modern Legislation blog series from Larry Nowels, MFAN Principal and consultant with over thirty years spent focusing on foreign affairs at the Congressional Research Service. The series explores one pillar of MFAN’s updated reform agenda, From Policy to Practice and has, so far, included pieces from Former Republican Congressman Mark Green and Director of the Rethinking U.S. Foreign Assistance Initiative at the Center for Global Development Connie Veillette. Stay tuned for the final installment in our series next week from House Foreign Affairs Committee Ranking Member Howard Berman.

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Beyond the memory of most of you (sadly, not past mine) and beyond that of most lawmakers (with a few key exceptions) are the days when Congress debated and enacted annual or bi-annual foreign assistance authorization bills, largely amending the cornerstone  statute, the Foreign Assistance Act of 1961 (FAAct).  The Administration actually (and willingly) submitted draft bills each year or every other year seeking modifications to the FAAct reflecting changing circumstances around the world, new initiatives, and authorities to do things more effectively.

The process was far from perfect—in fact it was quite chaotic.  Foreign aid authorization markups would go on for weeks through multiple subcommittee and full committee sessions.  Often, the bills consumed more floor time and faced more amendments than the annual defense authorization in which nine or ten times the amount of money was at stake.  The Administration complained loudly about earmarks, conditions, restrictions, and micromanagement, but surprisingly the President signed most of these bills.

In one case—in 1973—lawmakers successfully overhauled the statutory underpinnings of U.S. development assistance by enacting the so-called Basic Human Needs approach to fighting global poverty, the outlines of which remain today in the FAAct.  This annual exercise, however, ended with passage of the last comprehensive foreign aid authorization in 1985.  The Administration discovered that it was far easier to deal with a few Members on the House and Senate Foreign Operations Appropriations subcommittees to achieve their major policy and funding priorities, while Congressional leaders liked the idea of only one vote on foreign aid rather than two lengthy debates, especially those around the authorization measure.  And all of this took place despite the fact that there existed a permanent legal requirement for foreign aid appropriations to be authorized in advance, a requirement that has conveniently been waived in each Foreign Operations spending bill since 1985.

The authorizers didn’t give up but could never again enact such legislation.  In 1989, the House Foreign Affairs Committee embarked on an effort to totally re-write the FAAct.  But when the Administration withdrew support because the bill did not eliminate all earmarks and the Senate felt no ownership, the initiative failed despite passing the House.  In 1994, the Clinton Administration submitted the draft of a new FAAct, but without adequate consultation with the authorizing committees and uneven support within the Executive, that effort also failed.  The Senate Foreign Relations Committee, under the leadership of Senator Lugar, attempted to pass in 2004 and again in 2005 non-controversial “housekeeping” foreign aid authorizations that, if successful, would have led to the more ambitious effort to re-write the FAAct.  Both came to a halt when, in 2004, controversial amendments dealing with domestic matters were added to the bill on the Senate floor, and in 2005 when, on the eve of Senate debate, Congress recessed to attend the funeral of Pope John Paul II.  Senate leaders did not reschedule the bill.

What ensued in the meantime has been Congressional passage of numerous single-issue, narrowly-focused foreign assistance bills addressing microenterprise, clean water, child survival, basic education, and several other development sectors.  The innovative Millennium Challenge Corporation was authorized in 2004 but ultimately enacted as part of an appropriations bill.  Perhaps the most extensive debate on a foreign aid authorization bill came in 2003 when Congress sent to the White House the U.S. Leadership Against HIV/AIDS, TB, and Malaria Act, legislation creating PEPFAR.

So why does it matter that there has not been a comprehensive annual foreign aid authorization or a new FAAct in over 25 years?  We often hear that the President can find the authority needed to carry out any foreign assistance activity somewhere in the FAAct or in annual appropriations.  That may be largely the case but it misses some key points.

First, there is a cost of efficiency in trying to figure out how to launch new programs, work around restrictions put in place decades ago, or find ways to implement programs that realize greater impact and achieve sustainable results.  While each has merit in its own right, the collective effect of those single issue bills has been greater fragmentation, less coherence in our aid policy, and an inability to address key challenges in a more integrated and strategic fashion.  And this is not to mention that a close read of the FAAct sounds like we’re stuck in the Cold War.

But beyond those arguments is the lost opportunity for forging a more positive, constructive partnership between Congress and the Administration on foreign aid strategy and policy.  Three authorizing bills, debated and enacted with bipartisan and bi-branch support, make the point.   After the fall of the Soviet Union and the end of the Cold War, the United States embarked on an expansive program to assist the emerging democracies and market economies in Eastern Europe and former Soviet states.  The Freedom Support Act (focused on former Soviet nations, and the SEED Act on those in Eastern Europe) provided the framework for an aggressive, immediate, and largely successful aid program that helped secure and sustain the integration of free and newly independent nations into the global community.   Nearly 15 years later, Congress authorized President Bush’s bold initiative to fight AIDS, TB, and malaria.  PEPFAR legislation was enacted with full support and buy-in of both branches.  It built the foundation for a life-saving, sustainable initiative that received full funding support in annual appropriations and was re-authorized in 2008.  Building political support around foreign assistance programs like those authorized by the Freedom Support Act, the SEED Act, and PEPFAR is important for such initiatives to have the flexibility and operational “space” to achieve results.  Engagement on the legislative front is an important tool in cultivating that political base.

Few would want to return to those chaotic days of the 60s, 70s, and 80s and the dynamics today would not lend themselves to such a process.  Nevertheless, instead of abandoning the mechanism altogether, perhaps a thoughtful, constructive effort to re-institutionalize foreign aid authorization bills would be a better path.  And who knows, maybe we could celebrate passage of a new FAAct before we observe the 60th anniversary of the current statute a decade from now, in September 2021.