Proposals for a Commission on the Accountability and Review of Federal Agencies (CARFA): Analysis and Issues for Congress
CRS Report for Congress
Proposals for a Commission on the Accountability
and Review of Federal Agencies (CARFA):
Analysis and Issues for Congress
Updated November 10, 2005
Clinton T. Brass
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Proposals for a Commission on the Accountability and
Review of Federal Agencies (CARFA): Analysis and
Issues for Congress
In the 109th Congress, companion bills have been introduced (S. 1155/H.R.
2470) that, if enacted, would establish a Commission on the Accountability and
Review of Federal Agencies (CARFA). Either version of the proposed CARFA Act
would require this 12-member commission to review certain federal agencies and
programs to determine if any are duplicative, wasteful, inefficient, outdated,
irrelevant, or failed. The House version would include within the commission’s
scope only non-defense, non-entitlement agencies and programs in the executive
branch, while the Senate version would include all executive branch agencies and
programs, including the Executive Office of the President. The commission would
be required or, in some cases allowed, to recommend that any such programs and
agencies be realigned or eliminated. The commission’s recommendations would be
packaged into an implementation bill that would receive expedited congressional
consideration. Nearly identical provisions appeared in a budget process reform bill
(H.R. 2290) and a bill to offset costs from Hurricane Katrina and Hurricane Rita (S.
1928). In addition, nonbinding provisions in the FY2006 budget resolution
(H.Con.Res. 95) called for enacting a CARFA-like commission. President George
W. Bush said in his FY2006 budget that he would propose, as part of his President’s
Management Agenda (PMA), legislation authorizing him to propose “results
commissions,” which would consider and revise Administration proposals to
restructure and consolidate programs and agencies. Proposals approved by such a
results commission and the President would be considered by Congress under
expedited procedures. The Administration suggested that the results commissions
legislation would be similar to the CARFA proposal. Bills have been introduced
(H.R. 3276/S. 1399) that largely incorporated the Administration’s draft language.
Proponents have argued that, if enacted, a CARFA could evaluate programs and
agencies, use a successful model for congressional consideration of commission
recommendations, and thereby eliminate or reform wasteful agencies and programs.
The Bush Administration has suggested that a CARFA should use the
Administration’s Program Assessment Rating Tool (PART). Critics might likely
contend that the legislation is too narrowly focused — looking only at discretionary,
non-defense programs (House version); that the commission should be equally
balanced along partisan lines or less under the President’s control; that expedited
procedures undermine the democratic process; and that the decision making criteria
are too subjective. This report summarizes the legislation’s history and provisions,
discusses other review commission legislation, and highlights perspectives about theth
CARFA proposal from the 108 Congress. Next, the report analyzes issues that may
be of interest in the 109th Congress in the event that the CARFA legislation or similar
proposals to establish a review commission are further considered. Finally, the report
discusses potential success factors for commissions and potential alternatives or
complements to a commission. A short version of this report is available (CRS
Report RS21980, Proposed Commission on the Accountability and Review of
Federal Agencies (CARFA): A Brief Overview). This report will be updated as
In troduction ......................................................1
Proposed Legislation: The CARFA Act................................3
Overview of CARFA Legislation Provisions.......................11
Duties of the Commission, President, and Joint Congressional
Powers of the Commission.................................13
Commission Personnel Matters..............................13
Expedited Congressional Consideration.......................13
Authorization of Appropriations.............................14
Other Review Commission Proposals.................................14
Perspectives on CARFA from the 108th Congress: Senate Hearing on
Proposed CARFA Act.........................................18
Citizens for a Sound Economy Testimony..........................22
Progressive Policy Institute Testimony............................23
Potential Issues for Congress........................................24
Potential Issues Regarding a Review Commission...................24
Scope of Commission Review and Recommendations............30
Definitions of Key Terms..................................32
Standards and Criteria for Decision Making....................37
Expedited Congressional Consideration.......................39
Transparency and Participation..............................43
Potential Success Factors for a Commission........................45
Potential Alternatives or Complements to a Commission..............46
Pursue or Authorize Government Reorganization................46
Bolster Agency Program Evaluation Capacity Through “Chief
Program Evaluation Officers”...........................51
Proposals for a Commission on the
Accountability and Review of
Federal Agencies (CARFA):
Analysis and Issues for Congress
In the 109th Congress, for the third consecutive Congress, companion bills have
been introduced (S. 1155/H.R. 2470) that, if enacted, would establish a Commission1
on the Accountability and Review of Federal Agencies (CARFA). As discussed
later in this report, these two bills differ from one another in some key respects,
including the procedure for appointing commission members, the agencies that
would be within the proposed commission’s scope, and requirements for use of2
“funds saved” as a result of the commission’s plan and recommendations.
Nonetheless, if either version of the legislation is enacted, the proposed CARFA Act
would require this “review commission,” made up of 12 members, to review certain
federal agencies and programs to determine if any covered agencies or programs are
duplicative, wasteful, inefficient, outdated, irrelevant, or failed. The proposed
CARFA would be required (or in some cases in the Senate version, allowed instead
of required) to recommend that any such programs and agencies be realigned or
eliminated. The commission’s recommendations would then be packaged into an
implementation bill that would receive expedited congressional consideration,
including prohibitions on amendments and restrictions on procedural delays.
Provisions nearly identical to the House and Senate bills also appeared in a
budget process reform bill (H.R. 2290, Subtitle III.C., providing for the establishment
of a Commission to Eliminate Waste, Fraud, and Abuse) and a bill to offset costs of
Hurricane Katrina and Hurricane Rita (S. 1928, Title III, providing for a CARFA).
Nonbinding provisions in the FY2006 budget resolution (H.Con.Res. 95) also called
for establishing a CARFA-like commission. Finally, President George W. Bush said
in his FY2006 budget submission that he would put forward, as part of his
President’s Management Agenda (PMA), legislation authorizing him to propose
“results commissions.” These commissions would consider and revise
1 For a short version of this report, see CRS Report RS21980, Proposed Commission on the
Accountability and Review of Federal Agencies (CARFA): A Brief Overview, by Clinton T.
2 In contrast, in the 107th and 108th Congresses, the Senate and House companion bills were
identical (S. 2488/H.R. 5090 and S. 1668/H.R. 3213, respectively, introduced by the same
Administration proposals to restructure and consolidate programs and agencies.3
Before the legislation’s release, an Administration official from the Office of
Management and Budget (OMB) suggested that the results commissions would be
similar to the previously proposed CARFA. Proposals approved by such a results
commission and the President would be considered by Congress under expedited
procedures. Subsequently, the Bush Administration released a legislative proposal
for results commissions and a sunset commission. Bills were later introduced (H.R.
3276/S. 1399) that substantially incorporated the Administration’s draft language that
would allow the establishment of results commissions.
This report analyzes several issues related to the CARFA legislation. The
CARFA proposal’s provisions for expedited congressional consideration have been
compared by its proponents to those of the legislation that established the Base
Closure and Realignment (usually known as “BRAC”) commissions. The BRAC
commissions have made recommendations to realign and close many military
installations in the last 15 years. However, the CARFA proposal also has significant
differences from the BRAC framework, as discussed later in this report. In addition,
OMB has testified to Congress that, if Congress established CARFA, the commission
should use the Bush Administration’s Program Assessment Rating Tool (PART) to
evaluate programs.4 This report also briefly discusses the results commissions
proposal, which appears similar in some respects to presidential reorganization
authority, which lapsed in 1984 and has not been renewed by Congress.5 The results
commissions proposal also appears similar in some respects to provisions that
established BRAC commissions. Like BRAC, the results commissions proposal
would provide for multi-stage review of reorganization plans (i.e., by the
commission, the President, and Congress) and expedited congressional consideration.
The first section of this report summarizes the CARFA legislation’s history in
the 108th and 109th Congresses and its provisions in the 109th Congress. The second
section briefly discusses other review commission legislation in the 108th and 109th
Congresses. The third section highlights perspectives that surfaced in the 108th
Congress regarding some perceived advantages and disadvantages of the proposal.
The report’s fourth section then analyzes several issues that may be of interest in the
109th Congress in the event that the CARFA legislation or similar proposals to
establish a review commission are further considered. In order of presentation, these
3 The President’s FY2006 budget also said the President would propose the establishment
of a “sunset” commission, which is not inside the scope of this report. A sunset proposal
typically calls for systematic evaluation and, in addition, an action-forcing mechanism that
carries the ultimate threat of program termination. For more on the Administration’s sunset
proposal and subsequent developments, see CRS Report RS22181, A Sunset Commission
for the Federal Government: Recent Developments, by Virginia A. McMurtry.
4 For analysis of the PART, see CRS Report RL32663, The Bush Administration’s Program
Assessment Rating Tool (PART), by Clinton T. Brass.
5 For more in-depth analysis of issues regarding presidential reorganization authority, see
CRS Report RL30876, The President’s Reorganization Authority: Review and Analysis, by
Ronald C. Moe.
!the commission’s membership;
!the scope of the commission’s review and recommendations;
!definitions of key terms;
!standards and criteria for decision making;
!expedited congressional consideration; and
!transparency and participation.
Following that discussion, the report discusses potential success factors for
commissions and, should Congress opt to consider them, potential alternatives or
complements to a review commission. These alternatives or complements include
pursuing or reauthorizing government reorganization, using the Government
Performance and Results Act, and bolstering agency program evaluation capacity by
establishing “chief program evaluation officers.”
Proposed Legislation: The CARFA Act
Recent legislative history concerning the proposed CARFA legislation is
discussed below, from both the 108th and 109th Congresses. The different types of
measures within each Congress (stand-alone bills, budget process reform bills,
budget resolutions, and the Bush Administration’s results commissions proposal) are
discussed in chronological order of introduction.
Stand-Alone Bills. On September 26, 2003, Senator Sam Brownback
introduced legislation (Commission on the Accountability and Review of Federal
Agencies Act, S. 1668, 108th Congress) to establish a commission to “conduct a
comprehensive review of Federal agencies and programs and to recommend the
elimination or realignment of duplicative, wasteful, or outdated functions, and for
other purposes” (bill title). The bill was referred to the Senate Committee on
Governmental Affairs, and on September 29, 2003, was further referred to the
committee’s Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia. The subcommittee held a hearing on S.
A companion House bill, H.R. 3213, was introduced by Representative Todd
Tiahrt on October 1, 2003, and was referred jointly to the House Committees on
Government Reform and Rules, but did not receive further action.7 Under both the
6 U.S. Congress, Senate Committee on Governmental Affairs, Subcommittee on Oversight
of Government Management, the Federal Workforce, and the District of Columbia,
Trimming the Fat: Examining Duplicative and Outdated Federal Programs and Functions,thnd
hearing, 108 Cong., 2 sess., May 6, 2004, S.Hrg.108-672 (Washington: GPO, 2004).
(Hereafter referred to as Senate Subcommittee Hearing on CARFA.)
7 Rep. Tiahrt subsequently spoke about H.R. 3213 on the House floor. See Rep. Todd
House and Senate bills, the proposed CARFA, made up of 12 members all appointed
by the President, would have been required to review non-defense, non-entitlement
federal agencies and programs — accounting for approximately one-fifth of the
federal budget.8 Both bills would have required “funds saved” by the implementation
of the commission’s plan and recommendations to be used to “support other
domestic programs” or “pay down the national debt.”
Budget Process Reform Bills. Nearly identical provisions appeared inth
several budget process reform bills (108 Congress, H.R. 3800/S. 2752, H.R. 3925,
and in floor amendments to H.R. 4663). These provisions, however, would have
established a commission to review all federal executive agencies and programs
(although H.R. 3925 did not provide for expedited congressional consideration)9
without requirements regarding the used of funds saved.
Budget Resolutions. In addition, the CARFA proposal was cited in the
context of congressional budget resolutions in both the first and second sessions ofthth
the 108 Congress. In the FY2004 budget resolution (108 Congress, H.Con.Res.
Tiahrt, “Yes, We Are Better Off Now Than We Were Four Years Ago,” remarks in the
House, Congressional Record, daily edition, vol. 150 (May 20, 2004), pp. H3531, H3533-
8 A previous version of the Senate bill (S. 837, 108th Cong., introduced Apr. 9, 2003), also
sponsored by Sen. Brownback, would have included entitlement programs within the
commission’s scope. Legislation nearly identical to S. 1668/H.R. 3213 was introduced byth
the same Senate and House sponsors in the 107 Congress (S. 2488/H.R. 5090) in the
summer of 2002, before issuance of the Bush Administration’s PART.
9 Debate on that legislation was mainly focused on statutory limits on discretionary spending
and “pay-as-you-go” requirements for mandatory spending. H.R. 3800, the Family Budget
Protection Act of 2004, was referred to committees on Feb. 11, 2004, but saw no further
action. Secs. 321-327 of H.R. 3800 contained provisions that would have established a
Commission to Eliminate Waste, Fraud, and Abuse and assigned the commission duties
nearly identical to those in S. 1668/H.R. 3213, except that all agencies (as defined under 5
U.S.C. § 105) and programs within those agencies would have been within the commission’s
scope (vice only non-defense discretionary programs being within scope under S. 1668/H.R.
3213). On June 24, 2004, provisions similar to H.R. 3800 were offered as an amendment
in the nature of a substitute to H.R. 4663 (H.Amdt. 621) by Rep. Jeb Hensarling, but the
amendment failed by a vote of 88-326. A companion Senate bill, S. 2752, was later
introduced on July 22, 2004, and referred to committees, but saw no further action.
H.R. 3925, the Deficit Control Act of 2004, was referred to committees on Mar. 10,
2004, but saw no further action. Secs. 311-316 of H.R. 3925 would have established a
Commission to Eliminate Waste, Fraud, and Abuse and assigned the commission duties
nearly identical to those in S. 1668/H.R. 3213, except that (a) all agencies (as defined under
5 U.S.C. § 105) and programs within those agencies would have been within the
commission’s scope, and (b) the commission’s recommendations would not have received
expedited congressional consideration. On June 24, 2004, provisions similar to H.R. 3925
were offered as an amendment in the nature of a substitute to H.R. 4663 (H.Amdt. 622) by
Rep. Mark Steven Kirk, but the amendment failed by a vote of 120-296.
For general discussion of budget process reform proposals, see CRS Report RS21752,
Federal Budget Process Reform: A Brief Overview, by Bill Heniff Jr. and Robert Keith.
95, Section 606), which was agreed to by the House and Senate, nonbinding sense
of the Senate provisions called for the establishment of a commission
... to review Federal domestic agencies, and programs within such agencies, with
the express purpose of providing Congress with recommendations, and
legislation to implement those recommendations, to realign or eliminate
government agencies and programs that are duplicative, wasteful, inefficient,10
outdated, or irrelevant, or have failed to accomplish their intended purpose.
In remarks during Senate consideration of the resolution, Senator Brownback stated
that this language referred to his CARFA proposal.11
In the FY2005 budget resolution, nonbinding sense of the Senate provisions in
the Senate-passed version (108th Congress, S.Con.Res. 95, Section 502) and in the
House-passed conference report to the FY2005 budget resolution (H.Rept. 108-498,
Section 602) called for enactment of the CARFA legislation.12 The CARFA-related
provisions stated, among other things,
... that legislation should be enacted that would create a bipartisan commission
for the purpose of — (1) submitting recommendations on ways to eliminate
waste, fraud, and abuse; and (2) ... provid[ing] recommendations on ways in
which to achieve cost savings through enhancing program efficiencies in all
[domestic] discretionary and entitlement programs.
These provisions further called for the commission to “realign or eliminate
government agencies and programs that are duplicative, inefficient, outdated,
irrelevant, or have failed to accomplish their intended purpose.”
Budget Resolution. For the third consecutive year, the CARFA proposal
was cited in the context of congressional consideration of the budget resolution, in
this case, for FY2006.13 The Senate-passed version of the budget resolution,
S.Con.Res. 18, was agreed to on March 17, 2005, by a vote of 51-49. Section 502
of the measure contained a sense of the Senate provision very similar to the language
that was included in the FY2004 budget resolution, albeit with changed word
10 The conference report to accompany the FY2004 budget resolution (H.Con.Res. 95,
H.Rept. 108-71) was approved 216-211 in the House, in a largely party-line vote, on Apr.
For more information, see CRS Report RL31754, Congressional Budget Actions in 2003,
by Bill Heniff Jr.
11 Sen. Sam Brownback, remarks in the Senate, Congressional Record, daily edition, vol.
12 S.Con.Res. 95 was approved 51-45 in the Senate, in a largely party-line vote, on Mar. 12,
2004. H.Rept. 108-498 was approved 216-213 in the House, in a largely party-line vote, on
May 19, 2004. For overall discussion of these measures, see CRS Report RL32246,
Congressional Budget Actions in 2004, by Bill Heniff Jr.
13 For more this and the House version of the budget resolution, see CRS Report RL32791,
Congressional Budget Actions in 2005, by Bill Heniff Jr.
ordering and deletion of the word “domestic” when specifying the agencies that
would be subject to such a review. At Senate passage, the section read as follows:
It is the sense of the Senate that a commission should be established to
review Federal agencies, and programs within such agencies, with the express
purpose of providing Congress with recommendations, and legislation to
implement those recommendations, to realign or eliminate Government agencies
and programs that are wasteful, duplicative, inefficient, outdated, irrelevant, or
have failed to accomplish their intended purpose.
The section language was amended in the conference on the FY2006 budget
resolution to include a clause that would also call for an “assessment of programs
on an accrual basis” (H.Con.Res. 95, Section 502).14 On April 28, 2005, the
conference report was agreed to in the House by a vote of 214-211 and in the Senate
by a vote of 52-47. Subsequently, several bills were introduced proposing the
establishment of CARFA or a CARFA-like commission.
Budget Process Reform Bill and Hurricane Cost Offset Bill. On May
11, 2005, Representative Jeb Hensarling introduced H.R. 2290 (Family Budget
Protection Act of 2005), a budget process reform measure, with 58 original
cosponsors. The bill was referred to House Committees on the Budget, Rules, Ways
and Means, Appropriations, and Government Reform, but has not received further
action. The measure was announced and endorsed by the Republican Study
Committee.15 Subtitle III.C. of the bill (Sections 331-337) would provide for the
establishment of a Commission to Eliminate Waste, Fraud, and Abuse. These
provisions were identical to those from H.R. 3800, introduced in the 108th Congress,
which, as discussed previously, would have established a commission to review all
federal executive agencies and programs, though without requirements regarding the
use of “funds saved” as a result of the commission’s plan and recommendations.
On October 27, 2005, Senator John Ensign introduced S. 1928 (Spending
Money Accountably to Rebuild After Tragedy Act), with seven original cosponsors.
The bill was referred to the Senate Committee on Homeland Security and
Governmental Affairs, but has not received further action. Title III of the bill
(Sections 301-308) would provide for the establishment of a CARFA. These
provisions were nearly identical to those from S. 1155, Senator Brownback’s bill that
would establish a CARFA.
Stand-Alone Bills. Representative Tiahrt introduced H.R. 2470 (Commission
on the Accountability and Review of Federal Agencies Act) on May 18, 2005. The
bill was referred to the House Committees on Rules and Government Reform, but
has not received further action. The measure’s provisions were identical to those of
Representative Tiahrt’s legislation from the 108th Congress, H.R. 3213, and Senator
14 U.S. Congress, Conference Committees, Concurrent Resolution on the Budget for Fiscal
Year 2006, conference report to accompany H.Con.Res. 95, 109th Cong., 1st sess., H.Rept.
15 Republican Study Committee, “House Conservatives Reintroduce Family Budget
Protection Act,” press release, May 11, 2005, available in PDF in Congressional Quarterly’s
Budget Tracker electronic newsletter, May 12, 2005, at [http://www.cq.com].
Brownback’s legislation from the 108th Congress, S. 1668. Accordingly, the bill
provided, among other things, that the commission’s scope would not include the
Department of Defense, entitlement programs, and agencies that solely administer
entitlement programs. H.R. 2470 also, like the earlier bills, retained language
providing for presidential appointment of all 12 commission members, and requiring
that funds saved would be used to support other domestic programs or pay down the
Senator Brownback introduced S. 1155 (Commission on the Accountability and
Review of Federal Agencies Act) on May 26, 2005, with 21 original cosponsors. The
bill was referred to the Senate Committee on Homeland Security and Governmental
Affairs, but has not received further action. While Representative Tiahrt’s bill was
identical to its predecessor from the 108th Congress, Senator Brownback’s bill, in
contrast, changed from the previous version in several respects. The major changes,
which are described in more detail in this report’s next section, included expanding
the commission’s scope to include DOD, agencies that solely administer entitlement
programs, entitlement programs, and the Executive Office of the President (EOP).
In addition, S. 1155 provides for “hybrid” appointment of commission members by
the President and Members of Congress, instead of only by the President. Finally,
the bill deleted language that would have required “funds saved” to be used to
support domestic programs or to pay down the national debt. When introducing the
bill, Senator Brownback explained his reasoning for the changes and hopes for the
Last year, we had a bipartisan hearing on CARFA, at which all witnesses
supported the CARFA concept. We have incorporated some of the suggestions
made at the hearing, and I believe this year’s version of CARFA is even better.
I am pleased that the Senate is already on record supporting the CARFA
concept through Section 502 of this year’s budget resolution, and it is my hope
that we will be able to work with leadership to see CARFA become a reality this16
“Results Commissions” Proposal and Bills. Finally, a legislative
proposal from the President for “results commissions” has been compared to the
proposed CARFA Act. OMB issued a press release on January 26, 2005, mentioning17
the results commissions proposal, and OMB’s Deputy Director for Management
Clay Johnson III reportedly spoke with the media about the proposal at that time.
Subsequently, a press report indicated that the proposed results commission “would
function much like the military Base Realignment and Closure program.”18 On
February 7, 2005, President George W. Bush transmitted his FY2006 budget
16 Sen. Sam Brownback, remarks in the Senate, Congressional Record, daily edition, vol.
17 U.S. Office of Management and Budget, “Agencies Making Progress in Implementing
President’s Management Agenda; FY 2006 Budget Proposals to Build on Improved Federal
Management,” press release, 2005-03, Jan. 26, 2004 [sic; Jan. 26, 2005].
18 Allison Stevens and David Clarke, “Democrats May Have GOP Ally in Fight Over Bush’s
Proposed Personnel Changes,” CQ.com, Jan. 28, 2005, available at [http://www.cq.com].
proposal to Congress.19 As part of that proposal, the Bush Administration said it
would propose, as a “next step” for the “budget and performance integration”
initiative of the President’s Management Agenda (PMA), that Congress enact
legislation to give the President authority to recommend the creation of results
commissions.20 The President also proposed establishment of a “sunset
commission,” which is not analyzed in detail in this report.21
In justifying the proposal, the Administration asserted “[d]ysfunctional program
overlap is why many of the 30 percent of programs [rated by the PART instrument]
are rated either ineffective or unable to demonstrate results.”22 The Administration
also claimed that “overlapping jurisdictions in Congress provide daunting hurdles to
legislative remedies for the poor performance of duplicative programs.”23 Another
reference to the results commissions proposal, included in the Administration’s
FY2006 budget, offered this justification:
The Federal government’s ability to serve the American people is often
hampered by poorly designed programs or uncoordinated, overlapping programs
trying to achieve the same objective. Overlapping jurisdictions in the Executive
Branch and Congress provide daunting hurdles to legislative remedies to the poor
performance of duplicative programs. Because the potential for savings and
productivity are great, the Administration ... plans to propose legislation that
gives the President the authority to propose Results Commissions. These
commissions would consider and revise Administration proposals to improve the
performance of programs or agencies by restructuring or consolidating them.
Congress would approve individual Results Commissions to address single
program or policy areas where duplication and the overlapping jurisdictions of
Executive Branch agencies or Congressional committees hinder reform.
Proposals approved by the commission would then be approved by the President24
and considered by Congress under expedited procedures.
On March 22, 2005, Deputy Director for Management Johnson said the
Administration would submit the results and sunset commission draft legislation to
19 For more information on the President’s proposal, see CRS Report RL32812, The Budget
for Fiscal Year 2006, by Philip D. Winters; and CRS Report RS22062, FY2006 Budget
Documents: Internet Access and GPO Availability, by Justin Murray.
20 U.S. Office of Management and Budget, Budget of the U.S. Government, Fiscal Year
2006, Analytical Perspectives, pp. 15-16, 242. For an overview of the PMA, see CRS
Report RS21416, The President’s Management Agenda: A Brief Introduction, by Virginia
21 For discussion of the proposed sunset legislation, see CRS Report RS22181, A Sunset
Commission for the Federal Government: Recent Developments, by Virginia A. McMurtry.
22 U.S. Office of Management and Budget, Budget of the U.S. Government, Fiscal Year
2006, Analytical Perspectives, p. 15. The PART and its relationship to the proposed
CARFA legislation are discussed in greater detail later in this report.
24 Ibid., p. 242.
Congress in the next few months.25 With regard to the results commission proposal,
he went further to say that Senator Brownback had sponsored similar legislation in
the previous Congress, alluding to Senator Brownback’s CARFA bill.
On June 30, 2005, OMB released the expected legislative proposal to establish
results commissions and a sunset commission, entitled “The Government
Reorganization and Program Performance Improvement Act of 2005,” and said it had
transmitted the proposal to Congress.26 In a transmittal letter,27 Joshua B. Bolten,
Director of OMB, said OMB was submitting the draft legislation on behalf of the
President. He asserted the “proposal would institutionalize for Congress and the
Executive Branch procedures that would strengthen the focus on Government
agencies and programs achieving results” and summarized the results commission
proposal in language similar to what was included in the FY2006 budget proposal.
On July 14, 2005, bills were introduced in the Senate and House that
substantially incorporated the draft results and sunset commission language, albeit
with some changes.
!Representative Jon Porter introduced H.R. 3276 (Government
Reorganization and Improvement of Performance Act), which would
provide only for results commissions, with two original cosponsors.
The bill was referred to the House Committees on Rules and
Government Reform. On September 27, 2005, the bill was further
referred to the House Committee on Government Reform’s
Subcommittee on the Federal Workforce and Agency Organization,
which held a hearing on the bill (along with H.R. 3277, as described
below) on the same day.28 The bill has not received further action.
25 CRS author’s notes. Deputy Director for Management Johnson spoke at a “perspectives
on management” seminar, sponsored by the IBM Center for the Business of Government,
Mar. 22, 2005, Washington, DC. For press coverage, see Jason Miller, “Administration
Pushes Hill for Civil Service Reform,” GCN.com, Mar. 22, 2005, available at
[http://www.gcn.com/vol1_no1/daily-updates/35349-1.html]; Kimberly Palmer, “Bush
Administration Official Downplays Reorganization,” GovExec.com, Mar. 22, 2005,
available at [http://www.govexec.com/dailyfed/0305/032205k1.htm]; and David Perera,
“Johnson Pushes Bureaucratic Change,” FCW.com, Mar. 22, 2005, available at
[ h t t p : / / www.f c w.com/ ar t i c l e 88377-03-22-05-Web] .
26 OMB’s press release is available at [http://www.whitehouse.gov/omb/pubpress
/2005/2005-16.pdf]. For the draft legislation, see [http://www.whitehouse.gov
/omb/legislative/grppi_act_2005.pdf]. See [http://www.whitehouse.gov/omb/legislative
/grppi_act_2005-section.pdf] for OMB’s section-by-section description of the legislation.
27 Available at [http://www.whitehouse.gov/omb/legislative/grppi_act_trans_ltr.pdf].
28 U.S. Congress, House Committee on Government Reform, Subcommittee on the Federal
Workforce and Agency Organization, It’s Time to REACT—Reauthorizing Executive
Authority to Consolidate Task: Establishing Results and Sunset Commissions, hearing onthst
H.R. 3276 and H.R. 3277, 109 Cong., 1 sess., Sept. 27, 2005, available at
[http://reform.house.gov/ FWAO/ He arings /Eve ntSingle.aspx?EventID=34038].
!Representative Kevin Brady introduced H.R. 3277 (Federal Agency
Performance Review and Sunset Act), which would provide for a
sunset commission, with two original cosponsors. The bill was
referred to the House Committees on Rules and Government
Reform. On September 27, 2005, the bill was further referred to the
House Committee on Government Reform’s Subcommittee on the
Federal Workforce and Agency Organization (along with H.R. 3276,
as described above), and was the subject of a hearing (along with
H.R. 3276, as described above) on the same day. The bill has not
received further action.
!Senator Craig Thomas introduced S. 1399 (The Government
Reorganization and Program Performance Improvement Act of
2005), which would provide for both results commissions and a
sunset commission. The bill was referred to the Senate Committee
on Homeland Security and Governmental Affairs, but has not
received further action.
More complete descriptions of these bills’ provisions are available in the section of
this report entitled “Other Review Commission Proposals.”
The bills providing for results commissions (H.R. 3276/S. 1399) differ from the
proposed CARFA legislation in many respects. These differences relate to:
!establishment of commission(s) (e.g., under the results commission
proposal, necessity for further congressional action, under expedited
procedures, to establish unlimited number of President’s proposed
results commissions, while the proposed CARFA Act would,
without using expedited procedures, establish one commission);
!appointment and size of membership (e.g., 7 members appointed by
the President under the results commissions proposals, versus 12
members appointed by the President or the President and Members
of Congress under the House and Senate versions, respectively, of
the proposed CARFA Act);
!scope of commission review and recommendations (e.g., possibly
narrower scope under a single results commission, albeit with
unlimited ability of President to propose establishment, under
expedited congressional procedures, of multiple results commissions
in many policy areas, compared to wider scope under CARFA under
a single commission); and
!standards and criteria for decision making (e.g., none specified for
results commissions, in contrast with several criteria under
Additional differences relate to issues of transparency, public participation,
commission powers, and commission administrative provisions. Both the proposed
results commissions and CARFA legislation would provide versions of expedited
congressional consideration of commission recommendations.
Many aspects of the results commission proposals appear to resemble
presidential reorganization authority under 5 U.S.C. §§ 901-912, which expired in
1984, but has been the subject of occasional congressional interest. In the
subcommittee hearing on H.R. 3276, OMB Deputy Director for Management Clay
Johnson III testified that the results commissions legislation was proposed, instead
of reorganization authority, because the Administration judged “there was zero
chance of [reorganization authority] ever being approved” by Congress.29 Because
of the major differences between the proposed CARFA Act and the results
commission proposals, as described above, detailed discussion and analysis of the
results commission proposals are not within the scope of this report. However, many
issues concerning presidential reorganization authority are discussed and analyzed
in detail elsewhere.30
Overview of CARFA Legislation Provisions
The balance of this report analyzes the CARFA legislation as introduced in the
bills sponsored by Representative Tiahrt and Senator Brownback in the 109th
Congress (H.R. 2470/S. 1155). For topics where the two versions are the same, the
discussion in the sections below does not differentiate between the bills. For topics
where the two versions of the CARFA legislation substantively differ from one
another, the sections describe the differences.
Duties of the Commission, President, and Joint Congressional
Leadership. As drafted in H.R. 2470/S. 1155, the legislation would establish a 12-
member CARFA and require the review commission’s members to be appointed
within 90 days of the legislation’s enactment. The House version would require the
President to appoint all 12 members of this review commission. The Senate version,
by contrast, would provide for a “hybrid” commission (i.e., appointment of members
by both the President and certain Members of Congress) with four members
appointed by the President, two appointed by the Senate majority leader, two
appointed by the Senate minority leader, two appointed by the Speaker of the House,
and two appointed by the House minority leader. Both versions would require the
President to designate a chairperson and vice chairperson from among the
commission members. It appears that officers and employees of the federal
government and non-federal individuals could be appointed as members.
The proposed CARFA would be required to:
!under the House version, evaluate all executive branch agencies and
programs, excluding agencies and programs within the Department
of Defense (DOD), entitlement programs, “any agency that solely31
administers entitlement programs,” and perhaps the EOP; and,
29 Hearing transcript available at [http://www.cq.com].
30 See, in particular, CRS Report RL30876, The President’s Reorganization Authority:
Review and Analysis, by Ronald C. Moe; and CRS Report RL30795, General Management
Laws: A Compendium, entry for “Reorganization Act of 1977, as Amended” in section IV.B.
of the report, by Henry B. Hogue.
31 The EOP would probably not be considered an “agency” under the CARFA legislation’s
under the Senate version, evaluate all executive branch agencies and
programs, including the EOP;32
!determine, according to brief definitions in the legislation, if an
agency or program is duplicative, wasteful, inefficient, outdated,
irrelevant, or failed; and
!submit to the President and Congress, not later than two years after
the date of enactment, a plan with recommendations of how any
such agencies and programs should be realigned or eliminated, along
with supporting documentation and proposed legislation to
implement the recommendations.
Under the House version of the CARFA legislation, a determination that certain
agencies or programs fit one or more definitions of duplicative, wasteful, inefficient,
outdated, irrelevant, or failed would require the commission to make
recommendations, as outlined in the bill, to realign or eliminate the agencies or
programs. In the Senate version, by contrast, if an agency or program were
determined only to be wasteful or inefficient, the commission would be allowed, but
not required, to recommend realignment or elimination. In addition, under the House
version, the legislation proposed by the commission would be required to provide
that all funds saved by implementation of the commission’s plan be used to “support
other domestic programs” or “pay down the national debt.” Under the Senate
version, there would be no requirement regarding uses of saved funds.
The legislation would also require the President, not later than one year after the
date of enactment, to:
!establish a systematic method, according to certain requirements, for
assessing the effectiveness and accountability of these agencies and
!submit to the commission assessments of not less than one-half of
all the legislation’s covered programs; and
definition of agency (which points to 5 U.S.C. § 105), because the EOP was not explicitly
established as an executive department, government corporation, or independent
establishment. For background on the EOP, see CRS Report 98-606, The Executive Office
of the President: An Historical Overview, by Harold C. Relyea. For analysis of
circumstances in which the EOP or entities within the EOP are considered agencies under
various laws, see CRS Report RL32592, General Management Laws and the 9/11
Commission’s Proposed Office of National Intelligence Director (NID) and National
Counterterrorism Center (NCTC), coordinated by Clinton T. Brass and Curtis W. Copeland.
32 As described later in this report, in the 108th Cong., proponents described the scope
contained in the House version (which in the 108th Cong. was the scope provided by both
the House and Senate versions) as a “reasonable first step,” while critics have viewed this
sort of scope as overly narrow or reflecting an implicitly partisan outlook. As describedth
above, in the 109 Cong., the scope of the Senate version of the CARFA legislation was
expanded by eliminating the prior exclusions (which remain in the House version) and
including the EOP under the bill’s definition of “agency.”
!identify “common performance measures” for covered programs that
have “similar functions.”33
The commission would be required to “consider” the assessments submitted by the
President, but only after the commission reviewed and accepted the President’s
method for assessing agencies and programs.
Powers of the Commission. CARFA would be empowered to hold
hearings; issue subpoenas for testimony and evidentiary materials; secure information
from federal agencies; use the U.S. mail as do other federal agencies; and accept, use,
and dispose of gifts or donations of services or property.
Commission Personnel Matters.34 Non-federal CARFA members would
not receive compensation except for travel expenses. Federal officers or employees
would continue to receive their normal compensation. The CARFA chairperson
would be authorized to appoint and terminate an executive director (subject to
confirmation by the commission) and other commission staff without regard to civil
service laws and regulations. The rate of pay for the commission’s executive director
and other personnel would not be allowed to exceed the maximum rate payable for
a GS-15 position under Section 5332 of Title 5, United States Code, which
establishes the General Schedule of civil service pay rates. The executive director
and personnel of the commission would be considered federal employees under
several chapters of Title 5, United States Code, for the purposes of leave (Chapter
unemployment compensation (Chapter 85); life insurance (Chapter 87); health
insurance (Chapter 89); and long-term care insurance (Chapter 90). Under the Senate
version, the executive director and commission personnel would also be considered
federal employees for the purposes of “enhanced dental benefits” (Chapter 89A) and
“enhanced vision benefits” (Chapter 89B). Federal government employees could be
detailed to the commission without reimbursement to the lending agency.
Expedited Congressional Consideration. The legislation would establish
an expedited procedure for each house to consider the commission’s proposed35
legislation (“implementation bill”). These provisions (like other expedited
33 The CARFA legislation from the 107th Cong. (S. 2488/H.R. 5090), which was introduced
before issuance of the Bush Administration’s PART, did not include the language included
in S. 1668/H.R. 3213 providing for “systematic assessment of programs” (Sec. 3(d)), which
is arguably similar to the Administration’s PART. The PART and “common performance
measures” have been components of the “budget and performance integration” initiative of
the Bush Administration’s President’s Management Agenda. For more on the
Administration’s efforts concerning common performance measures, see
[http://www.whitehouse.gov/omb/budintegration/common.html]. For more on the PMA, see
CRS Report RS21416, The President’s Management Agenda: A Brief Introduction.
34 For more information about cited chapters of Title 5, United States Code, see CRS Report
RL30795, General Management Laws: A Compendium, coordinated by Clinton T. Brass.
35 For a brief overview of expedited legislative procedures, see CRS Report RS20234,
Expedited or “Fast Track” Legislative Procedures, by Christopher M. Davis. For a more
procedures) would operate as procedural rules of each chamber for consideration of
the implementation bill. Therefore, each house would be able to alter the procedural
rules at any time, pursuant to its constitutional power to change its own rules. The
measure would provide for automatic introduction of the implementation bill in each
chamber and referral to any appropriate committees of jurisdiction. Under the House
version of the CARFA legislation, a committee would be allowed to report the
implementation bill “without amendment.” Under the Senate version, a committee
would be allowed to “review and comment” on the implementation bill and report
it to the Senate, but “may not amend” the implementation bill. If a committee did not
report the implementation bill within 15 calendar days after the bill’s introduction,
the committee would be automatically discharged of further consideration, and the
measure would be placed on the chamber’s appropriate calendar. It would then be
in order for any Member to move that the respective house proceed to consider the
bill. All points of order against this motion to proceed would be waived. If the
motion were defeated, it could be repeated. Various potential dilatory motions
against this motion to proceed would also be prohibited. If the chamber chose to
consider the implementation bill by adopting the motion to proceed, consideration
of the measure would be “locked in.” Debate would be limited to 10 hours, and no
amendment to the implementation bill would be in order. At the conclusion of
debate, a vote on final passage would occur automatically. (This vote could be
preceded by a single quorum call, if requested.) If either house had already received
the implementation bill passed by the other house, the vote on final passage would
occur on the received companion bill.
Authorization of Appropriations. The House version would provide
authorization for appropriations for the fiscal years FY2004 through FY2006,36 and
the Senate version would provide authorization for appropriations for FY2006
Other Review Commission Proposals
Other review commission bills were introduced in the 108th and 109th
Congresses, in addition to the CARFA legislation. Detailed analysis of each of these
measures is outside the scope of this report, but provisions of the bills raise many of
the same issues as the CARFA legislation. These issues may be of interest should
Congress opt to consider review commission legislation in the 109th Congress. None
of these bills was the subject of hearings or reported from committee.
H.R. 1227 (Representative Kevin Brady), the Abolishment of Obsolete
Agencies and Federal Sunset Act of 2003, would have established a Federal Agency
detailed discussion, see CRS Report 98-888, “Fast Track” or Expedited Procedures: Their
Purposes, Elements, and Implications, by Christopher M. Davis.
36 Fiscal years per the language in the bill.
Sunset Commission to review agencies and make recommendations for
administrative and legislative action, and provided that agencies be abolished if not
reauthorized by Congress.37 Among other things, the legislation would have
provided for appointment of commission members by the Speaker of the House and
Senate majority leader, public hearings, and opportunities for public comment.
These general topics, regarding a review commission’s membership and
opportunities for participation in the commission’s work, are discussed later in this
report with regard to the CARFA legislation.
H.R. 1632 (Representative Edward R. Royce), the Government Reform Act of
2003, would have established a Government Reform Commission to review federal
agencies and programs and propose a reorganization plan for federal agencies, which
would have received expedited consideration from the President and Congress in a
process that, according to the bill, was modeled on the BRAC commission statute.
The legislation would have provided for appointment of commission members by the
President. The President would have been required to consult with both majority and
minority leaders in the House and Senate regarding four commission members, and
the President would have been prohibited from appointing more than a certain
number of members from the same political party. The topics of expedited
congressional consideration and commission membership are, as stated above,
discussed in this report with regard to the CARFA legislation.
H.R. 2153 (Representative Richard Gephardt), the Corporate Subsidy Reform
Commission Act of 2003, would have required federal agencies to identify programs
and laws that the agency head determined were “inequitable federal subsidies,”
established a commission to review the agency head determinations, and required the
commission to submit to the President a report with its findings and
recommendations. The President would have been required to review this report and
submit to the commission a report indicating whether the President approved or
disapproved the “entire package” of the commission’s recommendations, including,
in the case of disapproval, his reasons. In the case of disapproval, the commission
would have been required to submit to the President a revised list of
recommendations. If the President approved the package, the President would have
been required to submit the recommendations to Congress, along with supporting
information, for expedited consideration. If the President disapproved a revised
package or did not submit to Congress an approval, the act’s provisions would have
been terminated. The commission’s scope under this legislation would have been
narrower than the CARFA proposal in some respects (e.g., H.R. 2153 included only
some kinds of funding in its scope) but wider in others (e.g., including tax laws, not
just programs and agencies). Appointments to the commission would have been
made by both the President and leadership of Congress, majority and minority. This
legislation was in several respects similar to H.R. 2902 and H.R. 3762, described
H.R. 2902 (Representative Adam Smith), the Corporate Subsidy Reform
Commission Act of 2003, would have required federal agencies to identify programs
and laws that the agency head determined were “inequitable federal subsidies”;
37 For a discussion of “sunset” commission proposals, see CRS Report RL31455, Federal
Sunset Proposals: Developments in the 94th to 107th Congresses, by Virginia A. McMurtry.
established a commission to review the agency head’s determinations; and required
the commission to submit to Congress its findings and recommendations. The
commission’s scope under this legislation would have been narrower than the
CARFA proposal in some respects (e.g., H.R. 2902 included only funds that are
provided by the federal government to corporations and other entities, and excluded
funds that “primarily benefit” public health, safety, homeland security, the
environment, or education) but wider in others (e.g., would have included tax
advantages and potentially other non-appropriated benefits for corporations and other
entities). The legislation also would have provided for appointment of commission
members by congressional leaders and commission meetings open to the public.
Another bill, H.R. 3762 (Representative Adam Smith), the Corporate Subsidy
Reform Commission Act of 2004, was nearly identical to H.R. 2902, but with an
expanded scope of “inequitable federal subsidies” to be reviewed.
H.R. 2903 (Representative Adam Smith), the Program Reform Commission Act
of 2003, would have required federal agencies to identify programs that the agency
head determined were “no longer necessary,” established a commission to review the
agency head determinations, and required the commission to submit to Congress its
findings and recommendations. Under the legislation, the commission’s scope would
have been extended to “programs” in all agencies of the federal government, arguably
including all three branches and other entities, but would have narrowed the scope
to exclude programs that “primarily benefit” public health, safety, homeland security,
the environment, or education. The measure would have also provided for
commission member appointment and open meetings similar to those in H.R. 2902.
Another bill, H.R. 3761 (Representative Adam Smith), the Program Reform
Commission Act of 2004, was nearly identical to H.R. 2903, but with an expanded
scope of “programs” to be reviewed.
H.R. 973 (Representative Adam Smith), the Program Reform Commission Act,
is nearly identical to H.R. 3761 (108th Congress), described above. Changes to the
bill, compared to the prior version from the 108th Congress, include explicitly
establishing the commission in the legislative branch and prohibiting an officer or
employee of a federal agency from serving as a member, among others.
H.R. 974 (Representative Adam Smith), the Corporate Subsidy Reform
Commission Act, is nearly identical to H.R. 3762 (108th Congress), described above.
Changes to the bill, compared to the prior version, include establishing the
commission in the legislative branch and prohibiting an officer or employee of a
federal agency from serving as a member, among others.
H.R. 3276 (Representative Jon Porter), the Government Reorganization and
Improvement of Performance Act, incorporated language from the Bush
Administration legislative proposal described previously in this report, regarding
“results commissions,” with changes. (H.R. 3277, described below, incorporated
language from the same Bush Administration proposal, but instead regarding a
“sunset commission.”) The bill would allow the President to propose the
establishment of results commissions to Congress and to specify the agencies or
programs the proposed commission would study. Congress would consider the
establishment of a results commission under expedited procedures. If Congress
established a results commission, the President would be required to appoint seven
commission members, “who shall serve at the pleasure of the President,” of whom
four would be required to be appointed “in consultation” with certain congressional
leaders. The President would be allowed to submit proposals to the commission to
reorganize agencies or programs in certain “areas where multiple Federal programs
have similar, related, or overlapping responsibilities... .” The commission would
evaluate the proposal, hold public hearings “to the extent appropriate,” and respond
to the President with recommended changes. If the President disapproved the
commission recommendations in whole or in part, the commission would be required
to respond to the President’s “concerns” with any changes in recommendations. The
President would then be allowed to transmit to Congress for expedited consideration
the commission’s final recommendations together with draft legislation to implement
the recommendations.38 The commission would cease to exist within nine months
after it commenced operations. The topics of expedited congressional consideration
and commission membership, among others, are discussed in the present report with
regard to the CARFA legislation.
H.R. 3277 (Representative Kevin Brady), the Federal Agency Performance
Review and Sunset Act, substantially incorporates language from the Bush
Administration legislative proposal described previously in this report, regarding a
sunset commission, albeit with changes. The bill would establish a sunset
commission that, according to a schedule prepared by the President and considered
by Congress under expedited procedures, would review executive branch programs
and agencies according to certain criteria. Apparently to provide assistance in
crafting the President’s schedule, the Director of the Congressional Research Service,
with the assistance of the Comptroller General, would be required to prepare and
update an inventory of all executive branch agencies and programs. The President
would be required to appoint seven commission members, “who shall serve at the
pleasure of the President,” of whom four would be required to be appointed “in
consultation” with certain congressional leaders. The commission would be required
to consider recommendations made by the President and would be allowed to
consider “agency or program evaluations and assessments,” including those
undertaken by OMB. The OMB “assessments” would be required to evaluate several
aspects of programs. These aspects are identical to those enumerated in H.R. 185
(Program Assessment and Results Act), which would require OMB program
assessments modeled on the Bush Administration’s PART.39 The commission would
be required to hold public hearings “to the extent appropriate,” and report annually
to the President with recommendations and legislation needed to carry out its
recommendations. Agencies and programs would be abolished two years after the
date that the President submitted the report to Congress, unless the agency or
program were reauthorized by law after the President’s submission, or unless the
38 Some of these provisions appear similar to the multi-stage process for reviewing
recommendations under the BRAC legislation.
39 For discussion of the PART, see CRS Report RL32663, The Bush Administration’s
Program Assessment Rating Tool (PART). For discussion of H.R. 185, see CRS Report
RL32164, Performance Management and Budgeting in the Federal Government: Brief
History and Recent Developments, by Virginia A. McMurtry.
two-year period were extended by an additional two years, by law. The commission
would terminate on December 31, 2026.
H.R. 3282 (Representative Kevin Brady), the Abolishment of Obsolete
Agencies and Federal Sunset Act of 2005, is nearly identical to H.R. 1227 (108th
Congress), described previously. However, among other differences from the prior
version, the current bill would not authorize the commission to make
recommendations for appropriation levels.
S. 1399 (Senator Craig Thomas), “The Government Reorganization and
Program Performance Improvement Act of 2005,” substantially incorporates
language from the Bush Administration legislative proposal described previously,
regarding both results commissions and a sunset commission, albeit with changes.
The bill’s provisions relating to results commissions are very similar, but not
identical, to those in H.R. 3276 (e.g., there are several structural and technical
differences in the language). The bill’s provisions relating to a sunset commission
are very similar, but not identical, to those in H.R. 3277 (e.g., certain regulations
would be exempt from potential abolishment under the act).
Perspectives on CARFA from the 108th Congress:
Senate Hearing on Proposed CARFA Act
A number of potential issues, advantages, and disadvantages regarding the
proposed CARFA legislation were highlighted during the hearing for S. 1668, 108th
Congress, before the Senate Committee on Governmental Affairs, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the District of
Columbia. No hearings on the companion House bill, H.R. 3213, were held. In the
109th Congress, the House version of the CARFA legislation, H.R. 2470, is identical
to the Senate version from the 108th Congress, S. 1668.
On May 6, 2004, the subcommittee convened a hearing on S. 1668. In his
opening statement, Chairman George Voinovich said:
[The CARFA Act] focuses our attention on an important question facing
Congress as we attempt to allocate scarce Federal resources. How do we identify
and reform or eliminate wasteful, ineffective, and outdated government
The biggest problem we must overcome in this effort is that almost every
program in the Federal Government, no matter how ineffective or spendthrift, has
its own core of supporters.... It would be wishful thinking, at best, to believe we
can restructure or shut down large numbers of programs across multiple Federal
agencies without provoking a firestorm of opposition. Nevertheless, that task
must be undertaken if we are to have any hope of providing taxpayers the most
effective and efficient government possible. That is the goal of the legislation40
before us today.
Senator Voinovich also cited work done by the General Accounting Office (GAO),
which identified “areas of overlap and fragmentation” among federal agencies and41
In a prepared statement, Senator Brownback outlined the CARFA proposal,
saying that “once a program comes into existence, experience tells us that the
program is here to stay — whether it is successful, unsuccessful, or outdated.”
Senator Brownback also displayed FY2004 and FY2005 scores from the Bush
Administration’s PART in a “report card” for federal agencies,42 and said that
“examples of government programs that have failed to address effectively the
problem they targeted abound.” Furthermore, Senator Brownback’s prepared
statement argued that to
address the problem of eliminating well-intended, though ineffective or outdated
government programs ... we must learn from both our past failures and successes.
... I believe we have had one process that has been successful in the realm of
program-elimination and prioritization of spending — the Base Realignment and
Closure Commission (BRAC) ... with the BRAC commission submitting its
recommendations to Congress for the realignment and closure of military bases,
[and] the Congress taking an up-or-down vote to accept or reject the plan as a
whole.... [W]ith this in mind, I specifically modeled the [CARFA Act] after
Whereas the BRAC Commission examined military bases and the
Department of Defense (DOD), CARFA would review federal agencies, and
programs within agencies. The scope of this commission would be directed
toward non-DOD discretionary agencies and programs ... roughly, a modest
quarter of federal spending. I see this as a reasonable first step. If CARFA is
40 Opening Statement of Sen. George Voinovich, Senate Subcommittee Hearing on CARFA,
41 The cited GAO analysis can be found in U.S. General Accounting Office, Major
Management Challenges and Program Risks: A Governmentwide Perspective, GAO/OCG-
99-1, Jan. 1999, pp. 13-14. A subsequent listing of GAO’s overall analysis is available in
U.S. General Accounting Office, Managing for Results: Barriers to Interagency
Coordination, GAO/GGD-00-106, Mar. 2000, p. 5. In the later analysis, GAO labeled the
areas only as potential areas of fragmentation and overlap. The General Accounting Office
was renamed the Government Accountability Office with enactment of the GAO Human
Capital Reform Act of 2004, P.L. 108-271, on July 7, 2004. This report will use the
previous name when citing sources published under that name.
42 For the report card, see [http://brownback.senate.gov/OriginalDocs/fedgovtreportcard.
pdf]. For more on the PART, see CRS Report RL32663, The Bush Administration’s
Program Assessment Rating Tool (PART).
successful, future Congresses may choose to authorize new rounds, as there have43
been multiple rounds of BRAC.
Senator Brownback’s prepared statement also addressed what he said were two
Some have raised concerns that CARFA would amount to the Congress
delegating its authority. I answer this concern by noting that CARFA is an
appropriate exercise of Congressional oversight and authority. Nothing
substantive happens unless the Congress passes the Commission’s proposed
Others have concerns over the expedited process for CARFA, because
amendments at either the committee level or on the Floor are not in order. I
answer this concern by noting that the only chance we have for successfully
eliminating government waste through CARFA is a straight up-or-down vote.
BRAC was successful because members had to vote on the whole package.... In
the case of CARFA, if members could offer amendments to exempt specific44
programs or agencies, CARFA will not be successful.
Echoing some of the same themes earlier in the year, the CARFA legislation’s House
sponsor, Representative Tiahrt, had offered the following observations in a “U.S.
Capitol Update” dated March 12, 2004, on his website:
Many members of Congress have recognized the need for an independent body
with the appropriate resources to review the federal bureaucracy and identify
programs that are duplicative, ineffective or inefficient. By giving Congress an
up-or-down vote on a single package, it will eliminate a great deal of the political
wrangling that usually accompanies cutting a government program. Frankly, it
also recognizes the fact that members of Congress simply do not have the time
or resources to delve into the details of the federal government and provide the45
type of accountability we would prefer.
43 Prepared statement of Sen. Brownback, Senate Subcommittee Hearing on CARFA, pp.
27-30. In a lecture published earlier by the Heritage Foundation, Sen. Brownback stated that
... [t]he types of program to be reviewed would include (among many others) the
National Endowment for the Arts (NEA), and the National Endowment for the
Humanities (NEH), and the Occupational Safety and Health Administration
(OSHA). Programs excluded from the commission’s review include the DOD
and entitlement (or mandatory spending) programs such as Social Security, the
Federal Deposit Insurance Corporation (FDIC), the Federal Direct Student Loan
Program, and Medicaid Grants to States.
Sen. Brownback also indicated that “the Senate Leadership has indicated support of the
CARFA Act.” (Sen. Sam Brownback, “A Strategy to Eliminate Wasteful Federal
Spending,” Heritage Lectures, no. 806 (Washington: Heritage Foundation, Oct. 28, 2003),
pp. 2-3, available at [http://www.heritage.org/Research/Budget/HL806.cfm].)
44 Prepared statement of Sen. Brownback, Senate Subcommittee Hearing on CARFA, p. 31.
45 See [http://www.house.gov/tiahrt/communications/capitol_update/2004/03-12-2004.htm].
OMB’s deputy director for management, Clay Johnson III, expressed support
at the hearing for both Congress and the executive branch systematically to assess
“program performance and cost” as well as to “[work] with [Congress] to craft a
sensible approach to ensure that a focus on results becomes a habit ... and
irreversible.”46 Deputy Director Johnson also stated that “[r]equiring by statute that
program performance and cost be systematically assessed would help accomplish
this.”47 However, in representing the Administration, he did not explicitly endorse
the bill or the idea of a commission. During the Senate hearing, Deputy Director
Johnson said the Bush Administration was willing to establish a “formal partnership”
with Members of Congress who are interested in evaluating and streamlining
programs.48 He also testified that the Bush Administration supported expedited
congressional consideration of proposals to realign or eliminate certain programs, and
that the proposed CARFA should “rely on PART information [and] rely on
evaluations from the Executive Branch, from OMB or the agencies” when
recommending programs for realignment or elimination. In addition, if the
commission wished, it could “challenge some of [the PART] assessments ... and add
fresh perspective to it.”49 In that context, Senator Voinovich spoke about a need to
use nonbiased criteria in formulating the commission recommendations. Deputy
Director Johnson added that OMB has made PART scores and analysis publicly
available, because “[t]hese evaluations have to be able to stand the test of public
46 Prepared statement of OMB Deputy Director for Management Clay Johnson III, Senate
Subcommittee Hearing on CARFA, p. 35.
47 Ibid. In a previous House hearing, OMB Deputy Director for Management Johnson
expressed support for legislative efforts that would require performance reviews of federal
programs. For media coverage of the hearing, see Amelia Gruber, “OMB Deputy Supports
Performance Reviews for Federal Programs,” GovExec.com, Feb. 11, 2004, available at
[http://www.govexec.com/dailyfed/0204/021104a1.htm]. See also U.S. Congress, House
Committee on Government Reform, Subcommittee on Government Efficiency and Financial
Management, The President’s Management Agenda — Are Agencies Getting to Green?,thnd
hearing, 108 Cong., 2 sess., Feb. 11, 2004, H.Hrg. 108-155 (Washington: GPO, 2004),th
p. 12. Later in the 108 Congress, Reps. Todd Platts and Tom Davis introduced H.R. 3826,
the Program Assessment and Results (PAR) Act, which was reported favorably, as amended,
with a report and minority views, by the House Committee on Government Reform on Oct.
8, 2004. The measure would have created a statutory process resembling the PART. A
companion Senate bill (S. 2898) was introduced on Oct. 5, 2004, by Sen. Peter Fitzgerald.th
Similar legislation was introduced in the 109 Congress. For discussion of the history
behind this proposal and current developments, see CRS Report RL32671, Federal Program
Performance Review: Some Recent Developments, by Virginia A. McMurtry.
48 Testimony of OMB Deputy Director for Management Clay Johnson III, in Senate
Subcommittee Hearing on CARFA, p. 9.
49 Ibid., pp. 9, 13. See also Amelia Gruber, “OMB Backs Congressional Effort to Review
Programs,” GovExec.com, May 7, 2004, available at [http://www.govexec.com/dailyfed/
50 Testimony of OMB Deputy Director for Management Clay Johnson III, in Senate
Citizens for a Sound Economy Testimony
Former House Majority Leader Richard K. Armey, co-chairman of Citizens for
a Sound Economy (which subsequently merged with Empower America to form
FreedomWorks), testified in favor of the proposed CARFA Act at the Senate
hearing.51 Mr. Armey stated, “Washington has a spending problem,” and “[the
CARFA Act] aims to find federal waste in a systematic fashion, guided by a clear and
uncontroversial set of principles, and eliminate it.” He also suggested that the
CARFA proposal could be broadened to include all discretionary spending.52 Mr.
Armey cited a GAO report that, in view of several trends, concluded, “a fundamental
review is needed to ensure relevant and sustainable government programs.”53 In
addition, Mr. Armey compared the proposed CARFA Act favorably with BRAC.
CARFA, like BRAC, would take parochial politics out of the budget process and
make members decide in an up or down vote whether they wanted to realign and
streamline the use of taxpayer’s dollars going to duplicative, wasteful or
irrelevant agencies. In effect, you would ask members of Congress to take a
clear up or down vote on waste primarily benefitting other districts, effectively54
turning the politics of pork upside down.
Mr. Armey also testified about insulating the commission’s work from politics.
Subcommittee Hearing on CARFA, p. 13. As noted in CRS Report RL32663, The Bush
Administration’s Program Assessment Rating Tool (PART), some stakeholders and
observers have disagreed about whether or not the PART stands the test of scrutiny. The
Administration has said the PART is objective and non-ideological in evaluating programs,
but other observers have said the PART is subjective, invalid, or may have been used for
political purposes. OMB published PART scores and analysis in the President’s proposed
budgets for FY2004, FY2005, and FY2006.
51 According to FreedomWorks’ website at [http://www.freedomworks.org], the organization
has “a legal structure that includes a 501c(3) [organization, under the Internal Revenue
Code], a 501c(4), a 527, a federal [political action committee (PAC)], and various state
PACs,” and works for “lower taxes, less government, and more economic freedom.” For
more on 501(c)(3) organizations, see CRS Report RS21892, Application Process for Seeking
52 Prepared statement of Richard K. Armey, Senate Subcommittee Hearing on CARFA, p.
53 The cited report is U.S. General Accounting Office, Major Management Challenges and
Program Risks: A Governmentwide Perspective, GAO-03-95, Jan. 2003, p. 8. GAO’s report
went on to state that “[s]uch a reassessment must include both mandatory and discretionary
spending and tax preferences, ... [and that] ... any reassessment of federal missions and
strategies should include an examination of the entire set of tools that the federal
government can use to address national objectives [including] direct spending, loans and
loan guarantees, tax expenditures, and regulations” (pp. 8-9).
54 Prepared statement of Richard K. Armey, Senate Subcommittee Hearing on CARFA, p.
52. Mr. Armey has sometimes been referred to as “father” of BRAC in acknowledgment
of his principal authorship of the base closure statute.
For the [BRAC-like] process to work, then, you must have professional
information, professional data, and serious hard-working members of the
commission that will not allow politics to impinge on their thinking. And
Congress needs the assurance that it will not be political.... [T]he most important
thing you must have [in this legislation] is insulation from politics so that the
members will not be concerned about having political reprisals taken against
them, the need of a professional criteria and professional judgment by a serious55
hard-working commission that commands the respect of the members.
Progressive Policy Institute Testimony
The hearing’s final witness, Paul Weinstein Jr. of the Progressive Policy
Institute (PPI), testified that “[t]he executive branch needs a top-to-bottom overhaul”
and that “[PPI] has long advocated creating a commission to reinvent government
and eliminate corporate welfare.”56 Furthermore, Mr. Weinstein stated:
Our organization has long believed that the best way to achieve comprehensive
reform of the executive branch is to combine the commission function with a
mechanism to require Congress to vote on its recommendations. Senator
Brownback’s CARFA legislation would provide for this type of commission....
However, I believe ... S. 1668 needs to be modified in several key aspects.
Mr. Weinstein outlined four themes for modifying the legislation. First, under the
heading “Bipartisanship,” he argued that the CARFA Act should follow the BRAC
model more closely by requiring the members to be appointed by the President by
and with the advice and consent of the Senate and composed of equal numbers of
Republicans and Democrats.57 Second, under the heading “Expanded Scope,” Mr.
Weinstein recommended including all executive branch agencies, programs, and
“targeted tax incentives” in the commission’s scope of review. Third, under the
heading “Multiple Rounds,” he recommended that the commission be allowed to
submit more than one round of recommendations, in order to provide the proposed
CARFA with “needed flexibility” in the face of complicated work, and to build
public support and increase the likelihood of success. Fourth and finally, under the
headline “Additional Criteria,” Mr. Weinstein recommended including additional
criteria for the commission to consider (in addition to the bill’s “duplicative,”
55 Testimony of Richard K. Armey, in Senate Subcommittee Hearing on CARFA, pp. 17-18.
56 Prepared statement of Paul Weinstein Jr., ibid., p. 54. According to PPI’s website at
[http://www.ppionline.org], PPI “is a research and education institute that is a project of the
Third Way Foundation Inc., a nonprofit corporation organized under section 501(c)(3) of
the Internal Revenue Code,” whose “mission is to define and promote a new progressivest
politics for America in the 21 century.”
57 Mr. Weinstein cited the Defense Base Closure and Realignment Act of 1990 (P.L. 101-
with the Speaker of the House of Representatives concerning the appointment of two
members, the majority leader of the Senate concerning two members, and each of the
minority leaders of the House of Representatives and the Senate, respectively, regarding one
member (for a total of six consultations). The BRAC framework did not explicitly require
that the commission be composed of equal numbers of Democrats and Republicans, but did
require Senate confirmation of all members.
“wasteful or inefficient,” and “outdated, irrelevant, or failed” standards). These
criteria would include restructuring agencies into mission-focused departments,
simplifying programmatic regulations, eliminating corporate subsidies “that do not
serve the public interest,” and directing the commission to make no recommendations
that “it believes might negatively impact the health, safety, and security of the
Potential Issues for Congress
Several issues and options may be of interest to Congress if the CARFAth
legislation receives further consideration during the 109 Congress, or if Congress
opts to consider alternative approaches to reviewing executive branch operations and
making improvements. For ease of presentation, these items are grouped into three
!potential issues regarding a review commission;
!potential success factors for a commission; and
!potential alternatives or complements to a review commission.
Potential Issues Regarding a Review Commission
Congress and the President have a variety of policy and procedural tools that can
help them assess government operations, organization, and performance. One such
tool that has been used occasionally by Congress has been the statutorily created
review commission. During the 20th century, Congress and the President established
a number of review commissions that were intended to promote improved efficiency,
effectiveness, accountability, and transparency in the executive branch. With varying
emphases, these commissions typically reviewed executive branch organization,
operations, and management, as well as associated public policies. A detailed
assessment of each of these efforts is beyond the scope of this report.58 However,
characteristics of past review commissions can highlight potential points of contrast
with the CARFA legislation or other review commission proposals. In particular, the
present report frequently highlights some of the characteristics of two commissions
58 In general, assessments of the results of these commissions have been mixed. For detailed
background and discussion, see CRS Report RL31446, Reorganizing the Executive Branchth
in the 20 Century: Landmark Commissions, by Ronald C. Moe; Peri E. Arnold, Making thend
Managerial Presidency: Comprehensive Reorganization Planning 1905-1996, 2 ed.
(Lawrence, KS: University Press of Kansas, 1998); and Paul C. Light, The Tides of Reform:
Making Government Work, 1945-1995 (New Haven, CT: Yale University Press, 1997). For
discussion of management reform from a legislative perspective, see CRS Report RL32388,
General Management Laws: Major Themes and Management Policy Options, by Clinton
T. Brass; and David H. Rosenbloom, Building a Legislative-Centered Public
Administration: Congress and the Administrative State, 1946-1999 (Tuscaloosa, AL:
University of Alabama Press, 2000). For a discussion of partly related “sunset” commission
proposals, which typically call for systematic evaluation and, in addition, an action-forcing
mechanism that carries the ultimate threat of program termination, see CRS Reportthth
RL31455, Federal Sunset Proposals: Developments in the 94 to 107 Congresses, by
Virginia A. McMurtry.
— the Hoover Commission (which operated from 1947 to 1949)59 and the BRAC
commission established under P.L. 101-510 (three of which operated from 1991 to
Congress has many options to weigh if it chooses to consider a commission
proposal instead of, or along with, other alternatives. (Three alternatives or
complements are discussed later in this report.) The following subsections of the
report analyze six types of issues that Congress might consider in the context of a
commission proposal. As noted earlier, they are:
!the commission’s membership;
!the scope of the commission’s review and recommendations;
!definitions of key terms;
!standards and criteria for decision making;
!expedited congressional consideration of the commission’s
!transparency and participation.
Each subsection cites some of the potential implications, advantages, and
disadvantages that might accompany a number of choices that Congress could make,
using the CARFA legislation’s provisions (from H.R. 2470 and S. 1155, 109th
Congress) as a point of comparison.
Commission Membership. When considering the advantages and
disadvantages of a review commission proposal, several topics relating to the
commission’s membership may be of interest to Members of Congress and
stakeholders. For the CARFA legislation, these include how the membership is to
be determined, coverage of the Federal Advisory Committee Act, and coverage of
conflict of interest laws. In addition, the breakdown of a CARFA commission’s
membership between federal and non-federal members would have significant
implications for the coverage of these laws and the commission’s operations.
Appointment and Removal. One of the key parameters of a statutorily
created commission is how its membership is to be determined. Under the House
version of the CARFA legislation, H.R. 2470, all 12 commission members would be
appointed by the President, thus giving the President considerable influence over the
commission’s views, activities, and recommendations. Proponents might view this
59 P.L. 80-162, 61 Stat. 246. This was the first of two Hoover Commissions. All references
in this report are to the first Hoover Commission. The second Hoover Commission operated
from 1953 to 1955. For more information, see CRS Report RL31446, Reorganizing theth
Executive Branch in the 20 Century: Landmark Commissions.
60 P.L. 101-510, 104 Stat. 1808. For more about the BRAC commissions, see CRS Report
Lockwood and George Siehl. President Ronald Reagan’s Grace Commission, formally
known as the Private Sector Survey on Cost Control, was another prominent review
commission. However, it was not created by statute and involved Congress less than many
statutorily created commissions. For more information, see CRS Report RL31446,th
Reorganizing the Executive Branch in the 20 Century: Landmark Commissions.
arrangement as giving a President necessary flexibility to exert influence over the
commission’s views, while ensuring Congress would still be able to reject the
commission’s recommendations. Critics, however, might see this provision as giving
too much legislative power to a President, especially in view of the legislation’s
provisions for expedited congressional consideration (including a prohibition on
Senate filibusters)61 and the legislation’s potential policy implications for a large set
of federal agencies and programs. By contrast, the Senate version of the CARFA
legislation, S. 1155, would provide that 8 of the commission’s 12 members be
appointed by House and Senate leaders (2 each by the Speaker and minority leader
in the house, and 2 each by the Senate majority and minority leaders), and the
remaining 4 by the President. Proponents might view this arrangement as a way to
retain congressional control over the commission, as well as make the commission
at least somewhat bipartisan. On the other hand, critics might argue that if a
President and congressional leaders were to appoint members only from their
respective political parties, the CARFA would always have a two-to-one ratio
between parties, because the President’s appointees would all go to one party. In
addition, a President might prefer to have appointing authority over all commission
members rather than only one-third of them.
Another potential issue relates to removal power. If the President is given
statutory authority to appoint someone to a particular statutorily created office, the
appointee holds that office at the pleasure of the President (even for a specified term
of years) unless the statute expressly limits the President’s removal power, or the
nature of the duties given to the officeholder is solely adjudicatory. Therefore, for
presidentially appointed commission members under either the House or Senate
version of the CARFA legislation, unless “for cause” removal protection were added
for members, the President could remove members at will from the commission and
appoint new members.62 Furthermore, if the presidency changed hands during the
life of the CARFA, the new President could remove the commission’s members and
replace them with appointees of his or her own. This removal power could make the
commission’s membership, activities, and recommendations responsive to the needs
of the President, but, on the other hand, could disrupt the commission’s activities and
be seen as undermining its independence. Under the Senate version of the CARFA
legislation, the Speaker of the House, the House minority leader, the Senate majority
leader, and the Senate minority leader would each be required to appoint two
members to the commission. Each congressional leader would also have authority
to remove at will a commission member whom he or she appointed, unless “for
cause” removal protection were added for commission members.63
Other prominent review commissions — for example, the Hoover Commission
and the BRAC commissions established under P.L. 101-510 — called for alternative
means of determining commissions’ memberships. The Hoover Commission’s
61 Examples of expedited consideration include committee discharge after 15 calendar days,
a 10-hour limitation for debate, and prohibition against amendment.
62 The long-established rule is that in the face of statutory silence, the President’s power to
remove is incident to his power to appoint. See Carlucci v. Doe, 488 US 93, 99 (1988);
Myers v. US, 272 US 52, 161 (1926); and Shurtleff v. US, 189 US 311, 318 (1903).
63 See, for example, ibid.
statute, for example, required equal numbers of Democrats and Republicans and
hybrid appointment by both the President and Members of Congress. For some
observers, the Hoover Commission framework might be seen as advantageous,
because it could be viewed as more bipartisan. Under that framework, however,
congressionally appointed commission members are appointed by majority Members
of each chamber, potentially without any involvement of minority Members. On the
other hand, critics might argue that a membership selected by both majority party and
minority party Members could prevent the commission from coming to consensus or
generating an integrated or consistent package of recommendations.
The BRAC commission approach to appointments, by contrast, required Senate
confirmation of the President’s appointments as well as consultations with majority
and minority leadership in the House and Senate. Supporters of the BRAC approach
might argue that the approach lessens the appearance and likelihood of politicization
of the commission’s recommendations by giving Senators some ability to influence
the President’s nominations (e.g., or else the President might risk subsequent
filibusters of the nominations),64 and holds the President’s legislative power in check.
However, the President can circumvent the need for Senate confirmation of a
commission’s members by using recess appointments.65 As demonstrated in the 2005
BRAC round, President George W. Bush took this action on April 1, 2005, when he
announced recess appointments of all nine BRAC commission members.66
Opponents of the BRAC approach might maintain that it constrains the ability of the
President to appoint nominees flexibly and, indirectly through these nominees,
constrains the President’s ability under a CARFA Act to recommend his preferred
policies to Congress.
FACA. The CARFA legislation is silent on whether the commission would be
considered an “advisory committee” that is covered by the Federal Advisory67
Committee Act (FACA; 5 U.S.C. Appendix 2; 86 Stat. 700). If the legislation were
64 See CRS Report RL30360, Filibusters and Cloture in the Senate, by Richard S. Beth and
Stanley Bach, for discussion of filibusters and the role they have played since 1980 in
ensuring at least a minimal degree of bipartisan acceptance. For additional context, see also
CRS Report RL30850, Minority Rights and Senate Procedures, by Stanley Bach; CRS
Report RS20801, Cloture Attempts on Nominations, by Richard S. Beth; and CRS Report
RL31948, Evolution of the Senate’s Role in the Nomination and Confirmation Process: A
Brief History, by Betsy Palmer.
65 For more information, see CRS Report RS21308, Recess Appointments: Frequently Asked
Questions, by Henry B. Hogue; and CRS Report RL33009, Recess Appointments: A Legal
Overview, by T.J. Halstead.
66 See CRS Report RL32216, Military Base Closures: Implementing the 2005 Round, by
David E. Lockwood.
67 Statutes that create review commissions often contain language that expressly says
whether FACA shall, or shall not, apply to the commission. See, for example, Sec. 606 of
the legislation that established the National Commission on Terrorist Attacks Upon the
United States (commonly referred to as the 9/11 Commission ; P.L. 107-306; 116 Stat. 2408,
at 2412), which stated that FACA shall not apply to the 9/11 Commission. For discussion
of FACA, see CRS Report RL30260, Federal Advisory Committees: A Primer, by Stephanie
enacted, the issue of FACA coverage might have implications regarding the
commission’s membership, because FACA requires that an advisory committee’s
membership be “fairly balanced in terms of points of view represented” (Section 5(b)
of FACA). FACA defines a covered “advisory committee” to include any committee
or similar group that is (1) established by statute or organization plan, (2) established
or utilized in the interest of obtaining advice or recommendations for the President
or one or more federal agencies, and (3) not composed wholly of full-time federal
officers or employees.68 Because the commission would submit its recommendations
primarily to Congress (see Section 3(b) of the CARFA legislation), not to the
President or an agency, it appears a CARFA might not fall within FACA’s definition
of “advisory committee” and therefore might not be covered by FACA. However,
Section 3(f) of the legislation calls for a “report,” containing the commission’s plan
(with recommendations) and proposed legislation, to be submitted to both the
President and Congress.69 Therefore, unless a court were to address this question, it
is not clear whether the commission would be covered by FACA. Some observers
might prefer that a CARFA, if established, not be covered by FACA, in order to
allow appointment of members without the statutory obligation to appoint a
commission that is “fairly balanced” and therefore give flexibility to appoint
members with the views, skills, and backgrounds an appointing authority wishes.
However, other observers might criticize this approach as one too easy to politicize
and instead prefer that FACA cover the commission, in order to help ensure that a
balance of views is present during the commission’s work.
Conflict of Interest Laws and Regulations. Conflict of interest matters
might also be of concern to some observers, regarding the CARFA legislation. In
general, certain government officials in the executive and legislative branches must
comply with conflict of interest laws and regulations (18 U.S.C. §§ 202-209; 5
C.F.R. § 2635) relating to financial disclosure, disqualification (recusal), and
Smith; and CRS Report RL30795, General Management Laws: A Compendium, entry for
“Federal Advisory Committee Act” in section I.G. of the report, also by Stephanie Smith.
68 Sec. 3 of FACA. For discussion, see Administrative Conference of the United States,
Federal Administrative Procedure Sourcebook, 2nd ed. (Washington: GPO, 1992), pp. 571-
575; Harry A. Hammitt, David L. Sobel, and Mark S. Zaid, eds., Litigation Under the
Federal Open Government Laws 2002 (Washington: EPIC Publications, 2002), p. 362; andrd
Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 3 ed. (Chicago: American Bar
Association, 1998), pp. 125-127. If the CARFA were composed wholly of full-time federal
officers and employees, however, FACA would not cover the proposed commission.
69 This provision’s inclusion of the President as a recipient of the commission’s
recommendations appears to be a matter of comity between the branches, because the
legislation appears designed to provide information for congressional consideration and does
not task the President with any formal role in considering the commission’s
recommendations. That said, the legislation also does not prohibit the President’s
involvement in formulating, influencing, or acting upon the commission’s recommendations,
either directly by influencing commission members or indirectly through the President’s
appointment and removal powers.
divestiture.70 The CARFA legislation is silent with regard to the commission’s
location in the executive or legislative branch. The legislation also does not say
directly whether non-federal CARFA members (i.e., those who are not officers or
employees of the federal government) would nevertheless be considered officers or
employees of the federal government for purposes of conflict of interest laws. Even
so, based on the legislation’s provisions, it appears that non-federal commission
members would not be considered officers or employees of the federal government
for purposes of conflicts of interest. For example, non-federal members of the
commission would not be compensated; Section 5(a) of the legislation makes explicit
reference to some CARFA members potentially not being officers or employees of
the federal government; and Section 5(c)(3)(B) states that commission members
would not be federal employees under several provisions of Title 5, U.S. Code. It
appears these members would therefore not be subject to any federal conflict of
interest laws or regulations. However, if CARFA were deemed an advisory
committee under FACA, or if commission members were deemed federal employees
or “special government employees” (SGEs), then the conflict of interest provisions
would probably apply.71
Even if the conflict of interest laws and regulations were deemed not to apply
to non-federal commission members, some observers might still raise conflict of
interest concerns. Previously, for example, President Ronald Reagan’s Private Sector
Survey on Cost Control (popularly known as the Grace Commission) was established
by executive order on June 30, 1982, as an advisory committee under FACA.72 The
commission’s activities were sometimes controversial. The commission was funded
and staffed by the private sector, with 161 presidentially appointed members of an
executive committee (mostly chief executive officers of corporations) and
approximately 2,000 staff over the commission’s life, who were loaned from their
companies and organizations.73 Some Members of Congress and the public
expressed concerns about potential conflicts of interest, because some members of
the commission were assigned to review agencies that, in turn, regulated the
members’ companies.74 Similar concerns might again be voiced if a CARFA were
70 See CRS Report RL31822, Entering the Executive Branch of Government: Potential
Conflicts of Interest with Previous Employments and Affiliations, by Jack Maskell. For
example, members of the 9/11 Commission were subject to financial disclosure
71 For more information, see U.S. Office of Government Ethics, “Members of Federal
Advisory Committees and the Conflict-of-Interest Statutes,” memorandum from J. Jackson
Walter, Director, to Heads of Departments and Agencies of the Executive Branch, Advisory
Opinion 82 x 22, July 9, 1982, available at [http://www.usoge.gov/pages/advisory_opinions/
1982opinions.html]; and U.S. Office of Government Ethics, “SGEs and Representatives on
Federal Advisory Committees,” memorandum from Marilyn L. Glynn, Acting Director, to
Designated Agency Ethics Officials, DO-04-022, July 19, 2004, available at [http://
www.usoge.gov/ page s/daeogr ams/2004daeolist.html ].
72 Executive Order 12369, “President’s Private Sector Survey on Cost Control in the Federal
Government,” 3 C.F.R. 1983 Comp., pp. 190-192.
73 CRS Report RL31446, Reorganizing the Executive Branch in the 20th Century, pp. 84-85.
74 For example, see David Burnham, “Questions Rising Over U.S. Study and Role of
established, because commission members who have financial, political, or other
interests in making certain recommendations for Congress’s expedited consideration
could potentially be appointed.
Implications of Composition of Federal and Non-Federal Members.
If the CARFA legislation were enacted, the composition of commission members
between federal and non-federal individuals would have significant implications for
the coverage of FACA and conflict of interest laws and, possibly, for perceptions of
the commission’s recommendations. Following from the preceding analysis, three
scenarios present themselves:
!If all CARFA members were federal (i.e., officers or employees of
the federal government), FACA would not cover the commission,
but commission members would be subject to conflict of interest
statutes and regulations.
!If all CARFA members were non-federal, FACA might or might not
cover the commission, and it appears the commissioners would not
be subject to conflict of interest laws and regulations.
!If a CARFA commission’s membership were mixed between federal
and non-federal members, FACA might or might not cover the
commission, and some members would be subject to conflict of
interest laws, while others apparently would not.
Each of the three scenarios would have implications for the operations of the
commission and also, perhaps, for how the commission’s recommendations might
be perceived by Congress and the public. However, the specific perceptions would
likely differ depending on a particular observer’s views about FACA, the conflict of
interest laws, other provisions of the CARFA legsilation (including its scope and
provisions for expedited congressional consideration), and potential alternative
approaches to the questions a review commission had been charged to help address.
Scope of Commission Review and Recommendations. Previous
review commissions have had varied scope, ranging from narrow (e.g., for the BRAC
commissions, closure and realignment of military installations) to broad (e.g., for the
Hoover Commission, operations, organization, and policy of the entire executive
branch). If the House version of the CARFA legislation were enacted, the scope
Company Executives,” New York Times, Sept. 28, 1982, p. A1. See also U.S. Congress,
Senate Committee on Governmental Affairs, Oversight of the Implementation of the Gracethst
Commission Report, hearing, 99 Cong., 1 sess., May 9, 1985, S.Hrg. 99-159 (Washington:
GPO, 1995), pp. 81-82. More recently, President George W. Bush’s first nominee for
chairman of the 9/11 Commission, former Secretary of State Henry A. Kissinger, resigned
from the 9/11 Commission after the Senate Ethics Committee said in a letter that the
commission’s members must file financial disclosure reports. For press coverage, see Dan
Eggen, “Kissinger Quits Post As Head of 9/11 Panel; Withdrawal a Setback for White
House,” Washington Post, Dec. 14, 2002, p. A1. For the Senate Ethics Committee letter,
see [http://ethics.senate.gov/downloads/pdffiles/wh121202.pdf]. According to the press
report, a senior Bush White House official said that “onerous disclosure demands by
Congress provide a ‘disincentive for good people to serve in government.’”
would be executive branch agencies and programs, excluding DOD, entitlement
programs, and agencies that solely administer entitlement programs. If the Senate
version were enacted, the scope would be all executive branch agencies (including
the EOP) and programs.
In the House version, the CARFA-covered programs are typically referred to as
“non-defense discretionary” programs. In FY2003, they constituted 19.5% of total
federal outlays, or $420.5 billion ($391.1 billion in inflation-adjusted, FY2000
dollars).75 The corresponding actual figures for FY2004 were 19.3% of total federal
outlays, or $441.4 billion ($401.3 billion in FY2000 dollars); and estimates for
FY2005 were 18.8% of total federal outlays, or $466.4 billion ($412.2 billion in
FY2000 dollars). According to the President’s FY2006 budget proposal, non-defense
discretionary funding was estimated to decline to 15.5% of total outlays by FY2010,
or $469.5 billion ($363.9 billion in FY2000 dollars, an 11.7% cut in funding
compared to the FY2005 level). According to Senate hearing testimony from the
108th Congress, regarding S. 1668, the proposed CARFA Act’s scope was explicitly
worded to address non-defense discretionary agencies and programs “as a reasonable
first step.”76 Were an eventual CARFA deemed successful by Congress, Senator
Brownback suggested future rounds could be authorized. However, Senator
Brownback’s bill in the 109th Congress, S. 1155, expanded the scope, apparently in
response to the hearing on S. 1668 in the previous Congress.
Potential advantages of an incremental approach — e.g., beginning with non-
defense discretionary programs — might be to make a commission’s workload more
manageable and to build the framework’s credibility for potential future “rounds,”
as with the BRAC commissions. However, some testimony on the CARFA
legislation suggested that the legislation’s scope be expanded to include all executive
branch agencies and programs, as well as “targeted tax incentives,”77 which are often
called “tax expenditures.”78 According to one analysis, when tax expenditures are
75 See U.S. Office of Management and Budget, Budget of the United States Government,
Fiscal Year 2006, Historical Tables (Washington: GPO, 2005), pp. 125-127. OMB
subsequently corrected constant dollar amounts in the PDF version of this volume, available
at [http://www.whitehouse.gov/omb/budget/fy2006/pdf/hist.pdf]. For figures from the
Congressional Budget Office, see U.S. Congressional Budget Office, Budget and Economic
Outlook: Fiscal Years 2006-2015, Jan. 2005, Appendix F, p. 140. For a discussion of non-
defense discretionary spending in the context of the federal government’s budget deficit, see
CRS Report RS21756, The Option of Freezing Non-defense Discretionary Spending to
Reduce the Budget Deficit, by Gregg Esenwein and Philip D. Winters.
76 Prepared statement of Sen. Brownback, Senate Subcommittee Hearing on CARFA, p. 30.
The legislation presumably would allow the commission to consider eliminating or
realigning agencies and programs in areas concerning homeland security and (non-DOD)
intelligence agencies, which have been subjects of extensive legislative action in recent
77 Prepared statement of Paul Weinstein Jr., ibid., p. 55.
78 Tax expenditures are generally defined as revenue losses (reductions in tax liabilities)
from preferential provisions in tax laws. For an overview of the federal tax systems and
concepts including tax expenditures, see CRS Report RL32808, Overview of the Federal
expressed in terms that allow comparison with direct federal outlays, tax
expenditures totaled nearly 51% of federal outlays in FY2002.79 A potential
advantage of broadening the scope to all agencies and tax expenditures might be to
assess public policies from a more holistic perspective — regardless of whether
policies are associated with annual or permanent appropriations, or direct federal
outlays or tax expenditures — because diverse agencies and policy tools might be
targeted at the same or similar public policy problems. In addition, some observers
might argue that broadening the commission’s scope to include all agencies and tax
expenditures would be necessary to avoid the appearance of partisanship.
Other options regarding a review commission’s scope might be of interest to
Congress. For example, if Congress chose to consider the legislation’s scope, other
policy tools like loans, loan guarantees, tax laws, and regulations could also be
explicitly included under the legislation’s definition of program, which, as
introduced, was defined as “any activity or function of an agency” (Section 3(a)(3)).
It is not clear that this definition of program would necessarily include these and
other policy instruments in the commission’s scope. Moreover, Section 3(d) of the
legislation contains provisions related to program assessments that are arguably
similar in structure and content to the Administration’s PART, an instrument that is
focused on evaluating the use of appropriated funds. Thus, to the extent that the
PART is seen as an essential or complementary tool for the CARFA, and possibly as
the “systematic method for assessing the effectiveness and accountability of agency
programs” that is required by the legislation’s Section 3(d), a CARFA might tend to
concentrate on appropriated funds to the exclusion of other policy tools.
Definitions of Key Terms. The CARFA legislation uses a number of special
terms when specifying the commission’s duties, specifically, when requiring the
commission to recommend realignment or elimination for agencies and programs
Tax System, by David L. Brumbaugh, Gregg A. Esenwein, and Jane G. Gravelle. For
analysis of federal tax expenditures, see U.S. Congress, Senate Committee on the Budget,
Tax Expenditures: Compendium of Background Material on Individual Provisions,thnd
committee print, 108 Cong., 2 sess., S.Prt. 108-54 (Washington: GPO, 2004). GAO has
supported increased scrutiny for federal tax expenditures. See U.S. General Accounting
Office, Tax Policy: Tax Expenditures Deserve More Scrutiny, GAO/GGD/AIMD-94-122,
79 For a breakout of tax expenditures by “budget function” and compared in size with federal
outlays in the same functional areas, see CRS Report RS21710, Tax Expenditures Compared
with Outlays by Budget Function: Fact Sheet, by Nonna A. Noto. In the context of
budgetary accounting, the term function refers to categories of federal spending, organized
according to the purpose or mission of government (e.g., income security, energy, and
international affairs). The Congressional Budget and Impoundment Control Act of 1974
established the first statutory foundation for budget function classifications (see 2 U.S.C.
§ 632(a)(4) and 31 U.S.C. § 1104(c)). For background on budget function classifications,
see CRS Report 98-280, Functional Categories of the Federal Budget, by Bill Heniff Jr.;
U.S. General Accounting Office, Budget Function Classifications: Origins, Trends, and
Implications for Current Uses, GAO/AIMD-98-67, Feb. 1998; and U.S. General Accounting
Office, Federal Budget: Agency Obligations by Budget Function and Object Classification
for Fiscal Year 2003, GAO-04-834, June 2004.
that are deemed to be duplicative, wasteful, inefficient, outdated, irrelevant, or failed.
If the proposal were enacted, its implementation and ramifications would likely turn
on these definitions. Some of these terms are defined by the CARFA legislation to
varying extents, and others are not defined. If the legislation were enacted as
introduced, the commission’s members and staff would arguably need to define
further and operationalize some of the terms. Alternatively, during the course of any
consideration of the legislation, Congress might elect to include more detailed
definitions in the legislation or establish a legislative history demonstrating
congressional intent. Each approach might bring advantages and disadvantages. For
example, defining the terms later would obviously grant significant flexibility and
discretion to the commission and allow commission members to modify the
definitions as they proceed with the commission’s work. However, this discretion
could also potentially open up the commission’s actions to charges of bias in the
absence of clear or consensus definitions. In view of these tensions, definitions of
key terms might be of interest to Congress in consideration of the CARFA Act.
Program. The CARFA legislation defines program as “any activity or
function of an agency.”80 The term activity is not defined in the legislation, but
according to Merriam-Webster’s Collegiate Dictionary, is defined as “a pursuit in
which a person is active” or “an organizational unit for performing a specific81
function; also: its function or duties.” Thus, an activity can be what a person or an
organization does or, alternatively, a distinct part of an organization. The term
function is used in several contexts in Title 5 of the U.S. Code, the codification of
laws on government organization and employees. While Title 5 does not define
function, the implementing regulations for transfer of functions (5 U.S.C. § 3503) and
reductions in force (5 U.S.C. § 3502) define the term as “all or a clearly identifiable
segment of an agency’s mission (including all integral parts of that mission),
regardless of how it is performed” (5 C.F.R. § 351.203). In sum, a CARFA would
have considerable discretion in identifying the “programs” it wished to evaluate.
OMB has used primarily a budgetary perspective for defining specific programs
for purposes of the PART, an instrument used in the last two years in the President’s
budget to evaluate the effectiveness of programs. Under the PART, programs have
generally been defined as they are presented in the President’s budget proposals or
other budget documents. GAO has noted, however, that OMB’s approach sometimes
aggregated several separate programs, and at other times disaggregated programs, in
ways that were not always aligned with how agencies managed or organized
themselves. This practice in turn “contributed to the lack of available planning and82
performance information,” as observed by GAO. GAO noted that the PART must
serve the needs of the President and OMB, but that the Government Performance and
Results Act (GPRA; 107 Stat. 285) presents a broader framework for strategic
80 GAO, OMB, and scholars have offered differing definitions of the term program.
81 Merriam-Webster’s Collegiate Dictionary, 11th ed. (Springfield, MA: Merriam-Webster,
Inc., 2003), p. 13.
82 U.S. General Accounting Office, Performance Budgeting: Observations on the Use of
OMB’s Program Assessment Rating Tool for the Fiscal Year 2004 Budget, GAO-04-174,
Jan. 2004, p. 29.
planning and consultation with stakeholders, including Congress.83 These tensions
raise the questions of how Members and committees of Congress could best be
served with regard to how programs should be defined, and who should define them.
Realignment. The CARFA legislation calls upon its commission members
to recommend certain programs and agencies for realignment, but does not define the
term. The BRAC commission law, by contrast, provided a technical and applied
definition for the term realignment, in the context of deciding whether to close, cut
back, or reorganize military installations: “The term ‘realignment’ includes any
action which both reduces and relocates functions and civilian personnel positions
but does not include a reduction in force resulting from workload adjustments,
reduced personnel or funding levels, or skill imbalances.”84 Unless the term were
further defined by Congress, a CARFA would likely have flexibility to define the
term as it wishes. Some discussion may help shed light on possible definitions.
Merriam-Webster’s Collegiate Dictionary defines realign as “to reorganize or make
new groupings”85 and align as “to be in or come into precise adjustment or correct86
relative position.” Thus, the term’s common usage suggests an emphasis on
reorganization. This possible emphasis is arguably consistent with Representativeth
Tiahrt’s discussion of the proposed CARFA Act in the 108 Congress, in his remarks
on the House floor, which referred to the “elimination or the realignment of87
duplicative, wasteful, and outdated functions” (italics added). The emphasis is also
arguably consistent with the legislation’s provision that duplicative programs be
“consolidated or streamlined” (Section 3(c)(1)), terms often used as synonyms for
restructuring and reorganization.
The organization design literature often indicates that an organization’s
“structure” and “purpose” are complexly intertwined concepts when considering
“organizational architectures.”88 Depending on an observer’s perspective, these
concepts may arguably be intertwined to such an extent that the terms reorganization
or realignment can be construed to imply not only “moving organizational boxes,”
83 For an overview of GPRA, see CRS Report RL30795, General Management Laws: A
Compendium, entry for “Government Performance and Results Act of 1993” in section II.B.
of the report, by Genevieve J. Knezo. A proposal for amending GPRA was reportedth
favorably by the House Committee on Government Reform in the 108 Congress (H.R.
Review: Some Recent Developments, by Virginia A. McMurtry. In the 109 Congress, a
similar measure, H.R. 185, was reported favorably by the House Committee on Government
Reform. For more information, see CRS Report RL32164, Performance Management and
Budgeting in the Federal Government: Brief History and Recent Developments, by Virginia
84 P.L. 101-510, Sec. 2910, “Definitions” (104 Stat. 1485, at 1819).
85 Merriam-Webster’s Collegiate Dictionary, p. 1036.
86 Ibid., p. 31.
87 Rep. Todd Tiahrt, “Yes, We Are Better Off Now Than We Were Four Years Ago,”
remarks in the House, Congressional Record, p. H3534.
88 For example, see David A. Nadler and Michael L. Tushman, Competing by Design (New
York: Oxford University Press, 1997), pp. 7-10.
but also changing processes and perhaps even purpose. For example, if two similar,
but not identical, programs are proposed to be combined into one program, it is
possible that core elements of one or both programs might be changed. Thus, it is
possible that the proposed commission could define the term realignment as allowing
both organizational and policy changes,89 consistent with the CARFA legislation’s
directions to recommend the realignment of programs, and corresponding policies,
that are judged duplicative, wasteful, or inefficient.
Other Terms to Describe Certain Programs. Section 3(c) of the CARFA
legislation enumerates a number of descriptive terms that a commission would be
required to use in its work and would potentially need to define further. Specifically,
under the legislation, a commission would be required to recommend programs or
agencies that fall under most of these definitions to be realigned or eliminated.
(However, the Senate version of the CARFA legislation, S. 1155, would allow rather
than require realignment or elimination of agencies or programs found to be wasteful
Duplicative. Section 3(c)(1) of the CARFA legislation would require a
CARFA to recommend that duplicative agencies and programs be realigned. The
definition of duplicative is operationalized in this way: “[i]f 2 or more agencies or
programs are performing the same essential function and the function can be
consolidated or streamlined into a single agency or program.” How would a
commission interpret this term? The term has a long history. Concerns about
“overlap” and “duplication” in federal government programs were expressed as early90
as 1920, when Congress established a Joint Committee on Reorganization. Similar
concerns were echoed in the late 1940s, when the legislation enacting the Hoover
Commission was being considered. The Hoover Commission’s concluding report
prominently remarked on “the wastes of overlapping and duplication.”91 More
recently, other terms, in addition to duplicative and overlapping, have been used to
describe several agencies or programs engaging in activities that some observers see
as similar or related. These terms include crosscutting, fragmented, and redundant.
GAO’s analysis of mission fragmentation and program overlap in federal agencies,
for example, provides the analytical foundation for much of the current discourse
regarding federal programs that appear to do similar or related things.92 An
underlying framework that GAO used for making these categorizations is the federal
89 The record of “reorganization commissions” from the last century illustrates how
organizational structure and policy have been often intertwined. See, for example, CRSth
Report RL31446, Reorganizing the Executive Branch in the 20 Century: Landmark
Commissions; and Peri E. Arnold, Making the Managerial Presidency: Comprehensive
Reorganization Planning 1905-1996.
90 40 Stat. 1083, Dec. 29, 1920. For discussion, see CRS Report RL31446, Reorganizing
the Executive Branch in the 20th Century: Landmark Commissions.
91 U.S. Commission on Organization of the Executive Branch of the Government,
Concluding Report, vol. 5 (Washington: GPO, 1949), p. 27.
92 See U.S. General Accounting Office, Managing for Results: Barriers to Interagency
Coordination, GAO/GGD-00-106, Mar. 2000; and U.S. General Accounting Office,
Managing for Results: Using the Results Act to Address Mission Fragmentation and
Program Overlap, GAO/AIMD-97-146, Aug. 1997.
government’s set of budget function classifications, which, as noted previously, refer
to broad categories of federal spending, organized according to the purpose or
mission of government (e.g., defense, income security, and law enforcement).93
However, GAO offered the following caveat with regard to the term duplication:
Although [the budget function classification] system can indicate broad
categories of fragmentation and overlap, it does not directly address the issue of
program duplication. While mission fragmentation and program overlap are
relatively straightforward to identify, determining whether overlapping programs
are actually duplicative requires an analysis of target populations, specific94
program goals, and the means used to achieve them.
Furthermore, when appearing before the House Committee on Government Reform’s
Subcommittee on Government Efficiency and Financial Management, a former OMB
career official testified that making such assessments involves several subtleties. He
stated that, while some programs might be “in competition with one another” (i.e,
duplicative), it is also possible that similar programs might use different methods,95
serve different populations, or even be complementary to each other.
Wasteful, Inefficient, Outdated, Irrelevant, or Failed. The other terms in
Section 3(c) of the CARFA legislation have less complex histories, but also might
be more difficult to define in ways that would achieve consensus among varied
stakeholders and observers. Section 3(c)(2) defines wasteful and inefficient in three
possible ways, either requiring (House version of the CARFA legislation) or allowing
(Senate version) the proposed commission to “recommend the realignment or
elimination of any agency or program that has wasted Federal funds by — (A)
egregious spending; (B) mismanagement of resources and personnel; or (C) use of
such funds for personal benefit or the benefit of a special interest group.” Similarly,
Section 3(c)(3) would require the proposed commission to “recommend the
elimination of any agency or program that — (A) has completed its intended purpose;
(B) has become irrelevant; or (C) has failed to meet its objectives.”
How would the commission define “egregious” spending, or determine the
threshold for what constitutes “mismanagement” of resources and personnel? What
is a “special” interest group? How does it differ from other interest groups that are
not “special”? What constitutes an outdated, irrelevant, or failed program or agency?
The legislative history behind the CARFA legislation does not appear to answer these
questions, and the answers would likely need to be supplied by Congress or the
93 For background on budget function classifications, see CRS Report 98-280, Functional
Categories of the Federal Budget, by Bill Heniff Jr.; and U.S. General Accounting Office,
Budget Function Classifications: Origins, Trends, and Implications for Current Uses,
94 U.S. General Accounting Office, Managing for Results: Barriers to Interagency
Coordination, p. 3.
95 Testimony of Jonathan D. Breul in U.S. Congress, House Committee on Government
Reform, Subcommittee on Government Efficiency and Financial Management, Should We
PART Ways With GPRA: A Look at Performance Budgeting and Program Review, hearing,thnd
commission’s presidential appointees (House version) or mix of presidential and
congressional appointees (Senate version). Advocates of these provisions might
argue that it is proper to give the commission flexibility to define these terms, and
that in any case their recommendations, packaged as an implementation bill, would
still be subject to an up-or-down vote by Congress. However, critics might argue that
the terms are inherently subjective, and that the legislation’s expedited procedures
for congressional consideration (discussed and analyzed further, below) would not
allow sufficient scrutiny of a commission’s recommendations and implementation
If a commission were to craft definitions for these terms, it is possible that the
commission would create and use standards for making some of these decisions, as
discussed in the following section.
Standards and Criteria for Decision Making. The subject of decision
making standards arose during the hearing in the 108th Congress for S. 1668, with
Senator Voinovich discussing a need to establish non-biased criteria for
recommending the elimination of programs.96 Former Majority Leader Armey also
testified that politics should not be allowed to intrude in such a process. OMB
Deputy Director for Management Clay Johnson III testified that a commission should
use the Bush Administration’s PART to help make its determinations. Section 3(d)
of the CARFA legislation, which would require “systematic assessment of programs”
by the President and the commission’s consideration of these assessments, contains
a framework of provisions that is arguably similar in structure and contents to the97
If Congress chose to evaluate the CARFA legislation, Congress would have
precedent for paying close attention to a commission’s standards and criteria for
making recommendations. In the BRAC statute, for example, the Secretary of
Defense was required to articulate and publish in the Federal Register the proposed
criteria for base closures, with an opportunity for public comment (104 Stat. 1810-
three perspectives from the program evaluation and social science literatures might
be helpful in assessing standards that could be used by an eventual CARFA: the99
concepts of validity, reliability, and objectivity. In program evaluation and social
science research, validity has been defined as “the extent to which any measuring
96 For media coverage, see Amelia Gruber, “OMB Backs Congressional Effort to Review
Programs,” GovExec.com, May 7, 2004.
97 As noted earlier in this report, bills nearly identical to S. 1668/H.R. 3213 (108th Cong.)
were introduced in the summer of 2002 in the 107th Congress (S. 2488/H.R. 5090) by the
same sponsors, before issuance of the Bush Administration’s PART. The previous bills did
not include the language on “systematic assessment of programs” (Sec. 3(d)).
98 For discussion, see CRS Report 97-305, Military Base Closures: A Historical Review from
99 These concepts are discussed in more detail in CRS Report RL32663, The Bush
Administration’s Program Assessment Rating Tool (PART), in the section entitled “Potential
Criteria for Evaluating the PART or Other Program Evaluations.”
instrument measures what it is intended to measure.”100 Another term, reliability, has
been described as “the relative amount of random inconsistency or unsystematic
fluctuation of individual responses on a measure,” that is, the extent to which several
attempts at measuring something are consistent (e.g., by several human judges or
several uses of the same instrument).101 Finally, the term objectivity has been defined
as “whether [an] inquiry is pursued in a way that maximizes the chances that the
conclusions reached will be true.”102 The opposite concept is subjectivity, suggesting,
in turn, concepts of bias, prejudice, or unfairness. Thus, making a judgment about
the objectivity of a test or researcher “involves judging a course of inquiry, or an
inquirer, against some rational standard of how an inquiry ought to have been
pursued in order to maximize the chances of producing true findings” (emphasis in
original ). 103
A framework similar to the validity/reliability/objectivity trio of concepts, as
summarized above, was once used to assess a BRAC commission’s standards for
decision making. Specifically, in the context of the 1995 BRAC commission’s
consideration of U.S. Army bases, an independent analysis by the RAND
Corporation identified 10 “criteria [that] should characterize an effective BRAC
process.”104 The first criterion used by RAND focused on the reliability of the
assessment process; the second criterion focused on objectivity; and the remaining
eight criteria arguably focused on several dimensions of validity.
With regard to the CARFA legislation, a commission would need to make
numerous determinations for non-defense discretionary programs in the executive
branch (whether a program is duplicative, wasteful, etc.). How should one validly,
reliably, and objectively determine a program is irrelevant, for example? General
consensus among stakeholders and researchers might exist on how to make these
determinations for some “programs,” as the commission elects to define the term
100 See Edward G. Carmines and James Woods, “Validity,” in Michael S. Lewis-Beck, Alan
Bryman, and Tim Futing Liao, eds., The SAGE Encyclopedia of Social Science Research
Methods, vol. 3 (Thousand Oaks, CA: SAGE Publications, 2004), p. 1171. The authors
elaborate: “Thus, the measuring instrument itself is not validated, but the measuring
instrument [is validated] in relation to the purpose for which it is being used.”
101 See Peter Y. Chen and Autumn D. Krauss, “Reliability,” in Michael S. Lewis-Beck, Alan
Bryman, and Tim Futing Liao, eds., The SAGE Encyclopedia of Social Science Researchth
Methods, vol. 3, p. 952, and Michael Scriven, Evaluation Thesaurus, 4 ed. (Newbury Park,
CA: SAGE Publications, 1991), p. 309.
102 For more information and criticisms of the concept, see Martyn Hammersley,
“Objectivity,” in Michael S. Lewis-Beck, Alan Bryman, and Tim Futing Liao, eds., The
SAGE Encyclopedia of Social Science Research Methods, vol. 2, pp. 750-751.
103 Ibid., p. 750. Thus, analysts often ask whether a given instrument can be improved (i.e.,
whether the instrument’s chances of reaching valid and reliable findings have been
maximized). An implication of these terms is that it is possible for an instrument to be
objective, but not a valid measure of what it is intended to measure.
104 See William M. Hix, Taking Stock of the Army’s Base Realignment and Closure Selection
Process (Santa Monica, CA: RAND, 2001), pp. xv-xvii. The RAND Corporation is a public
nonprofit 501(c)(3) corporation whose mission is to “help improve policy and
decisionmaking through research and analysis” ([http://www.rand.org/about/history]).
program. But consensus might be lacking for other programs. Should Congress wish
to explore these issues, Congress could ask if the CARFA legislation’s assessments
might be completed validly, reliably, and objectively — including by the
Administration’s PART, an instrument which has been lauded by some observers and
the subject of criticism among others.105 To the extent that the PART is seen as an
essential or complementary tool for a CARFA (and probably as the “systematic
method” required by the legislation’s Section 3(d)), perspectives on the PART may
help highlight or clarify issues for Congress should it consider the proposed CARFA
Expedited Congressional Consideration. A distinctive feature of the
CARFA legislation is its provision for expedited consideration by Congress of the106
commission’s recommendations, packaged together in an implementation bill.
Depending on an observer’s outlook, these arrangements could be considered to offer
distinct advantages or disadvantages. For example, possible advantages include the
assurance that Congress would actually consider the work of the commission, less
ability for Members to engage in “logrolling” (vote trading) that could undermine the
commission’s recommendations, and the prevention of potential filibusters in the
Senate. Possible disadvantages, however, include less ability to engage in the
compromises that are necessary for a democratic system to function, diminished
power for minority groups in the Senate, and a movement away from the rights and
prerogatives of individual Senators to engage in extended debate unless an
extraordinary majority votes to invoke cloture. The advantages and disadvantages
relating to logrolling and constraint on Members of the Senate are discussed below.
Logrolling and the CARFA Legislation. When the BRAC commission
legislation was being considered in 1990, there was a broad consensus that the
number and extent of military installations needed to be reduced in order to save
funds.107 Supporters of the BRAC process argued that parochial politics prevented
the closure of bases which they believed were no longer needed. Critics countered
that it was Congress’s responsibility to make these determinations, not a
commission’s, and that presidential administrations had in the past used base closing
decisions for political purposes. In addition, there were many concerns about how
these military installations were to be chosen. If a commission’s recommendations
could be amended during the legislative process, Members of Congress could face
strong incentives to exclude some or all installations from the list, perhaps via
105 For analysis of the PART along these dimensions, see CRS Report RL32663, The Bush
Administration’s Program Assessment Rating Tool (PART).
106 If Congress chose to enact the CARFA proposal, it is possible that Congress’s
involvement with the commission would begin long before consideration of the actual
implementation bill. For example, the commission might engage in multi-party negotiations
with the President, Congress, and other entities or interest groups before submitting its final
implementation bill. For an overview of expedited legislative procedures, see CRS Report
RS20234, Expedited or “Fast Track” Legislative Procedures. For a more detailed
discussion, see CRS Report 98-888, “Fast Track” or Expedited Procedures: Their
Purposes, Elements, and Implications.
107 For more discussion, see CRS Report 97-305, Military Base Closures: A Historical
Review from 1988 to 1995.
bartering votes on base closures with votes on other seemingly unrelated matters. If
this happened to a large extent, then the primary reason for pursuing the BRAC
process, saving funds, might be undermined. Thus, one justification for creating the
BRAC commission framework was that it would prevent, or at least limit, vote
trading, or “logrolling.”108
Under the BRAC framework, when a commission’s recommendations reached
Congress, Congress would be allowed only an up-or-down vote on a resolution
disapproving the package in its entirety, with no amendments. If no such resolution
were passed within 45 days, the recommendations would then be automatically
implemented. Members of Congress would not be able to make deals to exclude
installations from the list of facilities to be realigned or closed, which would preserve
the integrity of the original list and its corresponding (projected) budget savings, as
recommended by the commission and transmitted by the President. These
provisions, together with additional ones to help insulate the process from political
manipulation by presidential administrations and make it open to the public, became
what were considered key attributes of the BRAC statute.109
Concerns about logrolling were expressed by the House sponsor of the proposed
CARFA Act, Representative Tiahrt, during the 108th Congress:
CARFA is based on a process with an established record of successful program
elimination and prioritizing of spending. The Base Realignment and Closure
Commission, or BRAC as it is called, is similar only [in how] it deals strictly
with military bases, whereas H.R. 3213 will establish a commission to conduct
a comprehensive review of Federal agencies and programs and recommend the
elimination or the realignment of duplicative, wasteful, and outdated functions.
CARFA provides for a disciplined spending review process for nondefense,
nonentitlement programs. Congress will simply have to vote up or down on the
commission’s recommendations in their entirety. The congressional logrolling
that normally bogs down the process will be short-circuited. In this way, real
reform can emerge and the deficit and debt program can be brought under110
108 See discussion in Ronald G. Shaiko, “Logrolling,” in Donald C. Bacon, Roger H.
Davidson, and Morton Keller, eds., The Encyclopedia of the United States Congress (New
York: Simon & Schuster, 1995), pp. 1314-1315. Shaiko defines logrolling as
a means of organizing legislative majorities by coupling similar or, at times,
disparate legislative initiatives that separately would have difficulty passing a
various stages of the legislative process, but combined, would garner support of
a majority of numbers, either at the committee level or when a bill reaches the
floor for a vote of all members.
109 For a discussion of the BRAC commissions in the context of political science theories
regarding delegation of legislative power, see David Epstein and Sharyn O’Halloran,
Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under
Separate Powers (Cambridge, UK: Cambridge University Press, 1999), pp. 1-4, 9.
110 Rep. Todd Tiahrt, “Yes, We Are Better Off Now Than We Were Four Years Ago,”
remarks in the House, Congressional Record, pp. H3533-H3534. The proposed CARFA Act
was notably different from BRAC in its provision for a vote on approval for the
According to public choice theory,111 logrolling can improve or degrade societal
welfare depending on the specifics of the situation, including how strongly different
individuals value several issues and how value is to be measured.112 Which of these
two approaches — vote trading versus no vote trading — is better in a given situation
is open to interpretation and debate. According to one textbook,
[v]ote trading is controversial. Its proponents argue that trading votes leads to
efficient provision of public goods, just as trading commodities leads to efficient
provision of private goods. Proponents also emphasize the potential for
revealing the intensity of preferences and establishing a stable equilibrium.
Moreover, the compromises implicit in vote trading are necessary for a
democratic system to function.... On the other hand, opponents of logrolling
stress that it is likely to result in special-interest gains not sufficient to outweigh113
general losses. Large amounts of waste can be incurred.
In sum, different stakeholders may have different views on how the CARFA
legislation’s no-amendment provisions would affect logrolling. Moreover, theory
alone does not indicate whether logrolling (or the absence thereof) would have
beneficial or adverse consequences for society as a whole, compared to the other
commission’s recommendations, rather than the BRAC legislation’s vote on disapproval.
111 Public choice theory has been defined as “the economic study of nonmarket decision
making, or simply the application of economics to political science.” See Dennis C.
Mueller, Public Choice III (New York: Cambridge University Press, 2003), p. 1. An
alternative name for public choice theory is “political economy.” See Harvey S. Rosen,
Public Finance, p. 112. For a viewpoint on how economics has affected political science,
see Gary J. Miller, “The Impact of Economics on Contemporary Political Science,” Journal
of Economic Literature, vol. 35, no. 3 (Sept. 1997), pp. 1173-1204.
112 For illustrations of these scenarios, which use cost-benefit analysis, see Harvey S. Rosen,
Public Finance, pp. 119-121. Under cost-benefit analysis, a person seeks to estimate: (a)
the costs and benefits of an option for different actors (typically by denominating both costs
and benefits in dollar terms); (b) the distribution of benefits and costs among individuals and
groups; and (c) whether the total benefits for society outweigh the total costs (resulting in
a computation of “net benefits,” which can be positive or negative). In any policy decision,
there will typically be “winners” (those who have positive net benefits) and “losers” (those
who have negative net benefits). Many economists are uncomfortable with cost-benefit
analysis, if it computes overall net benefits for an option without taking account of
distributional concerns among these winners and losers, particularly if the the analysis is
used to justify decisions without making compensating side payments to any losers. (See,nd
for example, Edward M. Gramlich, A Guide to Benefit-Cost Analysis, 2 ed. (Englewood
Cliffs, NJ: Prentice Hall, 1990), pp. 30-33; and Paul A. Samuelson and William D.th
Nordhaus, Microeconomics, 15 ed. (New York: McGraw-Hill, 1995), p. 76.) In such a
case, economists argue that cost-benefit analysis is equivalent to making interpersonal
comparisons of the “utility” (satisfaction), denominated in dollars, that stakeholders get
from an option. According to microeconomic theory, when interpersonal utility
comparisons are made without these side payments, it becomes difficult or impossible to
know if an option would actually make society better off.
113 Harvey S. Rosen, Public Finance, p. 121.
Three issues that Congress might consider, in light of this discussion, are
!whether legislation based partially on the BRAC model, which
targeted military bases for realignment and closure based on
widespread consensus, would be appropriate for the case of
reviewing non-defense discretionary agencies and programs (under
the House version of the CARFA legislation) or all executive branch
agencies and programs (under Senate version) for realignment or
elimination, when widespread consensus might or might not exist
and when the commission’s membership would not require Senate
!whether vote trading, or the lack thereof, in considering a proposed
CARFA Act would be likely to improve societal welfare; and
!whether Members believe the proposal would be a fully legitimate
exercise of legislative power, an abdication of that power, or
something in between.
Constraint on Potential Filibusters in the Senate. Section 7 of the
CARFA legislation would provide for expedited congressional consideration of the
commission’s implementation bill, “as an exercise of the rulemaking power of the114
Senate and House of Representatives.” In the Senate, this provision would prohibit
amendments and almost all procedural delays, unless a majority of the Senate did not
wish to vote on or pass the commission’s implementation bill. Thus, in contrast to
customary Senate procedures, which give individual Senators considerable power to
influence or delay the Senate’s business, Senators would lose the ability to filibuster
the implementation bill, if any wished to prevent it from coming to a vote.115 In other
words, for purposes of considering the implementation bill, a proposed CARFA
Act’s expedited procedures could diminish the power of minorities in the Senate.116
Proponents might argue that the legislation’s expedited procedure provisions would
make Senate consideration of the commission’s recommendations more responsive
to majority rule and speed consideration of the proposal. Opponents of this approach
might maintain that it takes power away from minority groups in the Senate and de-
emphasizes the rights and prerogatives of individual Senators to engage in extended
debate unless an extraordinary majority votes to invoke cloture.
If one or more Senators wished to modify the rules contained in the CARFA
legislation (i.e., if the CARFA Act were enacted), the Senate could choose to do so
by making changes to the expedited consideration provisions.117 This could be done
114 Article I, Section 5 of the Constitution provides that “Each House may determine the
Rules of its Proceedings.”
115 For more information about filibusters, see CRS Report RL30360, Filibusters and
Cloture in the Senate.
116 For more on minority rights in the Senate, see CRS Report RL30850, Minority Rights and
117 Section 7(e) of the CARFA legislation notes that the House and Senate would still be
able to change their rules, including the rules set out in the CARFA legislation, at any time,
in several ways. For example, the Senate could change the expedited procedures by
unanimous consent. If a Senator objected to the unanimous consent request to
change the expedited procedures, a super-majority of three-fifths of all Senators
chosen and sworn (normally 60 votes) would be needed to invoke cloture and allow
the Senate to vote on the proposed changes to the expedited procedures, by statute
or standing order. And finally, invoking cloture to vote on an amendment to the
Senate’s standing rules would require a super-majority of two-thirds of all Senators
present and voting (up to 67 votes). In the House of Representatives, by contrast,
making changes to the CARFA procedural rules would require only a simple majority
vote on the adoption of a special rule, something a majority could achieve easily. In
essence, then, while the expedited procedures would apply equally to both chambers,
in effect they would be considerably more restrictive on the Senate than on the
Transparency and Participation. Another topic that Congress could
choose to consider is the transparency with which the CARFA would be required to
operate and related issues of public participation. Past review commissions have
worked under a wide range of requirements to open their work to public visibility,
participation, and occasional accompanying scrutiny. The BRAC commissions, for
example, operated under the explicit requirement that “[e]ach meeting of the
Commission, other than meetings in which classified information is to be discussed,
shall be open to the public” (Section 2902(e)(2)(A)). In addition, the BRAC statute
specified that “[a]ll the proceedings, information, and deliberations of the
Commission shall be open, upon request” to the chairmen and ranking members of
several congressional committees and subcommittees (Section 2902(e)(2)(B)). By
contrast, the Hoover Commission’s authorizing statute was silent on the subject of
transparency and participation. (The Hoover Commission predated the enactment of
FACA, which sets out requirements governing public access to meetings and records
as well as public participation, and other “open government” laws.) A more recent
review commission, the 9/11 Commission, was explicitly excluded from FACA’s118
requirements and required to hold public hearings “to the extent appropriate.”
As discussed previously in this report, it is unclear whether a CARFA would be
covered by FACA or affected by its requirements (e.g., advisory committee meetings
are presumptively open to the public). A CARFA would also probably not be subject
to the Government in the Sunshine Act (90 Stat. 1241).119 This law requires
collegially headed federal executive agencies with two or more members — a
majority of whom are appointed by the President with the advice and consent of the
Senate — to hold certain meetings in public. The CARFA legislation is silent with
in “full recognition of the constitutional right of either House to change the rules (so far as
relating to the procedure of that House).”
118 The 9/11 Commission, a hybrid commission with members appointed by the President
and by Congress, was also explicitly bipartisan in its composition.
119 For more information on the Government in the Sunshine Act, see CRS Report RL30795,
General Management Laws: A Compendium, entry for “Government in the Sunshine Act”
in section I.H. of the report, by Henry B. Hogue.
regard to the commission’s location in the executive or another branch, but if the
legislation were enacted, the commission’s members would not be Senate-confirmed.
Finally, the CARFA legislation is silent with regard to whether the proposed
commission would be subject to the Freedom of Information Act (FOIA; 5 U.S.C.
§ 552). FOIA’s definition of “agency” (5 U.S.C. § 552(f)) includes executive
departments, military departments, government corporations, government controlled
corporations, independent regulatory agencies, or any “other establishment in the
executive branch of the Government (including the Executive Office of the
President).” However, if the commission were deemed strictly advisory in nature,
it would not be covered by FOIA. If Congress chose to enact the CARFA legislation,
and in the event that the commission were considered an establishment in the
executive branch, FOIA would likely be held to cover the commission (based on the
fact that, under Section 4 of the legislation, the CARFA would have investigatory
powers), if a court were to address this question. In Energy Research Foundation v.
Defense Nuclear Facilities Safety Board, 917 F.2nd 581 (D.C. Cir. 1990), the court
held that the board (which was responsible for reviewing, evaluating, investigating,
and making recommendations to the Department of Energy regarding standards and
safety issues pertaining to nuclear facilities of the department) was subject to FOIA,
basing its decision on the fact that the board had investigatory powers.120
In sum, therefore, it is not clear the extent to which a CARFA would be able to
conduct its work outside public and congressional view (e.g., convene meetings, hold
hearings, and formulate recommendations), if it chose to pursue that course. Some
might see advantages associated with an approach that kept the commission’s
activities largely outside public or congressional view. For example, supporters
might maintain that, by limiting public involvement, a CARFA would avoid public
or interest group pressure as it weighed individual and difficult policy
recommendations, issue by issue. From the perspective of supporters, this could
potentially help a CARFA’s recommendations to be formulated, seen, and considered
as a cohesive package. Furthermore, because the commission would be advisory, a
CARFA’s recommendations still would have to be considered by Congress (albeit
under expedited procedures) and signed by the President before any
recommendations became law.
However, some disadvantages could also be associated with an approach that
other observers might see as lacking transparency and participation. For example,
the commission’s recommendations might lose credibility if observers were not sure
who was involved, both inside and outside government, in formulating them. In
addition, critics might argue that the legislation’s expedited congressional procedures
would not allow for (a) enough time or public participation to consider what could
be large changes to a large subset of federal programs; or for (b) enough
120 Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2nd 581
(D.C. Cir. 1990), at 584-585. For discussion, see James T. O’Reilly, Federal Informationrd
Disclosure, 3 ed. (St. Paul, MN: West Group, 2000), pp. 57-61; and Harry A. Hammitt,
David L. Sobel, and Mark S. Zaid, eds., Litigation Under the Federal Open Government
Laws 2002, pp. 200-203. For more information on FOIA, see CRS Report RL30795,
General Management Laws: A Compendium, entry for “Freedom of Information Act” in
section I.E. of the report, by Harold C. Relyea.
congressional and public input through mechanisms like GPRA, which was enacted
to address many issues of federal management and performance, arguably including
those that would be addressed by a CARFA, if it were established.121
Potential Success Factors for a Commission
When evaluating proposals to establish major reorganization or review
commissions, Congress might also consider the “success factors” that observers have
identified as important inputs to successful commissions. One scholar proposed four
“propositions” for an effective commission that, if ignored, he argued could make
“success” with a commission more difficult to attain:
1. A focused and limited mandate for a commission ... is more likely to provide
useful results than a commission with a broad, unstructured mandate with
substantial policy implications.
2. A commission should have ties with central managerial agencies in the
executive branch and with committees with general management responsibilities
in Congress. Others besides the commission must have a stake in the success of
3. Commissions should be cognizant of the distinctive legal character of
governmental organization and activities. Included in any commission review
should be a review, with recommendations, of the general management laws
pertinent to the mandate of the commission.
4. There should be some consensus in advance among commission members
regarding the organizational principles to be applied in their review and
recommendations. Commissions do not tend to be effective vehicles for122
generating consensus if none previously existed.
GAO also weighed in with “lessons” regarding “successful government
The lesson of the two Hoover Commissions is clear: If plans to reorganize
government are to move from recommendation to reality, creating a consensus
for them is essential to the task. In this regard, both the process employed and
the players involved in making any specific reorganization proposals are of
critical importance. The success of the first Hoover Commission can be tied to
the involvement and commitment of both the Congress and the President. Both
the legislative branch and executive branches agreed to the goals. .... A
distinction also needs to be made between policy choices and operational
choices. Relatively straightforward reorganization proposals that focus on
121 GPRA requires agencies to articulate strategic plans, annual plans, and measures of
performance, and was explicitly intended to open up the processes of debate and decision
making to the public, interest groups, and Congress through required consultations with
Congress and solicitation of views from “those entities potentially affected by or interested
in” these matters, with regard to agency strategic plans (5 U.S.C. § 306(d)).
122 Ronald C. Moe, Administrative Renewal: Reorganization Commissions in the 20th
Century (Lanham, MD: University Press of America, 2003), p. 138.
operational issues appear to have met with greater success than those that123
addressed more complex policy issues.
Different observers will have different opinions about whether success factors such
as these relate to specific commission proposals. A noteworthy point of comparison
with these prescriptions may be experience with the 9/11 Commission. The 9/11
Commission was established only after extended negotiation among Members of
Congress and the President regarding its scope, powers, etc., and was tasked in its
authorizing statute with making not only operational recommendations, but also
policy recommendations: “[t]he purposes of the Commission are to — ... (5)
investigate and report to the President and Congress on its findings, conclusions, and
recommendations for corrective measures that can be taken to prevent acts of
terrorism” (116 Stat. 2408). The 9/11 Commission proceeded to make
organizational, operational, and policy recommendations in a charged political
environment during a presidential election year.124 The commission’s bipartisan,
unanimous report has been both criticized and commended for omitting some policy
topics,125 and may or may not illustrate that to be effective, a commission’s scope and
reorganization-related recommendations must fit within an overall context of
Potential Alternatives or Complements to a Commission
A CARFA could provide a mechanism for the President and Congress —
through the President’s appointees to the commission (under both the House and
Senate versions of the CARFA legsilation), congressional leaders’ appointees (under
the Senate version), and Congress’s consideration of the commission
recommendations — to consider “elimination or realignment of duplicative, wasteful,
or outdated functions” in certain programs and agencies.126 However, establishing
a commission is only one possible way of exploring these issues. If Congress wants
to explore similar issues, it could consider alternatives or complements to a
commission. Three are discussed and analyzed below.
Pursue or Authorize Government Reorganization. Commentators
sometimes propose reorganization of government agencies as a way to realign
programs and improve government efficiency and effectiveness. Thus, as an
123 See U.S. General Accounting Office, Executive Reorganization Authority: Balancing
Executive and Congressional Roles in Shaping the Federal Government’s Structure, GAO-
03-624T, Apr. 3, 2003, pp. 10-11, in U.S. Congress, House Committee on Government
Reform, Toward a Logical Governing Structure: Restoring Executive Reorganizationthst
Authority, hearing, 108 Cong., 1 sess., Apr. 3, 2003, H.Hrg. 108-33 (Washington: GPO,
124 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: GPO, 2004), ch. 12 and 13.
125 For example, see Richard A. Clarke, “Honorable Commission, Toothless Report,” New
York Times, July 25, 2004, sec. 4, p. 11; and Dana Milbank and Walter Pincus, “Sept. 11
Commission Purposely Avoided Judgments on Iraq War,” Washington Post, July 25, 2004,
126 Quoted excerpt from S. 1155/H.R. 2470 title, as introduced (109th Cong.).
alternative or complement to the CARFA legislation, Congress could consider
undertaking specific reorganization legislation, as it did with the Homeland Security
Act of 2002 (116 Stat. 2287) when it created the Department of Homeland Security,
or alternatively, reauthorizing executive reorganization authority.127
In the past, reorganization was viewed largely as a technical exercise that could
be delegated to experts in the executive branch. In recent decades, however,
commentators have seen reorganizations as also having potentially significant
institutional, policy, and political consequences.128 In 1995, GAO explored many of
the associated issues.129 In 2003, the Comptroller General recommended
streamlining and simplifying the federal government’s organizational structure to
address “duplicative, overlapping, and conflicting and outdated government
programs, policies, and operations.”130 Furthermore, the National Commission on
the Public Service (“Second Volcker Commission”) recommended a “fundamental
reorganization” of the federal government “into a limited number of mission-related
executive departments,” in order to enhance “mission coherence and role
clarification.”131 According the Second Volcker Commission’s proposal, the choice
of agency subordinate organizations and personnel systems — traditionally the
subject of congressional attention and negotiation — would be defined by the
President, and subject to oversight by OMB and the Office of Personnel Management
(agencies under control of the President), “as well as Congress.”132
127 This section focuses on the concept of reorganization generally. For more on executive
reorganization authority, which expired in 1984 but remains in Title 5 of the United States
Code, see CRS Report RL30795, General Management Laws: A Compendium, entry for
“Reorganization Act of 1977, as Amended” in section IV.B. of the report, by Henry B.
Hogue; CRS Report RL30876, The President’s Reorganization Authority: Review and
Analysis; and U.S. Congress, House Committee on Government Reform, Toward a Logical
Governing Structure: Restoring Executive Reorganization Authority.
128 CRS Report RL30795, General Management Laws: A Compendium, entry for
“Reorganization Act of 1977, as Amended.”
129 For example, see U.S. General Accounting Office, Government Reorganization: Issues
and Principles, GAO/T-GGD/AIMD-95-166, May 17, 1995, p. 2; and U.S. General
Accounting Office, Government Restructuring: Identifying Potential Duplication in Federal
Missions and Approaches, GAO/T-AIMD-95-161, June 7, 1995. GAO has also
concentrated on the potential role of agency and government-wide strategic planning under
GPRA (as explained later in this report). For example, see U.S. General Accounting Office,st
Results-Oriented Government: Using GPRA to Address 21 Century Challenges, GAO-03-
130 Comptroller General David M. Walker, U.S. General Accounting Office, Truth and
Transparency: The Federal Government’s Financial Condition and Fiscal Outlook,
statement presented to the National Press Club, Sept. 17, 2003, p. 6, available at
[ h t t p : / / www.ga o.gov/ c ghome/ npc917.pdf ] .
131 The commission cited the Department of Homeland Security as a model. See National
Commission on the Public Service, Urgent Business for America: Revitalizing the Federalst
Government for the 21 Century (Washington: Brookings Institution, 2003), p. 14, available
132 Ibid., p. 16.
The organization design literature has expressed mixed assessments of the
ability of reorganization to improve organizational performance. Grouping
organizations together can be viewed as a “double-edged sword”:
On one hand, grouping eases the flow of information within the boundaries of the
group by providing a common language, a common goal, and, indeed, even a
common view of the world. The group becomes an identifiable subculture of the
larger organization, and the sharing and processing of information become easier.
But the boundaries inevitably become barriers, making it more difficult to share
information outside the group and often engendering conflict, competition, and
a lack of cooperation among groups....
It’s essential to keep in mind that organizations, in the final analysis, are
political systems with complex patterns of power and influence.... If new
grouping patterns seem to elevate one group over another, channel increased
resources to a particular activity, or substantially alter reporting relationships,
some manager or group will be seen as winning at the expense of someone else....
Strategic grouping ... by definition separates some jobs and individuals at the133
same time it brings others together.
It is possible that Congress had similar concerns when enacting the Homeland
Security Act, when Congress included Section 888, “Preserving Coast Guard Mission
Performance” (116 Stat. 2249), in the bill, which prohibited the Secretary of the
Department of Homeland Security (DHS) from substantially or significantly reducing
the “non-homeland security missions” of the Coast Guard. Furthermore, in the 108th
Congress, S. 910 (“Non-Homeland Security Mission Performance Act of 2003”) was
reported from committee favorably with amendments, articulating concerns that non-
homeland security missions (e.g., maritime search and rescue, fisheries enforcement,
asylum for refugees, protecting against counterfeiting, etc.) be preserved and not134
crowded out by homeland security-related activities. Similar concerns could apply
to other proposed executive branch reorganizations.
Establishing a commission like the CARFA might arguably entail some
advantages compared to reorganization, whether that reorganization were undertaken
through the regular legislative process or executive reorganization authority. For
example, in contrast to reorganization through the regular legislative process, the
CARFA legislation would expedite congressional consideration of the commission’s
recommendations without the risk of amendments undermining the cohesiveness of
the package. The CARFA legislation would arguably impose fewer restrictions upon
the commission’s recommendations compared with executive reorganization
authority, which, if renewed, would impose a number of restrictions on what
reorganization plans could contain (e.g., a prohibition on abolishing statutory
133 See David A. Nadler and Michael L. Tushman, Competing by Design, pp. 67, 84, 91. In
addition to formal organization, the literature provides two other means of rationalization
and coordination, including “structural linking” (e.g., cross-organization planning and
implementation teams) and “systems and processes” (strategic planning processes,
information technology systems, etc.). See Nadler and Tushman, pp. 67-69.
134 U.S. Congress, Senate Committee on Governmental Affairs, Non-Homeland Security
Mission Performance Act of 2003, report to accompany S. 910, 108th Cong., 1st sess., S.Rept.
programs). A CARFA would thus have more flexibility to deal with a broad range
of policy matters.
Other observers might see disadvantages in the CARFA proposal, compared to
reorganization through the regular legislative process or executive reorganization
authority. Compared to CARFA, pursuing reorganization (or policy changes)
through the regular legislative process could be seen as preserving important
congressional prerogatives under the Constitution’s separation of powers and checks
and balances, subjecting proposals to more deliberation, transparency, and public
participation.135 In addition, Congress enacted major legislative changes to tax laws
in 1986, social policy in 1996, farm subsidies in 1996, and homeland security
agencies in 2002 by relying on existing processes and institutions. The CARFA
legislation could also be seen as having disadvantages compared to executive branch
reorganization authority, if Congress were concerned about giving too much power
to the President. Because executive branch reorganization authority, if renewed,
would be subject to many restrictions regarding what the President could propose for
expedited congressional consideration, the executive branch’s legislative powers
would be arguably more constrained under a renewed Reorganization Act than a new
Use GPRA. Another potential alternative or complement for the CARFA
legislation, which Congress might consider, is continued or expanded usage and136
oversight of the Government Performance and Results Act. Congress enacted
GPRA to accomplish several goals, including to “systematically [hold] Federal
agencies accountable for achieving program results”; “improve congressional
decisionmaking by providing more objective information on achieving statutory
objectives, and on the relative effectiveness and efficiency of Federal programs and
spending”; and “improve internal management of the Federal Government.”137 Thus,
GPRA established a statutory foundation intended for examining issues, among
others, that a CARFA would also emphasize.
The extent to which GPRA has been successful in moving toward these goals
has been a subject of discussion and debate in Congress and the legislative branch,
in the executive branch, in the scholarly community, and among other observers.138
135 Critics of a proposal like the CARFA Act could point out that Congress has protected
these prerogatives before. The Reorganization Act of 1977, as Amended, was allowed to
expire after the Supreme Court ruled in INS v. Chadha that the legislative veto, a statutory
check on executive branch discretion, was unconstitutional (462 U.S. 919 (1983)).
136 For more information on GPRA, see CRS Report RL30795, General Management Laws:
A Compendium, entry for “Government Performance and Results Act of 1993” in section
III.B. of the report; CRS Report RL32164, Performance Management and Budgeting in the
Federal Government: Brief History and Recent Developments, by Virginia A. McMurtry;
and CRS Report RS20257, Government Performance and Results Act: Brief History and
Implementation Activities, by Genevieve J. Knezo.
137 These come from Section 2(b) of the law, titled “Purposes.”
138 See, for example: U.S. Congress, House Committee on Government Reform,
Subcommittee on Government Efficiency and Financial Management, 10 Years of GPRA
Some, including GAO, see GPRA as having established a “solid foundation” of
results-oriented planning, measuring, and reporting, albeit with a number of
challenges remaining, including an “inadequate focus on addressing issues that cut
across federal agencies.”139 Others see GPRA at risk of creating a “paper exercise”
unless agency program evaluations and performance reporting documents have
budget and management implications, and some are concerned about a perceived lack
of analytical capacity in federal agencies in order to comply with GPRA and the Bush
Administration’s PART initiative. Still others might question whether GPRA or its
implementation have focused on the right things. Apart from the CARFA legislation,
a number of observers have advocated for continued use of the Bush
Administration’s PART as a complement to GPRA, in order to forge a “link”
between performance and budgets.140 However, some others have criticized the
PART for inconsistency, its emphasis on serving the needs of the executive branch
without the significant involvement of Congress and other stakeholders, and its focus
on individual programs instead of issues that cut across several agencies (e.g., food
Proponents of a CARFA might argue that it would bring several advantages
compared to using GPRA alone, including (1) producing an integrated and internally
consistent set of recommendations for congressional consideration; (2) potentially
insulating the commission’s deliberations from day-to-day politics, thereby
potentially allowing the commissioners more flexibility to investigate controversial
options and develop innovative recommendations; (3) potentially establishing some
measure of independence for the commission’s recommendations, thereby increasing
the commission’s credibility; and (4) eliminating the ability of Members of Congress
to amend the commission’s set of recommendations or delay their consideration,
thereby increasing the probability of enacting a coherent package.
— Results, Demonstrated, hearing, 108th Cong., 2nd sess., Mar. 31, 2004, H.Hrg. 108-175
(Washington: GPO, 2004); U.S. Congress, House Committee on Government Reform, What
Happened to GPRA? A Retrospective Look at Government Performance and Results,thst
hearing, 108 Cong., 1 sess., Sept. 18, 2003, H.Hrg. 108-75 (Washington: GPO, 2003);
U.S. General Accounting Office, Results-Oriented Government: GPRA Has Established a
Solid Foundation for Achieving Greater Results, GAO-04-38, Mar. 2004; U.S. Office of
Management and Budget, The President’s Management Agenda, FY 2002 (Washington:
GPO, 2001), pp. 27-30; Jonathan D. Breul, “The Government Performance and Results Act
— 10 Years Later,” Journal of Government Financial Management, vol. 52, no. 1 (spring
2003), pp. 58-64; and Beryl A. Radin, “Caught Between Agendas: GPRA, Devolution, and
Politics,” International Journal of Public Administration, vol. 26, nos. 10/11 (Aug./Sept.
139 U.S. General Accounting Office, Results-Oriented Government: GPRA Has Established
a Solid Foundation for Achieving Greater Results, “Highlights,” inside front cover.
140 Written statements of Jonathan D. Breul and Maurice P. McTigue, respectively, in U.S.
Congress, House Committee on Government Reform, Subcommittee on Government
Efficiency and Financial Management, Should We PART Ways With GPRA.
141 For more discussion, see CRS Report RL32663, The Bush Administration’s Program
Assessment Rating Tool (PART).
On the other hand, opponents are likely to see the disadvantages of establishing
a commission compared to using GPRA alone, including (1) potential duplication of
effort with federal agencies in evaluating programs and agencies; (2) arguably less
transparency and participation in formulating and considering proposals compared
to the process under GPRA, potentially undermining the commission’s credibility;
(3) potential questions about the ability of a commission to make credible
assessments with limited time and analytical capacity; and (4) eliminating the ability
of Members of Congress to amend the commission’s recommendations or delay their
consideration, thereby facilitating the floor consideration of legislation that might
otherwise have stood little chance of enactment had there been opportunity for more
scrutiny of commission recommendations.
Bolster Agency Program Evaluation Capacity Through “Chief
Program Evaluation Officers.” Congress could also consider bolstering
program evaluation capacity in federal agencies as a potential alternative or
complement for the CARFA legislation. Many observers have asserted that agencies
frequently do not adequately evaluate the performance or results of their programs
— or integrate evaluation efforts across agency boundaries — possibly due to lack142
of capacity, management attention and commitment, or resources. Bolstering the
program evaluation capacity at federal agencies could arguably address many of the
same issues that a CARFA would address.
If Congress found adequate progress has not been made in evaluating federal
programs and agencies, and if Congress deemed these to be serious problems,
Congress might establish “chief program evaluation officer” (CPEO) positions in
major agencies to bring more attention to this function. “Chief officer” positions143
have proliferated in recent years. Because programs can differ considerably and
142 For example, see the General Accounting Office testimony in U.S. Congress, House
Committee on Government Reform, Subcommittee on Government Efficiency and Financialthst
Management, Performance, Results, and Budget Decisions, hearing, 108 Cong., 1 sess.,
Apr. 1, 2003, H.Hrg. 108-32 (Washington: GPO, 2003), pp. 30-31; U.S. General Accounting
Office, Program Evaluation: Agencies Challenged by New Demand for Information on
Program Results, GAO/GGD-98-53, Apr. 1998; and Matthew Weinstock, “Under the
Microscope,” Government Executive, vol. 35, no. 1 (Jan. 2003), pp. 37-40. For more
detailed background and analysis, see U.S. General Accounting Office, Transition Series:
Program Evaluation Issues, GAO/OCG-93-6TR, Dec. 1992; Walter Williams, Mismanaging
America: The Rise of the Anti-Analytic Presidency (Lawrence, KS: University Press of
Kansas, 1990); U.S. General Accounting Office, Transition Series: Program Evaluation
Issues, GAO/OCG-89-8TR, Nov. 1988; and U.S. General Accounting Office, Federal
Evaluation: Fewer Units, Reduced Resources, Different Studies From 1980, GAO/PEMD-
143 For more discussion, see the section entitled “Agency ‘Chief Officers’ and Interagency
Councils” in CRS Report RL32388, General Management Laws: Major Themes and
Management Policy Options, by Clinton T. Brass. Currently, statutory chief officers (or
their equivalent) include inspectors general (IGs, established by the Inspector General Act
of 1978; 92 Stat. 1101); chief financial officers (CFOs, established by the Chief Financial
Officers Act of 1990; 104 Stat. 2838, at 2842); chief information officers (CIOs, established
by the Clinger-Cohen Act of 1996; 110 Stat. 679, at 684); chief human capital officers
the field of program evaluation is highly interdisciplinary, evaluation methods differ
from program to program.144 A common theme behind the creation of each of these
chief officer positions was many observers’ belief that senior managers within
executive branch agencies paid insufficient attention to a given functional perspective
(e.g., financial management, information technology) in managing their agencies.
Therefore, observers believed that each functional perspective needed to be
“elevated” to a higher position within agencies’ management ranks, as a means to
ensure that long-standing problems would be addressed.145
This situation may hold true for the program evaluation function in some
agencies. The Comptroller General stated in late 2002 that,
[u]nfortunately, there is reason to be concerned about the capacity of federal
agencies to produce evaluations of their programs’ effectiveness. Many program
evaluation offices are small, have other responsibilities, and produce only a few
effectiveness studies annually. Even where the value of evaluations is146
recognized, they may not be considered a funding priority.
If agency program evaluation staff and organizations struggle for visibility even with
regard to their own programs, these units might face an even more difficult task in
attempting to look across agencies at crosscutting, overlapping, duplicative, or
fragmented program areas.
If Congress chose to establish CPEO positions in major agencies, it might also
consider establishing a corresponding interagency council of CPEOs. CPEOs might
be tasked to help the agencies ensure quality performance information, evaluate
crosscutting programs (in addition to the agency’s indigenous programs), and report
(CHCOs, established by the Homeland Security Act of 2002; 116 Stat. 2287); and chief
acquisition officers (CAOs, established by the Services Acquisition Reform Act of 2003;
117 Stat. 1663, at 1666). Chief privacy officers were added to this list with enactment of
the Consolidated Appropriations Act, 2005 (Division H, Sec. 522; P.L. 108-447).
144 The Government Performance and Results Act defines program evaluation as “an
assessment, through objective measurement and systematic analysis, of the manner and
extent to which Federal programs achieve intended results” (107 Stat. 288). More
information about the program evaluation field can be found at the website of the American
Evaluation Association, available at [http://www.eval.org].
145 For example, see GAO’s 1988 analysis recommending the establishment of agency chief
financial management officers, U.S. General Accounting Office, Transition Series:
Financial Management Issues, GAO/OCG-89-7TR, Nov. 1988, pp. 22-23. With regard to
establishment of chief acquisition officers, see Jason Peckenpaugh, “Chief acquisition
officer proposal wins endorsement,” GovExec.com, June 17, 2003, available at
[ h t t p : / / www.go ve xec.com/ dai l yf e d/ 0603/ 061703p1.ht m] .
146 U.S. General Accounting Office, Performance Budgeting: Opportunities and Challenges,
GAO-02-1106T, Sept. 19, 2002, p. 16.
findings and information to Congress. Under current law, it is no one’s explicit job
to do this coordination.147
Proponents of pursuing this option, apart from the CARFA legislation, might
argue that establishing these chief officer positions could create a “seat at the table”
for program evaluation in agency senior management teams, potentially helping
agencies to improve performance or coordinate programs with overlapping missions.
However, critics might argue that establishing another type of chief officer would be
excessive for agency leaders and management teams. If this option were viewed in
context with the CARFA legislation as an alternative or complement, it could be seen
by observers as bringing potential advantages or disadvantages. For example, some
might see bolstered agency program evaluation efforts as an essential complement
for a CARFA. A commission could then draw upon the work of program evaluation
units and officers in federal agencies.148 On the other hand, some observers might see
a CARFA as essentially duplicative of the agency CPEOs and unaccountable to
147 However, for other functional areas, Presidents William Clinton and George W. Bush
both have used interagency councils of “chief officers,” viz., the CFO Council and CIO
Council, to undertake complex initiatives and foster interagency collaboration.
148 For example, the first Hoover Commission’s Concluding Report commented that time
limitations, given the level of resources at the commission’s disposal, constrained the
breadth and depth of the commission’s activities:
Limitations of time made it manifestly impossible for this Commission to inspect
all the activities of the Government. Thus, in the early stages of planning, our
attention was directed upon the largest spending activities of the Government
with the expectation that these functions would provide the most fruitful ground
for economy and savings. As a result, some smaller agencies either were not
surveyed at all, were partially studied, or were considered only from the
standpoint of how they might be related to the executive structure as a whole. ....
Our exclusion of these agencies does not imply that their operations should
not also be carefully appraised. On the contrary, our own findings offer clear
evidence of the value of further continuing study into the remaining relatively
untouched areas of the Government.
In our opinion, the logical course would be to assign this task to both the
Office of the Budget and to the departments themselves. Through their
management research staffs they would appear to be best equipped to do the job
on a continuing basis.
(See Commission on Organization of the Executive Branch of the Government, Concluding
Report, pp. 45-46.)