The White House Office of Management and Budget (“OMB”) has confirmed that all executive branch agencies are required to disclose attempts by congressional and other outside force to influence the merit-based decision-making process for federal spending. These efforts to earmark federal spending must be disclosed on agency websites within thirty days of their receipt. But OMB has refused to issue new guidelines directing agencies to comply with the rule.
OMB’s reaffirmation came in a letter during litigation declining Cause of Action Institute (“CoA Institute”) and Demand Progress’s 2015 petition for rulemaking that asked the agency to enforce President George W. Bush’s Executive Order 13,457.
Background
In 2008, during the congressional debate over the earmark ban, President Bush issued EO 13,457, both to take a position in the ongoing debate and in an attempt to foreclose members of Congress from evading the ban by going directly to agencies. Part of the order relied on transparency as a tool to dissuade these “executive branch earmarks” by requiring agencies to publish efforts to influence their decision making on their website within thirty days of receiving such communications. The order also directed agencies not to fund these “non-statutory” earmarks. Shortly after, OMB issued a memorandum instructing agencies how to comply with the order while implementing recent appropriations law.
CoA Institute had concerns that agencies were not complying with the order and conducted an investigation into which agencies were properly disclosing executive branch earmarks; only the Departments of Justice and Energy had published any meaningful content on their website.
In 2015, CoA Institute joined with Demand Progress and asked President Obama’s White House to depoliticize federal spending decisions by upholding the order. We filed a petition for rulemaking asking the Obama OMB “to issue a rule ensuring the continuing force and effect of Executive Order 13457[.]”
In November 2017, after two years of not receiving a response, CoA Institute sued OMB over its failure to act on the petition. With a new administration now in the White House, we urged President Trump’s OMB to issue updated guidance ensuring that agencies followed the order and disclosed earmarking efforts.
OMB Declines Petition, Confirms Executive Order Still in Effect
Due to the lawsuit, OMB has finally responded. Although OMB declined to issue a new memorandum, it confirmed that “EO 13457 Remains In Force [because] No Executive Order has been issued that displaces, alters, or withdraws EO 13457 and [because] OMB is also not aware of any judicial decision vacating EO 13457.”
Therefore, agencies are still obligated both to refuse to fund non-statutory earmarks and disclose any attempts to influence their decisions within thirty days. The Trump Administration, however, refuses to make them live up to their responsibilities.
James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.