History Regarding the Consolidation of Congressional Liaison Functions within the Department of Defense
By Raymond P. Clark (SAF/FMBL)
October 21, 2009
This paper attempts to lay out the history and Congressional intent on the long standing separation of the Congressional Budget and Appropriations staff from the other legislative liaison functions of the Department of Defense and the Military Services.
From time to time, an effort within the Department of the Defense, or one of the Military Services, attempts to consolidate liaison functions under one organization responsible for all Congressional actions, both authorization and appropriations. This consolidation, born from the attempt to affect organizational efficiencies, has historically been opposed by the Congress.
For more the 38 years the Congress has consistently reaffirmed its intent regarding the independent function of Budget and Appropriations Liaison under the Comptroller from the regular Congressional liaison functions with the Department of Defense and the Military Services via public statute, Congressional report language, and written correspondence. This reaffirmation of the separation of Congressional liaison responsibilities has been supported by the Department of Defense and the Department of the Air Force. What follows are the details of those reaffirmations and Congressional intent.
The first documented instance of the intent of Congress regarding the separate and unique liaison function with the Congressional Budget and Appropriations Committees occurred in 1970. As part of the Fiscal Year 1971 Defense Appropriations Bill, the House added report language expressing its clear intent:
“The Committee reiterates its belief that the work of the Appropriations Committee is most effectively accomplished through the Comptroller and Budget Office organizations of the Department of Defense and the Military Services rather than through other channels, including legislative liaison offices. From time to time efforts are made to fragment this responsibility within the Department. Such efforts only serve to complicate and delay the business of the Committee. Any such changes should be initiated by the Committee and not by the Department.”1
The above was reaffirmed in 1972 via the House Report to accompany the Fiscal Year 1973 Defense Appropriations Bill:
“The traditional position of this Committee with respect to its work with the Department of Defense was reaffirmed in the report on the Department of Defense Appropriations Bill for fiscal year 1971 (House Report No. 91‐1570, page 11) as follows:
““The Committee reiterates its belief that the work of the Appropriations Committee is most effectively accomplished through the Comptroller and Budget Office organizations of the History Regarding the Consolidation of Congressional Liaison Functions within the Department of Defense Department of Defense and the Military Services rather than through other channels, including legislative liaison offices. From time to time efforts are made to fragment this responsibility within the Department. Such efforts only serve to complicate and delay the business of the Committee. Any such changes should be initiated by the Committee and not by the Department.””
In order to facilitate this work of the Committee and its members on the Defense appropriations requests, the individuals assigned as contacts between the Committee and the agencies of the department must continue to be organizationally a part of the Comptroller and budget offices of the Department of Defense and the Military Services.
This practice‐while in no way derogating from the Committee’s right of access to anyorganizations or individuals in the Department‐insures the maintenance of clear channels through which requirements of the Committee and its members can be handled by those whose objectivity, experience and ability to perform their duties best qualify them to understand and properly respond to the needs of the Committee and its members in connection with their work on budget requests. For this reason, personnel assigned to this Committee liaison function should be experience in budget work. It is imperative that this practice be continued.
The Committee’s position on this matter should not be considered as an adverse reflection on the congressional liaison organizations of the department which perform many other useful functions. It is based on conclusion reached as a result of many years of experience.”2
Following the House, in 1978 the Senate Appropriations Committee felt compelled to add its intent on this matter to the report accompanying the Fiscal Year 1978 Defense Appropriations Bill as follows:
“In reporting out the 1976 Defense Appropriations Bill (S. Rept. 94‐446), the Committee discussed the special relationship it has enjoyed over the years with the budget offices and comptroller organizations of the Defense Department. The comments made by the Committee at that time are reprinted below:
”The Committee would like to concur in a special point made in the House Committee report on this subject—namely its own relationship with the Department in these matters. Throughout the year, the Committee has funneled most of its inquiries and requests for assistance through the budget officers or comptroller organizations of the DOD or services because of the natural affinity between these organizations and the Appropriations Committee. While always reserving the right to call upon all organizations of the defense establishment for assistance, the primary interface of the appropriations committees and the Department of Defense necessarily must be through the budget offices and comptroller organizations. During the past year, although demands on those organizations have increased (particularly in response to the new House and Senate Budget committee requirements, those of the Congressional Budget Office, and the new budget process under the Budget and Impoundment Control Act of 1974), these organizations have continued to provide effective support to the Committee. The Committee expects to see such support to continue.”3
The Congress continued to reaffirm its intent on this matter in the decades to follow. Whereas previously the Congressional language provided the opinion of the Committees on the matter, in 1983 the House Appropriations Committee chose to use firmer directive language on the matter:
“The Committee continues to believe that appropriations liaison personnel should be co‐located with the day‐to‐day operation of the various military services and OSD budget shops. No effort is to be undertaken to integrate (organizationally or physically) the appropriations liaison staffs with the less specialized and non‐financially oriented legislative liaison staffs.”4
The Senate followed suit in its Fiscal Year 1988 Military Construction Appropriation Bill and for the first time codified the language in the bill making it law:
Section 122. This provision prohibits the Air Force from changing the current manner legislative liaison service is provided to the House and Senate Appropriations Subcommittees on Military Construction.
The Committee strongly agrees with the House in that legislative liaison to the Subcommittees on Military Construction should continue to be conducted by personnel in the Office of the Secretary comptroller function. The Committees on Appropriations have had a longstanding, satisfactory relationship with liaisons from the comptroller community. Comptroller personnel who actively participate in the programming, budgeting, and execution of Military Construction and Military Family Housing Programs serve as the best liaisons with regard to knowledge and objectivity. Liaisons from the program community have an inherent parochial interest that, after time would tend to weaken the credibility of budgets submitted by the Department.
The Committee has inserted language in this provision that prohibits the Department from transferring military construction and military family housing budgetary and fiscal functions (including financial management) to any office or entity outside the comptroller function of the Secretary concerned. The Committee believes that any attempt to affect such a transfer violates the intent of the Goldwater‐Nichols Department of Defense Reorganization Act of 1986, Public Law 99‐433. Further, fiscal control, to include year‐end funds certification is a function that must be performed by comptroller personnel representing the Secretary concerned. The Committee directs each Secretary concerned to certify to the Committees by December 31. 1987, that all military construction and military family housing budgetary and fiscal functions are being performed within the comptroller function under the Secretary concerned and that no other office or entity is conducting budgetary and fiscal functions in a duplicative manner. The provision now reads as follows:
SEC. 122. Notwithstanding any other provision of law, the Secretaries of Defense, Anny, Navy and Air Force are required to maintain legislative liaison to the House and Senate for Appropriations Subcommittees on Military Construction and budgetary and fiscal management of the Military Construction and Military Family Housing appropriations in a manner identical to the method employed as of September 30, 1986: Provided. That nothing in this section shall prevent the Secretaries of the Anny and Navy from realigning legislative liaison and financial management to correspond with the method employed by the Air Force on September 30, 1986.” 5
In the following year, the Senate Military Construction Appropriations Subcommittee again reaffirmed its intent directly with the Air Force:
As a further clarifications of the intent of section 122, the Committee indicates that the Air Force should maintain the liaison and budget functions described in the general provision under the Air Force Deputy Comptroller for Budget within the Secretary of the Air Force Comptroller organization as those functions are currently maintained. Further the Air Force should maintain no less than the same level of manpower authorizations currently authorized and personnel filling these slots should not be involuntarily separated or transferred.” 6
As a result of the above, the matter is now codified in Title 10, 102 STAT 1834, Section 122 as follows:
Sec 122. Notwithstanding any other provision of law, the Secretary of the Air Force is required to maintain legislative liaison to the House and Senate Appropriations Subcommittees on Military Construction and budgetary and financial management of the Military Construction and Military Family Housing appropriations in a manner identical to the method employed as of September 30, 1986. 7
On at least three occasions Committee Chairmen personally weighed in leading to the more directive nature of the language above, and ultimately inclusion into Title 10 USC. In 1982 the House Appropriations Chairman wrote a memorandum to the Secretary of Defense commenting as follows:
“I am also disturbed that the Air Force has taken action contrary to clear Congressional guidance by consolidating the appropriations liaison function with the less specialized legislative liaison office. Without consulting the Congress, the Air Force has expended appropriated funds to physically relocate these personnel. This action should be reversed and a full explanation provided to the Committee as to why this long‐standing policy has been ignored.” 8
In 1989 the Chairmen of the House and Senate Appropriations Subcommittees on Military Construction wrote the Acting Secretary of the Air Force the Honorable James F. McGovern stating:
“We have received a letter dated February 22, 1989 from Major General George W. Larson, Jr. which advises the Committees that the Air Force has recently consolidated Congressional liaison functions for budget into a single office. The consolidation appears to be in violation of Section 122 of Public Laws 100‐202 and 100‐447 and certainly in violation of the intent of Congress.
The Committees are distressed that such action has been taken knowing of the intent of Congress. In addition, this action was taken without consultation with either Members or staff of the House or Senate Military Construction Subcommittees. It appears that this is an obvious blatant defiance of Congressional intent if not defiance of the law. 9
Most recently, in 1993 the House and Senate Appropriations Committee Chairmen and Ranking Members jointly wrote then Secretary of Defense, the Honorable Les Aspin, reaffirming the long standing Congressional intent regarding liaison activities within the Department of Defense:
Since the mid‐1970’s, the Appropriations Committees of the House and Senate have relied upon offices within the Comptroller organizations of the military departments and the Office of the secretary of Defense to provide budget liaison to the respective Committees. The individuals who have worked in these organizations have provided an invaluable service to the Committees on Appropriations. The personnel assigned to these offices are expert in working with the detailed budgetary information which is required by the Committees in our attempt to provide the best funding recommendations for the Department of Defense.
While the various offices of legislative affairs offer great assistance to DoD and the Congress, they do not provide the expertise and the direct relationship to the Comptroller organizations which are essential to the effective communication between DoD and the Committees on Appropriations.
We understand there may be efforts to incorporate the budget liaison organizations into the military and OSD legislative affairs offices. We believe any such change would be deleterious to the appropriations process and to the utility of the budget liaison operation. Therefore, we would strongly object to any such reorganization. 10
To reinforce Congressional intent, the Defense Appropriators felt the need to continue to add language expressing their desire to keep legislative liaison functions separate and distinct. In the current FY2010 Defense Appropriations Bill 11 the members added the following:
That none of the funds appropriated or otherwise made available by this Act may be used to plan or implement the consolidation of a budget or appropriations liaison office of the Office of the Secretary of Defense, the office of the Secretary of a military department, or the service headquarters of one of the Armed Forces into a legislative affairs or legislative liaison office.
Given the long history and clear intent of the Congress, the Department of Defense has reaffirmed to the Committees its intent to keep the Budget and Appropriations liaison function within the comptroller organizations of OSD and the Military Services. In 1988 then Secretary of the Air Force, the Honorable E.C. Aldridge, Jr. replied to the Chairman of the Senate Appropriations Subcommittee on Military Construction as follows:
“In compliance with Section 122, MILCON/Family Housing, the Air Force will continue to maintain legislative liaison to the House and Senate Appropriations Subcommittees on Military Construction and budgetary and fiscal management of the Military Construction and Military Family Housing appropriations in a manner identical to the method employed as of September 30, 1986.” Any duplication in Military Construction and Military Family Housing budgetary and fiscal functions will be eliminated.
It is our intent to continue effective and professional support to the Appropriations Committees. We enlist your continued support for Military Construction and Family Housing. These programs are vital to our weapons systems and existing physical plant and especially to our most important assets ‐‐our people.” 12
As a result of the 19 Nov 93 letter from the House and Senate Chairmen and Ranking Members, the Department of Defense Comptroller, the Honorable Dr. John J. Hamre, wrote to the Secretary of the Air Force essentially directing the Air Force to comply with Congressional intent:
“The Chairmen and Ranking members of the Defense Appropriations Subcommittees recently wrote Secretary Aspin to express their concern about a possible combining of the budget liaison and legislative functions in OSD and the Military Departments. I want to share with you the commitment I made, on behalf of Secretary Aspin, to maintain the current arrangement of providing direct support to the Appropriation Defense Subcommittees by the Department’s budget offices.
The very positive relationship the Department has with the Congress is due largely to the very successful working arrangements we have with both the Armed Services Committees and the Appropriation Defense Subcommittees. I thank you for the excellent support your budget liaison office has provided to my staff, especially during the recently completed floor and conference action on the FY 1994 DoD budget. These efforts and the outstanding work of the OSD Legislative Affairs office and the Services’ Legislative Liaison offices provide a superb level of support for the Department’s legislative program. I look forward to continuing this very successful arrangement in the future. Copies of my letters to Chairman Inouye and Chairman Murtha are attached.” 13
In 2001, per request from SAF/AA, the Air Force General Counsel for Appropriations (SAF/GCA) wrote a legal opinion regarding the legislative functions within the Air Force. This legal review was made in response to a question of whether the Air Force would be in violation of law should it consolidate its legislative functions under a single organizational structure. It concluded that “…those functions related to the annual appropriations acts continue to be performed by financial management professionals to avoid the kinds of issues that led Congress to statutorily amend the duties of the Under Secretary of Defense (Comptroller).” 14
There are other statutory provisions that must be followed:
Title 10 U.S.C.§ 1’35, establishes the position of Under Secretary of Defense (Comptroller). In part, section 135 provides that “The Under Secretary of Defense (Comptroller) shall ensure that each congressional committee specified in paragraph (2) [all four defense committees] is informed in a timely manner regarding all matters relating to the budgetary, fiscal, and analytic activities of the Department of Defense that are under the supervision of the Under Secretary of Defense (Comptroller).” 10 U.S.C. § 135(e)(1). See also DoD Directive 5118.3. The responsibility to keep the defense committees informed was added in 1993 and originated in the Senate out of concern that ”vital budgetary, fiscal, and analytic information” was not being provided to the defense committees in a timely or uniform manner.
Title 10 U.S.C. § 8016(b)(3), enacted as part of the Goldwater‐Nichols Department of Defense Reorganization Act of 1986, specifies that one of the four Air Force Assistant Secretaries will be an Assistant for “Financial Management.” This section states that the Assistant Secretary “shall have as his principal responsibility the exercise of the comptroller functions of the Department of the Air Force, including financial management activities and shall advise the Secretary of the Air Force on financial management.'” Unlike the duties of the Under Secretary of Defense (Comptroller) specified in 10 U.S.C. § 135(e)(1),neither section 8016(b)(3), nor section 8022, which sets out in more detail the duties of the Assistant Secretary, require as a matter of law that information about Air Force fiscal and budgetary issues be provided to the defense committees by the Assistant Secretary of the Air Force (Financial Management). The present division of responsibilities between SAF/FM and SAFILL is consistent, however, with legal requirements imposed on the Under Secretary of Defense (Comptroller)
Section 8014( c)(1) of title 10 does require that the “Legislative Affairs'” and “Comptroller (including financial management)” functions must reside in the Secretariat. The Conference report to Goldwater‐Nichols states that these and the other functions enumerated in section 8014 were placed in the Secretariat because they “are either civilian in nature or key to effective civilian control” H. Rep. 824, 99th Cong., 2d Sess., 149 (1986). This admonition is one that cannot be ignored or taken lightly. In 1987, the Secretary, Chief of Staff, and other Air Force officials were called to testify before the Investigations Subcommittee of the House Armed Services Committee based on assertions by Congressman Aspin and Dingell that the, Air Force had violated both the letter and spirit of Goldwater‐Nichols by “a virtual elimination of civilian control” over acquisition and financial management. See Chairman Nichols letter to Congressman Aspin dated August 7, 1987. While Chairman Nichols concluded ”that some of the more specific allegations … can be laid to rest, I am of the opinion … that the more general question of whether the Air Force reorganization decisions strengthen civilian control, as intended by the [Goldwater‐Nichols] legislation, will remain unanswered for some time and bears continued scrutiny.”
Since this time, the Air Force has consistently complied with Congressional intent and is reflected in the various organizational directives since 2001. Secretarial Order 102.1, Authority and Responsibilities of the Assistant Secretary of the Air Force (Financial Management and Comptroller), dated 20 May 2006 to its latest replacement HAF Mission Directive 1‐12, Assistant Secretary of the Air Force (Financial Management and Comptroller), dated 4 April 2007 reaffirms the role of the office as primary liaison to the Budget and Appropriations Committees.
Almost four decades of Congressional history and DoD organizational decisions reaffirm the primacy of the Air Force Office of Budget and Appropriations Liaison to be separate and distinct from the Air Force Legislative Liaison function. This focus on providing a direct line of communication from the Budget and Appropriations Committees to the Comptroller functions will likely remain strong. Any attempts to consolidate or reorganize personnel or responsibilities would necessarily have to be initiated and approved by the Congress.
The individual references made in this document are available upon request from SAF/FMBL.