Office of Science and Technology Policy
Violation of the Antideficiency Act Gao ID: GAO-12-200T November 2, 2011This testimony discusses our October 11 opinion concerning the Office of Science and Technology Policy's (OSTP) use of appropriations for bilateral activities with the government of the People's Republic of China.
In the opinion, we determined that OSTP violated a statutory provision prohibiting the agency from using its appropriations for bilateral engagements with China or any Chinese-owned company. Because no funds were available for such purpose, OSTP's actions also violated the Antideficiency Act, a fiscal statute central to Congress's constitutional power of the purse.
GAO-12-200T, Office of Science and Technology Policy: Violation of the Antideficiency Act
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United States Government Accountability Office:
GAO:
Testimony:
Before the Subcommittee on Oversight and Investigations, Committee on
Foreign Affairs, House of Representatives:
For Release on Delivery:
Expected at 3:00 p.m. EDT:
Wednesday, November 2, 2011:
Office of Science and Technology Policy:
Violation of the Antideficiency Act:
Statement of Thomas H. Armstrong:
Managing Associate General Counsel:
Office of General Counsel:
GAO-12-200T:
Chairman Rohrabacher, Ranking Member Carnahan, and Members of the
Subcommittee:
I am GAO's Managing Associate General Counsel responsible for GAO's
appropriations law decisions and opinions. I am pleased to be here
today to discuss our October 11 opinion concerning the Office of
Science and Technology Policy's (OSTP) use of appropriations for
bilateral activities with the government of the People's Republic of
China.[Footnote 1] A copy of the opinion can be found in the appendix
to this statement.
In the opinion, we determined that OSTP violated a statutory provision
prohibiting the agency from using its appropriations for bilateral
engagements with China or any Chinese-owned company. Because no funds
were available for such purpose, OSTP's actions also violated the
Antideficiency Act, a fiscal statute central to Congress's
constitutional power of the purse.
As you may know, GAO provides legal decisions and opinions to
Congress, its committees and Members, and federal agency officials.
[Footnote 2] This function is different from GAO's more widely-known
audits and investigations.[Footnote 3] In addition to GAO audits and
investigations, Congress authorizes the Comptroller General to settle
the accounts of the United States.[Footnote 4] Our authority to issue
appropriations law decisions and opinions is drawn from this authority
and a statutory direction to issue decisions upon the request of
certain federal officials in advance of a payment of appropriated
funds.[Footnote 5] Our opinions are informed by facts and views that
we solicit from the agency whose appropriation is at issue in the
opinion. All of our opinions are publicly available on our Web site,
[hyperlink, http://www.gao.gov/legal].
In this instance, we received a request for an opinion from the
Chairman of the Subcommittee on Commerce, Justice, Science, and
Related Agencies, House Committee on Appropriations. The Chairman
expressed concern about OSTP's participation in meetings with
representatives of the Chinese government. He asked GAO whether OSTP's
use of its appropriation to participate in the meetings violated a
prohibition enacted in the Full-Year Continuing Appropriations Act,
2011. The Act prohibited OSTP and the National Aeronautics and Space
Administration (NASA) from engaging in bilateral activities with China.
The Full-Year Continuing Appropriations Act was enacted on April 15,
2011.[Footnote 6] The specific prohibition at issue states as follows:
"None of the funds made available by this division may be used for the
National Aeronautics and Space Administration or the Office of Science
and Technology Policy to develop, design, plan, promulgate, implement,
or execute a bilateral policy, program, order, or contract of any kind
to participate, collaborate, or coordinate bilaterally in any way with
China or any Chinese-owned company unless such activities are
specifically authorized by a law enacted after the date of enactment
of this division."[Footnote 7]
OSTP advised us that between May 6 and 10, 2011, after the enactment
of this provision, OSTP led and participated in a series of meetings
with Chinese officials as part of the U.S.-China Dialogue on
Innovation Policy (Innovation Dialogue) and the U.S.-China Strategic
and Economic Dialogue held in Washington, D.C. During the Innovation
Dialogue, the OSTP Director met with the Chinese Minister of Science
and Technology to discuss, among other things, Chinese procurement and
intellectual property policies. The Director opened and closed the
Innovation Dialogue and served on discussion panels. OSTP staff helped
the Director prepare for and participate in the meetings. The
Strategic and Economic Dialogue was convened by the Department of the
Treasury and the State Department. The Director spoke many times
during various sessions, including on U.S.-China cooperation on
climate science. OSTP also hosted a dinner to honor Chinese
dignitaries. OSTP calculated that, in total, it incurred costs of
$3,500 to participate in these events.
We concluded that OSTP violated the appropriations restriction. The
plain meaning of the prohibition is clear. It prevents OSTP's use of
funds to participate, collaborate, or coordinate bilaterally in any
way with China or Chinese-owned companies. Here, the Director and OSTP
staff had direct, substantive involvement in the Innovation Dialogue
and the Strategic and Economic Dialogue; OSTP also hosted a dinner for
Chinese government officials.
OSTP did not deny that it engaged in prohibited activities. OSTP
asserted that the prohibition, as applied to these activities, is an
unconstitutional infringement on the Executive's constitutional
prerogatives in foreign affairs. As we stated in our opinion, we did
not opine on the constitutionality of the prohibition. It is not GAO's
role nor within our province to opine upon or adjudicate the
constitutionality of duly enacted legislation; that role is properly
reserved for the courts. Legislation such as this, which was passed by
Congress and signed by the President, is entitled to a heavy
presumption in favor of constitutionality. Therefore, absent a
judicial opinion from a federal court of jurisdiction that a
particular provision is unconstitutional, we apply laws as written to
the facts presented.
By using its appropriated funds in violation of the prohibition, OSTP
also violated the Antideficiency Act. The Antideficiency Act is one of
the major fiscal laws by which Congress enforces its constitutional
control of the public purse. The Antideficiency Act is a funds control
statute designed to implement agency fiscal discipline. Under the Act,
an officer or employee of the U.S. Government may not make or
authorize an obligation[Footnote 8] or expenditure exceeding the
amount of an available appropriation.[Footnote 9] The legal effect of
the OSTP prohibition is to make no funds available to OSTP for
bilateral activities with China or any Chinese-owned company. By
spending funds on the Innovation Dialogue, the Strategic and Economic
Dialogue, and the dinner to host Chinese dignitaries, OSTP spent funds
in excess of those available, therefore violating the Antideficiency
Act. Executive agencies must report Antideficiency Act violations to
the President and Congress, and transmit copies of their reports to
GAO.[Footnote 10] The Office of Management and Budget provides
guidance to executive agencies on reporting violations.[Footnote 11]
If you or your staff have any questions about this testimony, please
contact me at (202) 512-8257 or armstrongt@gao.gov. Contact points for
our Office of Congressional Relations and Office of Public Affairs may
be found on the last page of this statement. Julia Matta, Assistant
General Counsel, and Faisal Amin, Senior Attorney, made key
contributions to this statement.
Thank you, Mr. Chairman. This concludes my prepared statement. I would
be happy to answer any questions that you or other members of the
Subcommittee have at this time.
[End of section]
Appendix I: GAO Opinion to the Chairman of the House Appropriations
Subcommittee on Commerce, Justice, Science, and Related Agencies:
United States Government Accountability Office:
Washington, DC 20548:
B-321982:
October 11, 2011:
The Honorable Frank R. Wolf:
Chairman, Subcommittee on Commerce:
Justice, Science, and Related Agencies:
Committee on Appropriations:
House of Representatives:
Subject: Office of Science and Technology Policy”Bilateral Activities
with China:
This responds to your request for our opinion on the propriety of
activities undertaken in May 2011 by the Office of Science and
Technology Policy (OSTP) with representatives of the government of the
People's Republic of China. Letter from Representative Wolf to the
Comptroller General (May 11, 2011) (Request Letter). Specifically, you
point to meetings with Chinese representatives during the U.S.-China
Dialogue on Innovation Policy (Innovation Dialogue) and the U.S.-China
Strategic and Economic Dialogue (S&ED) held in Washington, D.C., in
May 2011. You ask whether OSTP violated section 1340 of the Department
of Defense and Full-Year Continuing Appropriations Act, 2011. Section
1340 prohibits the use of OSTP appropriations for bilateral activities
between OSTP and China, or Chinese-owned companies, unless
specifically authorized by laws enacted after the date of the
appropriations act. Pub. L. No. 112-10, div. B, title III, 125 Stat.
38, 123 (Apr. 15, 2011).
As explained below, we conclude that OSTP's use of appropriations to
fund its participation in the Innovation Dialogue and the S&ED
violated the prohibition in section 1340. In addition, because section
1340 prohibited the use of OSTP's appropriations for this purpose,
OSTP's involvement in the Innovation Dialogue and the S&ED resulted in
obligations in excess of appropriated funds available to OSTP;
as such, OSTP violated the Antideficiency Act, 31 U.S.C. §
1341(a)(1)(A).
Our practice when rendering legal opinions is to obtain the views of
the relevant agency to establish a factual record and to elicit the
agency's legal position on the subject matter of the request. GAO,
Procedures and Practices for Legal Decisions and Opinions, GAO-06-
1064SP (Washington, D.C.: Sept. 2006), available at [hyperlink,
http://www.gao.gov/legal/resources.html]. In this case, OSTP provided
us with its legal views and relevant supporting materials. Letter from
General Counsel, OSTP to Assistant General Counsel, GAO, Re: B-321982,
Office of Science and Technology Policy–Bilateral Activities with
China (June 23, 2011) (OSTP Response). We also spoke by telephone with
OSTP's General Counsel to ask questions about OSTP's June letter.
Telephone Conversation with General Counsel, OSTP (Aug. 4, 2011)
(August Conversation). See also Letter from General Counsel, OSTP to
Senior Attorney, GAO, Re: Follow-up to August 4, 2011, Telephone Call
(Aug. 29, 2011) (OSTP August Letter).
Background:
The Presidential Science and Technology Advisory Organization Act of
1976[Footnote 1] established OSTP to "serve as a source of scientific
and technological analysis and judgment for the President with respect
to major policies, plans, and programs of the Federal Government." 42
U.S.C. § 6614(a). Part of the agency's mission is to "advise the
President of scientific and technological considerations involved in
areas of national concern including... foreign relations...." 42
U.S.C. § 6613(b)(1).
Between May 6 and 10, 2011, OSTP "led and participated in a series of
meetings with Chinese officials" as part of the Innovation Dialogue
and the S&ED. OSTP Response, at 3. On May 6, 2011, the OSTP Director
and Chinese Minister of Science and Technology participated in the
Innovation Dialogue. According to OSTP, a goal of the Innovation
Dialogue was to "serve as a forum for persuading the rollback of
discriminatory, counterproductive Chinese procurement and intellectual
property policies...." OSTP Response, at 3. Among the topics discussed
were "market access and technology transfer; innovation funding and
incentives; standards and intellectual property; and government
intervention." OSTP Response, at 4. OSTP informed our office that the
OSTP Director opened and closed the Innovation Dialogue and served on
discussion panels. OSTP August Letter, at 1. OSTP staff helped the
Director prepare for and participate during the meetings. Id. See OSTP
Response, at 5.
On May 8, 2011, OSTP hosted a dinner to honor Chinese dignitaries. Six
U.S. participants attended the dinner, along with an unidentified
number of "staff-level employees from other federal agencies." OSTP
Response, at 4, n.13. The Director is the only listed dinner attendee
from OSTP. There were six Chinese invitees. Id.
On May 9 and 10, 2011, OSTP participated in the S&ED. The purpose of
the S&ED was to bring together various U.S. and Chinese government
officials to "discuss a broad range of issues between the two
nations," including on matters regarding trade and economic
cooperation. U.S. Department of the Treasury, U.S.”China
Strategic and Economic Dialogue, available at [hyperlink,
http://www.treasury.gov/initiatives/Pages/china.aspx] (last visited
Oct. 4, 2011). The Secretary of the Treasury and the Secretary of
State co-chaired the S&ED along with the Vice Premier and State
Councilor of the People's Republic of China. Id. Topics of discussion
included "enhancement of trade and investment cooperation; an overview
of bilateral relations; military-to-military relationships;
cooperation on clean energy, energy security, climate change, and
environment; customs cooperation; and energy security." OSTP Response,
at 4. The OSTP Director spoke many times during the various sessions,
including on U.S.-China cooperation on climate science. August
Conversation. OSTP also had at least one staff member attend the S&ED
in addition to the Director. Id.
The Full-Year Continuing Appropriations Act, 2011, enacted into law on
April 15, 2011, included appropriations for OSTP for fiscal year 2011
in title III of division B. Pub. L. No. 112-10, div. B. Section 1340
of title III provides:
"None of the funds made available by this division may be used for the
National Aeronautics and Space Administration or the Office of
Science and Technology Policy to develop, design, plan, promulgate,
implement, or execute a bilateral policy, program, order, or contract
of any kind to participate, collaborate, or coordinate bilaterally in
any way with China or any Chinese-owned company unless such activities
are specifically authorized by a law enacted after the date of
enactment of this division."
Pub. L. No. 112-10, § 1340.
OSTP informed us that it incurred costs of approximately $3,500 to
participate in the week's activities, including the cost of staff time
for nine employees preparing for and participating in the discussions,
as well as the cost of the dinner OSTP hosted on May 8. OSTP Response,
at 5.
Discussion:
At issue in this opinion is whether OSTP violated section 1340's
proscription, and, if so, whether the agency violated the
Antideficiency Act.
As with any question involving the interpretation of statutes, our
analysis begins with the plain language of the statute. Jimenez v.
Quarterman, 555 U.S.113 (2009). When the language of a statute is
"clear and unambiguous on its face, it is the plain meaning of that
language that controls." B-307720, Sept. 27, 2007; B-306975,
Feb. 27, 2006; see also Lynch v. Alworth-Stephens Co., 267 U.S. 364,
370 (1925).
The plain meaning of section 1340 is clear. OSTP may not use its
appropriations to participate, collaborate, or coordinate bilaterally
in any way with China or any Chinese-owned companies. Here, OSTP's
participation in the Innovation Dialogue and S&ED contravened the
appropriations restriction. The Director opened the Innovation
Dialogue and moderated discussions therein. OSTP staff prepared
materials for and attended the discussions. OSTP then invited U.S. and
Chinese officials to a dinner that it paid for using its
appropriation. Finally, OSTP participated in the S&ED, during which
the Director spoke on multiple occasions, including on climate
science. OSTP did not identify, nor are we aware of, any specific
authority to do so that was enacted after the date of the Continuing
Appropriations Act, 2011.
OSTP does not deny that it engaged in activities prohibited by section
1340. OSTP Response; August Conversation. OSTP argues, instead, that
section 1340, as applied to the events at issue here, is an
unconstitutional infringement on the President's constitutional
prerogatives in foreign affairs.[Footnote 2] OSTP Response, at 1;
August Conversation; Letter from Director, OSTP, to the Speaker of the
House of Representatives, Re: Section 1340 of the Department of
Defense and Full-Year Continuing Appropriations Act of 2011 (May 16,
2011) (OSTP May 16 Letter). OSTP claims that section 1340 is
"unconstitutional to the extent its restrictions on OSTP's use of
funds would bar the President from employing his chosen agents for the
conduct of international diplomacy." OSTP Response, at 1. OSTP asserts
that the President has "exclusive constitutional authority to
determine the time, place, manner, and content of diplomatic
communications and to select the agents who will represent the
President in diplomatic interactions with foreign nations." OSTP
May 16 Letter. OSTP argues that, for this reason, Congress may not
"use its appropriations power to infringe upon the President's
exclusive constitutional authority in this area." Id.
It is not our role nor within our province to opine upon or adjudicate
the constitutionality of duly enacted statutes such as section 1340.
See B-300192, Nov. 13, 2002; see also B-306475, Jan. 30, 2006. In our
view, legislation that was passed by Congress and signed by the
President, thereby satisfying the Constitution's bicameralism and
presentment requirements, is entitled to a heavy presumption in favor
of constitutionality. B-302911, Sept. 7, 2004. See Bowen v. Kendrick,
487 U.S. 589, 617 (1988). Determining the constitutionality of
legislation is a province of the courts. U.S. Const. art. III, § 2.
Cf. Fairbank v. United States, 181 U.S. 283, 285 (1901). Therefore,
absent a judicial opinion from a federal court of jurisdiction that a
particular provision is unconstitutional, we apply laws as written to
the facts presented. See B-114578, Nov. 9, 1973. In 1955, for example,
we stated that we "accord full effect to the clear meaning of an
enactment by the Congress so long as it remains unchanged by
legislative action and unimpaired by judicial determination." B-24985,
Aug. 17, 1955. We see no reason to deviate here. Indeed, we are
unaware of any court that has had occasion to review the provision,
let alone adjudicate its constitutionality, nor did OSTP advise of any
judicial determination or ongoing litigation.
As a consequence of using its appropriations in violation of section
1340, OSTP violated the Antideficiency Act. Under the Antideficiency
Act, an officer or employee of the U.S. Government may not make or
authorize an expenditure or obligation exceeding an amount available
in an appropriation. 31 U.S.C. § 1341. See B-300192, Nov. 13, 2002. If
Congress specifically prohibits a particular use of appropriated
funds, any obligation for that purpose is in excess of the amount
available. 71 Comp. Gen. 402 (1992); 62 Comp. Gen. 692 (1983); 60 Comp.
Gen. 440 (1981). By using its fiscal year 2011 appropriation in a
manner specifically prohibited, OSTP violated the Antideficiency Act.
Accordingly, OSTP should report the violation as required by the act.
[Footnote 3]
Sincerely,
Signed by:
Lynn H. Gibson:
General Counsel:
Page 5 B-321982
Appendix I Footnotes:
[1] Pub. L. No. 94-282, title II, 90 Stat. 459, 463-68 (May 11, 1976),
42 U.S.C. §§ 6611-6624.
[2] The Department of Justice characterizes section 1340 as a "valid
limitation on OSTP's use of appropriated funds only to the extent that
its restrictions do not infringe upon the President's exclusive
constitutional authority over international diplomacy." Letter from
Assistant Attorney General, Office of Legislative Affairs to
Representative Wolf (June 28, 2011). Justice advised OSTP that OSTP was
"permitted to engage in diplomatic activities with Chinese
representatives to the extent that it would be doing so as an agent of
the President for diplomacy with China, notwithstanding Section 1340."
Id. See Memorandum Opinion for the General Counsel, OSTP,
Unconstitutional Restrictions on Activities of the Office of
Science and Technology Policy in Section 1340(a) of the Department of
Defense and Full-Year Continuing Appropriations Act, 2011, OLC
Opinion, Sept. 19, 2011, available at [hyperlink,
http://www.justice.gov/olcimemoranda-opinions.html] (last visited Oct.
4, 2011). OSTP asserts that the U.S.-China Agreement on Cooperation in
Science and Technology designates OSTP as the executive branch
authority charged with "collaboration and coordination with China in
support of U.S.-China science and technology policy cooperation." OSTP
Response, at 3.
[3] See 31 U.S.C. § 1351. The Office of Management and Budget has
published requirements for executive agencies for reporting
violations. OMB Circular No. A-11, Preparation, Submission, and
Execution of the Budget, §§ 145, 145.8, available at [hyperlink,
http://www.whitehouse.qov/omb/circulars] all current year all toc (last
visited Oct. 4, 2011).
[End of section]
Footnotes:
[1] B-321982, Oct. 11, 2011. Reprinted in Appendix I.
[2] GAO, Principles of Federal Appropriations Law, Vol. I, 3RD ed.,
ch. 1, § C.2, [hyperlink, http://www.gao.gov/products/GAO-04-261SP]
(Washington, D.C.: Jan. 2004). GAO, Procedures and Practices for Legal
Decisions and Opinions, [hyperlink,
http://www.gao.gov/products/GAO-06-1064SP] (Washington, D.C.: Sept.
2006), available at [hyperlink,
http://www.gao.gov/legal/resources.html].
[3] See 31 U.S.C. § 712. Congress provides GAO with general authority
to investigate the receipt, disbursement, and use of public funds, as
well as other, more specific audit authorities. Id.
[4] 31 U.S.C. § 3526.
[5] 31 U.S.C. §§ 3527-3529. GAO is authorized to provide advance
decisions to the heads of agencies and agency components, as well as
accountable officers.
[6] Pub. L. No. 112-10, div. B, 125 Stat. 38 (Apr. 15, 2011).
[7] Id., title III, § 1340, 125 Stat. at 123.
[8] In federal fiscal law, an obligation is a "definite commitment
that creates a legal liability of the government for the payment of
goods [or] services ordered or received, or a legal duty on the part
of the United States that could mature into a legal liability by
virtue of actions on the part of [another] party beyond the control of
the United States." GAO, A Glossary of Terms Used in the Federal
Budget Process, GAO-05-734SP (Washington, D.C.: Sept. 2005), at 70.
[9] 31 U.S.C. § 1341.
[10] 31 U.S.C. § 1351.
[11] OMB Circular No. A-11, Preparation, Submission, and Execution of
the Budget, §§ 145, 145.8, available at [hyperlink,
http://www.whitehouse.gov/omb/circulars_a11_current_year_a11_toc]
(last visited Oct. 25, 2011).
[End of section]
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