United States Government Accountability Office

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: Election Assistance Commission—Obligation of Fiscal Year 2004 

Requirements Payments Appropriation 

File: B-318831 

Date: April 28, 2010 

DIGEST

Election Assistance Commission (EAC) violated the purpose statute, 31 U.S.C. 

§ 1301(a), when it obligated certain grant programs to its fiscal year 2004 

requirements payments appropriation. EAC used its requirements payments 

appropriation because of language in a conference report and the Office of 

Management and Budget apportionment. The plain language of the appropriation, 

however, was clear that the appropriation was legally available only for requirements 

payments. To correct its purpose violation, EAC should adjust its accounts and 

charge its grant obligations to its salaries and expenses appropriation, which is 

available “for necessary expenses to carry out [HAVA].” Given the passage of time, 

however, EAC commissioners may wish to seek and obtain congressional ratification 

of its improper grant expenditures. 

DECISION 

The Election Assistance Commission (EAC) Inspector General (IG) requested a 

decision regarding EAC’s obligation of certain grant payments made under the Help 

America Vote Act of 2002 (HAVA). Letter from Inspector General, EAC, to Acting 

Comptroller General, GAO, Oct. 13, 2009 (IG Letter). Among other things, HAVA 

authorizes EAC to distribute payments to states for enumerated purposes 

(“requirements payments”) and to make grants to some authorized programs (“poll 

worker and mock election grants”). At issue in this decision is EAC’s use of its 

requirements payments appropriation for poll worker and mock election grants. The 

IG asks whether EAC violated the purpose statute, 31 U.S.C. § 1301(a), when it 

obligated these grant payments to its requirements payments appropriation 

notwithstanding the language of the appropriation. EAC justified its use of the 

requirements payments appropriation by pointing to language in a conference report 

and the apportionment made by the Office of Management and Budget (OMB). We 

conclude that EAC violated the purpose statute and should have charged its 
obligations for poll worker and mock election grants to its salaries and expenses 

appropriation, which is available “for necessary expenses to carry out [HAVA].” EAC 

should adjust its accounts accordingly. If EAC, after adjusting its accounts, has 

insufficient funds available, EAC should report an Antideficiency Act violation under 

31 U.S.C. § 1351 and recover the grant funds. Alternatively, EAC may wish to request 

congressional ratification of fiscal year 2004 actions. 

Our practice when rendering decisions is to obtain the views of the relevant agency 

to establish a factual record and the agency’s legal position on the subject matter of 

the request.1 The IG included the relevant factual material and EAC’s legal view in its 

request for a decision. IG Letter at Appendix 3 (Memorandum from Chief Financial 

Officer and Director of Accounting, EAC, to Inspector General, EAC, Sept. 24, 2009, 

referred to hereafter as EAC Financial Memorandum). 

BACKGROUND 

The Help America Vote Act of 2002 established EAC to assist in the administration of 

federal elections. Pub. L. No. 107-252, 116 Stat. 1666 (Oct. 29, 2002); 42 U.S.C. 

§§ 15301--15545. HAVA authorizes payments to states for certain enumerated 

purposes, including meeting the requirements of Title III of HAVA.2 These payments 

are called “requirements payments.” HAVA also authorizes EAC to make grants to 

certain election reform and voter education programs, including the Help America 

Vote Foundation,3

 the Help America Vote College Program,4 and the National 

Student/Parent Mock Election5. These payments are called “poll worker and mock 

election grants.” EAC Financial Memorandum at 2--3. 

For fiscal year 2004, Congress made two appropriations to EAC. Consolidated 

Appropriations Act, 2004, Pub. L. No. 108--199, 118 Stat. 3 (Jan. 23, 2004). Congress 

provided $1.2 million for salaries and expenses “to carry out the Help America Vote 

Act of 2002”6 and a total of $1.5 billion “to carry out a program of requirements 

payments to States”.7

 The $1.5 billion for requirements payments was comprised of 

 

1

 GAO, Procedures and Practices for Legal Decisions and Opinions, GAO-06-1064SP 

(Washington, D.C.: Sept. 2006), available at www.gao.gov/legal/resources.html. 

2

 Pub. L. No. 107–252, §§ 251–258; 42 U.S.C. § 15401. 

3

 Pub. L. No. 107–252, § 601. 

4

 Pub. L. No. 107–252, §§ 501–503. 

5

 Pub. L. No. 107–252, §§ 295–296. 

6

 Pub. L. No. 108–199, div. F, title IV, 118 Stat. at 327. 

7

 Pub. L. No. 108–199, 118 Stat. 3, 327, 451. 

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two amounts in the Consolidated Appropriations Act, 2004—$500 million 

appropriated in Division F8 and $1 billion in Division H.9 The Division F requirements 

payments appropriation is at issue in this decision. In the accompanying conference 

report, the conferees stated: 

“The conferees agree to provide $500,000,000 for Election Reform 

Programs . . . . Within the amount provided, the conferees also agree 

to provide $750,000 for the Help America Vote Foundation, $750,000 

for the Help America Vote College Program, and $200,000 for the 

National Student/Parent Mock Election . . . .” 

H.R. Conf. Rep. No. 108-401, at 1020. According to the Inspector General, when OMB 

apportioned the $500 million to EAC, it apportioned amounts for the three grant 

programs as set out in the conference report.10 IG Letter at Appendix 1 (SF-132 

Apportionment and Reapportionment Schedule, dated Feb. 25, 2004). The IG 

undertook an account reconstruction of fiscal year 2004 appropriations and found 

that EAC obligated and expended funds from the Division F appropriation for the 

Help America Vote Act College Program and the National Student/Parent Mock 

Election. IG Letter at Appendix 2 (Election Assistance Commission, Reconstruction 

of Fund 95X1651 (803X)). 

DISCUSSION 

At issue here is whether EAC violated the purpose statute, 31 U.S.C. § 1301(a), when 

it obligated funds from the fiscal year 2004 requirements payment appropriation for 

poll worker and mock election grants. The purpose statute permits EAC to obligate 

funds “only to the objects for which the appropriations were made except as 

otherwise provided by law.” See 31 U.S.C. § 1301(a). 

To determine the purpose of an appropriation, the starting point is the plain meaning 

of the statute. B-303845, Jan. 3, 2006; B-287158, Oct. 10, 2002; B-290021, July 15, 2002. 

 

8

Id.

9

 Pub. L. No. 108–199, div. H, § 159. 

10 Under the Antideficiency Act, the President is required to apportion funds to 

executive branch agencies. 31 U.S.C. §§ 1512, 1513. The President delegated this 

authority to the Bureau of the Budget, now OMB. Exec. Order No. 6166, § 16 

(June 10, 1933), at 5 U.S.C. § 901 note. An apportionment is the “action by which 

OMB distributes amounts available for obligation . . . in an appropriation or fund 

account.” GAO, A Glossary of Terms Used in the Federal Budget Process, GAO-05-

734SP (Washington, D.C.: Sept. 2005), at 12. In this case, the IG concluded that it was 

unclear whether EAC requested the apportionment in this manner, but noted that 

EAC did not request a correction or reapportionment. IG Letter at 4. 

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If the statutory language provides an unambiguous expression of the intent of 

Congress, then the inquiry ends there. Robinson v. Shell Oil, 519 U.S. 337, 340 (1997); 

B-288658, Nov. 30, 2001. While views expressed in legislative history may be relevant 

in statutory interpretation, those views are not a substitute for the statute itself where 

the statute is clear on its face. Squillacote v. United States, 739 F.2d 1208, 1218 

(7th Cir. 1984) (“Review of a Conference Report, as the most reliable form of 

legislative history, often may be helpful for clarifying the meaning of a statute which 

is ambiguous, at least so long as the statute at least ‘imperfectly’ expresses the 

message contained in the report . . . . However, even this form of legislative history 

may not be used to overrule a clear direction contained in the statute itself.”).11 

Here, the appropriations act was clear. It appropriated $500 million “[f]or necessary 

expenses to carry out a program of requirements payments to States as authorized by 

section 257 of [HAVA].”12 It also appropriated an additional $1 billion “[for] an 

additional amount to carry out section 257 of [HAVA].”13 Section 257 of HAVA 

authorizes appropriations only for requirements payments. Other sections in 

HAVA—sections 296, 503, and 601—authorize appropriations for poll worker and 

mock election grants. Indicia in committee reports, including conference committee 

reports, and other legislative history as to how funds should or are expected to be 

spent do not establish legal requirements on the agency. 55 Comp. Gen. 307, 319 

(1975). Because the appropriation at issue under section 257 of HAVA was available 

only for requirements payments, not for poll worker and mock election grants, EAC 

violated 31 U.S.C. § 1301(a) when it obligated funds from the appropriation for 

purposes other than requirements payments. 

EAC maintains it was reasonable for it to rely on OMB’s apportionment when 

obligating funds for poll worker and mock election grants from this appropriation. 

EAC Financial Memorandum at 2--3. We have previously stated that an agency 

violates the law if it obligates funds without proper budget authority to do so even if 

it genuinely acts in reliance on OMB apportionment. B-290600, July 10, 2002. In 

 

11 See also Lincoln v. Vigil, 508 U.S. 182, 194 (1993) (noting that even where Congress 

has shown an interest in funding certain programs, “these representations do not 

translate through the medium of legislative history into binding legal obligations”); 

55 Comp. Gen. 307 (1975) (“as a general proposition, there is a distinction to be made 

between utilizing legislative history for the purpose of illuminating the intent 

underlying language used in a statute and resorting to that history for the purpose of 

writing into law that which is not there”); B-33911, B-62197, July 15, 1948 (“If the law 

does not authorize the expenditure of public moneys for a thing, it is not within the 

power of a committee of Congress . . . to provide the authority. The law itself must 

be changed.”). 

12 Pub. L. No. 108–199, div. F, title IV, 118 Stat. at 327. 

13 Pub. L. No. 108–199, div. H, § 159. 

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B-290600, we concluded that the Air Transportation Stabilization Board (ATSB) and 

OMB violated the Antideficiency Act when ATSB obligated funds, based on OMB 

apportionment, to support a loan guarantee for America West Airlines prior to the 

availability of the budget authority. Also, OMB advises agencies not to use its 

apportionment of funds to determine the legality of using funds for a given purpose. 

OMB Circular No. A-11, Instructions on Budget Execution, pt. 4, § 120.18 (Aug. 7, 

2009) (“The apportionment of funds should not be used as a means of resolving any 

question dealing with . . . the legality of using funds for the purpose for which they 

are apportioned. Any question as to the legality of using funds for a particular 

purpose must be resolved through legal channels.”). 

The IG also asked whether an Antideficiency Act violation occurred as a result of 

EAC’s obligation of funds from this appropriation. IG Letter at 8. The Antideficiency 

Act, codified at 31 U.S.C. § 1341, prohibits federal employees from incurring 

obligations in excess of available funds. Whether or not EAC violated the 

Antideficiency Act depends on whether there is an adequate unobligated balance in 

the appropriation to which EAC should have charged these obligations, in this case, 

the salaries and expenses appropriation. Because the requirements payments 

appropriation, by its terms, was not available for this purpose, EAC should have 

charged these obligations to its salaries and expenses appropriation, which was 

generally available “for necessary expenses to carry out the Help America Vote Act of 

2002.”14 To correct its purpose statute violation, EAC must deobligate the amounts 

that were improperly charged to its requirements payments appropriation and charge 

these amounts to its salaries and expenses appropriation. 

When adjusting its accounts, EAC should consider the account closing law. 31 U.S.C. 

§§ 1551--1553. Under the law, an appropriation available for a fixed period of time, 

such as EAC’s salaries and expenses appropriation, expires at midnight on the last 

day of its period of availability and is no longer available for incurring new 

obligations. Id. The expired appropriation remains available for a period of five 

fiscal years to record, adjust, and liquidate obligations properly chargeable to the 

appropriation. 31 U.S.C. § 1553(a). After 5 years, the expired appropriation is closed 

and the balances (whether obligated or unobligated) are canceled. 31 U.S.C. 

§ 1552(a). Canceled balances are unavailable to pay any obligation even though 

properly incurred prior to the expiration of the appropriation. Instead, an obligation 

that would have been properly chargeable to the canceled appropriation must be paid 

from a current appropriation available for the same purpose. 31 U.S.C. § 1553(b). 

The aggregate total of such obligations may not exceed the lesser of 1 percent of the 

current appropriation or the unexpended balance of the closed appropriation. Id. 

Here, by operation of law, the salaries and expenses appropriation closed on 

September 30, 2009, and all balances were canceled. See 31 U.S.C. § 1552; Pub. L. 

No. 108--199, div. F, title IV, 118 Stat. at 327. Therefore, under 31 U.S.C. § 1553(b), 

 

14 Pub. L. No. 108–199, div. F, title IV, 118 Stat. at 327. 

Page 5 B-318831
EAC would have to look to its current appropriations when adjusting its accounts to 

fix the fiscal year 2004 purpose violation. If, after adjusting its accounts, EAC finds 

that sufficient funds do not exist, EAC must report that overobligation to the 

President and Congress as a violation of the Antideficiency Act and transmit a copy 

of the report to the Comptroller General. 31 U.S.C. § 1351. Often, when adjusting 

accounts, an agency may have to recover amounts improperly obligated. However, 

given the passage of time and the impact on EAC’s current salaries and expenses 

appropriation, EAC commissioners may wish to seek and obtain congressional 

ratification of EAC’s poll worker and mock election grant expenditures in fiscal year 

2004. See B-303927, June 7, 2005. Otherwise, EAC may have to seek additional 

appropriations to cover any obligations properly chargeable against closed accounts. 

Lynn H. Gibson 

Acting General Counsel 

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