General Oversight Provisions in the American Recovery and Reinvestment Act (ARRA) of 2009: Brief Comparative Analysis of House and Senate Versions
Released: 2009-02-12T00:00:00

This report provides a brief analysis of selected "general oversight provisions" in the House- and Senate-passed versions of the American Recovery and Reinvestment Act of 2009 (ARRA, H.R. 1 , 111 th Congress). The analysis is included in a side-by-side discussion of similar provisions in each bill. For purposes of this report, the term "general oversight provision" means an oversight-related provision that addresses multiple agencies or programs. Therefore, oversight-related provisions that are specific to a single program or appropriation, such as appropriations set-asides, are excluded from the report's scope. Several other topics also are excluded, including the following:

provisions addressing the Whistleblower Protection Enhancement Act of 2009, in the House-passed version (Division A, Title 1, Part 4, Sec. 1261 et seq.); prohibitions on the use of funds for casinos, golf courses, etc. (Senate-passed version, Division A, Title XVI, Section 1609; House-passed version, Division A, Title I, Section 1109); provisions related to program-specific program evaluations (e.g., in the House-passed version, Division A, Title IX, Subtitle B, Department of Health and Human Services Prevention and Wellness Fund, "annual evaluations of programs ... in order to determine the quality and effectiveness of the programs"); and contract, grant, or cooperative agreement restrictions and prohibitions (e.g., House-passed version, Division A, Title 1, Section 1241; and Senate-passed version, Division A, Title XVI, Section 1608).

Oversight of Economic Stimulus Legislation

On January 14, 2009, then OMB Director-designate Peter Orszag appeared before the Senate Committee on Homeland Security and Governmental Affairs for a confirmation hearing. Among other things, he was asked about his plans for oversight of the economic stimulus package that was anticipated to be considered at the beginning of the 111 th Congress. Director-designate Orszag said the incoming Administration would favor creating a special oversight board. Composed of relevant inspectors general (IGs) and chaired by a newly established White House position of Chief Performance Officer (CPO), he said the board "would review problems and ... would conduct regular meetings to examine specific problems that might be identified." He also said the Administration planned "to create a website that will contain information about the contracts and include [Portable Document Format files] or contracts themselves, and also financial information about the contracts."

The Obama Administration subsequently established a rudimentary Recovery.gov website in anticipation of enactment of stimulus legislation. The home page explained the Administration's intentions for the website.

Check back after the passage of the American Recovery and Reinvestment Act to see how and where your tax dollars are spent. An oversight board will routinely update this site as part of an unprecedented effort to root out waste, inefficiency, and unnecessary spending in our government.

Numerous oversight provisions subsequently were included in economic stimulus legislation considered by the House and Senate. For example, on January 21, 2009, after markup of a draft bill by the House Committee on Appropriations, the committee issued a press release that characterized the stimulus as providing "unprecedented accountability."

At the same time, concerns have been expressed about the capacity of agencies and "a depleted contracting workforce" to spend funds rapidly "while also improving competition and oversight." In addition, the question has been raised whether inspectors general and the Government Accountability Office (GAO) have sufficient resources to conduct oversight of the stimulus legislation.

The House of Representatives passed its version of the bill on January 28, 2009. The Senate passed its version on February 10, 2009. As of February 12, the House and Senate were negotiating differences in the two versions of the stimulus legislation.

Oversight and Crises: Issues for Congress

Short-Term and Long-Term Questions

In the event of a crisis to which Congress, the President, and federal agencies feel compelled to respond, several challenges present themselves in the short term. Among these in the present context is the question of how to balance speed with prudence. More general challenges in formulating a response to a crisis include how to reconcile values of transparency, accountability, efficiency, effectiveness, and equity. Oftentimes in such circumstances, agencies and policy makers have little time for planning or reflection.

Longer-term issues include questions of how to build the capacity of federal agencies, Congress, and the President to better respond to crises. In addition, and arguably no less significant, questions arise of how to anticipate and avoid preventable crises. For example, the National Commission on Terrorist Attacks Upon the United States, generally known as the 9-11 Commission, described an aspect of this capability as "institutionalizing imagination." Organizational, procedural, and system-related options might be explored to address any of these questions.

Oversight Systems and Objectives

The federal government might be viewed as a system of "nested" oversight, with multiple entities engaging in simultaneous oversight activity. Congress oversees the President and agencies, including the Office of Management and Budget (OMB), an entity within the Executive Office of the President. Inspectors general and congressional support agencies such as the Government Accountability Office (GAO) provide assistance to Congress, agencies, and the President with oversight. In turn, within the executive branch, OMB has a statutory responsibility to provide management leadership for many agencies, including monitoring and oversight of their activities. Agencies oversee their own activities through organizational and procedural arrangements, often as Congress has mandated via statute. Viewed together, for example, GAO may attempt to oversee OMB's oversight of an agency's oversight of a funding recipient. Throughout, tools such as monitoring, analysis, and evaluation may be utilized.

In developing an overall oversight framework, there also are multiple perspectives on the potential objectives of oversight. These include the following:

compliance with applicable laws and regulations (e.g., adherence to legal requirements and avoidance of fraud); implementation that is faithful with congressional intent, when an agency or the President exercises discretion; avoidance of mismanagement (e.g., adherence to sound management practices); avoidance of undesired bias in funding allocations and policy execution (e.g., fair allocation of resources and fair implementation of policy, with intended equity); effectiveness of funded activities (e.g., achievement of programmatic missions and purposes); and efficiency of funded activities (e.g., minimization of avoidable "waste" and unnecessary redundancy).

Outside of the legislative branch, it remains to be seen how implementing agencies, nonfederal recipients of funds (e.g., state governments), OMB, a proposed oversight board, and IGs will approach these perspectives on oversight.

Comparative Analysis of Selected General Oversight Provisions

Table 1 provides a brief analysis of selected general oversight provisions in the House- and Senate-passed versions of economic stimulus legislation. Bolded text refers to citations within each bill. It should be noted that references to "the Act" within each bill generally refer to either Division A or Division B of the bill, not to the entire bill.