Proposals for a Commission on the Accountability and Review of Federal Agencies (CARFA): Analysis and Issues for Congress
Released: 2005-11-10T00:00:00

Introduction

In the 109th Congress, for the third consecutive Congress, companion bills have beenintroduced ( S. 1155 / H.R. 2470 ) that, if enacted, would establish aCommission on the Accountability and Review of Federal Agencies (CARFA). (1) As discussed later in thisreport, these two bills differ from one another in some key respects, including the procedure forappointing commission members, the agencies that would be within the proposed commission'sscope, and requirements for use of "funds saved" as a result of the commission's plan andrecommendations. (2) Nonetheless, if either version of the legislation is enacted, the proposed CARFA Act would requirethis "review commission," made up of 12 members, to review certain federal agencies and programsto determine if any covered agencies or programs are duplicative , wasteful , inefficient , outdated , irrelevant , or failed . The proposed CARFA would be required (or in some cases in the Senateversion, allowed instead of required) to recommend that any such programs and agencies berealigned or eliminated. The commission's recommendations would then be packaged into animplementation bill that would receive expedited congressional consideration, including prohibitionson amendments and restrictions on procedural delays.

Provisions nearly identical to the House and Senate bills also appeared in a budget processreform bill ( H.R. 2290 , Subtitle III.C., providing for the establishment of a Commissionto Eliminate Waste, Fraud, and Abuse) and a bill to offset costs of Hurricane Katrina and HurricaneRita ( S. 1928 , Title III, providing for a CARFA). Nonbinding provisions in the FY2006budget resolution ( H.Con.Res. 95 ) also called for establishing a CARFA-likecommission. Finally, President George W. Bush said in his FY2006 budget submission that hewould put forward, as part of his President's Management Agenda (PMA), legislation authorizinghim to propose "results commissions." These commissions would consider and revise Administrationproposals to restructure and consolidate programs and agencies. (3) Before the legislation'srelease, an Administration official from the Office of Management and Budget (OMB) suggestedthat the results commissions would be similar to the previously proposed CARFA. Proposalsapproved by such a results commission and the President would be considered by Congress underexpedited procedures. Subsequently, the Bush Administration released a legislative proposal forresults commissions and a sunset commission. Bills were later introduced ( H.R. 3276 / S. 1399 ) that substantially incorporated the Administration's draft language thatwould allow the establishment of results commissions.

This report analyzes several issues related to the CARFA legislation. The CARFA proposal'sprovisions for expedited congressional consideration have been compared by its proponents to thoseof the legislation that established the Base Closure and Realignment (usually known as "BRAC")commissions. The BRAC commissions have made recommendations to realign and close manymilitary installations in the last 15 years. However, the CARFA proposal also has significantdifferences from the BRAC framework, as discussed later in this report. In addition, OMB hastestified to Congress that, if Congress established CARFA, the commission should use the BushAdministration's Program Assessment Rating Tool (PART) to evaluate programs. (4) This report also brieflydiscusses the results commissions proposal, which appears similar in some respects to presidentialreorganization authority, which lapsed in 1984 and has not been renewed by Congress. (5) The results commissionsproposal also appears similar in some respects to provisions that established BRAC commissions. Like BRAC, the results commissions proposal would provide for multi-stage review ofreorganization plans (i.e., by the commission, the President, and Congress) and expeditedcongressional consideration.

The first section of this report summarizes the CARFA legislation's history in the 108th and109th Congresses and its provisions in the 109th Congress. The second section briefly discussesother review commission legislation in the 108th and 109th Congresses. The third section highlightsperspectives that surfaced in the 108th Congress regarding some perceived advantages anddisadvantages of the proposal. The report's fourth section then analyzes several issues that may beof interest in the 109th Congress in the event that the CARFA legislation or similar proposals toestablish a review commission are further considered. In order of presentation, these issues include:

the commission's membership;

the scope of the commission's review andrecommendations;

definitions of key terms;

standards and criteria for decision making;

expedited congressional consideration; and

transparency and participation.

Following that discussion, the report discusses potential success factors for commissions and, shouldCongress opt to consider them, potential alternatives or complements to a review commission. These alternatives or complements include pursuing or reauthorizing government reorganization,using the Government Performance and Results Act, and bolstering agency program evaluationcapacity by establishing "chief program evaluation officers."

Proposed Legislation: The CARFA Act

Legislative History

Recent legislative history concerning the proposed CARFA legislation is discussed below,from both the 108th and 109th Congresses. The different types of measures within each Congress(stand-alone bills, budget process reform bills, budget resolutions, and the Bush Administration'sresults commissions proposal) are discussed in chronological order of introduction.

108th Congress.

Stand-Alone Bills. On September 26, 2003, SenatorSam Brownback introduced legislation (Commission on the Accountability and Review of FederalAgencies Act, S. 1668 , 108th Congress) to establish a commission to "conduct acomprehensive review of Federal agencies and programs and to recommend the elimination orrealignment of duplicative, wasteful, or outdated functions, and for other purposes" (bill title). Thebill was referred to the Senate Committee on Governmental Affairs, and on September 29, 2003, wasfurther referred to the committee's Subcommittee on Oversight of Government Management, theFederal Workforce, and the District of Columbia. The subcommittee held a hearing on S.1668 on May 6, 2004. (6) However, the bill did not receive further action.

A companion House bill, H.R. 3213 , was introduced by Representative ToddTiahrt on October 1, 2003, and was referred jointly to the House Committees on GovernmentReform and Rules, but did not receive further action. (7) Under both the House and Senate bills, the proposed CARFA,made up of 12 members all appointed by the President, would have been required to reviewnon-defense, non-entitlement federal agencies and programs -- accounting for approximatelyone-fifth of the federal budget. (8) Both bills would have required "funds saved" by theimplementation of the commission's plan and recommendations to be used to "support otherdomestic programs" or "pay down the national debt."

Budget Process Reform Bills. Nearly identicalprovisions appeared in several budget process reform bills (108th Congress, H.R. 3800 / S. 2752 , H.R. 3925 , and in floor amendments to H.R. 4663 ). These provisions, however, would have established a commission to review all federalexecutive agencies and programs (although H.R. 3925 did not provide for expeditedcongressional consideration) without requirements regarding the used of funds saved. (9)

Budget Resolutions. In addition, the CARFAproposal was cited in the context of congressional budget resolutions in both the first and secondsessions of the 108th Congress. In the FY2004 budget resolution (108th Congress, H.Con.Res. 95 , Section 606), which was agreed to by the House and Senate, nonbindingsense of the Senate provisions called for the establishment of a commission

... to review Federal domestic agencies, and programswithin such agencies, with the express purpose of providing Congress with recommendations, andlegislation to implement those recommendations, to realign or eliminate government agencies andprograms that are duplicative, wasteful, inefficient, outdated, or irrelevant, or have failed toaccomplish their intended purpose. (10)

In remarks during Senate consideration of the resolution, Senator Brownback stated that thislanguage referred to his CARFA proposal. (11)

In the FY2005 budget resolution, nonbinding sense of the Senate provisions in theSenate-passed version (108th Congress, S.Con.Res. 95 , Section 502) and in theHouse-passed conference report to the FY2005 budget resolution ( H.Rept. 108-498 , Section 602)called for enactment of the CARFA legislation. (12) The CARFA-related provisions stated, among other things,

... that legislation should be enacted that would createa bipartisan commission for the purpose of -- (1) submitting recommendations on ways to eliminatewaste, fraud, and abuse; and (2) ... provid[ing] recommendations on ways in which to achieve costsavings through enhancing program efficiencies in all [domestic] discretionary and entitlementprograms.

These provisions further called for the commission to "realign or eliminate government agencies andprograms that are duplicative, inefficient, outdated, irrelevant, or have failed to accomplish theirintended purpose."

109th Congress.

Budget Resolution. For the third consecutive year,the CARFA proposal was cited in the context of congressional consideration of the budgetresolution, in this case, for FY2006. (13) The Senate-passed version of the budget resolution, S.Con.Res. 18 , was agreed to on March 17, 2005, by a vote of 51-49. Section 502 ofthe measure contained a sense of the Senate provision very similar to the language that was includedin the FY2004 budget resolution, albeit with changed word ordering and deletion of the word"domestic" when specifying the agencies that would be subject to such a review. At Senate passage,the section read as follows:

It is the sense of the Senate that a commissionshould be established to review Federal agencies, and programs within such agencies, with theexpress purpose of providing Congress with recommendations, and legislation to implement thoserecommendations, to realign or eliminate Government agencies and programs that are wasteful,duplicative, inefficient, outdated, irrelevant, or have failed to accomplish their intendedpurpose.

The section language was amended in the conference on the FY2006 budget resolution to includea clause that would also call for an "assessment of programs on an accrual basis"( H.Con.Res. 95 , Section 502). (14) On April 28, 2005, the conference report was agreed to in theHouse by a vote of 214-211 and in the Senate by a vote of 52-47. Subsequently, several bills wereintroduced proposing the establishment of CARFA or a CARFA-like commission.

Budget Process Reform Bill and Hurricane Cost OffsetBill. On May 11, 2005, Representative Jeb Hensarling introduced H.R. 2290 (Family Budget Protection Act of 2005), a budget process reform measure,with 58 original cosponsors. The bill was referred to House Committees on the Budget, Rules, Waysand Means, Appropriations, and Government Reform, but has not received further action. Themeasure was announced and endorsed by the Republican Study Committee. (15) Subtitle III.C. of the bill(Sections 331-337) would provide for the establishment of a Commission to Eliminate Waste, Fraud,and Abuse. These provisions were identical to those from H.R. 3800 , introduced in the108th Congress, which, as discussed previously, would have established a commission to review all federal executive agencies and programs, though without requirements regarding the use of "fundssaved" as a result of the commission's plan and recommendations.

On October 27, 2005, Senator John Ensign introduced S. 1928 (SpendingMoney Accountably to Rebuild After Tragedy Act), with seven original cosponsors. The bill wasreferred to the Senate Committee on Homeland Security and Governmental Affairs, but has notreceived further action. Title III of the bill (Sections 301-308) would provide for the establishmentof a CARFA. These provisions were nearly identical to those from S. 1155 , SenatorBrownback's bill that would establish a CARFA.

Stand-Alone Bills. Representative Tiahrt introduced H.R. 2470 (Commission on the Accountability and Review of Federal Agencies Act)on May 18, 2005. The bill was referred to the House Committees on Rules and GovernmentReform, but has not received further action. The measure's provisions were identical to those ofRepresentative Tiahrt's legislation from the 108th Congress, H.R. 3213 , and SenatorBrownback's legislation from the 108th Congress, S. 1668 . Accordingly, the billprovided, among other things, that the commission's scope would not include the Department ofDefense, entitlement programs, and agencies that solely administer entitlement programs. H.R.2470 also, like the earlier bills, retained language providing for presidential appointmentof all 12 commission members, and requiring that funds saved would be used to support otherdomestic programs or pay down the national debt.

Senator Brownback introduced S. 1155 (Commission on the Accountability andReview of Federal Agencies Act) on May 26, 2005, with 21 original cosponsors. The bill wasreferred to the Senate Committee on Homeland Security and Governmental Affairs, but has notreceived further action. While Representative Tiahrt's bill was identical to its predecessor from the108th Congress, Senator Brownback's bill, in contrast, changed from the previous version in severalrespects. The major changes, which are described in more detail in this report's next section,included expanding the commission's scope to include DOD, agencies that solely administerentitlement programs, entitlement programs, and the Executive Office of the President (EOP). Inaddition, S. 1155 provides for "hybrid" appointment of commission members by thePresident and Members of Congress, instead of only by the President. Finally, the bill deletedlanguage that would have required "funds saved" to be used to support domestic programs or to paydown the national debt. When introducing the bill, Senator Brownback explained his reasoning forthe changes and hopes for the proposal.

Last year, we had a bipartisan hearing onCARFA, at which all witnesses supported the CARFA concept. We have incorporated some of thesuggestions made at the hearing, and I believe this year's version of CARFA is even better.

I am pleased thatthe Senate is already on record supporting the CARFA concept through Section 502 of this year'sbudget resolution, and it is my hope that we will be able to work with leadership to see CARFAbecome a reality this year. (16)

"Results Commissions" Proposal and Bills. Finally,a legislative proposal from the President for "results commissions" has been compared to theproposed CARFA Act. OMB issued a press release on January 26, 2005, mentioning the resultscommissions proposal, (17) and OMB's Deputy Director for Management Clay Johnson IIIreportedly spoke with the media about the proposal at that time. Subsequently, a press reportindicated that the proposed results commission "would function much like the military BaseRealignment and Closure program." (18) On February 7, 2005, President George W. Bush transmitted hisFY2006 budget proposal to Congress. (19) As part of that proposal, the Bush Administration said it wouldpropose, as a "next step" for the "budget and performance integration" initiative of the President'sManagement Agenda (PMA), that Congress enact legislation to give the President authority torecommend the creation of results commissions. (20) The President also proposed establishment of a "sunsetcommission," which is not analyzed in detail in this report. (21)

In justifying the proposal, the Administration asserted "[d]ysfunctional program overlap iswhy many of the 30 percent of programs [rated by the PART instrument] are rated either ineffectiveor unable to demonstrate results." (22) The Administration also claimed that "overlapping jurisdictionsin Congress provide daunting hurdles to legislative remedies for the poor performance of duplicativeprograms." (23) Anotherreference to the results commissions proposal, included in the Administration's FY2006 budget,offered this justification:

The Federal government's ability to serve the Americanpeople is often hampered by poorly designed programs or uncoordinated, overlapping programstrying to achieve the same objective. Overlapping jurisdictions in the Executive Branch andCongress provide daunting hurdles to legislative remedies to the poor performance of duplicativeprograms. Because the potential for savings and productivity are great, the Administration ... plansto propose legislation that gives the President the authority to propose Results Commissions. Thesecommissions would consider and revise Administration proposals to improve the performance ofprograms or agencies by restructuring or consolidating them. Congress would approve individualResults Commissions to address single program or policy areas where duplication and theoverlapping jurisdictions of Executive Branch agencies or Congressional committees hinder reform. Proposals approved by the commission would then be approved by the President and considered byCongress under expedited procedures. (24)

On March 22, 2005, Deputy Director for Management Johnson said the Administration wouldsubmit the results and sunset commission draft legislation to Congress in the next few months. (25) With regard to the resultscommission proposal, he went further to say that Senator Brownback had sponsored similarlegislation in the previous Congress, alluding to Senator Brownback's CARFA bill.

On June 30, 2005, OMB released the expected legislative proposal to establish resultscommissions and a sunset commission, entitled "The Government Reorganization and ProgramPerformance Improvement Act of 2005," and said it had transmitted the proposal to Congress. (26) In a transmittal letter, (27) Joshua B. Bolten, Directorof OMB, said OMB was submitting the draft legislation on behalf of the President. He asserted the"proposal would institutionalize for Congress and the Executive Branch procedures that wouldstrengthen the focus on Government agencies and programs achieving results" and summarized theresults commission proposal in language similar to what was included in the FY2006 budgetproposal.

On July 14, 2005, bills were introduced in the Senate and House that substantiallyincorporated the draft results and sunset commission language, albeit with some changes.

Representative Jon Porter introduced H.R. 3276 (GovernmentReorganization and Improvement of Performance Act), which would provide only for resultscommissions, with two original cosponsors. The bill was referred to the House Committees onRules and Government Reform. On September 27, 2005, the bill was further referred to the HouseCommittee on Government Reform's Subcommittee on the Federal Workforce and AgencyOrganization, which held a hearing on the bill (along with H.R. 3277 , as describedbelow) on the same day. (28) The bill has not received further action.

Representative Kevin Brady introduced H.R. 3277 (FederalAgency Performance Review and Sunset Act), which would provide for a sunset commission, withtwo original cosponsors. The bill was referred to the House Committees on Rules and GovernmentReform. On September 27, 2005, the bill was further referred to the House Committee onGovernment Reform's Subcommittee on the Federal Workforce and Agency Organization (alongwith H.R. 3276 , as described above), and was the subject of a hearing (along with H.R.3276, as described above) on the same day. The bill has not received furtheraction.

Senator Craig Thomas introduced S. 1399 (The GovernmentReorganization and Program Performance Improvement Act of 2005), which would provide for bothresults commissions and a sunset commission. The bill was referred to the Senate Committee onHomeland Security and Governmental Affairs, but has not received furtheraction.

More complete descriptions of these bills' provisions are available in the section of this reportentitled "Other Review Commission Proposals."

The bills providing for results commissions ( H.R. 3276 / S. 1399 )differ from the proposed CARFA legislation in many respects. These differences relate to:

establishment of commission(s) (e.g., under the results commission proposal,necessity for further congressional action, under expedited procedures, to establish unlimited numberof President's proposed results commissions, while the proposed CARFA Act would, without usingexpedited procedures, establish one commission);

appointment and size of membership (e.g., 7 members appointed by thePresident under the results commissions proposals, versus 12 members appointed by the Presidentor the President and Members of Congress under the House and Senate versions, respectively, of theproposed CARFA Act);

scope of commission review and recommendations (e.g., possibly narrowerscope under a single results commission, albeit with unlimited ability of President to proposeestablishment, under expedited congressional procedures, of multiple results commissions in manypolicy areas, compared to wider scope under CARFA under a single commission); and

standards and criteria for decision making (e.g., none specified for resultscommissions, in contrast with several criteria under CARFA).

Additional differences relate to issues of transparency, public participation, commission powers, andcommission administrative provisions. Both the proposed results commissions and CARFAlegislation would provide versions of expedited congressional consideration of commissionrecommendations.

Many aspects of the results commission proposals appear to resemble presidentialreorganization authority under 5 U.S.C. Â§Â§ 901-912, which expired in 1984, but has been the subjectof occasional congressional interest. In the subcommittee hearing on H.R. 3276 , OMBDeputy Director for Management Clay Johnson III testified that the results commissions legislationwas proposed, instead of reorganization authority, because the Administration judged "there was zerochance of [reorganization authority] ever being approved" by Congress. (29) Because of the majordifferences between the proposed CARFA Act and the results commission proposals, as describedabove, detailed discussion and analysis of the results commission proposals are not within the scopeof this report. However, many issues concerning presidential reorganization authority are discussedand analyzed in detail elsewhere. (30)

Overview of CARFA Legislation Provisions

The balance of this report analyzes the CARFA legislation as introduced in the billssponsored by Representative Tiahrt and Senator Brownback in the 109th Congress ( H.R. 2470 / S. 1155 ). For topics where the two versions are the same, the discussion in thesections below does not differentiate between the bills. For topics where the two versions of theCARFA legislation substantively differ from one another, the sections describe the differences.

Duties of the Commission, President, and Joint CongressionalLeadership. As drafted in H.R. 2470 / S. 1155 , thelegislation would establish a 12-member CARFA and require the review commission's members tobe appointed within 90 days of the legislation's enactment. The House version would require thePresident to appoint all 12 members of this review commission. The Senate version, by contrast,would provide for a "hybrid" commission (i.e., appointment of members by both the President andcertain Members of Congress) with four members appointed by the President, two appointed by theSenate majority leader, two appointed by the Senate minority leader, two appointed by the Speakerof the House, and two appointed by the House minority leader. Both versions would require thePresident to designate a chairperson and vice chairperson from among the commission members. It appears that officers and employees of the federal government and non-federal individuals couldbe appointed as members.

The proposed CARFA would be required to:

under the House version, evaluate all executive branch agencies and programs, excluding agencies and programs within the Department of Defense (DOD), entitlement programs,"any agency that solely administers entitlement programs," and perhaps the EOP; (31) and, under the Senateversion, evaluate all executive branch agencies and programs, including the EOP; (32)

determine, according to brief definitions in the legislation, if an agency orprogram is duplicative , wasteful , inefficient , outdated , irrelevant , or failed ;and

submit to the President and Congress, not later than two years after the dateof enactment, a plan with recommendations of how any such agencies and programs should berealigned or eliminated, along with supporting documentation and proposed legislation to implementthe recommendations.

Under the House version of the CARFA legislation, a determination that certain agencies orprograms fit one or more definitions of duplicative , wasteful , inefficient , outdated , irrelevant , or failed would require the commission to make recommendations, as outlined in the bill, to realign oreliminate the agencies or programs. In the Senate version, by contrast, if an agency or program weredetermined only to be wasteful or inefficient , the commission would be allowed, but not required,to recommend realignment or elimination. In addition, under the House version, the legislationproposed by the commission would be required to provide that all funds saved by implementationof the commission's plan be used to "support other domestic programs" or "pay down the nationaldebt." Under the Senate version, there would be no requirement regarding uses of saved funds.

The legislation would also require the President, not later than one year after the date ofenactment, to:

establish a systematic method, according to certain requirements, for assessingthe effectiveness and accountability of these agencies and programs;

submit to the commission assessments of not less than one-half of all thelegislation's covered programs; and

identify "common performance measures" for covered programs that have"similar functions." (33)

The commission would be required to "consider" the assessments submitted by the President, butonly after the commission reviewed and accepted the President's method for assessing agencies andprograms.

Powers of the Commission. CARFA would beempowered to hold hearings; issue subpoenas for testimony and evidentiary materials; secureinformation from federal agencies; use the U.S. mail as do other federal agencies; and accept, use,and dispose of gifts or donations of services or property.

Commission Personnel Matters. (34) Non-federal CARFAmembers would not receive compensation except for travel expenses. Federal officers or employeeswould continue to receive their normal compensation. The CARFA chairperson would be authorizedto appoint and terminate an executive director (subject to confirmation by the commission) and othercommission staff without regard to civil service laws and regulations. The rate of pay for thecommission's executive director and other personnel would not be allowed to exceed the maximumrate payable for a GS-15 position under Section 5332 of Title 5, United States Code , whichestablishes the General Schedule of civil service pay rates. The executive director and personnel ofthe commission would be considered federal employees under several chapters of Title 5, UnitedStates Code , for the purposes of leave (Chapter 63); compensation for work injuries (Chapter 81);retirement (Chapters 83 and 84); unemployment compensation (Chapter 85); life insurance (Chapter87); health insurance (Chapter 89); and long-term care insurance (Chapter 90). Under the Senateversion, the executive director and commission personnel would also be considered federalemployees for the purposes of "enhanced dental benefits" (Chapter 89A) and "enhanced visionbenefits" (Chapter 89B). Federal government employees could be detailed to the commissionwithout reimbursement to the lending agency.

Expedited Congressional Consideration. Thelegislation would establish an expedited procedure for each house to consider the commission'sproposed legislation ("implementation bill"). (35) These provisions (like other expedited procedures) wouldoperate as procedural rules of each chamber for consideration of the implementation bill. Therefore,each house would be able to alter the procedural rules at any time, pursuant to its constitutionalpower to change its own rules. The measure would provide for automatic introduction of theimplementation bill in each chamber and referral to any appropriate committees of jurisdiction. Under the House version of the CARFA legislation, a committee would be allowed to report theimplementation bill "without amendment." Under the Senate version, a committee would be allowedto "review and comment" on the implementation bill and report it to the Senate, but "may notamend" the implementation bill. If a committee did not report the implementation bill within 15calendar days after the bill's introduction, the committee would be automatically discharged offurther consideration, and the measure would be placed on the chamber's appropriate calendar. Itwould then be in order for any Member to move that the respective house proceed to consider thebill. All points of order against this motion to proceed would be waived. If the motion weredefeated, it could be repeated. Various potential dilatory motions against this motion to proceedwould also be prohibited. If the chamber chose to consider the implementation bill by adopting themotion to proceed, consideration of the measure would be "locked in." Debate would be limited to10 hours, and no amendment to the implementation bill would be in order. At the conclusion ofdebate, a vote on final passage would occur automatically. (This vote could be preceded by a singlequorum call, if requested.) If either house had already received the implementation bill passed bythe other house, the vote on final passage would occur on the received companion bill.

Authorization of Appropriations. The Houseversion would provide authorization for appropriations for the fiscal years FY2004 throughFY2006, (36) and theSenate version would provide authorization for appropriations for FY2006 through FY2008.

Other Review Commission Proposals

Other review commission bills were introduced in the 108th and 109th Congresses, in additionto the CARFA legislation. Detailed analysis of each of these measures is outside the scope of thisreport, but provisions of the bills raise many of the same issues as the CARFA legislation. Theseissues may be of interest should Congress opt to consider review commission legislation in the 109thCongress. None of these bills was the subject of hearings or reported from committee.

108th Congress

H.R. 1227 (Representative Kevin Brady), the Abolishment of Obsolete Agenciesand Federal Sunset Act of 2003, would have established a Federal Agency Sunset Commission toreview agencies and make recommendations for administrative and legislative action, and providedthat agencies be abolished if not reauthorized by Congress. (37) Among other things, thelegislation would have provided for appointment of commission members by the Speaker of theHouse and Senate majority leader, public hearings, and opportunities for public comment. Thesegeneral topics, regarding a review commission's membership and opportunities for participation inthe commission's work, are discussed later in this report with regard to the CARFA legislation.

H.R. 1632 (Representative Edward R. Royce), the Government Reform Act of2003, would have established a Government Reform Commission to review federal agencies andprograms and propose a reorganization plan for federal agencies, which would have receivedexpedited consideration from the President and Congress in a process that, according to the bill, wasmodeled on the BRAC commission statute. The legislation would have provided for appointmentof commission members by the President. The President would have been required to consult withboth majority and minority leaders in the House and Senate regarding four commission members,and the President would have been prohibited from appointing more than a certain number ofmembers from the same political party. The topics of expedited congressional consideration andcommission membership are, as stated above, discussed in this report with regard to the CARFAlegislation.

H.R. 2153 (Representative Richard Gephardt), the Corporate Subsidy ReformCommission Act of 2003, would have required federal agencies to identify programs and laws thatthe agency head determined were "inequitable federal subsidies," established a commission to reviewthe agency head determinations, and required the commission to submit to the President a report withits findings and recommendations. The President would have been required to review this report andsubmit to the commission a report indicating whether the President approved or disapproved the"entire package" of the commission's recommendations, including, in the case of disapproval, hisreasons. In the case of disapproval, the commission would have been required to submit to thePresident a revised list of recommendations. If the President approved the package, the Presidentwould have been required to submit the recommendations to Congress, along with supportinginformation, for expedited consideration. If the President disapproved a revised package or did notsubmit to Congress an approval, the act's provisions would have been terminated. The commission'sscope under this legislation would have been narrower than the CARFA proposal in some respects(e.g., H.R. 2153 included only some kinds of funding in its scope) but wider in others (e.g.,including tax laws, not just programs and agencies). Appointments to the commission would havebeen made by both the President and leadership of Congress, majority and minority. This legislationwas in several respects similar to H.R. 2902 and H.R. 3762 , describedbelow.

H.R. 2902 (Representative Adam Smith), the Corporate Subsidy ReformCommission Act of 2003, would have required federal agencies to identify programs and laws thatthe agency head determined were "inequitable federal subsidies"; established a commission to reviewthe agency head's determinations; and required the commission to submit to Congress its findingsand recommendations. The commission's scope under this legislation would have been narrower than the CARFA proposal in some respects (e.g., H.R. 2902 included only funds that areprovided by the federal government to corporations and other entities, and excluded funds that"primarily benefit" public health, safety, homeland security, the environment, or education) but wider in others (e.g., would have included tax advantages and potentially other non-appropriated benefitsfor corporations and other entities). The legislation also would have provided for appointment ofcommission members by congressional leaders and commission meetings open to the public. Another bill, H.R. 3762 (Representative Adam Smith), the Corporate Subsidy ReformCommission Act of 2004, was nearly identical to H.R. 2902, but with an expanded scopeof "inequitable federal subsidies" to be reviewed.

H.R. 2903 (Representative Adam Smith), the Program Reform Commission Actof 2003, would have required federal agencies to identify programs that the agency head determinedwere "no longer necessary," established a commission to review the agency head determinations, andrequired the commission to submit to Congress its findings and recommendations. Under thelegislation, the commission's scope would have been extended to "programs" in all agencies of thefederal government, arguably including all three branches and other entities, but would havenarrowed the scope to exclude programs that "primarily benefit" public health, safety, homelandsecurity, the environment, or education. The measure would have also provided for commissionmember appointment and open meetings similar to those in H.R. 2902 . Another bill, H.R. 3761 (Representative Adam Smith), the Program Reform Commission Act of2004, was nearly identical to H.R. 2903, but with an expanded scope of "programs" to bereviewed.

109th Congress

H.R. 973 (Representative Adam Smith), the Program Reform Commission Act,is nearly identical to H.R. 3761 (108th Congress), described above. Changes to the bill,compared to the prior version from the 108th Congress, include explicitly establishing thecommission in the legislative branch and prohibiting an officer or employee of a federal agency fromserving as a member, among others.

H.R. 974 (Representative Adam Smith), the Corporate Subsidy ReformCommission Act, is nearly identical to H.R. 3762 (108th Congress), described above. Changes to the bill, compared to the prior version, include establishing the commission in thelegislative branch and prohibiting an officer or employee of a federal agency from serving as amember, among others.

H.R. 3276 (Representative Jon Porter), the Government Reorganization andImprovement of Performance Act, incorporated language from the Bush Administration legislativeproposal described previously in this report, regarding "results commissions," with changes. ( H.R. 3277 , described below, incorporated language from the same BushAdministration proposal, but instead regarding a "sunset commission.") The bill would allow thePresident to propose the establishment of results commissions to Congress and to specify theagencies or programs the proposed commission would study. Congress would consider theestablishment of a results commission under expedited procedures. If Congress established a resultscommission, the President would be required to appoint seven commission members, "who shallserve at the pleasure of the President," of whom four would be required to be appointed "inconsultation" with certain congressional leaders. The President would be allowed to submitproposals to the commission to reorganize agencies or programs in certain "areas where multipleFederal programs have similar, related, or overlapping responsibilities... ." The commission wouldevaluate the proposal, hold public hearings "to the extent appropriate," and respond to the Presidentwith recommended changes. If the President disapproved the commission recommendations inwhole or in part, the commission would be required to respond to the President's "concerns" withany changes in recommendations. The President would then be allowed to transmit to Congress forexpedited consideration the commission's final recommendations together with draft legislation toimplement the recommendations. (38) The commission would cease to exist within nine months afterit commenced operations. The topics of expedited congressional consideration and commissionmembership, among others, are discussed in the present report with regard to the CARFA legislation.

H.R. 3277 (Representative Kevin Brady), the Federal Agency PerformanceReview and Sunset Act, substantially incorporates language from the Bush Administration legislativeproposal described previously in this report, regarding a sunset commission, albeit with changes. The bill would establish a sunset commission that, according to a schedule prepared by the Presidentand considered by Congress under expedited procedures, would review executive branch programsand agencies according to certain criteria. Apparently to provide assistance in crafting the President'sschedule, the Director of the Congressional Research Service, with the assistance of the ComptrollerGeneral, would be required to prepare and update an inventory of all executive branch agencies andprograms. The President would be required to appoint seven commission members, "who shall serveat the pleasure of the President," of whom four would be required to be appointed "in consultation"with certain congressional leaders. The commission would be required to consider recommendationsmade by the President and would be allowed to consider "agency or program evaluations andassessments," including those undertaken by OMB. The OMB "assessments" would be required toevaluate several aspects of programs. These aspects are identical to those enumerated in H.R. 185 (Program Assessment and Results Act), which would require OMB programassessments modeled on the Bush Administration's PART. (39) The commission wouldbe required to hold public hearings "to the extent appropriate," and report annually to the Presidentwith recommendations and legislation needed to carry out its recommendations. Agencies andprograms would be abolished two years after the date that the President submitted the report toCongress, unless the agency or program were reauthorized by law after the President's submission,or unless the two-year period were extended by an additional two years, by law. The commissionwould terminate on December 31, 2026.

H.R. 3282 (Representative Kevin Brady), the Abolishment of Obsolete Agenciesand Federal Sunset Act of 2005, is nearly identical to H.R. 1227 (108th Congress),described previously. However, among other differences from the prior version, the current billwould not authorize the commission to make recommendations for appropriation levels.

S. 1399 (Senator Craig Thomas), "The Government Reorganization and ProgramPerformance Improvement Act of 2005," substantially incorporates language from the BushAdministration legislative proposal described previously, regarding both results commissions anda sunset commission, albeit with changes. The bill's provisions relating to results commissions arevery similar, but not identical, to those in H.R. 3276 (e.g., there are several structuraland technical differences in the language). The bill's provisions relating to a sunset commission arevery similar, but not identical, to those in H.R. 3277 (e.g., certain regulations would beexempt from potential abolishment under the act).

Perspectives on CARFA from the 108th Congress: Senate Hearing on Proposed CARFA Act

A number of potential issues, advantages, and disadvantages regarding the proposed CARFAlegislation were highlighted during the hearing for S. 1668 , 108th Congress, before theSenate Committee on Governmental Affairs, Subcommittee on Oversight of GovernmentManagement, the Federal Workforce, and the District of Columbia. No hearings on the companionHouse bill, H.R. 3213 , were held. In the 109th Congress, the House version of theCARFA legislation, H.R. 2470 , is identical to the Senate version from the 108thCongress, S. 1668.

Opening Statement

On May 6, 2004, the subcommittee convened a hearing on S. 1668 . In hisopening statement, Chairman George Voinovich said:

[The CARFA Act] focuses our attention on an importantquestion facing Congress as we attempt to allocate scarce Federal resources. How do we identifyand reform or eliminate wasteful, ineffective, and outdated governmentprograms?...

The biggest problem we must overcome in thiseffort is that almost every program in the Federal Government, no matter how ineffective orspendthrift, has its own core of supporters.... It would be wishful thinking, at best, to believe we canrestructure or shut down large numbers of programs across multiple Federal agencies withoutprovoking a firestorm of opposition. Nevertheless, that task must be undertaken if we are to haveany hope of providing taxpayers the most effective and efficient government possible. That is thegoal of the legislation before us today. (40)

Senator Voinovich also cited work done by the General Accounting Office (GAO), which identified"areas of overlap and fragmentation" among federal agencies and programs. (41)

Sponsor Testimony

In a prepared statement, Senator Brownback outlined the CARFA proposal, saying that "oncea program comes into existence, experience tells us that the program is here to stay -- whether it issuccessful, unsuccessful, or outdated." Senator Brownback also displayed FY2004 and FY2005scores from the Bush Administration's PART in a "report card" for federal agencies, (42) and said that "examplesof government programs that have failed to address effectively the problem they targeted abound." Furthermore, Senator Brownback's prepared statement argued that to

address the problem of eliminating well-intended,though ineffective or outdated government programs ... we must learn from both our past failuresand successes. ... I believe we have had one process that has been successful in the realm ofprogram-elimination and prioritization of spending -- the Base Realignment and ClosureCommission (BRAC) ... with the BRAC commission submitting its recommendations to Congressfor the realignment and closure of military bases, [and] the Congress taking an up-or-down vote toaccept or reject the plan as a whole.... [W]ith this in mind, I specifically modeled the [CARFA Act]after BRAC....

Whereas the BRAC Commission examinedmilitary bases and the Department of Defense (DOD), CARFA would review federal agencies, andprograms within agencies. The scope of this commission would be directed toward non-DODdiscretionary agencies and programs ... roughly, a modest quarter of federal spending. I see this asa reasonable first step. If CARFA is successful, future Congresses may choose to authorize newrounds, as there have been multiple rounds of BRAC. (43)

Senator Brownback's prepared statement also addressed what he said were two potential concerns.

Some have raised concerns that CARFA would amountto the Congress delegating its authority. I answer this concern by noting that CARFA is anappropriate exercise of Congressional oversight and authority. Nothing substantive happens unlessthe Congress passes the Commission's proposed legislation.

Others have concerns over the expedited processfor CARFA, because amendments at either the committee level or on the Floor are not in order. Ianswer this concern by noting that the only chance we have for successfully eliminating governmentwaste through CARFA is a straight up-or-down vote. BRAC was successful because members hadto vote on the whole package.... In the case of CARFA, if members could offer amendments toexempt specific programs or agencies, CARFA will not be successful. (44)

Echoing some of the same themes earlier in the year, the CARFA legislation's House sponsor,Representative Tiahrt, had offered the following observations in a "U.S. Capitol Update" datedMarch 12, 2004, on his website:

Many members of Congress have recognized the needfor an independent body with the appropriate resources to review the federal bureaucracy andidentify programs that are duplicative, ineffective or inefficient. By giving Congress an up-or-downvote on a single package, it will eliminate a great deal of the political wrangling that usuallyaccompanies cutting a government program. Frankly, it also recognizes the fact that members ofCongress simply do not have the time or resources to delve into the details of the federal governmentand provide the type of accountability we would prefer. (45)

OMB Testimony

OMB's deputy director for management, Clay Johnson III, expressed support at the hearingfor both Congress and the executive branch systematically to assess "program performance and cost"as well as to "[work] with [Congress] to craft a sensible approach to ensure that a focus on resultsbecomes a habit ... and irreversible." (46) Deputy Director Johnson also stated that "[r]equiring by statutethat program performance and cost be systematically assessed would help accomplish this." (47) However, in representingthe Administration, he did not explicitly endorse the bill or the idea of a commission. During theSenate hearing, Deputy Director Johnson said the Bush Administration was willing to establish a"formal partnership" with Members of Congress who are interested in evaluating and streamliningprograms. (48) He alsotestified that the Bush Administration supported expedited congressional consideration of proposalsto realign or eliminate certain programs, and that the proposed CARFA should "rely on PARTinformation [and] rely on evaluations from the Executive Branch, from OMB or the agencies" whenrecommending programs for realignment or elimination. In addition, if the commission wished, itcould "challenge some of [the PART] assessments ... and add fresh perspective to it." (49) In that context, SenatorVoinovich spoke about a need to use nonbiased criteria in formulating the commissionrecommendations. Deputy Director Johnson added that OMB has made PART scores and analysispublicly available, because "[t]hese evaluations have to be able to stand the test of publicscrutiny." (50)

Citizens for a Sound Economy Testimony

Former House Majority Leader Richard K. Armey, co-chairman of Citizens for a SoundEconomy (which subsequently merged with Empower America to form FreedomWorks), testifiedin favor of the proposed CARFA Act at the Senate hearing. (51) Mr. Armey stated,"Washington has a spending problem," and "[the CARFA Act] aims to find federal waste in asystematic fashion, guided by a clear and uncontroversial set of principles, and eliminate it." He alsosuggested that the CARFA proposal could be broadened to include all discretionary spending. (52) Mr. Armey cited a GAOreport that, in view of several trends, concluded, "a fundamental review is needed to ensure relevantand sustainable government programs." (53) In addition, Mr. Armey compared the proposed CARFA Actfavorably with BRAC.

CARFA, like BRAC, would take parochial politics outof the budget process and make members decide in an up or down vote whether they wanted torealign and streamline the use of taxpayer's dollars going to duplicative, wasteful or irrelevantagencies. In effect, you would ask members of Congress to take a clear up or down vote on wasteprimarily benefitting other districts, effectively turning the politics of pork upside down. (54)

Mr. Armey also testified about insulating the commission's work from politics.

For the [BRAC-like] process to work, then, you musthave professional information, professional data, and serious hard-working members of thecommission that will not allow politics to impinge on their thinking. And Congress needs theassurance that it will not be political.... [T]he most important thing you must have [in this legislation]is insulation from politics so that the members will not be concerned about having political reprisalstaken against them, the need of a professional criteria and professional judgment by a serioushard-working commission that commands the respect of the members. (55)

Progressive Policy Institute Testimony

The hearing's final witness, Paul Weinstein Jr. of the Progressive Policy Institute (PPI),testified that "[t]he executive branch needs a top-to-bottom overhaul" and that "[PPI] has longadvocated creating a commission to reinvent government and eliminate corporate welfare." (56) Furthermore, Mr.Weinstein stated:

Our organization has long believed that the best wayto achieve comprehensive reform of the executive branch is to combine the commission functionwith a mechanism to require Congress to vote on its recommendations. Senator Brownback'sCARFA legislation would provide for this type of commission.... However, I believe ... S.1668 needs to be modified in several key aspects.

Mr. Weinstein outlined four themes for modifying the legislation. First, under the heading"Bipartisanship," he argued that the CARFA Act should follow the BRAC model more closely byrequiring the members to be appointed by the President by and with the advice and consent of theSenate and composed of equal numbers of Republicans and Democrats. (57) Second, under the heading"Expanded Scope," Mr. Weinstein recommended including all executive branch agencies, programs,and "targeted tax incentives" in the commission's scope of review. Third, under the heading"Multiple Rounds," he recommended that the commission be allowed to submit more than one roundof recommendations, in order to provide the proposed CARFA with "needed flexibility" in the faceof complicated work, and to build public support and increase the likelihood of success. Fourth andfinally, under the headline "Additional Criteria," Mr. Weinstein recommended including additionalcriteria for the commission to consider (in addition to the bill's "duplicative," "wasteful orinefficient," and "outdated, irrelevant, or failed" standards). These criteria would includerestructuring agencies into mission-focused departments, simplifying programmatic regulations,eliminating corporate subsidies "that do not serve the public interest," and directing the commissionto make no recommendations that "it believes might negatively impact the health, safety, and securityof the American people."

Potential Issues for Congress

Several issues and options may be of interest to Congress if the CARFA legislation receivesfurther consideration during the 109th Congress, or if Congress opts to consider alternativeapproaches to reviewing executive branch operations and making improvements. For ease ofpresentation, these items are grouped into three sections:

potential issues regarding a review commission;

potential success factors for a commission; and

potential alternatives or complements to a review commission.

Potential Issues Regarding a Review Commission

Congress and the President have a variety of policy and procedural tools that can help themassess government operations, organization, and performance. One such tool that has been usedoccasionally by Congress has been the statutorily created review commission. During the 20thcentury, Congress and the President established a number of review commissions that were intendedto promote improved efficiency, effectiveness, accountability, and transparency in the executivebranch. With varying emphases, these commissions typically reviewed executive branchorganization, operations, and management, as well as associated public policies. A detailedassessment of each of these efforts is beyond the scope of this report. (58) However, characteristicsof past review commissions can highlight potential points of contrast with the CARFA legislationor other review commission proposals. In particular, the present report frequently highlights someof the characteristics of two commissions -- the Hoover Commission (which operated from 1947 to1949) (59) and the BRACcommission established under P.L. 101-510 (three of which operated from 1991 to 1995 during timeperiods that did not overlap). (60)

Congress has many options to weigh if it chooses to consider a commission proposal insteadof, or along with, other alternatives. (Three alternatives or complements are discussed later in thisreport.) The following subsections of the report analyze six types of issues that Congress mightconsider in the context of a commission proposal. As noted earlier, they are:

the commission's membership;

the scope of the commission's review andrecommendations;

definitions of key terms;

standards and criteria for decision making;

expedited congressional consideration of the commission's recommendations;and

transparency and participation.

Each subsection cites some of the potential implications, advantages, and disadvantages that mightaccompany a number of choices that Congress could make, using the CARFA legislation's provisions(from H.R. 2470 and S. 1155 , 109th Congress) as a point of comparison.

Commission Membership. When consideringthe advantages and disadvantages of a review commission proposal, several topics relating to thecommission's membership may be of interest to Members of Congress and stakeholders. For theCARFA legislation, these include how the membership is to be determined, coverage of the FederalAdvisory Committee Act, and coverage of conflict of interest laws. In addition, the breakdown ofa CARFA commission's membership between federal and non-federal members would havesignificant implications for the coverage of these laws and the commission's operations.

Appointment and Removal. One of the keyparameters of a statutorily created commission is how its membership is to be determined. Underthe House version of the CARFA legislation, H.R. 2470 , all 12 commission memberswould be appointed by the President, thus giving the President considerable influence over thecommission's views, activities, and recommendations. Proponents might view this arrangement asgiving a President necessary flexibility to exert influence over the commission's views, whileensuring Congress would still be able to reject the commission's recommendations. Critics,however, might see this provision as giving too much legislative power to a President, especially inview of the legislation's provisions for expedited congressional consideration (including aprohibition on Senate filibusters) (61) and the legislation's potential policy implications for a large setof federal agencies and programs. By contrast, the Senate version of the CARFA legislation, S. 1155 , would provide that 8 of the commission's 12 members be appointed by Houseand Senate leaders (2 each by the Speaker and minority leader in the house, and 2 each by the Senatemajority and minority leaders), and the remaining 4 by the President. Proponents might view thisarrangement as a way to retain congressional control over the commission, as well as make thecommission at least somewhat bipartisan. On the other hand, critics might argue that if a Presidentand congressional leaders were to appoint members only from their respective political parties, theCARFA would always have a two-to-one ratio between parties, because the President's appointeeswould all go to one party. In addition, a President might prefer to have appointing authority over allcommission members rather than only one-third of them.

Another potential issue relates to removal power. If the President is given statutory authorityto appoint someone to a particular statutorily created office, the appointee holds that office at thepleasure of the President (even for a specified term of years) unless the statute expressly limits thePresident's removal power, or the nature of the duties given to the officeholder is solely adjudicatory. Therefore, for presidentially appointed commission members under either the House or Senateversion of the CARFA legislation, unless "for cause" removal protection were added for members,the President could remove members at will from the commission and appoint new members. (62) Furthermore, if thepresidency changed hands during the life of the CARFA, the new President could remove thecommission's members and replace them with appointees of his or her own. This removal powercould make the commission's membership, activities, and recommendations responsive to the needsof the President, but, on the other hand, could disrupt the commission's activities and be seen asundermining its independence. Under the Senate version of the CARFA legislation, the Speaker ofthe House, the House minority leader, the Senate majority leader, and the Senate minority leaderwould each be required to appoint two members to the commission. Each congressional leaderwould also have authority to remove at will a commission member whom he or she appointed, unless"for cause" removal protection were added for commission members. (63)

Other prominent review commissions -- for example, the Hoover Commission and the BRACcommissions established under P.L. 101-510 -- called for alternative means of determiningcommissions' memberships. The Hoover Commission's statute, for example, required equal numbersof Democrats and Republicans and hybrid appointment by both the President and Members ofCongress. For some observers, the Hoover Commission framework might be seen as advantageous,because it could be viewed as more bipartisan. Under that framework, however, congressionallyappointed commission members are appointed by majority Members of each chamber, potentiallywithout any involvement of minority Members. On the other hand, critics might argue that amembership selected by both majority party and minority party Members could prevent thecommission from coming to consensus or generating an integrated or consistent package ofrecommendations.

The BRAC commission approach to appointments, by contrast, required Senate confirmationof the President's appointments as well as consultations with majority and minority leadership in theHouse and Senate. Supporters of the BRAC approach might argue that the approach lessens theappearance and likelihood of politicization of the commission's recommendations by giving Senatorssome ability to influence the President's nominations (e.g., or else the President might risksubsequent filibusters of the nominations), (64) and holds the President's legislative power in check. However,the President can circumvent the need for Senate confirmation of a commission's members by usingrecess appointments. (65) As demonstrated in the 2005 BRAC round, President George W. Bush took this action on April 1,2005, when he announced recess appointments of all nine BRAC commission members. (66) Opponents of the BRACapproach might maintain that it constrains the ability of the President to appoint nominees flexiblyand, indirectly through these nominees, constrains the President's ability under a CARFA Act torecommend his preferred policies to Congress.

FACA. The CARFA legislation is silent on whetherthe commission would be considered an "advisory committee" that is covered by the FederalAdvisory Committee Act (FACA; 5 U.S.C. Appendix 2; 86 Stat. 700). (67) If the legislation wereenacted, the issue of FACA coverage might have implications regarding the commission'smembership, because FACA requires that an advisory committee's membership be "fairly balancedin terms of points of view represented" (Section 5(b) of FACA). FACA defines a covered "advisorycommittee" to include any committee or similar group that is (1) established by statute ororganization plan, (2) established or utilized in the interest of obtaining advice or recommendationsfor the President or one or more federal agencies, and (3) not composed wholly of full-time federalofficers or employees. (68) Because the commission would submit its recommendations primarily to Congress (see Section 3(b)of the CARFA legislation), not to the President or an agency, it appears a CARFA might not fallwithin FACA's definition of "advisory committee" and therefore might not be covered by FACA. However, Section 3(f) of the legislation calls for a "report," containing the commission's plan (withrecommendations) and proposed legislation, to be submitted to both the President andCongress. (69) Therefore,unless a court were to address this question, it is not clear whether the commission would be coveredby FACA. Some observers might prefer that a CARFA, if established, not be covered by FACA, inorder to allow appointment of members without the statutory obligation to appoint a commission thatis "fairly balanced" and therefore give flexibility to appoint members with the views, skills, andbackgrounds an appointing authority wishes. However, other observers might criticize this approachas one too easy to politicize and instead prefer that FACA cover the commission, in order to helpensure that a balance of views is present during the commission's work.

Conflict of Interest Laws and Regulations. Conflictof interest matters might also be of concern to some observers, regarding the CARFA legislation. In general, certain government officials in the executive and legislative branches must comply withconflict of interest laws and regulations (18 U.S.C. Â§Â§ 202-209; 5 C.F.R. Â§ 2635) relating to financialdisclosure, disqualification (recusal), and divestiture. (70) The CARFA legislation is silent with regard to the commission'slocation in the executive or legislative branch. The legislation also does not say directly whethernon-federal CARFA members (i.e., those who are not officers or employees of the federalgovernment) would nevertheless be considered officers or employees of the federal government forpurposes of conflict of interest laws. Even so, based on the legislation's provisions, it appears thatnon-federal commission members would not be considered officers or employees of the federalgovernment for purposes of conflicts of interest. For example, non-federal members of thecommission would not be compensated; Section 5(a) of the legislation makes explicit reference tosome CARFA members potentially not being officers or employees of the federal government; andSection 5(c)(3)(B) states that commission members would not be federal employees under severalprovisions of Title 5, U.S. Code . It appears these members would therefore not be subject to anyfederal conflict of interest laws or regulations. However, if CARFA were deemed an advisorycommittee under FACA, or if commission members were deemed federal employees or "specialgovernment employees" (SGEs), then the conflict of interest provisions would probably apply. (71)

Even if the conflict of interest laws and regulations were deemed not to apply to non-federalcommission members, some observers might still raise conflict of interest concerns. Previously, forexample, President Ronald Reagan's Private Sector Survey on Cost Control (popularly known as theGrace Commission) was established by executive order on June 30, 1982, as an advisory committeeunder FACA. (72) Thecommission's activities were sometimes controversial. The commission was funded and staffed bythe private sector, with 161 presidentially appointed members of an executive committee (mostlychief executive officers of corporations) and approximately 2,000 staff over the commission's life,who were loaned from their companies and organizations. (73) Some Members ofCongress and the public expressed concerns about potential conflicts of interest, because somemembers of the commission were assigned to review agencies that, in turn, regulated the members'companies. (74) Similarconcerns might again be voiced if a CARFA were established, because commission members whohave financial, political, or other interests in making certain recommendations for Congress'sexpedited consideration could potentially be appointed.

Implications of Composition of Federal and Non-FederalMembers. If the CARFA legislation were enacted, the composition ofcommission members between federal and non-federal individuals would have significantimplications for the coverage of FACA and conflict of interest laws and, possibly, for perceptionsof the commission's recommendations. Following from the preceding analysis, three scenariospresent themselves:

If all CARFA members were federal (i.e., officers or employees of the federalgovernment), FACA would not cover the commission, but commission members would be subjectto conflict of interest statutes and regulations.

If all CARFA members were non-federal, FACA might or might not cover thecommission, and it appears the commissioners would not be subject to conflict of interest laws andregulations.

If a CARFA commission's membership were mixed between federal andnon-federal members, FACA might or might not cover the commission, and some members wouldbe subject to conflict of interest laws, while others apparently would not.

Each of the three scenarios would have implications for the operations of the commission and also,perhaps, for how the commission's recommendations might be perceived by Congress and the public. However, the specific perceptions would likely differ depending on a particular observer's viewsabout FACA, the conflict of interest laws, other provisions of the CARFA legsilation (including itsscope and provisions for expedited congressional consideration), and potential alternative approachesto the questions a review commission had been charged to help address.

Scope of Commission Review andRecommendations. Previous review commissions have had varied scope, rangingfrom narrow (e.g., for the BRAC commissions, closure and realignment of military installations) tobroad (e.g., for the Hoover Commission, operations, organization, and policy of the entire executivebranch). If the House version of the CARFA legislation were enacted, the scope would be executivebranch agencies and programs, excluding DOD, entitlement programs, and agencies that solelyadminister entitlement programs. If the Senate version were enacted, the scope would be allexecutive branch agencies (including the EOP) and programs.

In the House version, the CARFA-covered programs are typically referred to as "non-defensediscretionary" programs. In FY2003, they constituted 19.5% of total federal outlays, or $420.5billion ($391.1 billion in inflation-adjusted, FY2000 dollars). (75) The corresponding actualfigures for FY2004 were 19.3% of total federal outlays, or $441.4 billion ($401.3 billion in FY2000dollars); and estimates for FY2005 were 18.8% of total federal outlays, or $466.4 billion ($412.2billion in FY2000 dollars). According to the President's FY2006 budget proposal, non-defensediscretionary funding was estimated to decline to 15.5% of total outlays by FY2010, or $469.5billion ($363.9 billion in FY2000 dollars, an 11.7% cut in funding compared to the FY2005 level). According to Senate hearing testimony from the 108th Congress, regarding S. 1668 , theproposed CARFA Act's scope was explicitly worded to address non-defense discretionary agenciesand programs "as a reasonable first step." (76) Were an eventual CARFA deemed successful by Congress,Senator Brownback suggested future rounds could be authorized. However, Senator Brownback'sbill in the 109th Congress, S. 1155 , expanded the scope, apparently in response to thehearing on S. 1668 in the previous Congress.

Potential advantages of an incremental approach -- e.g., beginning with non-defensediscretionary programs -- might be to make a commission's workload more manageable and to buildthe framework's credibility for potential future "rounds," as with the BRAC commissions. However,some testimony on the CARFA legislation suggested that the legislation's scope be expanded toinclude all executive branch agencies and programs, as well as "targeted tax incentives," (77) which are often called "taxexpenditures." (78) According to one analysis, when tax expenditures are expressed in terms that allow comparison withdirect federal outlays, tax expenditures totaled nearly 51% of federal outlays in FY2002. (79) A potential advantage ofbroadening the scope to all agencies and tax expenditures might be to assess public policies from amore holistic perspective -- regardless of whether policies are associated with annual or permanentappropriations, or direct federal outlays or tax expenditures -- because diverse agencies and policytools might be targeted at the same or similar public policy problems. In addition, some observersmight argue that broadening the commission's scope to include all agencies and tax expenditureswould be necessary to avoid the appearance of partisanship.

Other options regarding a review commission's scope might be of interest to Congress. Forexample, if Congress chose to consider the legislation's scope, other policy tools like loans, loanguarantees, tax laws, and regulations could also be explicitly included under the legislation'sdefinition of program , which, as introduced, was defined as "any activity or function of an agency"(Section 3(a)(3)). It is not clear that this definition of program would necessarily include these andother policy instruments in the commission's scope. Moreover, Section 3(d) of the legislationcontains provisions related to program assessments that are arguably similar in structure and contentto the Administration's PART, an instrument that is focused on evaluating the use of appropriatedfunds. Thus, to the extent that the PART is seen as an essential or complementary tool for theCARFA, and possibly as the "systematic method for assessing the effectiveness and accountabilityof agency programs" that is required by the legislation's Section 3(d), a CARFA might tend toconcentrate on appropriated funds to the exclusion of other policy tools.

Definitions of Key Terms. The CARFAlegislation uses a number of special terms when specifying the commission's duties, specifically,when requiring the commission to recommend realignment or elimination for agencies and programs that are deemed to be duplicative , wasteful , inefficient , outdated , irrelevant , or failed . If the proposalwere enacted, its implementation and ramifications would likely turn on these definitions. Some ofthese terms are defined by the CARFA legislation to varying extents, and others are not defined. Ifthe legislation were enacted as introduced, the commission's members and staff would arguably needto define further and operationalize some of the terms. Alternatively, during the course of anyconsideration of the legislation, Congress might elect to include more detailed definitions in thelegislation or establish a legislative history demonstrating congressional intent. Each approach mightbring advantages and disadvantages. For example, defining the terms later would obviously grantsignificant flexibility and discretion to the commission and allow commission members to modifythe definitions as they proceed with the commission's work. However, this discretion could alsopotentially open up the commission's actions to charges of bias in the absence of clear or consensusdefinitions. In view of these tensions, definitions of key terms might be of interest to Congress inconsideration of the CARFA Act.

Program. The CARFA legislation defines program as "any activity or function of an agency." (80) The term activity is not defined in the legislation, but accordingto Merriam-Webster's Collegiate Dictionary , is defined as "a pursuit in which a person is active" or"an organizational unit for performing a specific function; also : its function or duties." (81) Thus, an activity can bewhat a person or an organization does or, alternatively, a distinct part of an organization. The term function is used in several contexts in Title 5 of the U.S. Code , the codification of laws ongovernment organization and employees. While Title 5 does not define function , the implementingregulations for transfer of functions (5 U.S.C. Â§ 3503) and reductions in force (5 U.S.C. Â§ 3502)define the term as "all or a clearly identifiable segment of an agency's mission (including all integralparts of that mission), regardless of how it is performed" (5 C.F.R. Â§ 351.203). In sum, a CARFAwould have considerable discretion in identifying the "programs" it wished to evaluate.

OMB has used primarily a budgetary perspective for defining specific programs for purposesof the PART, an instrument used in the last two years in the President's budget to evaluate theeffectiveness of programs. Under the PART, programs have generally been defined as they arepresented in the President's budget proposals or other budget documents. GAO has noted, however,that OMB's approach sometimes aggregated several separate programs, and at other timesdisaggregated programs, in ways that were not always aligned with how agencies managed ororganized themselves. This practice in turn "contributed to the lack of available planning andperformance information," as observed by GAO. (82) GAO noted that the PART must serve the needs of the Presidentand OMB, but that the Government Performance and Results Act (GPRA; 107 Stat. 285) presentsa broader framework for strategic planning and consultation with stakeholders, includingCongress. (83) Thesetensions raise the questions of how Members and committees of Congress could best be served withregard to how programs should be defined, and who should define them.

Realignment. The CARFA legislation calls upon itscommission members to recommend certain programs and agencies for realignment , but does notdefine the term. The BRAC commission law, by contrast, provided a technical and applieddefinition for the term realignment , in the context of deciding whether to close, cut back, orreorganize military installations: "The term 'realignment' includes any action which both reduces andrelocates functions and civilian personnel positions but does not include a reduction in forceresulting from workload adjustments, reduced personnel or funding levels, or skill imbalances." (84) Unless the term werefurther defined by Congress, a CARFA would likely have flexibility to define the term as it wishes. Some discussion may help shed light on possible definitions. Merriam-Webster's CollegiateDictionary defines realign as "to reorganize or make new groupings" (85) and align as "to be in orcome into precise adjustment or correct relative position." (86) Thus, the term's commonusage suggests an emphasis on reorganization. This possible emphasis is arguably consistent withRepresentative Tiahrt's discussion of the proposed CARFA Act in the 108th Congress, in his remarkson the House floor, which referred to the "elimination or the realignment of duplicative, wasteful,and outdated functions " (italics added). (87) The emphasis is also arguably consistent with the legislation'sprovision that duplicative programs be "consolidated or streamlined" (Section 3(c)(1)), terms oftenused as synonyms for restructuring and reorganization.

The organization design literature often indicates that an organization's "structure" and"purpose" are complexly intertwined concepts when considering "organizational architectures." (88) Depending on anobserver's perspective, these concepts may arguably be intertwined to such an extent that the terms reorganization or realignment can be construed to imply not only "moving organizational boxes,"but also changing processes and perhaps even purpose. For example, if two similar, but notidentical, programs are proposed to be combined into one program, it is possible that core elementsof one or both programs might be changed. Thus, it is possible that the proposed commission coulddefine the term realignment as allowing both organizational and policy changes, (89) consistent with the CARFAlegislation's directions to recommend the realignment of programs, and corresponding policies, thatare judged duplicative , wasteful , or inefficient .

Other Terms to Describe Certain Programs. Section3(c) of the CARFA legislation enumerates a number of descriptive terms that a commission wouldbe required to use in its work and would potentially need to define further. Specifically, under thelegislation, a commission would be required to recommend programs or agencies that fall undermost of these definitions to be realigned or eliminated. (However, the Senate version of the CARFAlegislation, S. 1155 , would allow rather than require realignment or elimination ofagencies or programs found to be wasteful or inefficient .)

Duplicative. Section 3(c)(1) of the CARFA legislation would require aCARFA to recommend that duplicative agencies and programs be realigned . The definition of duplicative is operationalized in this way: "[i]f 2 or more agencies or programs are performing thesame essential function and the function can be consolidated or streamlined into a single agency orprogram." How would a commission interpret this term? The term has a long history. Concernsabout "overlap" and "duplication" in federal government programs were expressed as early as 1920,when Congress established a Joint Committee on Reorganization. (90) Similar concerns wereechoed in the late 1940s, when the legislation enacting the Hoover Commission was beingconsidered. The Hoover Commission's concluding report prominently remarked on "the wastes ofoverlapping and duplication." (91) More recently, other terms, in addition to duplicative and overlapping , have been used to describe several agencies or programs engaging in activities thatsome observers see as similar or related. These terms include crosscutting , fragmented , and redundant . GAO's analysis of mission fragmentation and program overlap in federal agencies, forexample, provides the analytical foundation for much of the current discourse regarding federalprograms that appear to do similar or related things. (92) An underlying framework that GAO used for making thesecategorizations is the federal government's set of budget function classifications, which, as notedpreviously, refer to broad categories of federal spending, organized according to the purpose ormission of government (e.g., defense, income security, and law enforcement). (93) However, GAO offeredthe following caveat with regard to the term duplication :

Although [the budget function classification] systemcan indicate broad categories of fragmentation and overlap, it does not directly address the issue ofprogram duplication. While mission fragmentation and program overlap are relativelystraightforward to identify, determining whether overlapping programs are actually duplicativerequires an analysis of target populations, specific program goals, and the means used to achievethem. (94)

Furthermore, when appearing before the House Committee on Government Reform's Subcommitteeon Government Efficiency and Financial Management, a former OMB career official testified thatmaking such assessments involves several subtleties. He stated that, while some programs mightbe "in competition with one another" (i.e, duplicative), it is also possible that similar programs mightuse different methods, serve different populations, or even be complementary to each other. (95)

Wasteful, Inefficient, Outdated, Irrelevant, or Failed. The other terms inSection 3(c) of the CARFA legislation have less complex histories, but also might be more difficultto define in ways that would achieve consensus among varied stakeholders and observers. Section3(c)(2) defines wasteful and inefficient in three possible ways, either requiring (House version of theCARFA legislation) or allowing (Senate version) the proposed commission to "recommend therealignment or elimination of any agency or program that has wasted Federal funds by -- (A)egregious spending; (B) mismanagement of resources and personnel; or (C) use of such funds forpersonal benefit or the benefit of a special interest group." Similarly, Section 3(c)(3) would requirethe proposed commission to "recommend the elimination of any agency or program that -- (A) hascompleted its intended purpose; (B) has become irrelevant; or (C) has failed to meet its objectives."

How would the commission define "egregious" spending, or determine the threshold for whatconstitutes "mismanagement" of resources and personnel? What is a "special" interest group? Howdoes it differ from other interest groups that are not "special"? What constitutes an outdated , irrelevant , or failed program or agency? The legislative history behind the CARFA legislation doesnot appear to answer these questions, and the answers would likely need to be supplied by Congressor the commission's presidential appointees (House version) or mix of presidential and congressionalappointees (Senate version). Advocates of these provisions might argue that it is proper to give thecommission flexibility to define these terms, and that in any case their recommendations, packagedas an implementation bill, would still be subject to an up-or-down vote by Congress. However,critics might argue that the terms are inherently subjective, and that the legislation's expeditedprocedures for congressional consideration (discussed and analyzed further, below) would not allowsufficient scrutiny of a commission's recommendations and implementation bill.

If a commission were to craft definitions for these terms, it is possible that the commissionwould create and use standards for making some of these decisions, as discussed in the followingsection.

Standards and Criteria for Decision Making. Thesubject of decision making standards arose during the hearing in the 108th Congress for S. 1668 , with Senator Voinovich discussing a need to establish non-biased criteria forrecommending the elimination of programs. (96) Former Majority Leader Armey also testified that politics shouldnot be allowed to intrude in such a process. OMB Deputy Director for Management Clay JohnsonIII testified that a commission should use the Bush Administration's PART to help make itsdeterminations. Section 3(d) of the CARFA legislation, which would require "systematic assessmentof programs" by the President and the commission's consideration of these assessments, contains aframework of provisions that is arguably similar in structure and contents to the Administration'sPART. (97)

If Congress chose to evaluate the CARFA legislation, Congress would have precedent forpaying close attention to a commission's standards and criteria for making recommendations. In theBRAC statute, for example, the Secretary of Defense was required to articulate and publish in the Federal Register the proposed criteria for base closures, with an opportunity for public comment(104 Stat. 1810-1811; Section 2903(b)). (98) Should Congress wish to explore the topic of standards, threeperspectives from the program evaluation and social science literatures might be helpful in assessingstandards that could be used by an eventual CARFA: the concepts of validity , reliability , and objectivity . (99) Inprogram evaluation and social science research, validity has been defined as "the extent to which anymeasuring instrument measures what it is intended to measure." (100) Another term, reliability , has been described as "the relative amount of random inconsistency or unsystematicfluctuation of individual responses on a measure," that is, the extent to which several attempts atmeasuring something are consistent (e.g., by several human judges or several uses of the sameinstrument). (101) Finally, the term objectivity has been defined as "whether [an] inquiry is pursued in a way thatmaximizes the chances that the conclusions reached will be true." (102) The opposite conceptis subjectivity , suggesting, in turn, concepts of bias, prejudice, or unfairness. Thus, making ajudgment about the objectivity of a test or researcher "involves judging a course of inquiry, or aninquirer, against some rational standard of how an inquiry ought to have been pursued in order tomaximize the chances of producing true findings " (emphasis in original). (103)

A framework similar to the validity/reliability/objectivity trio of concepts, as summarizedabove, was once used to assess a BRAC commission's standards for decision making. Specifically,in the context of the 1995 BRAC commission's consideration of U.S. Army bases, an independentanalysis by the RAND Corporation identified 10 "criteria [that] should characterize an effectiveBRAC process." (104) The first criterion used by RAND focused on the reliability of the assessment process; the secondcriterion focused on objectivity ; and the remaining eight criteria arguably focused on severaldimensions of validity .

With regard to the CARFA legislation, a commission would need to make numerousdeterminations for non-defense discretionary programs in the executive branch (whether a programis duplicative , wasteful , etc.). How should one validly , reliably , and objectively determine a programis irrelevant , for example? General consensus among stakeholders and researchers might exist onhow to make these determinations for some "programs," as the commission elects to define the term program . But consensus might be lacking for other programs. Should Congress wish to explorethese issues, Congress could ask if the CARFA legislation's assessments might be completed validly,reliably, and objectively -- including by the Administration's PART, an instrument which has beenlauded by some observers and the subject of criticism among others. (105) To the extent that thePART is seen as an essential or complementary tool for a CARFA (and probably as the "systematicmethod" required by the legislation's Section 3(d)), perspectives on the PART may help highlightor clarify issues for Congress should it consider the proposed CARFA Act.

Expedited Congressional Consideration. Adistinctive feature of the CARFA legislation is its provision for expedited consideration by Congressof the commission's recommendations, packaged together in an implementation bill. (106) Depending on anobserver's outlook, these arrangements could be considered to offer distinct advantages ordisadvantages. For example, possible advantages include the assurance that Congress would actuallyconsider the work of the commission, less ability for Members to engage in "logrolling" (votetrading) that could undermine the commission's recommendations, and the prevention of potentialfilibusters in the Senate. Possible disadvantages, however, include less ability to engage in thecompromises that are necessary for a democratic system to function, diminished power for minoritygroups in the Senate, and a movement away from the rights and prerogatives of individual Senatorsto engage in extended debate unless an extraordinary majority votes to invoke cloture. Theadvantages and disadvantages relating to logrolling and constraint on Members of the Senate arediscussed below.

Logrolling and the CARFA Legislation. When theBRAC commission legislation was being considered in 1990, there was a broad consensus that thenumber and extent of military installations needed to be reduced in order to save funds. (107) Supporters of theBRAC process argued that parochial politics prevented the closure of bases which they believedwere no longer needed. Critics countered that it was Congress's responsibility to make thesedeterminations, not a commission's, and that presidential administrations had in the past used baseclosing decisions for political purposes. In addition, there were many concerns about how thesemilitary installations were to be chosen. If a commission's recommendations could be amendedduring the legislative process, Members of Congress could face strong incentives to exclude someor all installations from the list, perhaps via bartering votes on base closures with votes on otherseemingly unrelated matters. If this happened to a large extent, then the primary reason for pursuingthe BRAC process, saving funds, might be undermined. Thus, one justification for creating theBRAC commission framework was that it would prevent, or at least limit, vote trading, or"logrolling." (108)

Under the BRAC framework, when a commission's recommendations reached Congress,Congress would be allowed only an up-or-down vote on a resolution disapproving the package inits entirety, with no amendments. If no such resolution were passed within 45 days, therecommendations would then be automatically implemented. Members of Congress would not beable to make deals to exclude installations from the list of facilities to be realigned or closed, whichwould preserve the integrity of the original list and its corresponding (projected) budget savings, asrecommended by the commission and transmitted by the President. These provisions, together withadditional ones to help insulate the process from political manipulation by presidentialadministrations and make it open to the public, became what were considered key attributes of theBRAC statute. (109)

Concerns about logrolling were expressed by the House sponsor of the proposed CARFAAct, Representative Tiahrt, during the 108th Congress:

CARFA is based on a process with an established recordof successful program elimination and prioritizing of spending. The Base Realignment and ClosureCommission, or BRAC as it is called, is similar only [in how] it deals strictly with military bases,whereas H.R. 3213 will establish a commission to conduct a comprehensive review ofFederal agencies and programs and recommend the elimination or the realignment of duplicative,wasteful, and outdated functions.

CARFA provides for a disciplined spendingreview process for nondefense, nonentitlement programs. Congress will simply have to vote up ordown on the commission's recommendations in their entirety. The congressional logrolling thatnormally bogs down the process will be short-circuited. In this way, real reform can emerge and thedeficit and debt program can be brought under control. (110)

According to public choice theory, (111) logrolling can improve or degrade societal welfare dependingon the specifics of the situation, including how strongly different individuals value several issues andhow value is to be measured. (112) Which of these two approaches -- vote trading versus no votetrading -- is better in a given situation is open to interpretation and debate. According to onetextbook,

[v]ote trading is controversial. Its proponents argue thattrading votes leads to efficient provision of public goods, just as trading commodities leads toefficient provision of private goods. Proponents also emphasize the potential for revealing theintensity of preferences and establishing a stable equilibrium. Moreover, the compromises implicitin vote trading are necessary for a democratic system to function.... On the other hand, opponentsof logrolling stress that it is likely to result in special-interest gains not sufficient to outweigh generallosses. Large amounts of waste can be incurred. (113)

In sum, different stakeholders may have different views on how the CARFA legislation'sno-amendment provisions would affect logrolling. Moreover, theory alone does not indicate whetherlogrolling (or the absence thereof) would have beneficial or adverse consequences for society as awhole, compared to the other option.

Three issues that Congress might consider, in light of this discussion, are

whether legislation based partially on the BRAC model, which targetedmilitary bases for realignment and closure based on widespread consensus, would be appropriate forthe case of reviewing non-defense discretionary agencies and programs (under the House version ofthe CARFA legislation) or all executive branch agencies and programs (under Senate version) forrealignment or elimination, when widespread consensus might or might not exist and when thecommission's membership would not require Senate confirmation;

whether vote trading, or the lack thereof, in considering a proposed CARFAAct would be likely to improve societal welfare; and

whether Members believe the proposal would be a fully legitimate exercise oflegislative power, an abdication of that power, or something in between.

Constraint on Potential Filibusters in the Senate. Section 7 of the CARFA legislation would provide for expedited congressional consideration of thecommission's implementation bill, "as an exercise of the rulemaking power of the Senate and Houseof Representatives." (114) In the Senate, this provision would prohibit amendments andalmost all procedural delays, unless a majority of the Senate did not wish to vote on or pass thecommission's implementation bill. Thus, in contrast to customary Senate procedures, which giveindividual Senators considerable power to influence or delay the Senate's business, Senators wouldlose the ability to filibuster the implementation bill, if any wished to prevent it from coming to avote. (115) In otherwords, for purposes of considering the implementation bill, a proposed CARFA Act's expeditedprocedures could diminish the power of minorities in the Senate. (116) Proponents mightargue that the legislation's expedited procedure provisions would make Senate consideration of thecommission's recommendations more responsive to majority rule and speed consideration of theproposal. Opponents of this approach might maintain that it takes power away from minority groupsin the Senate and de-emphasizes the rights and prerogatives of individual Senators to engage inextended debate unless an extraordinary majority votes to invoke cloture.

If one or more Senators wished to modify the rules contained in the CARFA legislation (i.e.,if the CARFA Act were enacted), the Senate could choose to do so by making changes to theexpedited consideration provisions. (117) This could be done in several ways. For example, the Senatecould change the expedited procedures by unanimous consent. If a Senator objected to theunanimous consent request to change the expedited procedures, a super-majority of three-fifths ofall Senators chosen and sworn (normally 60 votes) would be needed to invoke cloture and allow theSenate to vote on the proposed changes to the expedited procedures, by statute or standing order. And finally, invoking cloture to vote on an amendment to the Senate's standing rules would requirea super-majority of two-thirds of all Senators present and voting (up to 67 votes). In the House ofRepresentatives, by contrast, making changes to the CARFA procedural rules would require only asimple majority vote on the adoption of a special rule, something a majority could achieve easily. In essence, then, while the expedited procedures would apply equally to both chambers, in effect theywould be considerably more restrictive on the Senate than on the House.

Transparency and Participation. Another topicthat Congress could choose to consider is the transparency with which the CARFA would berequired to operate and related issues of public participation. Past review commissions have workedunder a wide range of requirements to open their work to public visibility, participation, andoccasional accompanying scrutiny. The BRAC commissions, for example, operated under theexplicit requirement that "[e]ach meeting of the Commission, other than meetings in which classifiedinformation is to be discussed, shall be open to the public" (Section 2902(e)(2)(A)). In addition, theBRAC statute specified that "[a]ll the proceedings, information, and deliberations of the Commissionshall be open, upon request" to the chairmen and ranking members of several congressionalcommittees and subcommittees (Section 2902(e)(2)(B)). By contrast, the Hoover Commission'sauthorizing statute was silent on the subject of transparency and participation. (The HooverCommission predated the enactment of FACA, which sets out requirements governing public accessto meetings and records as well as public participation, and other "open government" laws.) A morerecent review commission, the 9/11 Commission, was explicitly excluded from FACA'srequirements and required to hold public hearings "to the extent appropriate." (118)

As discussed previously in this report, it is unclear whether a CARFA would be covered byFACA or affected by its requirements (e.g., advisory committee meetings are presumptively opento the public). A CARFA would also probably not be subject to the Government in the Sunshine Act(90 Stat. 1241). (119) This law requires collegially headed federal executive agencies with two or more members -- amajority of whom are appointed by the President with the advice and consent of the Senate -- to holdcertain meetings in public. The CARFA legislation is silent with regard to the commission's locationin the executive or another branch, but if the legislation were enacted, the commission's memberswould not be Senate-confirmed.

Finally, the CARFA legislation is silent with regard to whether the proposed commissionwould be subject to the Freedom of Information Act (FOIA; 5 U.S.C. Â§ 552). FOIA's definition of"agency" (5 U.S.C. Â§ 552(f)) includes executive departments, military departments, governmentcorporations, government controlled corporations, independent regulatory agencies, or any "otherestablishment in the executive branch of the Government (including the Executive Office of thePresident)." However, if the commission were deemed strictly advisory in nature, it would not becovered by FOIA. If Congress chose to enact the CARFA legislation, and in the event that thecommission were considered an establishment in the executive branch, FOIA would likely be heldto cover the commission (based on the fact that, under Section 4 of the legislation, the CARFAwould have investigatory powers), if a court were to address this question. In Energy ResearchFoundation v. Defense Nuclear Facilities Safety Board , 917 F.2nd 581 (D.C. Cir. 1990), the courtheld that the board (which was responsible for reviewing, evaluating, investigating, and makingrecommendations to the Department of Energy regarding standards and safety issues pertaining tonuclear facilities of the department) was subject to FOIA, basing its decision on the fact that theboard had investigatory powers. (120)

In sum, therefore, it is not clear the extent to which a CARFA would be able to conduct itswork outside public and congressional view (e.g., convene meetings, hold hearings, and formulaterecommendations), if it chose to pursue that course. Some might see advantages associated with anapproach that kept the commission's activities largely outside public or congressional view. Forexample, supporters might maintain that, by limiting public involvement, a CARFA would avoidpublic or interest group pressure as it weighed individual and difficult policy recommendations, issueby issue. From the perspective of supporters, this could potentially help a CARFA'srecommendations to be formulated, seen, and considered as a cohesive package. Furthermore,because the commission would be advisory, a CARFA's recommendations still would have to beconsidered by Congress (albeit under expedited procedures) and signed by the President before anyrecommendations became law.

However, some disadvantages could also be associated with an approach that other observersmight see as lacking transparency and participation. For example, the commission'srecommendations might lose credibility if observers were not sure who was involved, both insideand outside government, in formulating them. In addition, critics might argue that the legislation'sexpedited congressional procedures would not allow for (a) enough time or public participation toconsider what could be large changes to a large subset of federal programs; or for (b) enoughcongressional and public input through mechanisms like GPRA, which was enacted to address manyissues of federal management and performance, arguably including those that would be addressedby a CARFA, if it were established. (121)

Potential Success Factors for a Commission

When evaluating proposals to establish major reorganization or review commissions,Congress might also consider the "success factors" that observers have identified as important inputsto successful commissions. One scholar proposed four "propositions" for an effective commissionthat, if ignored, he argued could make "success" with a commission more difficult to attain:

1. A focused and limited mandate for a commission ...is more likely to provide useful results than a commission with a broad, unstructured mandate withsubstantial policy implications.

2. A commission should have ties with centralmanagerial agencies in the executive branch and with committees with general managementresponsibilities in Congress. Others besides the commission must have a stake in the success of theexercise.

3. Commissions should be cognizant of the distinctivelegal character of governmental organization and activities. Included in any commission reviewshould be a review, with recommendations, of the general management laws pertinent to the mandateof the commission.

4. There should be some consensus in advance amongcommission members regarding the organizational principles to be applied in their review andrecommendations. Commissions do not tend to be effective vehicles for generating consensus ifnone previously existed. (122)

GAO also weighed in with "lessons" regarding "successful government restructurings":

The lesson of the two Hoover Commissions is clear:If plans to reorganize government are to move from recommendation to reality, creating a consensusfor them is essential to the task. In this regard, both the process employed and the players involvedin making any specific reorganization proposals are of critical importance. The success of the firstHoover Commission can be tied to the involvement and commitment of both the Congress and thePresident. Both the legislative branch and executive branches agreed to the goals. .... A distinctionalso needs to be made between policy choices and operational choices. Relatively straightforwardreorganization proposals that focus on operational issues appear to have met with greater successthan those that addressed more complex policy issues. (123)

Different observers will have different opinions about whether success factors such as these relateto specific commission proposals. A noteworthy point of comparison with these prescriptions maybe experience with the 9/11 Commission. The 9/11 Commission was established only after extendednegotiation among Members of Congress and the President regarding its scope, powers, etc., and wastasked in its authorizing statute with making not only operational recommendations, but also policyrecommendations: "[t]he purposes of the Commission are to -- ... (5) investigate and report to thePresident and Congress on its findings, conclusions, and recommendations for corrective measuresthat can be taken to prevent acts of terrorism" (116 Stat. 2408). The 9/11 Commission proceededto make organizational, operational, and policy recommendations in a charged political environmentduring a presidential election year. (124) The commission's bipartisan, unanimous report has been bothcriticized and commended for omitting some policy topics, (125) and may or may notillustrate that to be effective, a commission's scope and reorganization-related recommendationsmust fit within an overall context of legislative-executive consensus.

Potential Alternatives or Complements to a Commission

A CARFA could provide a mechanism for the President and Congress -- through thePresident's appointees to the commission (under both the House and Senate versions of the CARFAlegsilation), congressional leaders' appointees (under the Senate version), and Congress'sconsideration of the commission recommendations -- to consider "elimination or realignment ofduplicative, wasteful, or outdated functions" in certain programs and agencies. (126) However, establishinga commission is only one possible way of exploring these issues. If Congress wants to exploresimilar issues, it could consider alternatives or complements to a commission. Three are discussedand analyzed below.

Pursue or Authorize Government Reorganization. Commentators sometimes propose reorganization of government agencies as a way to realignprograms and improve government efficiency and effectiveness. Thus, as an alternative orcomplement to the CARFA legislation, Congress could consider undertaking specific reorganizationlegislation, as it did with the Homeland Security Act of 2002 (116 Stat. 2287) when it created theDepartment of Homeland Security, or alternatively, reauthorizing executive reorganizationauthority. (127)

In the past, reorganization was viewed largely as a technical exercise that could be delegatedto experts in the executive branch. In recent decades, however, commentators have seenreorganizations as also having potentially significant institutional, policy, and politicalconsequences. (128) In 1995, GAO explored many of the associated issues. (129) In 2003, the Comptroller General recommended streamliningand simplifying the federal government's organizational structure to address "duplicative,overlapping, and conflicting and outdated government programs, policies, and operations." (130) Furthermore, theNational Commission on the Public Service ("Second Volcker Commission") recommended a"fundamental reorganization" of the federal government "into a limited number of mission-relatedexecutive departments," in order to enhance "mission coherence and role clarification." (131) According the SecondVolcker Commission's proposal, the choice of agency subordinate organizations and personnelsystems -- traditionally the subject of congressional attention and negotiation -- would be definedby the President, and subject to oversight by OMB and the Office of Personnel Management(agencies under control of the President), "as well as Congress." (132)

The organization design literature has expressed mixed assessments of the ability ofreorganization to improve organizational performance. Grouping organizations together can beviewed as a "double-edged sword":

On one hand, grouping eases the flow of informationwithin the boundaries of the group by providing a common language, a common goal, and, indeed,even a common view of the world. The group becomes an identifiable subculture of the largerorganization, and the sharing and processing of information become easier. But the boundariesinevitably become barriers, making it more difficult to share information outside the group and oftenengendering conflict, competition, and a lack of cooperation amonggroups....

It's essential to keep in mind that organizations,in the final analysis, are political systems with complex patterns of power and influence.... If newgrouping patterns seem to elevate one group over another, channel increased resources to a particularactivity, or substantially alter reporting relationships, some manager or group will be seen as winningat the expense of someone else.... Strategic grouping ... by definition separates some jobs andindividuals at the same time it brings others together. (133)

It is possible that Congress had similar concerns when enacting the Homeland Security Act, whenCongress included Section 888, "Preserving Coast Guard Mission Performance" (116 Stat. 2249),in the bill, which prohibited the Secretary of the Department of Homeland Security (DHS) fromsubstantially or significantly reducing the "non-homeland security missions" of the Coast Guard. Furthermore, in the 108th Congress, S. 910 ("Non-Homeland Security MissionPerformance Act of 2003") was reported from committee favorably with amendments, articulatingconcerns that non-homeland security missions (e.g., maritime search and rescue, fisheriesenforcement, asylum for refugees, protecting against counterfeiting, etc.) be preserved and notcrowded out by homeland security-related activities. (134) Similar concerns could apply to other proposed executivebranch reorganizations.

Establishing a commission like the CARFA might arguably entail some advantages comparedto reorganization, whether that reorganization were undertaken through the regular legislativeprocess or executive reorganization authority. For example, in contrast to reorganization throughthe regular legislative process, the CARFA legislation would expedite congressional considerationof the commission's recommendations without the risk of amendments undermining the cohesivenessof the package. The CARFA legislation would arguably impose fewer restrictions upon thecommission's recommendations compared with executive reorganization authority, which, ifrenewed, would impose a number of restrictions on what reorganization plans could contain (e.g.,a prohibition on abolishing statutory programs). A CARFA would thus have more flexibility to dealwith a broad range of policy matters.

Other observers might see disadvantages in the CARFA proposal, compared to reorganizationthrough the regular legislative process or executive reorganization authority. Compared to CARFA,pursuing reorganization (or policy changes) through the regular legislative process could be seen aspreserving important congressional prerogatives under the Constitution's separation of powers andchecks and balances, subjecting proposals to more deliberation, transparency, and publicparticipation. (135) Inaddition, Congress enacted major legislative changes to tax laws in 1986, social policy in 1996, farmsubsidies in 1996, and homeland security agencies in 2002 by relying on existing processes andinstitutions. The CARFA legislation could also be seen as having disadvantages compared toexecutive branch reorganization authority, if Congress were concerned about giving too much powerto the President. Because executive branch reorganization authority, if renewed, would be subjectto many restrictions regarding what the President could propose for expedited congressionalconsideration, the executive branch's legislative powers would be arguably more constrained undera renewed Reorganization Act than a new CARFA Act.

Use GPRA. Another potential alternative orcomplement for the CARFA legislation, which Congress might consider, is continued or expandedusage and oversight of the Government Performance and Results Act. (136) Congress enactedGPRA to accomplish several goals, including to "systematically [hold] Federal agencies accountablefor achieving program results"; "improve congressional decisionmaking by providing more objectiveinformation on achieving statutory objectives, and on the relative effectiveness and efficiency ofFederal programs and spending"; and "improve internal management of the FederalGovernment." (137) Thus, GPRA established a statutory foundation intended for examining issues, among others, thata CARFA would also emphasize.

The extent to which GPRA has been successful in moving toward these goals has been asubject of discussion and debate in Congress and the legislative branch, in the executive branch, inthe scholarly community, and among other observers. (138) Some, including GAO, see GPRA as having established a"solid foundation" of results-oriented planning, measuring, and reporting, albeit with a number ofchallenges remaining, including an "inadequate focus on addressing issues that cut across federalagencies." (139) Otherssee GPRA at risk of creating a "paper exercise" unless agency program evaluations and performancereporting documents have budget and management implications, and some are concerned about aperceived lack of analytical capacity in federal agencies in order to comply with GPRA and the BushAdministration's PART initiative. Still others might question whether GPRA or its implementationhave focused on the right things. Apart from the CARFA legislation, a number of observers haveadvocated for continued use of the Bush Administration's PART as a complement to GPRA, in orderto forge a "link" between performance and budgets. (140) However, some others have criticized the PART forinconsistency, its emphasis on serving the needs of the executive branch without the significantinvolvement of Congress and other stakeholders, and its focus on individual programs instead ofissues that cut across several agencies (e.g., food safety). (141)

Proponents of a CARFA might argue that it would bring several advantages compared tousing GPRA alone, including (1) producing an integrated and internally consistent set ofrecommendations for congressional consideration; (2) potentially insulating the commission'sdeliberations from day-to-day politics, thereby potentially allowing the commissioners moreflexibility to investigate controversial options and develop innovative recommendations; (3)potentially establishing some measure of independence for the commission's recommendations,thereby increasing the commission's credibility; and (4) eliminating the ability of Members ofCongress to amend the commission's set of recommendations or delay their consideration, therebyincreasing the probability of enacting a coherent package.

On the other hand, opponents are likely to see the disadvantages of establishing a commissioncompared to using GPRA alone, including (1) potential duplication of effort with federal agenciesin evaluating programs and agencies; (2) arguably less transparency and participation in formulatingand considering proposals compared to the process under GPRA, potentially undermining thecommission's credibility; (3) potential questions about the ability of a commission to make credibleassessments with limited time and analytical capacity; and (4) eliminating the ability of Membersof Congress to amend the commission's recommendations or delay their consideration, therebyfacilitating the floor consideration of legislation that might otherwise have stood little chance ofenactment had there been opportunity for more scrutiny of commission recommendations.

Bolster Agency Program Evaluation Capacity Through "ChiefProgram Evaluation Officers. " Congress could also consider bolstering programevaluation capacity in federal agencies as a potential alternative or complement for the CARFAlegislation. Many observers have asserted that agencies frequently do not adequately evaluate theperformance or results of their programs -- or integrate evaluation efforts across agency boundaries-- possibly due to lack of capacity, management attention and commitment, or resources. (142) Bolstering the programevaluation capacity at federal agencies could arguably address many of the same issues that aCARFA would address.

If Congress found adequate progress has not been made in evaluating federal programs andagencies, and if Congress deemed these to be serious problems, Congress might establish "chiefprogram evaluation officer" (CPEO) positions in major agencies to bring more attention to thisfunction. "Chief officer" positions have proliferated in recent years. (143) Because programs candiffer considerably and the field of program evaluation is highly interdisciplinary, evaluationmethods differ from program to program. (144) A common theme behind the creation of each of these chiefofficer positions was many observers' belief that senior managers within executive branch agenciespaid insufficient attention to a given functional perspective (e.g., financial management, informationtechnology) in managing their agencies. Therefore, observers believed that each functionalperspective needed to be "elevated" to a higher position within agencies' management ranks, as ameans to ensure that long-standing problems would be addressed. (145)

This situation may hold true for the program evaluation function in some agencies. TheComptroller General stated in late 2002 that,

[u]nfortunately, there is reason to be concerned aboutthe capacity of federal agencies to produce evaluations of their programs' effectiveness. Manyprogram evaluation offices are small, have other responsibilities, and produce only a feweffectiveness studies annually. Even where the value of evaluations is recognized, they may not beconsidered a funding priority. (146)

If agency program evaluation staff and organizations struggle for visibility even with regard to theirown programs, these units might face an even more difficult task in attempting to look acrossagencies at crosscutting, overlapping, duplicative, or fragmented program areas.

If Congress chose to establish CPEO positions in major agencies, it might also considerestablishing a corresponding interagency council of CPEOs. CPEOs might be tasked to help theagencies ensure quality performance information, evaluate crosscutting programs (in addition to theagency's indigenous programs), and report findings and information to Congress. Under current law,it is no one's explicit job to do this coordination. (147)

Proponents of pursuing this option, apart from the CARFA legislation, might argue thatestablishing these chief officer positions could create a "seat at the table" for program evaluation inagency senior management teams, potentially helping agencies to improve performance or coordinateprograms with overlapping missions. However, critics might argue that establishing another typeof chief officer would be excessive for agency leaders and management teams. If this option wereviewed in context with the CARFA legislation as an alternative or complement, it could be seen byobservers as bringing potential advantages or disadvantages. For example, some might see bolsteredagency program evaluation efforts as an essential complement for a CARFA. A commission couldthen draw upon the work of program evaluation units and officers in federal agencies. (148) On the other hand,some observers might see a CARFA as essentially duplicative of the agency CPEOs andunaccountable to Congress.