Running for Cover

Federal spending, debt, and deficits are at all-time highs,¹ and there is pressure on both political parties to cut spending.² President Obama recognized this when he said,

In these challenging times, when we are facing both rising deficits and a sinking economy, budget reform is not an option. It is a necessity. We cannot sustain a system that bleeds billions of taxpayer dollars on programs that have outlived their usefulness, or exist solely because of the power of a politician, lobbyist, or interest group. We simply cannot afford it.

On several occasions he has pledged to conduct a line-by-line review of the federal budget, cutting wasteful and inefficient spending.⁴ The president, however, does not control the purse strings. Spending reform must happen in Congress, and this is easier said than done.⁵

As President Obama's words suggest, in many cases spending programs exist for political reasons. Almost every federal program has a constituency that lobbies hard to keep it alive—whether it is an efficient program or not. Members of Congress are beholden to these interests, so that they champion the programs and horse-trade to ensure they remain funded.

At the same time, the cost of each federal spending program is spread so widely among all taxpayers that it is barely noticeable. The public and members of Congress worry about an out of control budget and agree that spending must be reigned in, but there is no agreement on which particular programs to cut or reform. This is the classic public choice dynamic of concentrated benefits and dispersed costs.⁶

For example, Congress continues to approve billions of dollars in ethanol subsidies each year despite a wide consensus that these programs are inefficient, do little to improve “energy security,” and are likely bad for the environment.⁷ The reason is that while the cost of the subsidies is spread among all taxpayers, the benefits accrue to a small group that can more easily organize itself to lobby Congress. Given this dynamic, how can we ever hope to “go through our federal budget—page by page, line by line—eliminating those programs we don't need,”⁸ as the president has promised?

Today's situation is similar to what we experienced at the end of the Cold War. Record deficits cried out for spending cuts, and an indisputable glut of military bases was the obvious target.⁹ By definition each base was in a congressional district so that they each had a literal constituency and a designated champion in Congress. While the public at large could agree that a large reduction in bases was necessary, citizens could also agree that their hometown base should be exempt. And so it was that between 1977, when Congress began to take a more prominent role in base realignment, and 1988, when reforms were finally implemented, not one major base was closed.¹⁰

Through a combination of genius and good luck, in 1988 Congress created the Base Realignment and Closure (BRAC) Commission to address the impasse.¹¹ The commission was composed of independent experts who were to select which bases should be closed or realigned based largely on military need.¹² Once made, their recommendations would become binding unless Congress passed a joint resolution of disapproval.¹³ In the first iteration of BRAC, the commission recommended 11 major bases to be closed.¹⁴

The BRAC scheme successfully broke the political impasse that prevented base closures. As a result, many today are proposing schemes based on the BRAC model to help cut inefficient and wasteful government spending.¹⁵ The key components of these new reform proposals are a congressional commission and expedited legislative procedures. These proposals, however, resemble BRAC only superficially.

The BRAC commissions of the late '80s and early '90s were successful because of their peculiar structure—not simply because they were independent commissions, and not simply because of their all-or-nothing approach to base closures. In this article we first look at the history of BRAC and the roots of its success. We then contrast today's commission proposals to the successful BRAC process and show how these proposals lack some of the key ingredients that made BRAC successful. Finally, we suggest how a new federal spending commission could be more closely modeled on BRAC.

¹ Office of Management and Budget, The President's Budget for Fiscal Year 2011, Historical Tables (Feb. 1, 2010), at http://www.whitehouse.gov/omb/budget/Historicals. For spending and deficits, see Table 1.1—Summary of Receipts, Outlays, and Surpluses or Deficits (-): 1789–2015. For debt, see Table 7.1—Federal Debt at the End of Year: 1940–2015.
² Press Release, Rasmussen Reports, 83% Blame Deficit on Politicians' Unwillingness To Cut Spending (Feb. 4, 2010), available at http://www.rasmussenreports.com/public_content/business/general_busines… (summarizing a poll conducted in early Feb. 2010 finding that “Eighty-six percent (86%) of Americans are at least somewhat concerned about the size of the federal budget deficit, including 65% who are very concerned,” and that “Eighty-one percent (81%) of voters also think the unwillingness of politicians' to cut government spending is a bigger problem than taxpayers' unwillingness to pay more in taxes.”).
³ Barack Obama, Speech announcing appointment of Peter Orszag Director of the Office of Management and Budget (Nov. 25, 2008), available at http://change.gov/newsroom/entry/president_elect_barack_obama_announces _office_of_management_and_budget_dire.
⁴ Id. (“We will go through our federal budget—page by page, line by line—eliminating those programs we don't need, and insisting that those we do operate in a sensible costeffective way.”); Barack Obama, Weekly Radio Address (Apr. 18, 2009) (“It's a process we have already begun, scouring our budget line by line for programs that don't work so we can cut them to make room for ones that do.”), available at http://thepage.time.com/transcript-of-obama-weekly-address-april-18-2009; Barack Obama, State of the Union Address to Congress (Jan. 27, 2010) (“We will continue to go through the budget, line by line, page by page, to eliminate programs that we can't afford and don't work.”), available at http://www.nytimes.com/2010/01/28/us/politics/28obama.text.html.
⁵ See infra, notes 116–128 and accompanying text.
⁶ James M. Buchanan & Gordon Tullock, THE CALCULUS OF CONSENT 116–128 (Ann Arbor Paperbacks 2001) (1962). For a thorough application of public choice to the budget process, see David M. Primo, RULES AND RESTRAINT: GOVERNMENT SPENDING AND THE DESIGN OF INSTITUTIONS (2007).
⁷ See Robert Bryce, Corn Dog: The ethanol subsidy is worse than you can imagine, Slate (Jul. 19, 2005), available at http://www.slate.com/id/2122961.
⁸ Obama, supra note 3.
⁹ See Lawrence J. Haas, The Deficit Culture 20 NAT'L J. 1460, 1462 (1988) (“Policies that didn't have much support years ago, such as military base closing . . . are now supported for cost-cutting reasons”); see also Charles R. Morris, Deficit Figuring Doesn't Add Up, N.Y. TIMES, Feb. 12, 1989 (Magazine), at 40 (“Without the deficit clamor, how could Congress sit still for $1 billion worth of military base closings?”) (cited in Natalie Hanlon, Military Base Closings A Study of Government by Commission, 62 U. COLO. L. REV. 331, n.25 (1991)).
¹⁰ DEFENSE SECRETARY'S COMMISSION ON BASE REALIGNMENT AND CLOSURE, BASE REALIGNMENTS AND CLOSURE: REPORT OF THE DEFENSE SECRETARY'S COMMISSION 9 (Dec. 1988) [hereinafter “BRAC Commission Report”] .
¹¹ Pub. L. No. 100-526, §§ 201–203, 102 Stat. at 2627–28 (1988) (codified at 10 U.S.C. § 2687 note (1988)).
¹² Id. §§ 203(a) & 206. In establishing the BRAC commission, Congress also adopted by incorporation the existing commission charter that laid out many of the criteria to be considered by the commission in its decisions. Id. § 209(3)–(4).
¹³ Id. §§ 202(b) & 208.
¹⁴ David S. Sorenson, MILITARY BASE CLOSURE: A REFERENCE HANDBOOK 32 (2007). In total, the commission recommended the closure of partial closure of 91 bases and the realignment of 54 more. Lilly J. Goren & P. Whitney Lackenbauer, Closing Military Bases, In THE GOVERNMENT TAKETH AWAY: THE POLITICS OF PAIN IN THE UNITED STATES AND CANADA 167, 173 (Leslie A. Pal & Kent Weaver eds., 2003).
¹⁵ See Press Release, Sen. Sam Brownback, Brownback Introduces CARFA Legislation, Bill will reduce federal spending, government waste (Jun. 17, 2009) (drawing a comparison between proposed CARFA spending commission legislation and the BRAC process); see also Safeguarding the American Dream: Prospects for Our Economic Future and Proposals to Secure It: Hearing Before the S. Homeland Security & Governmental Affairs Comm., 111th Cong. XXX (2009) (testimony of Sen. Judd Gregg) (drawing a comparison between proposed Gregg-Conrad spending task force legislation and the BRAC process).

This Article was Published in the The Gerogetown Journal of Law & Public Policy