A federal court recently ruled that the Office of Management and Budget (OMB) and OMB Director Russell Vought must comply with a law requiring that OMB publicly and timely post spending documents known as “apportionments.” OMB’s objection to the law, the court explained, was a mere policy disagreement: “there is nothing unconstitutional about Congress requiring the Executive Branch to inform the public of how it is apportioning the public’s money.” 

But to date, OMB has not fully complied with the court’s order or this transparency law. Even though OMB has posted thousands of apportionments it approved since abruptly taking down this legally required database in March, in many instances OMB is still controlling agency spending in secret. And the spoiler is: it’s in the footnotes.

Today, CREW asked the court to ensure that OMB makes all of this information public. Below we explain why footnotes matter, how OMB is using them to violate this disclosure requirement and why full transparency is so critical for effective oversight.

Footnotes and the fine print

After Congress appropriates money for the executive branch, OMB “apportions” funds to agencies based on time, project or activity, or some combination of both. Congress designed this apportionment process to prevent agencies from running out of funds in the middle of the fiscal year, and it gave teeth to this law by establishing administrative and potential criminal penalties for individuals who spend more than the amounts OMB has apportioned.

In addition to putting numerical limits on agency spending, over time OMB has developed a practice of including other details and directives in apportionment “footnotes.” Some footnotes merely provide additional information, while others, known as “A” footnotes, are subject to the Antideficiency Act and legally bind executive branch officials. OMB previously has included “A” footnotes in apportionments, for example, to require agencies to submit a spend plan explaining how the agency will responsibly use funds, to report on how the agency will avoid the duplication of programs, to provide that a classified apportionment may be attached or to automatically apportion additional amounts if an agency might recover, and thus have available, more funding than expected.

While OMB often has used footnotes to ensure responsible funds management and agency compliance with the laws passed by Congress, Congress also has long recognized that OMB could attempt to abuse footnotes and the executive’s apportionment responsibility. Indeed, even before then-Acting Director Vought’s OMB used an apportionment footnote to withhold funding for security assistance for Ukraine in 2019—an episode central to President Trump’s first impeachment—the House passed a bill requiring OMB to post on a public website each document apportioning an appropriation. And when that transparency provision eventually became law in March 2022, Congress made explicit that each document includes “any associated footnote”—thus ensuring that the public could timely review any additional conditions OMB might attempt to place on federal funding. 

Another layer of secrecy

As the footnotes in the recently disclosed apportionments demonstrate, Congress’s concerns about the need for transparency were well-founded. In at least 131 of the documents OMB approved between March 21 and September 5—including those for the Corporation for National and Community Service, the Department of Agriculture, the Department of Education, the Department of Health and Human Services, the Department of the Interior, the Department of Labor, the Department of State, the Institute of Museum and Library Services, and the Social Security Administration—OMB included legally binding “A” footnotes providing that unobligated amounts are available “consistent with the latest agreed-upon spending plan” between OMB and the agency. OMB specified in these footnotes what many of the spend plans must include—from allocations of amounts by program, to anticipated obligations by spending category, to a “detailed description of how such spending plan aligns with Administration priorities.” But, despite giving legal effect to these and other terms, OMB has not posted any of these documents on its website.

Therein lies OMB’s new veil of secrecy. Through these footnotes, OMB has given legal effect to amounts, terms and conditions in agency spend plans, made the availability of funds contingent on OMB’s agreement with the plan and simultaneously attempted to keep all such information out of the public eye. Now, for any individual or organization without access to the amounts and terms in these undisclosed yet legally binding plans, the “apportioned” amounts in the publicly posted documents are effectively meaningless.

Consider, for example, the June 10 apportionment for the Department of State’s Office of Inspector General (OIG). There, OMB apportioned more than $27 million for the third quarter of the fiscal year. Absent other legal restrictions, this apportioned amount ordinarily would be available for the OIG to spend. But the $27 million apportionment included a footnote that, in turn, incorporated by reference the contents of a separate spend plan: 

Amounts apportioned, but not yet obligated as of the date of this reapportionment, on this line are available for obligation consistent with the latest agreed-upon spending plan for Fiscal Year 2025 between the State Department and the Office of Management and Budget (OMB). Any revisions or additions to such spending plan shall be proposed to OMB in writing no later than five business days before the anticipated obligation of funds based on such revisions or additions. If OMB agrees to such revision or addition, OMB will notify the State Department in writing, and the latest agreed-upon spend plan shall include such revision or addition.

This leaves the question: how much money did OMB actually apportion to the State OIG? Does the spend plan make available the full $27 million, or a lesser amount? Does it impose additional conditions on the funding? Does it limit how much State OIG can spend on particular activities, functions or projects? Does it impose additional daily, weekly or monthly limits? If OMB has not “agreed” to any State spend plan, then is none of the $27 million available? If there was an agreed-upon spend plan, has it been revised by State and OMB? 

In short, anyone without access to the terms of the incorporated spend plan will not know the answers to these questions. And without disclosure of the “latest-agreed upon spend plan” between OMB and the agency, OMB effectively can enter into and secretly revise legally binding limits on amounts available for particular programs or projects. Despite Congress’s clear mandate to make public “each document apportioning an appropriation,” OMB will once again be doling out funds behind closed doors.

As the saying goes, sunlight is the best disinfectant. OMB must bring these shadow apportionments out of the dark.

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