Contents Background Other Authorizations Foreign Assistance Act of 1961: Authorities and Appropriations Authorization Appropriation
June 16, 2010
The Foreign Assistance Act of 1961 (P.L. 87-195; 22 U.S.C. 2151 et seq.) serves as the cornerstone for the United States' foreign assistance policies and programs. Written, passed, and signed into law at what some consider the height of the Cold War, the Act is seen by some today as anachronistic. Ironically, when President Kennedy urged the 87th Congress to enact foreign aid legislation that would exemplify and advance the national interests and security strategies of the United States post-World War II, he described the existing foreign aid mechanisms as bureaucratic, fragmented, awkward, and slow. Some have used the same language today, nearly 50 years later, to characterize the legislation he promoted.
The House Committee on Foreign Affairs and Senate Committee on Foreign Relations in the 111th Congress have set out to assess the current body of law that comprises foreign aid policy, starting with the Foreign Assistance Act of 1961. Their goal is to rebuild the United States' capacity to deliver effective foreign aid, and make aid more transparent and responsive to today's quick-changing international challenges. To this end, the Senate has before it the Foreign Assistance Revitalization and Accountability Act of 2009 (S. 1524; S.Rept. 111-122), which would establish a Council on Research and Evaluation of Foreign Assistance
to objectively evaluate the impact of U.S. foreign assistance programs and their contribution to policies, strategies, projects, program goals, and priorities undertaken by the United States in support of foreign policy objectives. CORE will also cultivate an integrated research and development program to incorporate best practices from evaluation studies and analyses and foster and promote innovative programs to improve the effectiveness of U.S. foreign assistance.
In the House, the Initiating Foreign Assistance Reform Act of 2009 (H.R. 2139; referred to the Committee on Foreign Affairs) would require the President to
develop and implement, on an interagency basis, a comprehensive national strategy to further the United States foreign policy objective of reducing poverty and contributing to broad-based economic growth in developing countries, including responding to humanitarian crises.
The bill would establish a United States Foreign Assistance Evaluation Advisory Council in the executive branch to assist in accomplishing these goals.
Also in the House, the Foreign Relations Authorization Act for 2010 and 2011 (H.R. 2410; passed the House June 10, 2009) calls on the President to conduct an assessment of diplomacy and development and establish a strategy to achieve improvements in the diplomacy and aid agencies over the next 10 years, first by identifying "key objectives and missions for United States foreign policy and foreign assistance policies and programs, including a clear statement on United States objectives for development assistance."
This report presents the authorities of the Foreign Assistance Act of 1961, as amended, and correlates those authorities with the operative appropriations measure (division F of P.L. 111-117; 123 Stat. 3312) that funds those authorities. For many years, foreign aid appropriations measures have waived the requirement that funds must be authorized before they are appropriated and expended. Understanding the relation between the authorities in the cornerstone Act and appropriations is key to foreign aid reform.
The Foreign Assistance Act of 1961 (P.L. 87-195; 22 U.S.C. 2151 et seq.), enacted at the behest of President Kennedy, sought to organize and implement U.S. foreign assistance programs with a commitment to long-range economic assistance to the developing world. The President, in a "Special Message to the Congress on Foreign Aid," delivered March 22, 1961, described the U.S. foreign aid programs emerging from World War II as
[b]ureaucratically fragmented, awkward and slow, its administration is diffused over a haphazard and irrational structure covering at least four departments and several other agencies. The program is based on a series of legislative measures and administrative procedures conceived at different times and for different purposes, many of them now obsolete, inconsistent and unduly rigid and thus unsuited for our present needs and purposes. Its weaknesses have begun to undermine confidence in our effort both here and abroad. (1)
President Kennedy went on to note the declining prestige of the United States' foreign aid apparatus and the negative impact of that decline on administering and staffing programs abroad. The President also cited the uneven and undependable short-term financing of programs and the resulting disincentive for long-term efficient planning. Congress and the executive branch worked together to enact the Foreign Assistance Act of 1961 to address these shortcomings at a time when much of the developing world was emerging as newly independent states, when those new nations were, "without exception ... under Communist pressure," and when "the free industrialized nations" found themselves in a position "to assist the less-developed nations on a long-term basis ... [as they find themselves] on the threshold of achieving sufficient economic, social and political strength and self-sustained growth to stand permanently on their own feet." (2)
Though the original Foreign Assistance Act of 1961 lengthened the authorization time frame for funding development assistance to five years, other programs were authorized for shorter periods. The Act still required occasional reauthorization legislation to renew programs beyond that original time frame, and Congress retained its role of appropriating funds. The original Act authorized the funding levels shown in Table 1.
Through 1985, Congress regularly enacted new authorization legislation or amended the original Act to update authorization time frames, and to incorporate newer programs and authorities. After 1986, however, Congress turned more frequently to enacting freestanding authorities that did not amend the 1961 Act, and included language in annual appropriations measures to waive the requirement to keep authorizations current. Thus, sections in the Foreign Assistance Act of 1961, in many instances, do not refer to authorization beyond fiscal years 1986 and 1987 (unless the program was added to the Act by an amendment enacted after that period), but programs are continued through appropriations. (3)
A few programs are established outside the statutory framework of the Foreign Assistance Act of 1961, and thus are not included in detail in this report. (4) Reimbursable military exports, for example, are addressed in the Arms Export Control Act and subsequent Security Assistance Acts. Since 1985, the last year Congress passed a comprehensive reauthorization of the Foreign Assistance Act of 1961, both Congress and the President have promoted a variety of specialized authorities in freestanding legislation. Some freestanding laws that authorize foreign aid or apply new conditions to aid authorized in the Foreign Assistance Act of 1961 are shown in Table 2.
Foreign Assistance Act of 1961: Authorities and Appropriations
Table 3 presents the authorities enacted in the Foreign Assistance Act of 1961, as amended, and the corresponding appropriations that fund those authorities in the current foreign assistance appropriations Act.
The left-side column of Table 3 cites sections of the Foreign Assistance Act of 1961, as amended, that authorize programs, and provides the latest year for which authorization is enacted. Sections that establish a need for such a program--in the form of policy or finding statements, for example--are not cited. The Foreign Assistance Act of 1961 is organized in a conventional manner, however, so those sections that state policy, findings, program requirements, or implementing structure can be found in the text of the law in sections proximate to the authorizing section. All of the Foreign Assistance Act of 1961 is stated in the United States Code, beginning at 22 U.S.C. 2151. For each section that states the President's power to authorize funds, the relevant U.S. Code citation and year of enactment is included here. In nearly all cases, these sections have been substantially amended, or rewritten altogether, subsequent to enactment. This table reflects the language as amended.
Though the sections generally afford the President the authority to furnish whatever assistance the section establishes, sec. 622(a) and (c) (22 U.S.C. 2382(a), (c)) of the Act states that
[n]othing contained in this Act shall be construed to infringe upon the powers or functions of the Secretary of State Under the direction of the President, the Secretary of State shall be responsible for the continuous supervision and general direction of economic assistance, military assistance, and military education and training programs, including but not limited to determining where there shall be a military assistance (including civic action) or a military education and training program for a country and the value thereof, to the end that such programs are effectively integrated both at home and abroad and the foreign policy of the United States is best served thereby.
In many instances, the President has delegated his authority to the Secretary of State, the Administrator of the United States Agency for International Development, or some other appropriate office holder. Delegations of authority are to be found, either in whole text or as a reference, in the U.S. Code, at sections corresponding to the section of the Foreign Assistance Act of 1961 that states the relevant authority.
The right-side column of Table 3 states appropriations levels that correspond to the authorized program, as most recently enacted in the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (division F of the Consolidated Appropriations Act, 2010; P.L. 111-117; 123 Stat. 3034 at 3312).
The General Provisions title in an appropriations act usually states conditions for administering the appropriations. In Table 3, General Provisions sections that state conditionality and terms that might be applicable to the aid being provided are also listed, and a statute citation is provided to assist the reader who might wish to read in further detail. General Provisions measures that apply to the entire appropriations Act, however, are not cited here; they are numerous and would have to be restated at every authority. So, for example, a General Provisions section that prohibits assistance to a government of a country the government of which has been overthrown by military coup, is not cited here, but would apply to all authorities. For those provisions, it is best to refer to the text of the Department of State, Foreign Operations, and Related Programs Appropriations Act.
Author Contact Information
Dianne E. Rennack
Specialist in Foreign Policy Legislation
(1) Public Papers of the Presidents of the United States: John F. Kennedy, 1961. "Special Message to the Congress on Foreign Aid," March 22, 1961. pp. 203-212.
(2) Kennedy, March 22, 1961. p. 205.
(3) Sec. 10 of the Foreign Military Sales Amendments, 1971 (P.L. 91-672; 22 U.S.C. 2412) requires authorization before appropriations, stating that "no money appropriated for foreign assistance (including foreign military sales) shall be available for obligation or expenditure--(1) unless the appropriation thereof has been previously authorized by law; or (2) in excess of an amount previously prescribed by law." The section, however, is routinely waived, most recently in sec. 7023 of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (division F of P.L. 111-117; 123 Stat. 3353), which states "Funds appropriated by this Act, except funds appropriated under the heading "Trade and Development Agency", may be obligated and expended notwithstanding section 10 of Public Law 91-672, section 15 of the State Department Basic Authorities Act of 1956, section 313 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (P.L. 103-236), and section 504(a)(1) of the National Security Act of 1947 (50 U.S.C. 414(a)(1))."
The current Department of State and Foreign Operations appropriations also funds a new program--the Complex Crises Fund--without a corresponding authorization. Title III of the Act provides (at 123 Stat. 3327):
For necessary expenses to carry out the provisions of the Foreign Assistance Act of 1961 to enable the Administrator of the United States Agency for International Development (USAID), in consultation with the Secretary of State, to support programs and activities to prevent or respond to emerging or unforeseen complex crises overseas, $50,000,000, to remain available until expended: Provided, That funds appropriated under this heading may be made available on such terms and conditions as the USAID Administrator may determine, in consultation with the Committees on appropriations, for the purposes of preventing or responding to such crises, except that no funds shall be made available to respond to natural disasters: Provided further, That funds appropriated under this heading shall be made available notwithstanding section 10 of Public Law 91-672 and section 15 of the State Department Basic Authorities Act of 1956: Provided further, That the USAID Administrator may furnish assistance under this heading notwithstanding any other provision of law, except sections 7007, 7008, and 7018 of this Act and section 620J of the Foreign Assistance Act of 1961: Provided further, That funds appropriated under this heading shall be subject to the regular notification procedures of the Committees on Appropriations, except that such notifications shall be transmitted at least 5 days in advance of the obligation of funds: Provided further, That the requirements of the previous proviso may be waived if failure to do so would pose a substantial risk to human health or welfare: Provided further, That in case of any such waiver, notification to the Committees on Appropriations shall be provided as early as practicable, but in no event later than 3 days after taking the action to which such notification requirement was applicable, in the context of the circumstances necessitating such waiver: Provided further, That any such notification provided pursuant to such waiver shall contain an explanation of the emergency circumstances.
(4) Still …