Foreign Assistance Act of 1961
Foreign Assistance Act of 1961
Antonio F. Perez
While Congress has constitutional authority over the spending of funds, the president as the nation's chief executive has independent foreign-affairs power. What happens when these two powers intersect? In the aftermath of World War II, in the context of the Cold War and the struggle between the United States and Soviet Union for influence around the globe, particularly in the new states emerging from decolonization, the Congress and executive branch needed to manage their policy differences concerning the provision of U.S. assistance. The Foreign Assistance Act of 1961 (FAA) (P.L. 87-194, 75 Stat. 424) has charted the course for this process of constitutional accommodation. Since its enactment, through annual appropriations acts (except for those years in which continuing resolutions or omnibus appropriations bills were necessary), the Congress has increased the level of its supervision—some would say micromanagement—of executive branch foreign policymaking through the imposition of a range of limitations, conditions, and certification requirements on the provision of U.S. aid.
This article will describe the original context and purposes of the FAA, examine the administrative and legal regimes it established for the provision of various kinds of U.S. foreign assistance, and explore the legal and policy implications of subsequent developments in the annual appropriations process. The appropriations bills serve as compelling examples of the operation of the checks and balances between Congress and the president built into the U.S. Constitutional system of separation of power. Indeed, the congressional-executive conflict in this area has grown more complex in response to changing international circumstances and the internationalization of many new issues.
THE CONTEXT AND PURPOSES OF THE FAA
Prior to the FAA, statutory authority for the provision of U.S. foreign aid was located in a number of statutes, most prominently the Mutual Security Act of 1954. The principal goal of the FAA was to consolidate and rationalize these statutory authorities and programs under a regime, taking account of the new circumstances facing the United States during the Cold War in light of the dismantling of European colonial empires and the emergence of the Third World as an independent force in international politics. The FAA provided for nonmilitary assistance intended "to strengthen the forces of freedom by aiding peoples of less developed friendly countries of the world to develop their resources and improve their living standards, to realize their aspirations for justice, education, dignity, and respect as individual human beings, and to establish responsible governments" (section 102). Similarly, military assistance would be provided with the intention of "fostering an improved climate of political independence and individual liberty, improving the ability of friendly countries and international organizations to deter or, if necessary, defeat Communist or Communist-supported aggression, facilitating arrangement for individual and collective security, assisting friendly countries to maintain internal security, and creating an environment of security and stability in the developing friendly countries essential to their more rapid, social, economic, and political progress" (section 502).
In rationalizing these statutory regimes in terms of the ongoing international struggle between communism and market democracy, the FAA reflected the view that the struggle against communism would best be won through a campaign for the hearts and minds of the peoples of the Third World. Another important example of this new perspective was the Kennedy administration's Alliance for Progress in Latin America.
THE ADMINISTRATION AND LEGAL REGIME FOR FOREIGN ASSISTANCE
Although the FAA creates the basic scheme for the provision of foreign assistance by the United States, additional statutes also separately authorize appropriations of funds for activities related to foreign policy. These "authorization" bills originate in the congressional committees responsible for policy oversight, but they are not enacted every fiscal year. Accordingly, most congressional policy judgments on foreign assistance are found in annual appropriations legislation. Most appropriations policies are now established through the annual foreign-assistance appropriations acts, currently titled the Foreign Operations, Export Financing, and Related Programs Appropriations Act for a given fiscal year, which make appropriations for most forms of direct assistance. Also, the annual bills making appropriations for the operations of agencies, such as the Department of State, have become common vehicles for Congress to express its views on foreign-assistance policy. Under these bills, funds for U.S. participation in certain international organizations, such as the United Nations, are appropriated and are often subject to detailed conditions and certification requirements. These conditions and requirements largely reflect the fact that U.S. contributions to international organizations, which in turn use these funds to support purposes and policies in foreign countries, are viewed by the U.S. Congress as a form of indirect U.S. assistance to those countries.
The basic scheme created by the FAA, and its subsequent amendments, divided U.S. assistance into two categories. Part I of the FAA, titled the "International Development Act," focused on development loans, development grants and technical cooperation, and investment guarantees (to U.S. investors in foreign countries, which were deemed in effect to be assistance to those countries). Part II of the FAA, titled the "International Peace and Security Act," contemplated the provision of direct military assistance in the form of goods or services, foreign military sales on cash or credit terms, or through exchange for other defense articles or services. Part I assistance was under the direction and control of the Agency for International Development (AID), an agency created in 1961 to give an independent institutional voice to the essentially humanitarian objectives articulated in Part I of the FAA. Notably, however, AID was brought under more direct Department of State control by the Foreign Affairs Reform and Restructuring Act of 1998, adopted as part of the Omnibus Consolidated Emergency Supplemental Appropriations Act. Part II assistance, by contrast, was subject to political direction from the Department of State, subject to consultation with the Department of Defense. While most of the securityrelated assistance provided under Part II was in the nature of goods or services, chapter IV of Part II of the FAA was later added to authorize the appropriation of "Economic Support Funds." The provision of these funds to a foreign country was deemed to be security-, rather than development-, related and, therefore, not subject to the development criteria or under the control of the pro-development bureaucracy established under Part I of the FAA. In effect, this category straddled the line of policy separation initially drawn by the FAA in order to grant the executive branch the additional discretion Congress deemed to be prudent to advance the foreign- and security-related policies of the United States. The use of these discretionary authorities by the president, however, led to increased oversight by Congress through its investigative arm, the General Accounting Office (GAO), and directly by congressional committees with jurisdiction over foreign affairs and national security policy.
THE TWILIGHT STRUGGLE BETWEEN THE CONGRESS AND THE PRESIDENT
The path of congressional oversight of presidential foreign policymaking through the provision of foreign assistance has traversed what Justice Jackson in Youngstown v. Sawyer (1952) called a "zone of twilight" in the separation of powers between the branches, marked not by abstract theories but rather by "the imperatives of events." After Vietnam and Watergate, Congress enacted a series of measures to exercise greater control over executive discretion. Attempts to constrain the so-called Imperial Presidency included the War Powers Act, Arms Export Control Act, International Emergency Economic Powers Act, as well as amendments to the National Security Act of 1947 relating to covert activities. These efforts extended to the provision of foreign assistance.
Because the major foreign-policy issue after the Watergate era and the election of Jimmy Carter as president was the morality of U.S. foreign policy, in particular the pursuit of international human rights affirmed in the Helsinki Protocols of 1975, the FAA was amended to require annual human rights reports on countries receiving U.S. assistance. In addition, a state engaging in a pattern of gross violations of internationally recognized human rights became disqualified from receiving U.S. assistance.
Other amendments followed, such as the requirement that countries involved in the production or trade of illegal narcotics also would be the subject of annual reports, with the availability of foreign assistance predicated on compliance with U.S.-mandated antinarcotics efforts. A similar regime was created for countries supporting terrorism, and yet another set of triggers was enacted for countries engaging in nuclear, chemical and biological weapons proliferation (such as the "Glenn and Symington Amendments," which prohibited foreign assistance to countries engaging in certain weapons-related nuclear activities). As time progressed, congressional conditions on foreign aid in annual appropriations bills included prohibitions on assistance based on a broad range of criteria, including countries whose duly elected heads of government had been overthrown by military coup or countries in default on principal or interest payments due on loans by the U.S. government. Thus, congressional concern about domestic democracy and financial solvency in foreign countries led to explicit conditions on U.S. assistance. Finally, foreign-assistance programs began to address questions that were previously considered core issues of domestic policy, such as family planning, and the politics of international family-planning assistance in the annual foreign-assistance appropriations cycle became an extension of U.S. domestic political conflict over such issues.
These various statutory requirements imposed significant research and reporting responsibilities on the Department of State that compelled the department to become a source of information for members of Congress seeking to make such issues important components of U.S. foreign policy. Yet in deference to executive branch prerogatives in foreign policy, Congress ordinarily gave the president substantial discretion to make determinations, in the form of findings reported to Congress, that the foreign policy or security interests of the United States nonetheless required the provision of assistance to countries that were not in compliance with the requirements specified by Congress. Yet in special cases, such as the acquisition of nuclear weapons capability by Pakistan (the so-called Pressler Amendment), Congress made clear that a matter was so important that resumption of U.S. foreign assistance would require additional legislation rather than merely an express presidential judgment.
Conflict between Congress and the executive branch may have peaked during the Reagan administration in the mid-1980s, when congressional supervision and control of foreign-assistance expenditures reached a level from which it has not since receded, yielding mammoth bills both authorizing and making appropriations for foreign assistance. By 1985 bills authorizing appropriations for State Department operations and for foreign assistance occupied fifty-two and ninety-three pages, respectively, in United States Statutes at Large. Similarly, the annual foreign-assistance appropriations acts now occupy sixty to seventy pages. The level and quality of congressional involvement grew as well, prompting a significant constitutional controversy involving the covert sale of U.S. arms to Iran, in possible violation of the Arms Export Control Act. This was a confrontation spawned directly by the executive branch's attempt to circumvent limitations on U.S. assistance, the "Boland Amendments," to insurgent forces in Nicaragua attempting to overthrow the pro-Communist Sandinista government. The zone of twilight, in this case, yielded a constitutional confrontation of the first magnitude and may have chastened the executive branch for a generation.
During the Bush (senior) and Clinton administrations, Congress continued to demand an equal, if not greater, level of participation in foreign policymaking—even when the stakes for the United States were at their greatest, such as the U.S. role in supporting pro-democracy developments in the newly independent states of the former Soviet Union and the new democracies of central and eastern Europe. Under the Freedom Support Act, Congress mandated a detailed set of reporting requirements and conditioned appropriations on executive branch monitoring and certification of compliance in specified areas. The national security implications of the dissolution of the former Soviet Union also received similarly intense congressional scrutiny, as so-called Nunn-Lugar funds were made available under strict conditions for nuclear weapons and materials stockpile security, weapons dismantling and related purposes.
Foreign assistance during the last half-century has marked not only the rise and fall of the Cold War, but also the rise and fall of the Imperial Presidency. The congressional reaction to broad delegation of authority to the president has resulted in an apparently permanent change in the degree of congressional supervision of the foreign-policy appropriations process. In sum, the study of the foreign-assistance appropriations process is not only an indispensable element in the study of the foreign relations of the United States, but also a central case study for students of American government.
See also: Economic Cooperation Act of 1948 (Marshall Plan); Mutual Security Act; United States Information and Educational Exchange Act.
Fisher, Louis. Constitutional Conflicts between Congress and the President, 4th ed. Lawrence: University Press of Kansas, 1997.
Fisher, Louis. The Politics of Shared Power: Congress and the Executive, 4th ed. College Station: Texas A&M University Press, 1998.
The Helsinki Final Act
Antonio F. Perez
As part of détente, a brief period of relaxation in Cold War tensions, in 1975 the Helsinki Final Act established the Conference on Security and Cooperation in Europe (the CSCE), a negotiating forum for mutual and balanced forced reductions between NATO and the Warsaw Pact. As part of the final document, NATO countries made a legally non-binding commitment to recognize the legitimacy of the territorial boundaries established in Eastern Europe after World War II, and the Warsaw Pact countries in turn made political commitments to respect internationally-recognized human rights. Although international human rights issues were always at the heart of the Cold War, international human rights issues achieved greater political salience as a result of the Helsinki Final Act, even though the Helsinki Final Act established no formal legal obligations. Through a formal treaty, concluded in 1995 after the end of the Cold War, the CSCE became the Organization for Security and Cooperation in Europe and many of the political commitments contained in the Helsinki Final Act became obligations under international law.
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