When is a defund not a defund?
Apparently, whenever the Obama Administration decides it is inconvenient.
That is the issue that will likely be at stake over the next six weeks as the Department of Commerce’s National Telecommunications and Information Administration (NTIA) is likely to proceed with their ill-conceived plan to give away governance over certain Internet functions in the face of an express mandate that defunded the activity.
Article One of the U.S. Constitution gives the Congress the power of the purse, as a means to control and direct the Executive Branch’s administration of the laws of the land.
Speaker Paul Ryan’s outline of his vision for leading America forward explains the power of the purse in his outline for his leadership called, “A Better Way” where he promises to “Give Congress and the people the most say — and the final word — over who is spending their money, what it’s being spent on, where it’s being spent, when it’s being spent, and why it’s being spent.”
In the next six weeks, Ryan’s words are going to be put to the ultimate test as NTIA intends to hand over Internet governance to the government vendor, the Internet Corporation for Assigned Names and Numbers (ICANN) which has heretofore managed the functions with government oversight simply by not renewing their contract and ceasing to perform the government’s oversight function.
The House Appropriation’s Subcommittee Chairman responsible for NTIA’s budget, John Culberson (R-Texas), is outraged that the specific mandate against the transfer in both of the past two spending bills signed into law by President Obama has been effectively ignored.
In a letter to Commerce Secretary Penny Pritzker, Culberson very directly expressed Congress’ intent that the Internet giveaway not occur writing, “Section 539 of the Fiscal Year 2016 Omnibus prohibits funds provided in the Act from being used to relinquish the NTIA’s responsibility for the authoritative root zone file and the IANA functions, and I will ensure this section is fully enforced. As we have previously discussed, I continue to oppose the use of any funds to plan for, prepare for, work on [the] transition [of] the Internet Domain Name System functions.”
The Chairmen of both the Senate and House Judiciary Committee’s, Senator Chuck Grassley and Representative Bob Goodlatte respectively, jointly expressed their concerns about the Obama Administration’s Internet giveaway writing on June 27, 2016,
“[D]espite the Fiscal Year 2016 Omnibus spending bill’s prohibition on NTIA using any funds in furtherance of the transition, NTIA has been working to transfer the IANA functions by devoting staff time and commissioning outside studies on the subject. Specifically Section 539 of the FY2016 Omnibus states that funds provided in the Act may not be used to relinquish NTIA’s responsibility for the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the IANA functions. However, in NTIA’s recent ‘IANA Stewardship Transition Proposal Assessment Report,’ NTIA states that, among other actions, it ‘utilized a number of resources and tools’ to review and assess the IANA stewardship proposal. Further NTIA states that it utilized the DNS Interagency Working Group, comprised of 15 government agencies, to ‘engage U.S. federal government agencies on matters related to the IANA Stewardship Transition, including proposal review and assessment.’ As we are sure you are aware, it is a violation of federal law for an officer or employee of the United States Government ‘to make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.’ It is troubling that NTIA appears to have taken these actions in violation of this prohibition [emphasis added].”
Yet in spite of the direction of both the appropriator responsible for writing the defund which became law, and both Judiciary Committee Chairmen, President Obama’s team at the Commerce Department are highly likely to not renew the ICANN contract on August 15 with the intention to transition these Internet functions against the express will of Congress and the law itself.
The Administration’s dodge is expected to be that they are not spending money by not renewing the contract, which has the obvious flaw that the terms of the October 1, 2012 National Telecommunications and Information Administration (NTIA) contract with ICANN states: “All deliverables under this contract become the property of the U.S. Government.”
This means that failure to renew the contract with ICANN would necessarily mean that the NTIA would have to assume the functions that their vendor previously performed and take over the auctions for new domain names and the management of existing domain name contracts, functions that the federal government performs in other areas of its authority.
However, NTIA has no intention of taking over the work, instead, they are planning on giving ICANN the property of the United States by walking away from Internet governance altogether.
And this is Speaker Ryan’s problem.
If Speaker Ryan allows the Obama Administration to directly ignore Congress’ spending directives now, then any future words about Article One and protecting the power of the purse are rendered meaningless.
The Speaker has a simple choice.
Stand up for his appropriators, his Judiciary Committee chairman and indeed the Constitution, by using every power at his disposal, including filing suit in federal court to stop the administration’s giveaway, or set the precedent that the power of the purse only matters when the executive branch chooses to follow it.
While it won’t be on the front pages of the national media, this time of choosing for Speaker Ryan is about much more than Internet governance, it goes to the heart of whether Congress matters at all, because if those whose powers are usurped won’t fight for them, they don’t exist.
Speaker Ryan, what say you?