GAO Finds that OSTP Violated Law in Talking to China

The Government Accountability Office (GAO) has found that the White House Office of Science and Technology Policy (OSTP) is in violation of a provision of the FY2011 Department of Defense and Full Year Continuing Resolution (CR) with regard to contacts with China, according to the office of Congressman Frank Wolf (R-VA).

Rep. Wolf chairs the House Appropriations Commerce-Justice-Science subcommittee, which funds OSTP, as well as NASA, NOAA and other agencies. In an email message, Rep. Wolf’s office provided the letter he wrote to GAO in May and GAO’s reply dated today.

GAO found that OSTP is in violation of the Anti-Deficiency Act for spending $3,500 in connection with an Innovation Dialogue and a U.S.-China Strategic and Economic Dialogue in May 2011 in violation of Sec. 1340 of the CR (P.L. 112-10). Since the CR prohibited the use of funds for such meetings, the expenditure was in excess of appropriated funds, triggering the Anti-Deficiency Act. That Act essentially says that federal departments and agencies cannot obligate money they do not have.

In its report, GAO cites discussions it had with OSTP wherein OSTP did not dispute that it engaged in activities in contravention of Sec. 1340. Instead, OSTP argued that the law was an “unconstitutional infringement on the President’s constitutional prerogatives in foreign affairs.” GAO insisted that “It is not our role nor within our province to opine upon or adjudicate the constitutionality of duly enacted statutes…”; that is the province of the courts. The government watchdog agency went on to say, however, that “In our view, legislation that was passed by Congress and signed by the President … is entitled to a heavy presumption in favor of constitutionality.”

Rep. Wolf is a long-standing and vocal opponent of cooperating with China because of its human rights abuses. He included Sec. 1340 in the law so that any such cooperation and any steps leading to it requires congressional authorization first. The exact language of the section is as follows:

“None of the funds made available by this division may be used for the National Aeronautics and Space Administration or the Office of Science and Technology Policy to develop, design, plan, promulgate,implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.”