The Yale Law Journal

February 2018

Spending Money To Make Money: CBO Scoring of Secondary Effects


abstract. Increased funding for federal enforcement and program integrity often pays for itself through what are called “secondary effects.” In some cases, the funding allows agencies to collect more revenue; in others, it enables agencies to reduce the amount of money lost to waste, fraud, and abuse. But despite these benefits, Congress regularly underfunds agency enforcement and program integrity. This Note argues that the problem of underfunding arises out of a little-discussed feature of the congressional budget process: the scorekeeping guidelines. As a general matter, the scorekeeping guidelines tell the Congressional Budget Office (CBO) how to estimate or “score” the cost of legislation. This Note, however, focuses on two guidelines that direct the CBO not to score the secondary effects of increased funding for enforcement and program integrity. As a result of these guidelines, Congress only considers the costs of increased funding and not the resulting benefits. This Note argues that Congress should repeal these two guidelines and allow the CBO to score secondary effects that are justified by substantial evidence. In addition to generating savings, this proposal would eliminate distortions in the legislative process, improve agency enforcement, and reduce the arbitrary and regressive subsidies created by underenforcement.

author. Yale Law School, J.D. expected, 2018. The author thanks Jamie Durling, Jacob Gelman, Matt Glassman, David Mayhew, Nicholas Parrillo, Arjun Ramamurti, Anthony Sampson, David Super, Kristen VanBlargan, and Nathaniel Zelinsky. Additional thanks to the current and former budget staffers who took the time to speak with me. All errors are my own.