The Office of Management and Budget (OMB) released a report to Congress Feb. 14 that calculates the benefits of President Bush's 24 E-Government (E-Gov) Initiatives at approximately $508 million in Fiscal Year 2007, based on agencies' estimates. Congressional skepticism of the Initiatives, and subsequent reluctance to fund them, led OMB to develop a questionable funding mechanism using agency contributions from their annual budgets.

OMB released the report, Report to Congress on the Benefits of the President's E-Government Initiatives, as required by a section of the Consolidated Appropriations Act of 2008 (Pub. L. No. 110-161). OMB created the E-Gov Initiatives in 2001 to "provide high-quality, common solutions such as citizen tax filing, Federal rulemaking, and electronic training" across agencies, according to the report's executive summary.

The E-Government Act of 2002 authorized approximately $345 million for FY 2003-2007 for the 24 programs intended to move the federal government away from paper-based information systems and to provide more transparency and information sharing. Congress has appropriated no more than $5 million in any year, according to a Feb. 15 BNA (subscription) article. The FY 2008 appropriation is $2.97 million, although the administration requested $5 million.

Congress has not been enthusiastic about the E-Gov Initiatives regardless of the party in control. It balked at reducing agency discretion in addressing the best means for communicating and serving the diverse groups agencies serve. The major criticism leveled at OMB, however, is the way in which the office funded the programs when Congress refused to appropriate funding. To get around limited funding from Congress, OMB requires agencies and departments to make transfers from their annual budget appropriations.

Although the amount contributed by agencies and their departments varies widely, in FY 2007, agencies contributed more than $161 million to the E-Gov Initiatives, according the BNA article. Congress has increased its E-Gov reporting requirements on OMB as a result of this end-run around the congressional appropriations process. An example of Congress's concern is expressed in the legislative report accompanying the Consolidated Appropriations Act of 2008:

'E-Government' initiative.--The Committee notes that it continues a government-wide general provision that precludes the use of funds for the 'e-Government' initiative prior to consultation with and approval by the Committee on Appropriations. The Committee continues to be concerned about OMB using this initiative to force its management priorities on agencies that would otherwise choose different approaches to serving the public and other government agencies that are better tailored to meet the needs of their customers and meet their statutory requirements.

The E-Rulemaking Initiative

The E-Rulemaking Initiative is intended to allow greater participation in agency rulemaking, improve the quality of regulations, and save administrative costs. The website, Regulations.gov, is the Internet portal where the public can learn about and comment on proposed rules. All agencies' proposed and final rules are to be posted to the site. According to OMB's report to Congress, twenty-nine departments and independent agencies representing almost 90 percent of all federal rulemaking activity are fully using the site.

Several problems plague the implementation of this initiative, the most important of which is the uneven funding through agency contributions, according to an October 2007 report by the Congressional Research Service (CRS). The funding mechanism includes a formula by which agencies' required contributions vary according to several factors, including how many comments their rules normally receive. CRS reports this mechanism has resulted in budget shortfalls that have delayed implementation. For example, the e-rulemaking initiative only received about 51 percent of its expected funding in FY 2004.

The Regulations.gov site has been criticized for being difficult to use. A simple search on the site will often return hundreds or thousands of results, because the site does not give high-demand documents (such as proposed and final rules) priority over less significant documents (such as supporting evidence or public submissions). Many documents have vague or nondescript titles and can be virtually impossible to find if the user does not know the Regulation Identifier Number. Professor Richard Parker, a professor at the University of Connecticut School of Law and an expert in regulatory issues, said of the site, "Too much information — badly disorganized — is not much better than too little."

New modifications to the site, unveiled late last year, have improved the usability of Regulations.gov by allowing users to easily filter out extraneous results after searching, but numerous problems remain.

The larger standoff between Congress and OMB, however, appears to be the questionable legality of requiring agency contributions to be transferred to the agency managing each initiative. For example, the e-rulemaking initiative is funded through agency "contributions" to the U.S. Environmental Protection Agency. CRS points to the Government Accountability Office's (GAO) Principles of Federal Appropriations Law that defines these transfers as requiring "statutory authority." OMB believes the funding mechanism is more appropriately described as a fee for service payment. GAO's Office of General Counsel told CRS it had not rendered an opinion on the legality of these transfers and would not do so unless it receives "a congressional request or a request from an agency."