Month: June 2025

Gene Dodaro’s term as Comptroller General of the United States ends in December 2025, providing Congress an opportunity to update the appointment authority for this important legislative branch official. The 1921 law that created the Government Accountability Office (then General Accounting Office) (GAO) made its head, the Comptroller General, a presidential appointee. This was necessary at that time since GAO was originally assigned mainly “executive” functions. The GAO of today, however, bears little resemblance to the 1921 version. Executive functions are no longer part of its mission. The contemporary GAO serves exclusively as a legislative branch agency supporting Congress in the exercise of its constitutional responsibilities.

In view of GAO’s evolution, there is no longer any reason for the President to appoint the Comptroller General and every reason for Congress to choose the head of this key congressional agency. Continued presidential appointment of the Comptroller General is both anachronistic and incongruous. Undoubtedly, Congress would make the Comptroller General a congressional appointee if it were creating GAO today.

Congress should now take control of the appointment of the head of its own “watchdog” agency as it has done with other legislative branch agencies such as the Congressional Budget Office Director and, recently, the Architect of the Capitol. The need for Congress to appoint the Comptroller General transcends political considerations such as which party controls Congress or who occupies the White House. What’s at stake is Congress’s fundamental institutional interests as a coequal branch of  government.

Background

Under 31 U.S.C. 703, the Comptroller General is currently appointed by the President with the advice and consent of the Senate for a non-renewable, 15-year term.^[1]Section 703 contains similar provisions that govern the appointment of the Deputy Comptroller General, although a Deputy has never been appointed under those provisions. Once appointed, a Comptroller General can only be removed from office by impeachment and conviction or by joint resolution of Congress based on limited grounds.

When a vacancy in the office arises, section 703 provides for a “commission” of specified members of Congress to recommend at least three potential nominees to the President. The commission consists of

• • the Speaker of the House,
  • the President pro tempore of the Senate,
  • the majority and minority leaders of the House and Senate, and
  • the chairs and ranking members of the House and Senate oversight committees.

The law provides that the President can request additional names, but it does not require the President to choose a nominee from among individuals recommended by the commission.

The Presidential Appointment No Longer Makes Sense

The Budget and Accounting Act, 1921, which created the office of Comptroller General and the GAO, transferred to them functions that had previously been performed by the Treasury Department. Since these were primarily “executive” functions, the 1921 Act designated the Comptroller General a presidential appointee. Apart from Senate confirmation, the Act made no provision for congressional input into the appointment.

Through the years, GAO’s functions evolved from mainly conducting financial audits of executive agency accounts and making legally binding determinations to performing broad evaluations of federal programs and activities to assist Congress in its legislative and oversight work. Recognizing this evolution, the current appointment process was enacted in 1980^[2]Pub. L. No. 96-226, 94 Stat. 311 (1980). to give Congress an enhanced (albeit only secondary) role based on “the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress.”^[3]S. Rep. No. 96-570 (1980), p. 10.

The 1980 law was the result of a compromise. Predecessor versions of this legislation provided for Congress to appoint the Comptroller General.^[4]A Senate sponsor described one such bill as “a congressional declaration of independence from the White House.” 121 Cong. Rec. 25608 (1975) (remarks of Senator Metcalf). However, the Justice Department objected that a congressional appointment would preclude GAO from performing executive functions. The enacted version thus retained the presidential appointment and settled for enhanced congressional input in an attempt to preserve GAO’s constitutional ability to carry out the residual executive functions it still performed at that time.

This compromise proved to be unavailing. In Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court concluded that, notwithstanding the presidential appointment, the Comptroller General was a legislative branch official answerable to and removable only by Congress and GAO was a legislative branch agency. Therefore, the Court held, they could not constitutionally perform any executive functions. In view of this decision, there was no longer any legal reason for the Comptroller General to remain a presidential appointee. Subsequently, various executive functions were transferred from GAO back to the executive branch.^[5] See Pub. L. No. 104-53, 109 Stat. 514, 535 (1995), and Pub. L. No. 104-316, 110 Stat. 3826, 3845-46 (1996).

GAO’s role as an arm of Congress has become even more pronounced since then. GAO’s 2024 Performance and Accountability Report states that the agency “exists to support the Congress in meeting its constitutional responsibilities” and that the “vast majority” of its work is conducted in response to congressional mandates or requests. Specifically, the report notes that this describes 96 percent of its evaluations. GAO’s remaining work likewise serves Congress. For example, its self-initiated, biennial “high-risk list” provides a roadmap for congressional oversight and reform legislation. Another example is GAO’s bid protest function, which one court observed “provides an important congressional oversight mechanism” regarding federal agency procurement practices.^[6]Lear Siegler, Energy Products Division v. Lehman, 842 F.2d 1102 (9^th Cir. 1988).

No Other Exclusively Legislative Branch Agency Has a Presidential Appointee

GAO is the only strictly legislative branch agency that is still headed by a presidential appointee. Presidential appointees lead two other legislative branch agencies: the Library of Congress and the Government Publishing Office (formerly Government Printing Office).^[7] Congressional Research Service, Legislative Branch Agency Appointments: History, Processes, and Recent Actions (2024). Unlike GAO, however, both these agencies continue to perform some executive functions. The Library of Congress administers federal copyright laws, and the Government Publishing Office provides printing and publishing services to executive branch agencies. No other legislative branch agency has a presidential appointee. Notably, the Director of the Congressional Budget Office has been a congressional appointee since the creation of that agency in 1974.

The appointment process for the Architect of the Capitol and its evolution is particularly instructive here. Prior to 1990, the Architect was appointed by the President with no formal congressional involvement. The Legislative Branch Appropriations Act, 1990 retained presidential appointment of the Architect but enacted a process modeled on the Comptroller General’s whereby a congressional commission recommended potential nominees to the President.^[8] Pub. L. No. 101-163, 103 Stat. 1041, 1068 (1989).  In 2023, Congress changed the law to eliminate the presidential appointment and instead provide for appointment of the Architect by majority vote of the congressional commission.^[9]2 U.S.C. 1801a.

Congress Should Control the Appointment of Its Own “Watchdog”

Retaining the presidential appointment of the Comptroller General is not only unnecessary and anomalous but also undercuts Congress’s institutional interests. The Comptroller General and GAO answer to Congress alone. While GAO’s work benefits the executive branch and the public, the agency exists to serve Congress. Therefore, Congress alone should decide who heads it. The 1980 law that enacted the current appointment process was at best a half measure toward this goal. As noted above, it retained the presidential appointment in a compromise that did not pan out and based on a premise that is no longer relevant.

While the law does provide for congressional recommendations, it leaves the final choice to the President. The President can choose from among these recommendations or disregard them and select someone else. Placing the Comptroller General appointment in congressional hands would guarantee Congress its first choice for Comptroller General. In addition to vindicating Congress’s institutional interests, keeping the selection within Congress would simplify and expedite the appointment process.

GAO is the only source of nonpartisan, wholly independent oversight of the executive branch within the federal government. To be of maximum effectiveness to Congress as well as the public, it must  operate without fear or favor, reviewing executive branch programs and activities objectively and producing unvarnished, fact-based analyses. In these politically polarized times, a bipartisan congressional commission is best suited to select an individual who possesses the qualifications and credibility to maintain GAO’s high standards.

A Modest Statutory Fix

The update can be accomplished simply by amending 31 U.S.C. 703 to provide for appointment of the Comptroller General (and Deputy) by majority vote of the congressional commission it already establishes.^[10]Congress should also consider appointing the Librarian of Congress, particularly in view of the congressional support functions performed by the Library’s Congressional Research Service. This is a … Continue reading