Summary

  • In a selected sample of 37 State Department congressional notifications for fiscal 2023–2024 funds, GAO found that all cited use of a legal exception and described the programming, but only one identified the legal provision being set aside. The 37 came from 64 qualifying notices, not from every State notice.
  • A separate review of 101 democracy-assistance notices for fiscal 2021–2024 funding found that most did not clearly link the exception to specific activities. GAO recommended clearer drafting guidance. State disagreed; both recommendations remain open.

Permission without a named obstacle

Congress can authorize assistance under a “notwithstanding” provision even when another law restricts it. That is a deliberate grant of discretion, not a clerical loophole. The legislature has also set notice rules so it can see when and why that discretion is used. The GAO's November 6 report shows how thin that visibility became in the Department of State's correspondence.

GAO selected 37 of 64 qualifying notices covering fiscal 2023 and 2024 funds across eight State bureaus. All 37 reported use of a notwithstanding authority. All 37 included a description of the relevant programming, which GAO counted as a justification under its limited review. Only one identified the provision of law being overridden. The missing information was one of three reporting criteria drawn from the appropriations acts and their accompanying congressional explanatory statements. Those criteria are not identical legal commands: some come from statute, others from the statements. The result is still plain.

A reader could see that an exception had been invoked, but usually not which barrier it removed.

Another GAO review looked at 101 State notices citing the democracy-assistance authority for fiscal 2021–2024 funds. Most did not clearly connect the cited authority to the programs or activities it would support. That is a different population and period from the 37-notice sample. Forty-three of the 101 had a single narrative consistent with a democracy program area, allowing GAO to infer the link, although the notices did not spell it out in the program narrative. In a notice covering multiple activities, the inference becomes harder.

State bureaus draft their own notices. The Bureau of Legislative Affairs manages the guidance and transmits them. GAO found the guidance did not address the three relevant criteria or tell drafters to tie the exception to specific activities. Its two recommendations asked the bureau to do both. State rejected them, arguing that notice content depends on each case and that static guidance is inappropriate. The recommendations are open on GAO's official page.

The timing raises the stakes. State took over some former USAID functions after the 2025 foreign-assistance reorganization and will submit future democracy-assistance notices. The fiscal 2026 congressional explanatory statement again asks for details about extraordinary authorities and their purpose. The office receiving more responsibility has been offered a choice: make the exception traceable, or make lawmakers ask what an exception actually bought.

Sources