State’s democracy-aid notices left Congress guessing where legal exceptions applied

A Government Accountability Office audit released November 6 found that the State Department repeatedly gave Congress incomplete or hard-to-follow notice when it planned to use legal authority that lets foreign assistance proceed despite otherwise applicable funding restrictions. The accountability problem is basic: if State invokes an exception, can lawmakers tell which program receives it, which law is being set aside and why?

In one analysis, GAO sampled 37 of 64 qualifying State congressional notifications for fiscal years 2023 and 2024. Thirty-six failed to address at least one of three criteria in the appropriations laws or accompanying congressional directions: information on the notwithstanding authority, details on the legal provision being set aside and a justification for using the authority. GAO said only one notice addressed all three.

That result does not mean GAO found 36 illegal expenditures. The audit examined what State told Congress, not whether each underlying program was lawful or effective. It also did not review all 64 qualifying notices. GAO said it could not verify that the roughly 300 State notifications supplied for its broader work included every relevant notice.

A separate GAO review examined 101 State notifications for fiscal years 2021 through 2024 that cited the democracy-assistance notwithstanding authority. GAO found that most lacked a clear link between the authority and the specific programs or activities for which it would be used. Forty-three notices contained a single program heading or narrative, allowing GAO to infer a link. The other 58 had multiple headings, making the intended link difficult to identify; 18 of those also cited another notwithstanding authority without specifying which activities it covered.

The opacity matters because these authorities permit assistance where another law would ordinarily restrict it. GAO cited a December 2024 notice for democracy, human-rights, civil-society and independent-media assistance that used the authority to overcome a restriction concerning countries whose governments engage in consistent patterns of gross human-rights violations. The notice said assistance would not go to Russia’s government. The criticism is not that such aid is inherently improper; it is that Congress needs a traceable explanation when an agency uses a congressionally authorized exception to a restriction Congress enacted.

State rejected GAO’s two recommendations. It said notification content is determined case by case under the applicable legal requirements and that static, one-size-fits-all guidance is neither appropriate nor necessary. That is material contrary evidence: a flexible notice can reflect different countries, programs and legal authorities better than a rigid template.

GAO’s answer was that guidance need not be rigid. It could be updated for each year’s appropriations language, require bureaus to address all applicable criteria and still allow customized content and internal legal deliberation. GAO recommended guidance that identifies specific programs and activities when known. Both recommendations remain open.

The control gap is now prospective, not merely historical. After the secretary of State announced in July 2025 that USAID had stopped implementing foreign assistance, State assumed some former USAID functions, including democracy programs, and will submit future notifications. Congress included reporting directions again for fiscal 2026.

The useful accountability test is therefore narrower than a scandal label: each future notice should let a lawmaker connect the exception to a named activity, the restriction being displaced and the justification, while identifying what was unknown at transmission. State’s case-by-case judgment and GAO’s updated-guidance proposal are compatible if flexibility does not leave the legal exception impossible to trace.