— Sen. Patrick J. Leahy (D-Vt.), in a statement, Dec. 10, 2018

Over the holidays, The Fact Checker noticed a Democratic talking point emerge that the Trump administration has spent just 6 percent of the money allocated for construction on border fencing and repairs along the southern border. It has shown up in tweets, such as this one by Sen. Chris Murphy (D-Conn.) and in news stories. We traced this factoid to a statement by Leahy in early December.

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As Murphy asked: “How about spending the money you have first?”

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We’ve documented how President Trump claims he’s been building his promised wall even though Congress in the 2017 and 2018 fiscal years specifically denied him funds to spend on the concrete slabs that, with fanfare, he examined last year. He certainly acts as if he’s blown through the money Congress handed to the administration, given he engineered a government shutdown to extract even more funds for a wall.

So, in light of Trump’s rhetoric, spending just 6 percent of the money sounds ridiculous. But, like we said, it’s a talking point — and not an especially helpful one.

The Facts

When we initially asked the White House about this statement, a senior administration official said it was wrong: “There is no basis to make this claim. The Department of Homeland Security has obligated 91 percent of appropriated FY 2017 and FY 2018 funds for the southern border wall.”

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Leahy’s staff on the Senate Appropriations Committee responded that the 6 percent figure is based on data obtained directly from Customs and Border Protection (CBP) in late November. The data they received shows:

Total enacted funds, 2017 and 2018: $1,716,066,065

Gross Obligations: $1,602,675,723

Expenditure amount: $108,695,342

The expenditures portion works out to 6.3 percent. And the percentage is even lower if you look just at 2018 appropriations, in which 2.6 percent has been spent.

Score one for Leahy? Not so fast. Note that total “gross obligations” stands at 93.3 percent.

That was the same word the administration used. It also happens to be the metric used by lawmakers for years. There’s even a definition provided in a glossary of terms on the Senate website: “An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.” (There is no definition provided for expenditure.)

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Congress appropriates money for a federal agency. The agency then arranges to spend that money, or obligate it, through contracts, and draws down that money over time. Essentially it’s like putting money into a checking account for your housing renovation so you can write checks to the contractors.

Asked what was more important, the obligation or an expenditure, former Appropriations Committee staff director Jim Dyer said, “From my perspective, it’s obligations. As an appropriator, I can’t control the rate at which funds are expended. Indeed, in most agencies those rates vary. But I can control the total obligation, the total money I am willing to authorize.”

Moreover, the construction money in the 2018 bill is available for up to five years — and the agency only got its hands on it in March or April, midway through the fiscal year. Here’s the text in the bill: “For necessary expenses of U.S. Customs and Border Protection for procurement, construction, and improvements, including procurements to buy marine vessels, aircraft, and unmanned aerial systems, $2,281,357,000, of which $846,343,000 shall remain available until September 30, 2020, and of which $1,435,014,000 shall remain available until September 30, 2022.”

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This would argue that “obligated funds” is the best metric.

But there’s another wrinkle: A Leahy staff member said that because CBP partners with the U.S. Army Corps of Engineers (USACE) to award these contracts, when CBP transfers the money to USACE, it is considered obligated. So he said it’s unclear whether any money has actually been assigned to a contract. “We believe a more sensible tracking of the money focuses on when it is spent, not just on a bureaucratic shift to another government agency,” he said.

The senior administration official acknowledged the 91 percent figure reflected obligations from CBP to USACE.

However, it turns out CBP has issued news releases whenever USACE signs a specific contract. Here’s $287 million (construction expected to begin in February), $167 million (February construction start), $172 to $324 million (April construction start) and $145 million (February construction start). That adds up to about $900 million just from fiscal 2018 appropriations. It’s worth noting that the appropriations bill was highly specific about how and where the money could be used, and so far CBP appears to be following that plan.

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“CBP has obligated more than 90 percent of the funds provided in FY 2017 and 2018,” said CBP spokesman Andrew Meehan. “To date, nearly 60 percent of those funds are obligated onto a contract, referred to as contract award, by the U.S. Army Corps of Engineers.”

He said the contract award is when a vendor begins work, such as design, followed by construction. “Expenditures reflect when the contractor bills the government, after the work has been completed, making expenditure an inaccurate measure of execution.”

Meehan said that as of Dec. 31, USACE had just less than $700 million on contract for construction in the Rio Grande Valley; Tucson and Yuma, Ariz.; and the El Centro and San Diego sectors of California.

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“An additional approximately $300 million is ready to award as soon as the government reopens,” he said. “The remaining approximately $175 million supports CBP project management to include real estate, environmental, legal and program-management support and will be obligated over the duration of the projects.”

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It’s worth noting that despite the concern expressed by Leahy in December, he (as well as eight other Democrat members on the Appropriations Committee) voted in June to provide another $1.6 billion to fund additional border-fencing projects in the 2019 appropriations bill, including 65 miles of pedestrian fencing in the Rio Grande Valley. He called it a “bipartisan compromise on these tough issues.”

The Pinocchio Test

This is a good example of how lawmakers use the complexity of legislative sausage-making to confuse voters. Focusing on spending sounds reasonable, even though it’s not what lawmakers typically track when assessing how government agencies use the funds appropriated by Congress. It’s especially misleading in the case of a large infrastructure project for which Congress has given the agency up to five years to use the funds.

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In this case, about 60 percent of the funds have been awarded in contracts to construct fencing along the border. That’s the relevant number, which is 10 times higher than the 6 percent touted by Democrats. Leahy’s figure is not invented out of thin air, but it is misleading enough to qualify for Three Pinocchios.

Three Pinocchios

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