For more than a half century the Executive branch has, on various occasions, seen fit to withhold appropriated funds for various reasons. This practice, while questionable from the congressional viewpoint, was not a serious problem until the post-World II period. In the past five years impoundment has accelerated and become a matter of increasing concern to the Congress.

The legal justification for withholding funds lies in the Anti-Deficiency Acts of 1905 and 1906 which were, as the name implies, intended to avoid deficiencies in Federal spending and not to provide the Executive with a budgetary offset.

[From the Arkansas (North Little Rock) Professional Engineer, October 1972]

SPECIAL REPORT-IMPOUNDED HIGHWAY FUNDS DELAY SAFETY IMPROVEMENTS [This article is reprinted with permission from the August 1972 issue of the "American Road Builder"]

(By U.S. Senator Jennings Randolph, Chairman, Senate Public Works Committee) On numerous occasions I have spoken out against the practice by the Executive branch of the Federal government of withholding funds appropriated by the Congress. This has been the case for many years, by Presidents of both political parties and has involved scores of agencies and programs. However, I feel very strongly about the impoundment of highway funds.

These highway funds provided through the Highway Trust Fund supported by user taxes can be spent for no other purpose than highway transportation. Consequently, the withholding of highway obligational authority from the states in no way makes funds available for other government activities.

If for no other reason than safety-the number of lives saved, the personal injuries avoided, the economic benefit by reducing personal property losses-all of the funds which have been withheld should be released as soon as possible. The longer we delay improving our existing primary and secondary systems and completing the Interstate System, the longer it will be before we can make significant strides in reducing the more than 50,000 deaths which occur annually on our country's roads.

To demonstrate my deep concern on this impoundment question, on June 30 I offered a substitute amendment to the then pending Federal Debt Limitation Bill. My proposal was designed to require the release of impounded highway funds as a condition precedent to any increase in the debt ceiling. I took this action as a means of placing the problem before the U.S. Senate.

My purpose was to dramatize the importance of the separation of powers of the Legislative and Executive branches of government. Through the 196 years of this republic, each of the two branches has guarded its prerogatives with understandable jealously.

It is a tribute to the basic soundness of our system of government that it has responded to the needs of our Nation and possesses the flexibility that enables it to adjust to the requirements of any given time. The responsibilities of each branch of government are defined by the Constitution but there are often areas where interpretations may vary. One of these questions is whether the Executive branch is bound to expend funds in the amounts and for the specific purposes directed by the Congress.

The question of impoundment is crucial to the continuing refinement of our understanding of the duties of the executive as opposed to the legislative branches. The Sub-committee on Separation of Powers, under the chairmanship of Senator Sam J. Ervin, Jr., of North Carolina, last year conducted hearings on this question.

DISTRIBUTION OF FEDERAL AID, HIGHWAY FUNDS, FISCAL YEAR 1973

At the end of fiscal year 1972, approximately $6.2 billion in impounded highway construction authority has been accumulated. This amount is well over the total Federal funding for a full year for highway development. In the new fiscal year which began July 1, 1972, the Administration has already moved to continue the cutback in highway transportation development. For the 1973 fiscal year, Congress authorized $5.625 billion, but the Administration intends to reduce activity by approximately one-fifth for a total highway program of $4.4 billion. The release of these 1973 funds temporarily reduces the total of impounded highway money but the long-term outlook is for a steady increase in the total.

Construction of vital segments of the Interstate Highway System have had to be postponed and other projects cut back correspondingly. Since 1956, the Interstate System has been our most extensive highway activity. This nationwide system of freeways is now 79 percent complete, and I am confident that this percentage would be even higher had Interstate development been allowed to continue at the rate intended by the Congress and planned for by the states.

These delays take place at a time when, as we all know, construction costs continue to rise precipitously. From the time Interstate construction began in 1956, through 1970, the highway construction cost index rose by more than 41 percent. There is no indication that the long-term prospects are for anything but continued increases. It behooves us, therefore, to complete the Interstate System as rapidly as feasible, for on an undertaking of this size, every delay can be measured in additional outlays that eventually will be required.

The members of the Committee on Public Works continue to be concerned over impoundment of highway funding. In the Federal-Aid Highway Acts of both 1968 and 1970, there were strong expressions of congressional opposition to this ill-considered practice. These statements, however, have had no impact on the Administration. I have also communicated regularly with both the President and the Secretary of Transportation urging them to provide the full amounts authorized this year and to release the accumulated impoundments of the past. These efforts, too, have produced no results. I regret to report. The committee intends to act again this year to insist on its right to determine the funding level for the Federal-aid highway program.

The most concise explanation for the Administration's action is contained in a letter I received in May from William L. Gifford, special assistant to the Presi

dent. In this response to communications from me, Mr. Gifford gave the following reasons for the Administration's action.

The Administration believes that the requested level of 1972 and 1973 funding for the Federal Highway Program meets the following key criteria:

Consistent with the overall Federal economic and budgetary situation, which requires careful fiscal management and prevention of further inflationary pressures.

Adequate to maintain reasonable progress on highway construction, including the Interstate System, and a concentrated safety effort.

I do not believe that either of these reasons are consistent with fact. The unique nature of the Highway Trust Fund, as I have said, has restricted its use for highway purposes only. Other than for misleading bookkeeping purposes, the balances in the fund have no effect on other government spending. As to the inflationary aspects of highway building, I have already referred to the continuing upward trends of the cost of highway construction. The Interstate System and other roads will have to be built eventually. If we delay now, they will be built in the future at a considerably higher cost.

Mr. Gifford's contention that the Administration's highway program is adequate is a matter of subjective judgment with which I do not agree. The Congress authorized a higher level of activity based on its assessment of needs, of the ability to pay for such a program, and on the program's total impact on the Nation. We do not authorize any program capriciously and the importance of highway transportation to the well-being of our country demands that we give careful consideration to our actions.

As I stated earlier, the question of impounding highway funds has implications broader than just its effect on our Nation's transportation system. I regret that the Executive branch fails to recognize the clear division of authority provided in the Constitution of the United States. It is, therefore, essential that the Congress assert itself to insure the implementation of programs which it believes to be in the public interest, but also to maintain itself as a body capable of responding to the needs and wishes of the people.

Because of the need to get on with the business at hand and pass the debt ceiling bill to which was attached the much needed increase in Social Security benefits before Congress recessed for the Democratic Convention, I withdrew my amendment. However, the Chairman of the Finance Committee, Senator Russell Long (D-La.) has given assurances that at a later date, this year, he will be ready to join with me and other concerned Senators to handle this impoundment matter and to stop the practice.

NEWS RELEASE FROM REPRESENTATIVE OGDEN R. REID--JANUARY 16, 1973 WASHINGTON, D.C.-Congressman Ogden R. Reid (D-NY) today announced the introduction of legislation to strip the President of his power to ignore Congressional mandates and to restore "the Constitutional prerogatives of the Legislative branch."

At a press conference in Washington, Congressman Reid charged that the Executive has "usurped powers vested in the Congress by the Constitution" and has thereby "endangered the balance of powers which is the cornerstone of our democratic form of government."

Congressman Reid said that, although the Constitution vests Congress with sole authority to approve expenditures and programs, the Executive has frequently refused to follow Congressional mandates. In some cases, it has refused to carry out approved programs, such as the water pollution abatement law passed by Congress last year. In other cases it has used funds for programs without proper Congressional authority, such as the Cambodian invasion of 1970, the Phoenix assassination program and the recent massive bombing of North Vietnam.

The New York legislator noted that the Executive frequently evades Congressional supervision by exercising so-called executive privilege and refusing to provide information about its actions.

The Reid bill creates an Office of Budget and Expenditure Oversight which is solely an agency of Congress and has broad powers to withhold funds or compel spending by the Executive in accordance with Congressional mandates. The new agency also would have the authority to pass on the Administration's legis

lative proposals, to oversee implementation of Congressionally-approved programs and to force the Executive to provide Congress with any information “necessary and proper to the discharge of the Constitutional responsibilities of Congress."

To strengthen the hand of Congress, the new agency, which is part of a reconstituted General Accounting Office, would be supervised by officials nominated by the Speaker of the House and the President pro tempore of the Senate and approved by both Houses by concurrent resolution. A concurrent resolution does not require Presidential approval.

A BILL To implement the Constitutional prerogatives and responsibilities of the
Legislative branch

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as "The Congressional Oversight Act of 1973."

SEC. 2. (a) Congress hereby finds and declares that the Constitution of the United States establishes three separate branches of Government and expressly vests in the Congress the sole authority to enact legislation, raise revenues, authorize expenditures, and appropriate moneys on behalf of the United States. (b) Congress further finds and declares that the Legislative branch shall have full, prompt and unimpaired access to any and all information available to the Executive as Congress may deem necessary and proper to the discharge of its Constitutional responsibilities.

(c) Congress further finds and declares that the Constitution directs that the Executive shall take care that the laws enacted by Congress shall be faithfully executed.

SEC. 3. In order to assure that the mandates of the Constitution shall be fully and effectively carried out, there is hereby established within the General Accounting Office an Office of Budget and Expenditure Oversight, which shall exercise oversight over the Executive with respect to the preparation and administration of the Budget, the raising of revenues, the expenditure of moneys, the preparation and presentation of legislative proposals, and the implementation of legislative programs enacted by Congress, and shall undertake such other responsibilities as Congress may find necessary or desirable to the maintenance of the independence and Constitutional prerogatives of the Legislative branch and shall by concurrent resolution direct.

SEC. 4. (a) Section 301 of the Budget and Accounting Act, 1921 (31 U.S.C. 41) is amended by inserting after "shall be independent of the executive departments and" the following: "shall be an agency of the Congress,".

(b) Section 302 of the Budget and Accounting Act, 1921 (31 U.S.C. 42) is amended to read as follows:

"SEC. 302. There shall be in the General Accounting Office a Comptroller General of the United States, and a Deputy Comptroller General of the United States, who shall be officers of Congress. The Comptroller General shall be appointed by concurrent resolution of both Houses of Congress upon nomination by the Speaker of the House of Representatives. The Deputy Comptroller shall be appointed by concurrent resolution of both Houses of Congress upon nomination by the President pro tempore of the Senate. The Deputy Comptroller General shall perform such duties as may be assigned to him by the Comptroller General, or during a vacancy in that office, shall act as Comptroller General." (c) Such Act is amended by striking out "Assistant Comptroller General” whenever it appears and inserting in lieu thereof "Deputy Comptroller General.” (d) Section 303 of such Act (31 U.S.C. 43) is amended by striking out 'fifteen" in the first sentence thereof and inserting in lieu thereof "five"; by striking out the second sentence thereof and by striking out "joint" in the third sentence thereof and inserting in lieu thereof "concurrent".

(e) The second and third paragraphs of such section 303 are each amended by striking out "ten" and inserting in lieu thereof "three”.

(f) The Office of Budget and Expenditure Oversight shall have a Director and such other employees as the Comptroller General may deem necessary and appropriate. The director shall be appointed by concurrent resolution of both Houses of Congress upon nomination of the Comptroller General and may be removed by a concurrent resolution of both Houses of Congress.

(g) A person serving as Comptroller General or Deputy Comptroller General on the date of enactment of the Act may continue to serve after the sixtieth day after such date only if within such 60-day period he is reappointed to his office