curtail all appropriations on a pro rata basis—or at least to bring them into line with anticipated revenues.

I hate to say it about a body of which I'm a member, but some members of Congress have no sense of financial responsibility at all.

Question. Are you generally in sympathy with the President's desire to reor ganize and streamline the executive branch?

ERVIN. Yes. I think the federal government needs to be simplified. They have so many different programs scattered around in different departments and agencies that it's almost impossible to tell who's administering them. I would be in sympathy with a genuine reorganization or a simplification of the federal government-but it's quite a job, and I think we'd better take it up one agency at a time.

Question. Another source of conflict is the executive agreements the administration has made with other countries without consulting Congress-regarding such matters as the establishment of military bases abroad.

ERVIN. I've held hearings on that, and I intend to introduce a bill to provide that no executive agreement-except those the Constitution authorizes the President to make without the consent of Congress-shall be binding unless it is previously authorized by a treaty or statute, or subsequently authorized by a concurrent resolution of the two houses of Congress.

The Supreme Court has held that there are some agreements the President has the power to make under the Constitution-to recognize foreign countries, or to receive their ministers. Congress has nothing to do with that.

But if those agreements call on Congress to appropriate any money to carry them out, then my bill would require congressional action before any obligation would rest on Congress.

Question. Still another area that you have dealt with in the past is the question of administration officials invoking executive privilege and refusing to appear and testify before Congress. Will you pursue this further in this session? ERVIN. Yes, unless we can get some kind of agreement. The White House has told me that they would have some representatives meet with me and see if we couldn't agree on some mutually acceptable guidelines on the question of executive privilege.

I understand from the White House that the President is now reconciled that no one will exercise the privilege except the President, and that the President will do so in writing. In other words, if a member of the executive branch wishes to invoke executive privilege, he must obtain a written authorization from the President.

Of course, as it came out in the Kleindienst thing (debate over the nomination of Richard Kleindienst to be attorney general), this administration has tried to stretch executive privilege to say that a man that was an advisor to the President couldn't be called before a congressional committee to testify even about his transactions with third parties-which is ridiculous.

Of course, in the Kleindienst hearings we had a lever, because we could have refused to confirm the nomination. So often when we ask for information we have no lever we can use.

Question. Senator, you mentioned a number of areas where you feel the Congress needs to reassert its constitutional authority. But there is another issue that many of your colleagues are very concerned about, und that's the Vietnam war. It would seem to some people that if you want Congress to assert itself, it must also do so with regard to the constitutional privilege or right of declaring war. Don't you see a need for Congress to take a firmer hold on the war-making powers?

ERVIN. No, I disagree with that. In the first place, we ought to have had better sense than to have gotten involved on the continent of Asia. But after we got involved, the civilians in charge of the armed forces ought to have allowed the armed forces to win the war, which they could have done seven years ago. They apparently never learned the truth that there's no substitute for victory in war.

I don't think you can have but one commander-in-chief of the military forces. and that's the president. When Congress undertakes to tell how the armed forces are going to be employed. I think they are trying to usurp the President's authority as commander-in-chief.

Secondly, the only person authorized by the Constitution to be a mouthpiece in our efforts to negotiate with a foreign country is the president. That's quite understandable, because if you had 435 congressmen and 100 senators who were

going to undertake to direct the tactics of fighting, you'd never get anything done. You'd never win a skirmish-much less a war-because some of them would order the armies to advance, and others would order the armies to retreat, and others would order them to stand fast.

Congress has the constitutional power to cut off all funds. But when Congress says we'll cut off all funds on condition that they release our prisoners of war, Congress is really trying to exercise the executive power. That is, in effect, an effort to negotiate.

Question. Do you think thesc efforts in Congress to cut off funds for the war have hurt the Vietnam peace negotiations?

ERVIN. No, I disagree with that. In the first place, we ought to have had given the enemy assurance that if they just keep on resisting, that we'll convert Old Glory into a white flag and leave them in possession of Southeast Asia. It's hard enough to deal with Communists when they don't have that impression. Question. To clarify the constitutional question, though, is there not a provision in the Constitution that Congress has the sole authority to declare war? And isn't that what we are doing in Vietnam?

ERVIN. Yes. But the question is, can Congress undeclare war? I made a speech about two years ago on this subject. I researched it a great deal, and my research led me to the conclusion that Congress had declared war with respect to Vietnam.

With the Gulf of Tonkin resolution, Congress expressly authorized the president to use the armed forces of the United States in combat there-and that's tantamount to a declaration of war. I just don't know of anything in the Constitution that says Congress can undeclare war. I don't know how you can undeclare war, really. Congress can cut off the funds, but that's the limit of its authority.

I think Congress has made mistakes passing these (end-the-war) resolutions, I voted against them. Not that I wouldn't like to get out of the war. But when you withdraw all your troops unconditionally, or even with the condition of the release of your prisoners, you have made it certain that 45,000 Americans have died in vain over there.

No, a lot of conscientious people disagree with me fundamentally on thatbut after all, I have to use what limited faculties the Good Lord endowed me with.

Question. Do you think the administration could have kept Congress better informed about its war policies, such as in the resumption of bombing in North Vietnam before Christmas?

ERVIN. I don't think the President can trust Congress, a lot of congressmen, with secret information. I've been in executive sessions in congressional committees where they told me that what was said was top secret and musn't be divulged outisde—and it was immediately divulged . . . The only way to keep a secret is just not to tell anybody, virtually.

Question. Another problem that you have been interested in during the last two years has been encroachment on the freedom of the press, including the recent tendency of grand juries to call in newsmen and try to force them to reveal the sources of their confidential information.

ERVIN. Yes, I think that has been extremely bad, because in my judgment the average newsgather doesn't know anything about any case except hearsay. In the overwhelming majority of cases-95 percent, I'd estimate-he wouldn't be a competent witness if he was put on the witness stand.

I think this evidence a laziness on the part of prosecuting attorneys, a laziness on the part of law enforcement officers in many cases, and an effort to convert the newsgatherers into an arm of the law enforcement machinery.

Question. I believe you said once that you would prefer not to enact the socalled newsman's shield bill, to protect reporters from being compelled to testify. ERVIN. Yes, because I thought that in the case of Earl Caldwell (a New York Times reporter who refused to testify about his articles on the Black Panthers in San Francisco), the Ninth Circuit Court of Appeals had written a very wise opinion.

They reached the conclusion that on the circumstances in that case, Caldwell should not be required to go before a grand jury. I would rather have left it like that. I was in hopes that the Supreme Court would follow the very good example that was set for them by the court of appeals-but unfortunately, they muffed a golden opportunity (the high court reversed the appeals court decision).

There are two public interests involved. One is the interest of the public in the prosecution of crime. The other is the interest of the public in knowing what's going on in this country. And one of these interests ought not to be given always the paramount importance, regardless of what the facts may be. In the Caldwell case, the appeals court took these two interests and reconciled them to a maximum degree without sacrificing one of them.

So I would have rather left it (the newsman's privilege question) to the courts for the courts to apply the First Amendment to individual cases. The First Amendment has a great interest in having news gathered especially news that comes from groups that we have reason to fear are prone to indulge in violence.

Unfortunately, when you drag a reporter before a grand jury, nobody knows what's being said in there. There's no doubt of the fact that if the Black Panthers had thought that Caldwell had gone before the grand jury, it wouldn't make any difference whether he told the jury anything. Why, they'd never trust him again. They would have figured he had betrayed their confidence.

Now, I don't think it should be an absolute privilege for newsmen. If a man goes out-for example a news photographer-where a riot's going on, and he sees somebody pull out a pistol and shoot somebody dead, he's got as much obligation to testify about that as anybody else. Or, if he receives a confession from a man that he committed a crime, I think he's got that obligation.

But to drag a newsman in as sort of a fishing expedition to try to find out something when the chances are he knows nothing that is competent under the law-I think that is an abuse of the judicial process.

Question. Do you think any kind of legislation would be useful in this area? ERVIN. I think that there could be a bill drawn-I've introduced one that's the nearest I could approach it-that provided that a newsman could not be compelled to appear before a grand jury or petit jury under a criminal action. if all he knew about the case was hearsay-that is, unless he was a competent witness under the rules of evidence.

Question. Some of your colleagues say that we now have a constitutional crisis before us, brought on by the growing power of the executive. Do you see this as an eyeball-to-eyeball confrontation between the two branches of government?

ERVIN. I would hope not. I would hope that the President would be willing to stay in the field that the Constitution assigns to him. I'm not in favor of Congress going into the other fieids. That's the reason I find it impossible to support these resolutions telling whether our troops should fight in Cambodia or Laos-where the enemy's taken sanctuary—or where the limit of fighting should be, or undertaking to negotiate a settlement.

Question. Can you recall a time in our history when there has been more conflict between the President and Congress than we have now? On as many issues? ERVIN. I think we've had it all the time. I don't think we've had as much in the country generally as we have lately. Frankly, a lot of people today don't have much philosophy of government. They don't have much constitutional philosophy. I think too many people are inclined to say, "What's the Constitution among friends?" If the Constitution gets in the way, they just evade the Constitution.

[From the Washington Post, Oct. 22, 1972]

WATER OVER THE BUDGET

(Editorial)

It would be a grave error to discount the importance of the resounding congressional votes to override President Nixon's veto of the clean-waters bill. The margins-52-12 in the Senate, 247-23 in the House-represented more than a final pre-election whoop for public works or a final rebellion against the President and his anti-spending homilies. The votes reasserted a sense of priorities in which sustained efforts to cleanse the environment, rank far ahead of easy campaign skirmishes over the spending issue. By the close of this Congress, that sense of priorities—so different from Mr. Nixon's-had become quite bipartisan on Capitol Hill. There should be a special warning for Mr. Nixon in the fact that only eight Republicans in the Senate and 13 in the House voted to sustain his veto. The veto itself is further evidence, if any were needed, that the White House desire to pin blame for all fiscal problems on the Democratic Congress has become so intense as to override both fiscal facts and other national woes. As a serious 90-538-73-72

argument, the veto message itself simply doesn't hold water, dirty or clean. The legislation's long-term authorizations, totaling $24.6 billion, do substantially exceed those in the administration's own proposals. But the act is not the "budgetwrecking" monster portrayed by the President. The major outlays, up to $18 billion in grants for treatment plant construction, would be spread over the next nine or ten years, with the largest spending impact beginning around fiscal 1976. As EPA Administrator William D. Ruckelshaus argued in urging the President to sign the bill, the greatest short-term outlays would be reimbursements of $2 billion to the states for past projects, in accord with a longstanding Nixon commitment. The veto is even less justified because the congressional conferees, anticipating White House displeasure, had included language giving the executive more than the usual discretionary power to control the pace of spending.

All this suggests that one should look beyond the message for causes of the veto. Since the decision was announced within an hour after the Senate rejected the $250 billion spending ceiling, it is tempting to portray the veto as primarily an exercise in presidential pique. It is not clear, however, that the pollution bill was held hostage for the spending ceiling, and White House aides refuse to say whether Mr. Nixon would have signed the water quality measure if the spending votes had gone his way. Indeed, some skeptics, noting a White House silence on the merits of the bill's strong regulatory provisions, have suggested that the public fuss over spending might have been a smokescreen for someone's private objections to those strict controls.

It seems most likely that, despite four years of brave administration statements about rescuing the environment, the merits of the clean-waters bill-everything beyond the dollar signs-ultimately became irrelevant. Spending-the issue, not the realities-became the controlling theme. Especially with Congress poised to override a veto, the choice became one of rhetoric: to sign and take credit for cleaner water, or to veto and take potshots at Congress, with the bill becoming law in either case. Given Mr. Nixon's preoccupation with the tax issue, it probably wasn't a very hard choice.

The act now "rammed into law," to use the President's words, thus stands as a congressional triumph of the first magnitude. It is a tough, far-reaching response to the national blight of filthy rivers, dying lakes and poisoned shores. That this Congress, timid in many ways, produced such an impressive act at all is somewhat amazing. Along the way, the members of both Public Works Committees, and many other members of Congress, had to come to terms with the competing demands of industries and environmentalists, plus the technological, legal and economic intricacies of pollution control. Having made such an effort, Congress clearly was not about to cave in, especially since the "budget-wrecking" tag was something of a fraud, and the real tax-and-spending issues will be on next year's agenda regardless of this act.

[From the Washington Post, Jan. 27, 1973]

IMPOUNDED U.S. FUNDS CHALLENGED

A suit was filed in federal district court yesterday challenging the Nixon administration's impoundment of funds for a farm environmental program and a housing rehabilitation program.

The attorneys who brought the suit emphasized, however, that they were challenging on broad grounds the right of the executive branch to make any impoundments.

In several other cases now being heard over the country, the plaintiffs are contending that special provisions of law require that highway, water pollution and other types of specifically designed funds must be spent.

The plaintiffs in the new suit are W. M. Scarbrough, Meadville, Miss., a rancher who claims he is injured by the elimination of the REAP (Rural Environmental Assistance Program) and Augusto Guadamuz and several other persons from San Francisco, who say they are being denied housing rehabilitation loans under FACE (the Federally Assisted Code Enforcement program). Defendants are Roy L. Ash, President Nixon's new budget director, Secretary of Agriculture Earl L. Butz, and James T. Lynn, secretary-designate of the Housing and Urban Development Department.

Plaintiffs' attorneys are John R. Kramer of Georgetown University Law and Ralph S. Abascal of San Francisco.

[From the Washington Post, Jan. 29, 1973]

THE POOR POTOMAC
(Editorial)

So now it's going to be 1978, at the earliest, before the Blue Plains project is done. That's the latest discouraging word from Jean B. Levesque of the D.C. Department of Environmental Services. The District has enough federal and local funds in the pipeline to finish one major phase of the project, expanded and improved secondary treatment, by about May 1975. That will clean up the Potomac somewhat. But the advanced waste treatment required to meet water quality standards, let alone to make the estuary safe for swimming again, can hardly be started until 1975 or thereafter, whenever another $48 million in federal aid should arrive.

The polluted Potomac thus becomes a victim of President Nixon's decision to allot nationwide only $6 billion of the $11 billion in waste treatment grants which Congress authorized in the clean waters act. Close followers of the long, tortuous history of Blue Plains will recall that it was this same administration which, four years ago, ordered the District, Maryland and Virginia to accelerate the project so it would be finished by early 1975-presumably so the Potomac would look somewhat better for those millions of bicentennial visitors to the nation's capital. Well, those visitors may find the river slightly less noxious by '76, but it certainly won't be a body of water to brag about, wade in, or drink. It is essential to fund and finish Blue Plains. But it would be delusive for anyone to assume that this project will solve all of the Washington area's water pollution problems or enable suburban growth to go surging ahead once again. Blue Plains is primarily a catch-up project, intended to provide high quality treatment for those homes, offices and stores already hooked into the system, plus future users of the Dulles Interceptor Sewer and the additional connections which the Washington Suburban Sanitary Commission has already approved. In fact, unless Governor Mandel intervenes to override WSSC's rather casual concept of the moratorium, Blue Plains could be close to its enlarged capacity by the time the expansion is done.

In short, the completion of Blue Plains will not resolve most of the questions now troubling suburban developers and the foes of development. In most of the areas where ferocious battles over growth are raging, including Fairfax County and upper Montgomery County, the hardest planning decisions do not depend on the pace of progres at Blue Plains. Yet this project has a vast regional importance. It dwarfs all other treatment plants in the area in size, cost and impact on the river. And it is the one solid example so far of regional teamwork, however erratic, toward cleansing the Potomac.

It would be ideal if President Nixnn decided to relent and allocate the rest of the clean water funds. This is the nation's capital, after all, and the administration has been vigorous, on occasion, in pressing for a cleaner Potomac. Barring that, Congress should at least enable the District to put up the $48 million itself and be reimbursed later from federal funds. This approach is not possible under present laws. It is far less desirable, but it may well be the only way to get Blue Plains back on schedule.

[From the Washington Post, Feb. 5, 1973]

ACKNOWLEDGING THE STATUS OF OMB
(Editorial)

It is simply ironic to require Senate confirmation of the appointment of a second lieutenant in the Army and deny the Senate the power and the duty to pass on the fitness of individuals to serve as Director or Deputy Director of the Office of Management and Budget, individuals whose powers are second only to those of the President of the United States.

The observation was made by Senator Sam Ervin of North Carolina apropos of some legislation the Senate is scheduled to vote on today. The legislation, introduced by Mr. Ervin and a host of co-sponsors and somewhat amended late last week, would have the effect of making the two top jobs in the Office of Management and Budget subject to Senate confirmation. Its reach is also calculated to include Mr. Nixon's two recent appointees to those jobs, Roy Ash, who has been named Director of OMB, and Frederick Malek, who has been named his deputy. Both men, under the provisions of the bill, would need Senate confirmation to hold office.