Mr. CONTE. My bill, which presently has 28 cosponsors, approaches the problem of restricting impoundments differently than other proposals which provide for congressional approval after the fact of impoundment.

My bill provides that the President shall not impound any funds unless and until he first obtains the specific approval of the Congress. Like other bills, however, it does provide for an expedited procedure for the President to have his request to impound funds considered by the Congress.

There are several reasons for my adoption of a different approach. First, I wanted to include a prohibition against the reimpounding of funds after the 60-day period had expired, or after the Congress had specifically disapproved the impoundment. This would prevent the President from impounding funds for the entire year simply by reimpounding them.

The second major difficulty is related to those funds which are required to be obligated or spent by the close of the fiscal year. In such cases, the executive could impound funds so late in the fiscal year that the Congress may not have an opportunity to disapprove of the impoundment before the funds are lost. This is especially true when expenditures, grants or obligations are made late in the fiscal year or when the Congress may happen to be in recess at the end of the fiscal year.

The third problem I saw with other proposals was that it might be possible to misconstrue the authority to impound funds as authority to reduce the expenditure of the appropriations pro rata for that portion of the year between Presidential impoundment and congressional disapproval.

To illustrate this last problem, suppose that $12 million was appropriated for a program. Let us also suppose that the President chooses to impound the funds and that the Congress does not ratify the impoundment within the 60-day period. At this time the President would have to spend the funds. The problem is that the President could argue that he would only have to spend $10 million of the appropriation because his 2-month impoundment was specifically authorized by law.

These are the reasons I chose the approach that I did. By requiring that the President obtain congressional approval before he impounds any funds rather than afterward, the problems I have mentioned can be avoided. Further, the President will still have his desire to impound funds considered on a priority basis.

I believe that my Congressional Spending Power Act is a reasonable and workable proposal. It places the power of the purse back in the hands of the Congress where it belongs, and it gives the President a reasonable means to have his views on the spending of Federal money considered without undue delay.

In conclusion, Mr. Chairman, I want to make it clear that I am not here as an advocate of irresponsible spending on the part of the Congress. Nor do I believe that impoundment of funds is never appropriate. There are times when money should be impounded because the money cannot be used effectively during the fiscal year. There are times that money should no longer be spent on ineffective programs.

However, I believe that the Congress must share in the decisionmaking process on these actions.

We are here today speaking of one means to reassert the power of the Congress. I strongly believe in and support the efforts of Congress aimed at reestablishing its authority. However, we must also recognize that, with this power, come responsibilities, Mr. Chairman, and members of the committee, but we must never forget that we do have it and we must maintain it and keep it.

Thank you.

Senator CHILES. Thank you very much, Congressman.

Mr. Gurney?

Senator GURNEY. Thank you, Congressman Conte.

I certainly want to welcome you here to the committee. You are one of the most respected members of the body, certainly of the Appropriations Committee.

I think you hit on one of the key points here, scrutinizing the activities of OMB and putting our own house in order. If we did this effectively we would go a long way toward exerting our power. It is an excellent statement.

Mr. CONTE. Thank you, Senator.

Senator CHILES. Congressman, have you had an opportunity to read or study the Ervin bill, S. 373?

Mr. CONTE. Yes, sir; Senator. I have my staff man here, Paul Lindsey. We have made an analysis of it. We like our bill a little bit better because we feel we give the President power to impound these funds but the President must come back up here. We sort of have a veto power over the President's veto.

Senator CHILES. That is what I was going to ask you if you could just quickly tell me how your bill would differ from S. 373.

Mr. LINDSEY. The primary difference is Mr. Ervin's allows the President to impound for up to 60 days subject to the approval of Congress, or if under Mr. Conte's bill, which is H.R. 415, the President has to come to the Congress before he can impound any funds, and see, the difference is the President can impound before the Congress has anything to say under Mr. Ervin's proposal and under Mr. Conte's proposal the President has to come to the Congress first.

Mr. CONTE. I think I will say something very quickly. The Ervin bill is after the fact and my bill is before the fact.

Senator CHILES. What does your bill contain in regard to the AntiDeficiency Acts? Are they accepted or included? How does it relate to that?

Mr. LINDSEY. There is nothing specifically relating to that, Mr. Chairman.

Mr. CONTE. We didn't go into that at all, Mr. Chairman.

Senator CHILES. We were hearing yesterday testimony from General Staats in regard to the Anti-Deficiency Acts. He is going to get more information for the committee.

His feeling was that generally speaking the impoundments Congress is worried about have not happened under the Anti-Deficiency Act, that most of the items that are impounded under that act really Congress would approve. They would be for temporary impoundments because there has been a change, there can be an efficiency or economy worked because of the impoundment, and his concern was whether it

was going to be unduly burdensome on the Congress if meantime every small impoundment under that had to come before the Congress under action and it would either under the Ervin bill or your bill, as I understand it, before even such an impoundment could be made. The reasons for the Anti-Deficiency Acts were really Congress imposing on the President and the Department heads duties and responsibilities, to effect economies and prudent regard for public funds after there had been a situational change not contemplated by the legislative

process.

My concern is what kind of burden this is going to place on the Congress if every item like this has to come before the Congress.

My CONTE. That is a good point. It is an excellent point. I think we could work out those details. I think, whether the Ervin bill or the Conte bill, in generalities we can work out the details. I think it could be worked out right now. When we have a transfer of funds in appropriations we merely send a letter up to the chairman and the chairman calls in the ranking member of the committee and we go over the transfer of funds. Say the Department of Transportation wants to take some money out of UMTA and put it into FAA and they merely send a letter up and all we require is the OK of the chairman and the ranking committee. Maybe we could delegate this power to the appropriation subcommittee dealing with that particular budget.

Senator CHILES. Possibly GAO could screen these impoundments. Mr. CONTE. GAO and both the House and Senate and they couldn't take very much time.

Look at the time we are taking now. The President impounded funds for REAP and the Agriculture Committee is over there holding hearings in the House day after day after day and maybe weeks over one impoundment.

Senator CHILES. I just wanted to get for the committee the thrust of your bill and not necessarily the thrust that the Congress would have to make an affirmative move on every impoundment no matter how small and whether for temporary measure or deficiency.

Mr. CONTE. This could be delegated to a subcommittee of the Appropriations Committee or whomever the committee may choose.

Senator CHILES. Thank you, Congressman. We appreciate your taking the time to come over here and testify.

Mr. CONTE. Thank you, Mr. Chairman.

Senator CHILES. Our next witness will be Hon. Charles Bennett, Congressman from the State of Florida who has long been very interested in the field of impoundment and has long been a strong advocate for Congress assuming its constitutional roles.

Congressman, both of your Florida colleagues are delighted to have you here before us today.

STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE IN CONGRESS FROM THE THIRD CONGRESSIONAL DISTRICT OF THE STATE OF FLORIDA

Mr. BENNETT. It was very kind for you to allow me to be here. I come with deep feelings that something should be done in this field. As you may remember I testified before this committee on this subject in March 1971, long before impoundment of funds became an

important national issue it is today. This is an important subject because it is timely and goes to the roots of our form of government; and I congratulate the Chairman and the committee for considering

it.

A learned lawyer, applying for admission to the New York bar in December 1963 wrote:

The principles underlying the government of the United States are decentralization of power, separation of power and maintaining a balance between freedom and order.

Above all else, the framers of the Constitution were fearful of the concentration of power in either individuals or government. The genius of their solution in this respect is that they were able to maintain a very definite but delicate balance between the federal government and state government, on the one hand, and between the executive, legislative, and judicial branches of the federal government, on the other hand.

This same learned lawyer, our present President, who incidentally, was admitted to the Bar of the State of New York and was later elected President of the United States in the 1968 elections and reelected in 1972, recently completely abrogated his thesis in the 1963 paper with an edict not unlike a Catherine de Medici decision of the 16th century. He destroyed the "delicate balance between the Federal Government and the State government" by cavalierly breaking a contract between the U.S. Government and the State of Florida, and he also dictatorially repealed an authorized law of Congress by "permanently" halting the Cross-Florida Barge Canal. He did not even give notice to the public or to Congress that he was going to do it, much less allow any objective presentation of views on the subject both legal or factual. The 18th century French writer Montesquieu wrote in "The Spirit of the Laws on the Constitution of England":

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Later, Justice Brandeis said:

Doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.

In the recent case of the Cross-Florida Barge Canal, the President both promoted inefficiency in government by stopping a vital and worthwhile national project, one-third complete, and creating great uncertainty and loss of taxpayers' funds and predictable damage to the environment, but he also acted in an unconstitutional and arbitrary

manner.

My testimony here deals with the President's edict to terminate the Cross-Florida Barge Canal and shows that he was misled on the law backing his decision, just as he was misled by his environmental advisers, to the detriment of the 7 million citizens of Florida and the 23 million annual visitors to our State and the economy and national security of America.

The canal case is a current classic in the "impoundment of funds" field and perhaps the worst example of Presidential disregard of the U.S. Constitution in history.

The responsibility of the President of the United States is as stated in section 3 of article 2 of the Constitution to "take care that

the laws be faithfully executed." He has the power of veto in the process of enactment or repeal of law-section 7 of article 1-but after a bill is signed into law and appropriations are made he cannot repeal the law himself without congressional repealing; and the President must execute or carry out the duly enacted law. He can, of course, recommend that the law be repealed. No principle of American constitutional Government is more fundamental than this to our heritage or more clearly stated in our Constitution.

The keystone of our Government is its division into the three separate branches: Legislative, executive, and judicial. One of our Founding Fathers, President James Madison, expressed it well in the Federalist Papers-No. 47-when he wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. So in defining the power of the new President, our forefathers wrote into our Constitution: "He shall take care that the laws be faithfully executed."

The Cross-Florida Barge Canal was specifically authorized in 1942 by Public Law 77-675. Although its value to the defense needs of our country were recognized in its authorization, the shortage of manpower for its construction during World War II postponed the appropriations needed for its commencement. But the appropriations have been made continuously ever since 1964 and now totals $60 million; and the project is now more than a third complete. This is not all the money being spent because about $12 million or thereabouts has been spent by the State of Florida as well.

In 1970 in the House report on the appropriations bill the following statement was made:

The committee has included in the bill the $6,000,000 including carryover funds, proposed in the budget to continue construction of the project *** the committee does not feel that it would be warranted, in the light of the current facts available, in delaying construction of the project which was started in 1964 and is now about 30 percent complete ***. Considering, therefore, the status of the construction and the need for the project, the committee recommends that the construction work continue and that every effort continue to be made to minimize any adverse effects on the environment, ecology, and fish and wildlife in the area.

It is not proposed to discuss here the merits of the canal; but only the legality of a Presidential edict to terminate the project. The merits which amply justify the project, will be discussed in another presentation. However, the facts are that about $50 million have been spent on this canal (1) which the Joint Chiefs of Staff supported to provide "an additional and shorter line of communication between the gulf coast and the east coast" that would "reduce exposure of shipping to submarine attack" and (2) which several independent studies found to be justified for economic and job producing reasons, and (3) which many geologists and ecologists, and all congressional public hearings, open to all points of view, gave a clean bill of health to on ecological grounds.

On January 19, 1971, the President issued a press release in which he said, "I am today ordering a halt to further construction of the Cross-Florida Barge Canal," which has been construed to be a termination by employees of the Civil Service Commission.