Mr. ERVIN. Mr. President, I also ask unanimous consent that a statement prepared by the Senator from Wisconsin (Mr. NELSON) concerning the bill also be printed at this point in the RECORD.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

SENATOR NELSON'S STATEMENT UPON INTRODUCTION OF THE IMPOUNDMENT

PROCEDURES BILL

"Over the years, a dangerous concentration of power has accumulated in the Presidency. This accumulation of executive control is most readily apparent in the practice of executive impoundment of Congressionally appropriated funds. This exercise of executive power over the public purse is a direct challenge to basic constitutional principles of the separation and balance of powers between the three coordinate branches of government. In particular, the exercise of impoundment gives the President an item veto prohibited by the Constitution as an infringement of legislative prerogatives.

"There is agreement that the practice of impounding funds has been exercised by both Democratic and Republican Presidents. However, as Professor Arthur S. Miller of The George Washington University Law School pointed out in a letter to the Washington Post last October 26th, this Administration has elevated this practice to a favored mechanism of fiscal policy. Thus, Professor Miller shows that 1971 hearings before the Separation of Powers Subcommittee revealed: "'(a) more than $12 billion in appropriated funds were blocked by the White House (a sum far exceeding what any previous President has done; (b) that the Executive's spokesmen, including the present Associate Justice William Rehnquist and Caspar Weinberger (now head of OMC), could cite no express constitutional or statutory basis for it; and (c) most withholding in the pastwhich took a big jump under F.D.R.-dealt mainly with national defense appropriations (e.g. President Truman and the proposed 70-wing Air Force).'

"There is also agreement that the legislative branch of the federal government has already ceded a great deal of authority over the national pursestrings to the executive branch. In the Anti-Deficiency Acts of 1905 and 1906, the Congress gave the President authority to reserve appropriations in order to reflect savings in authorized programs and to prevent deficiencies from too rapid expenditure of funds. Then, under the pressures of national crisis-the Great Depression of the 1930's and later World War II-the principle of a difference between permissive and mandatory appropriations was asserted. In 1942, President Franklin D. Roosevelt claimed that just because Congress appropriated funds for certain governmental programs, this is only a ceiling on possible expenditures and ‘is not a mandate that such funds must be fully expended.'

"In addition to the impoundment of funds under so-called permissive appropriations, recent Presidents have been given express authority to withhold appropriated funds when certain conditions exist. Under Title VI of the Civil Rights Act of 1964, the President may refuse to expend funds in areas which practice discrimination.

"The one area in which there appears to be a clear constitutional bar to unilateral Executive action and impoundment of appropriated funds without Congressional approval is where there is a clear Congressional 'direction to spend'. The distinction between 'direction' to spend and 'authorized' to spend was articulated in the 1962 controversy over the B-70 bomber between President Kennedy and Chairman Carl Vinson of the House Armed Services Committee. The President, opposing the program, requested the latter wording.

"The lack of constitutional authority for the President to act contrary to the mandate of Congress and withhold legislatively appropriated funds whenever and wherever he pleases is equally clear. In a memorandum dated December 19, 1969, by then Assistant Attorney General William H. Rehnquist, the Deputy Counsel to President Nixon was advised that 'With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.'

"Without reason or precedent, the President tried to force Congress last October in the Debt Limit Ceiling legislation to turn over a legislative grant of fiscal powers when he requested authority to cut the budget wherever he wished without even a token notification much less consultation with Congress. What no President is authorized to do under the Constitution, he requested the Congress to trade for a promissory note of confidence. Fortunately, the Senate rose to the occasion and, in a hopeful expression of support which was non

partisan and spanned the ideological spectrum, said 'No deal! The Constitutional power over the purse given to Congress has already wandered too far down Pennsylvania Avenue.'

"It is time for Congress not only to resist further erosions of Constitutional powers, but to reassert itself in the determination of national fiscal policy and priorities and forcefully exercise what are properly Congress rights, duties and prerogatives.

"A particularly striking case is the President's recent action cutting $6 million in Federal water cleanup funds authorized by Congress over the President's veto in the Water Quality Act Amendments of 1972. These actions are environmentally unwise and economically unsound; they also go far beyond any discre tion intended by the Congress when it thoroughly considered this measure, and specifically ignores an express Congressional mandate to allocate these funds to the States. Not only is this action an affront to serious efforts throughout the nation to comply with the national clean water program, it undermines every effort of Congress to set priorities for this country.

"In order to regain an important measure of initiative in the determination of legislative policy, and to provide a more representative accounting to the public of the decision-making process which enters into such policy, I am a co-sponsor of The Impoundment Procedures Bill developed by the distinguished Senator from North Carolina, Sam Ervin. Senator Ervin's leadership in asserting a revitalized role for the legislative branch under strict constitutional principles is acknowledged not only for its prescience, but for its persistence and its excellent advocacy.

"The Impoundment Procedures Bill introduced today would require the President to transmit to the Senate and the House of Representatives a special message whenever the Executive branch has impounded funds appropriated by Congress or otherwise obligated for a specific purpose or project. Unless the specific impoundment is approved by Congress through the passage of a joint resolution to that effect within 60 days of continuous session after the special message is received, the President shall cease such impoundment under this bill. "This procedure will certainly permit the appropriate Executive actions to reserve funds where economies, and savings can be achieved and uncertainties avoided or deficiencies prevented. At the same time, the constitutional obligation for Congress to set legislative policy and be accountable to the citizens of this country for properly fulfilling that obligation will be restored.

"This latter obligation was also succinctly stated by an early and distinguished Carolinian in Congress. In a speech before the House of Representatives on January 17, 1817. Congressman John C. Calhoun of South Carolina stated:

"But what mainly distinguishes the Legislative and Executive branches, as it regards their actual responsibility to the people, is the nature of their operation. It is the duty of the former to enact laws, of the latter to execute them. Every citizen of ordinary information is capable, in a greater or lesser degree, to form an opinion of the propriety of the law, and consequently whether Congress has or has not done its duty; but of the execution of the laws, they are far less competent to judge. How can the community judge whether the President, in appointing officers to execute the laws, has in all cases been governed by fair and honest motives, or by favor or corruption? How much less competent is it to judge whether the application of the public money has been made with economy and fidelity or with waste and corruption! These are facts that can be fully investigated and brought before the public by Congress, and Congress only. Hence it is that the Constitution has made the President responsible to Congress. This, then, is the essence of our liberty: Congress is responsible to the people immediately, and the other branches of Government are responsible to it. . . .'"

Mr. ERVIN. Mr. President, I ask unanimous consent that an editorial from the New York Times dated October 27, 1972, and entitled "Power of the Purse" be printed at this point in the RECORD.

There being no objection, the editorial was ordered to be printed in the RECORD, as follows:

"POWER OF THE PURSE

"Despite the refusal of Congress to grant the President power to make whatever cuts he wanted in spending programs to hold the Federal budget under a $250-billion ceiling, Mr. Nixon's aides say that he still intends to impound funds on his own to reach the same objective.

"Congress has never conceded that Presidents have the power to ignore laws it has enacted or to reverse the priorities it has set. The Constitution gives Congress the responsibility of raising funds and determining how they shall be spent, and it charges the President with faithfully executing the laws. The President's veto powers are spelled out, and limited. When Presidents have withheld authorized expenditures, because economies could be effected or, because the outlays were no longer required (as when a war ended), usually Congress has insisted on giving its specific approval and legislative sanction to such Presidential actions.

"However, it is certainly true that Presidents and Congresses have sometimes done battle over particular Administration refusals to spend funds. That issue has not been clearly resolved because successive Administrations kept it out of the courts until 1970. In several cases, the right of Presidents to impound funds has now been challenged; in the first important test-the Missouri State Highway Commission v. Volpe-a Federal judge in Missouri ruled this year that it was illegal for the Nixon Administration to impound highway funds. The Government has appealed this verdict.

"Looking beyond the immediate controversy, we believe that it would be desirable for the President to have carefully limited authority to impound funds either to effect economies in specific programs or to achieve over-all fiscal objectives. Senator Ervin of North Carolina in the last session of Congress introduced a bill that could achieve this objective on the expenditure side in a way that would not encroach upon the constitutional powers of Congress, by giving the President authority to impound funds for a limited period pending Congressional review.

"Both the need for greater economy in Government and better fiscal planning require a greater degree of budgetary flexibility; but it is equally important that the constitutional responsibilities and authority of Congress not be undermined by undue assertions of Presidential power."

Mr. ERVIN. Mr. President, I might state that in my judgment both the Judiciary Committee and the Government Operations Committee have jurisdiction of this proposed legislation. The Subcommittee on Separation of Powers of the Senate Committee on the Judiciary conducted extensive hearings on this matter during the last session.

Mr. President, I ask unanimous consent that the bill be referred in the first instance to the Judiciary Committee, with the understanding that when the Judiciary Committee completes its action on the bill, the bill then be referred to the Committee on Government Operations. I might state that the purpose of this unanimous-consent request is to enable the two committees to jointly hold hearings on the bill.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. HUMPHREY. Mr. President, I want to commend the distinguished Senator from North Carolina for his admirable and effective leadership on this whole issue of the impoundment of funds by the President and the executive branch. No Member of this body is a more capable lawyer, a more capable student of the law, or more dedicated to the constitutional processes than is the distinguished Senator from North Carolina.

I am so grateful that he has taken the leadership here on this matter because we trust him and I think the country trusts him. He is a man of moderation and judicious temperament. I am so pleased that he is taking this bill before the two committees to get the matter completely aired and hear all of the testimony and take appropriate legislative action.

Mr. ERVIN. Mr. President, if the Senator would yield, I wish to thank him for the high compliment he has paid me. I point out that the distinguished Senator from Minnesota has been very much interested in this subject and has added amendments, which were agreed to by the Senate, to bills on this subject matter. Some of the ideas he has expressed in his amendments are incorporated in the bill.

Mr. HUMPHREY. Mr. President, I thank the Senator very much.

IMPOUNDMENT OF FUNDS

Mr. MUSKIE. Mr. President, it is with pleasure that I join my distinguished colleague, the senior Senator from North Carolina, in sponsoring legislation to reconfirm the power of Congress to supervise the financial policies of government.

The arrogance with which the administration has ignored and twisted specific congressional directives on funding Federal programs has made firm action on our part a necessity. Ours is not a political vendetta but an urgent effort to safeguard the constitutional checks and balances that are now so grossly violated. The appropriations process has been brought into disrepute by executive actions that openly defy the will of the Congress and the intent of our fundamental laws. Those laws require that an administration set forth its priorities and present specific requests for the financial means with which to carry them out. The Congress then has the duty both to consider and revise those budget priorities and to determine the funds required. Once Congress has made those decisions, it is, of course, proper for the President to dissent-by vetoing our acts and submitting his veto to the Congress for reconsideration.

But it is not just improper-it is devious in the extreme and brutally damaging to the constitutional scheme of government-to accede to a congressional order and then secretively undermine its implementation by impounding public funds the Congress has directed be spent. If the President chooses to dispute our directives-and he has every right to do so the dispute must be in the open. Hole-and-corner tactics do grave injury to the political process and sap the strength of democracy.

The bill I am proud to support as a cosponsor will, first of all, put an end to dissembling. It will require the President to explain his actions to Congress and seek approval for them. It does not prohibit a President from exercising fiscal responsibility or taking emergency economic measures a particular situation may require. But it compels the Executive to inform the Congress and the people of all such actions and to acknowledge the shared responsibility of both branches of Government for the sound administration of our resources.

The exercise of greater candor and consultation by the administration in its relations with Congress would have precluded this legislation. But the reverse policy-one of deception and defiance-necessitates our unmistakable response. I urge speedy consideration and enactment of this important bill to restore to the representatives of the American people the authority that is now being drained from them.

Senator ERVIN. I understand that Senator Burdick has a statement and I recognize him for any statement he may have at this time.

OPENING STATEMENT OF SENATOR QUENTIN N. BURDICK OF
NORTH DAKOTA

Senator BURDICK. Thank you, Mr. Chairman.

Mr. Chairman, these hearings on S. 373, regarding the impoundment by the executive branch of funds appropriated by Congress for the administration of programs specifically approved by Congress, are of grave importance to the American people. I want to thank you very sincerely for your prompt action in scheduling this hearing early in the session. I have the honor of being one of the 50 Senators who joined you, Mr. Chairman, in sponsoring this bill.

Mr. Chairman, this whole impoundment problem results from the failure of the President to follow the Constitution. Article 1, section 7, clause 2 of the Constitution of the United States defines how laws are made. It states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections to that House in which it shall have originated . . . and [they shall] proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by twothirds of that House, it shall become a law.

That means that the Congress shall initiate bills which, if they are signed by the President, become law. If the President does not agree, he may veto an act, but he has no choice as to whether he can accept a part and reject a part of a measure. Further, if he does veto a bill, he must state his reasons in writing and submit them to the Congress. Under the Constitution, if two-thirds of the Congress disagree, they may override the President's veto, and a law becomes effective.

With respect to the power and responsibility of the President, article 2, section 1 of the Constitution states, "[t]he Executive Power shall be vested in a President of the United States," and section 3 of that article states, "[h]e shall take care that the laws be faithfully executed . . ." Thus, the responsibility of the President is clear he is to oversee and execute the laws that Congress chooses to pass.

In spite of the fact that these constitutional responsibilities appear to be clearly defined, the Administration in recent weeks has impounded funds for a number of programs that have been authorized by Congress.

Because North Dakota is a farm State, where almost half of the people live on farms and in rural communities, we are most seriously affected by the impoundment of funds for the financing of programs administered by the U.S. Department of Agriculture. Therefore, I will outline briefly the impact on North Dakota of the termination and cutback of some programs due to the impoundment. These programs are: (1) Rural Electrification Administration low-interest loans to electric and telephone cooperatives serving sparsely settled areas; (2) the rural environmental assistance program (REAP), a costsharing program with farmers to encourage conservation practices; (3) the water bank program to protect migratory waterfowl; and (4) the Farmers Home Administration for low- and middle-income housing loans.

Rural electric and telephone cooperatives were established in North Dakota because our rural population is so thinly distributed that privately owned utilities did not consider it profitable to extend service there. It is only because of the low-interest direct loans made available by the Rural Electrification Administration to farmer cooperatives that North Dakota farms and small towns have been able to enjoy the labor-saving benefits of electric power and rapid communication that people in other parts of the country have taken for granted for years.

The termination of the REA 2-percent direct loan program forces all electric and telephone cooperatives, regardless of their financial situation or the density of the area served, to pay higher interest rates on borrowed capital necessary to meet the needs of consumers. The increased costs will necessarily be reflected in higher rates charged to consumers. In North Dakota, where net profit from farming operations is usually quite small because of the ever-increasing costs of production, this additional expense added to others could be enough to drive some people off farms and out of rural communities.

It is estimated that cancellation of the REA 2-percent loan programs will cost rural electric cooperatives $1,369,137 more per year for higher interest costs on the $65,197,000 in loan funds now required for the balance of the present fiscal year. Taken for the total 35-year term of