munities had lost their ability to plan the financing of needed water treatment facilities. Conscious of a backlog of State projects eligible for Federal assistance and based on an administration determination of need we specifically directed the Environmental Protection Administration to allot $11 billion in this fiscal year and the next, and I repeat, we didn't authorize, we specifically directed the allotment of these funds.

Explaining the new provisions to the Senate before it overrode the veto, I said that we were willing "to give the administration some flexibility concerning the obligation of construction grant funds" under the program. But that flexibility was meant only to avoid waste. It never extended to the 3-year authorization of $18 billion, and it is the authorization which the administration, by limiting allotments, has effectively attempted to reduce and emasculate.

May I repeat that, the President undertook to use his constitutional power of the veto to disagree with the Congress and perhaps to undercut the bill. The Congress overrode the veto and now the President has undertaken to reduce the authorization bill by refusing to execute a direction of the Congress and the effect is to rewrite the authorization bill in a way that cannot be recaptured by the Executive or by the Congress except by reenactment of the legislation which has already been reenacted over the President's veto.

The audacity of the act almost takes one's breath away. And it should force the Congress to consider honestly what a President capable of such abuse of power might not do next.

For example, Mr. Chairman, in 1970, the Congress enacted a major solid waste disposal program. The President has chosen to ignore that law to the extent of refusing to implement many of its key provisions. This year the President has requested less than 3 percent of the funds authorized for this program even though he knows that the Congress is considering a major, substantive expansion of involvement of the Federal Government in this critcial area of environmental need.

If the Congress enacts this legislation, can the President impose his views by refusing to fund the activities authorized? Can he, if he vetoes such legislation, and if the Congress overrides his veto, refuse to implement this new law by "declining to execute it" in the words of Mr. Rehnquist.

There is no apparent limit to the extent to which the policy which the President is pursuing permits abrogation of legislative and even judicial power to the Executive. An Executive who can refuse to fund--who can refuse to allot-can refuse to implement the law, and how are we to guess what rationale he will choose to justify his action. And, Mr. Chairman, so begins the loss of liberty. In 1934, President Hoover said:

The weakening of the legislative arm [leads] to encroachment by the Executive upon the legislative and judicial function and inevitably that encroachment is upon individual liberty. If we examine the fate of wrecked republics over the world we shall find first a weakening of the legislative arm.

The President has, after all, held up funds from the airport and airways trust fund. He has frozen obligations from the highway trust fund. What, we should ask, is to prevent him from impounding the money in the social security trust fund and delaying for a week ***

for a month *** for half a year the disbursement of payments to America's elderly men and women?

I hope the courts will prevent him. At my suggestion the chairman of the Senate Public Works Committee is investigating the possibility of retaining outside counsel to bring a separate suit over the reduction of water pollution control allocations, a suit that would squarely raise the constitutional issue involved in this attack on congressional authority.

I also hope the Congress will prevent him. If necessary, we should be ready to write into our authorization and appropriation measures such clear directives for this execution that administration officials can only disobey at the risk of a head-on constitutional collision. This was the course the Congress steered away from in 1962 in the dispute with President Kennedy over his refusal to spend funds authorized for the B-70 bomber. It is a last resort to adopt against an arrogant Executive, but it is a weapon we should not fear to use in necessity.

Finally, Mr. Chairman, I believe the Congress can put itself in a far stronger position in these continuing confrontations by acquiring, as Senator Ervin suggested yesterday, its own machinery for the analysis of the budget. To that end, I will introduce today a bill that will give the Congress and the public the same information on planned expenditures now received-under seal of confidentiality-by the Office of Management and Budget. If we can see the budget requests of all executive agencies before the OMB does its final review of them, we can determine overall policy guides far better than at present.

The secrecy which surrounds the preparation of the budget has become a shield behind which special influence operates with immunity. Concealing the process only confuses the issues, encourages furtive deals, and bewilders both citizens and lawmakers. If the appropriations process is to serve its proper function as the final determination of policy and priorities, Congress must have the fullest information possible about the total budget and the options it presents.

May I say, Mr. Chairman, what I urge in this legislation is not precedent. Prior to the establishment of the Executive Office of the Budget in the early twenties the Congress made the budget and received full information from executive agencies on the options available to us. The effect of the operation of the Executive Office of the Budget has been to take from us and to deprive us of information that we had available to us as an institution prior to 1920. This is an ironic development in the light of the fact that the whole purpose of establising the Executive Office of the Budget was to better equip us to deal with the budget process and not to hamstring us.

Mr. Chairman, we have the opportunity to open up the process of government and bring both the Congress and the public into decisions which can only be enforced if they are completely understood. If we miss our chance now, we invite a further, terribly dangerous diminution in the power of Congress and a consequent increase in the unchecked power of the Executive.

The Budget Bureau itself grew from the modest and sensible desire to impose intelligent management on Government spending. That is the objective we still seek. And it might be wise, Mr. Chairman, to recall the observations made by Charles G. Dawes, later Vice

President of the United States, about the functions of the Bureau he headed in its first year when he said this:

... [W]e have nothing to do with policy. Much as we love the President, if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty as a Bureau, in an impartial, nonpolitical, and nonpartisan way to advise the Executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner.

There seems to me some irony in observing that one result of the water pollution impoundment is to impose a 3-year delay-for want of $83.7 million made available by the Congress on the expansion and improvement of the Blue Plains sewage treatment facility for the Potomac River. The result will be a continuation of the health hazard the river already poses. Had the Congress wished to deposit garbage on the White House steps, Mr. Chairman, it could not have done so more efficiently than the President has managed to do on his own in this respect.

Mr. President, I have already stated that I intend to introduce Senator CHILES. You just elevated the chairman of this select committee to a very high

Senator MUSKIE. Well, I think I have much better confidence, Mr. Chairman, in the discharge of your responsibilities of the office than I have at the moment.

I would like, Mr. Chairman, to include in the record, if I may, a copy of the statement I intend to give on the floor as well as a copy of the bill. (The bill was introduced January 31, 1973, as S. 676.) Senator CHILES. The committee will be delighted to receive those records. They will be included in the record.

(The items referred to follow :)

[From the Congressional Record, Jan. 31, 1973]

SENATOR MUSKIE'S INTRODUCTORY REMARKS ON THE PUBLIC BUDGETING
AND RULEMAKING ACT OF 1973

Mr. MUSKIE. Mr. President, over the past decade the Office of Management and Budget has greatly increased its power and influence over all Federal programs affecting domestic affairs. In the past 4 years its influence over some domestic agencies has become all powerful to the point where OMB makes decisions that not only affect agency budget and management structures but go to the very substance of agency programs.

In many cases OMB has become the de facto supervisor of programs assigned by the Congress to a particular Federal agency. It has usurped powers intended for an agency by Congress and imposed decisions on agencies with no accountability whatsoever for its actions.

We know the Secretary of Transportation and his assistants. They must come before us to explain their agency actions, and they are subject to Senate confirmation. But who knows the man at OMB, directing DOT's affairs and often telling the DOT what its polices must be.

We know the Secretary of Health, Education, and Welfare and his assistants. They testify before us, and they are subject to Senate confirmation. But who knows the officials at OMB who say congressionally authorized programs are to be terminated and regulatory activities curtailed.

We know the Administrator of the Environmental Protection Agency and his assistants. They testify before us, they are subject to Senate confirmation. But who knows the officials at OMB who have the last say in ultimate decision-making power on EPA's budget, EPA's management structure, and many of its rulemaking activities.

Mr. President, many agencies today are run by two heads. The designated agency head, assigned by Congress with responsibility to run a program, and his invisible but powerful partner at OMB who makes many of the decisions on how a program will be run.

This is not responsible policymaking. It makes for secret, unaccountable government, easily affected by special interests, with access to OMB and its directors in the White House, but impossible to fathom for Congress and the public who are trying to define and determine accountability and responsibility for vital decisions which are being made.

The legislation I propose today would end that practice. It would reaffirm the authority of the individual agencies to work in the area of expertise, to make recommendations to Congress and to implement programs as intended by Congress. At the same time it would allow OMB to continue planning overall budgetary ceilings, setting priorities among the agencies as a public rather than a private process, and generally overseeing the management of Government and making recommendations, but again through a public, not a private process. Briefly, the legislation I propose would do the following:

First. Require that each Federal agency develop its own budgetary proposals— this is currently done by each individual agency anyway; it is made a requirement to avoid any claim that agency budget data are covered by executive priviledge and that each agency submit these budgetary proposals to Congress at the same time those budgetary proposals are submitted to the Office of Management and Budget or any other Federal agency.

Second. Require that any and all documents submitted to Congress, the Office of Management and Budget, or any other Federal agency with respect to the proposed budget of a particular agency, be made available for public inspection, except where national security matters are involved.

Third. Provide that where any Federal agency publishes proposed regulations, comments of other Federal agencies, including the Office of Management and Budget, on those regulations shall be allowed only to the same extent and in the same time frame as comment by the public is allowed. Further, all comments by Federal agencies on another agency's rulemaking proposals must be in writing and available for subsequent public inspection.

The advantages of this legislation will be many :

First. It would further the objective of open government. Budgeting and rulemaking activities would be open to much greater public scrutiny and public involvement through availability of documents relating to budgeting and rulemaking activity.

Second. It would speed the rulemaking process. Delays in rulemaking which have been occasioned by OMB reviews would be substantially reduced and the deadlines intended by Congress would be more readily achieved. These delays have been particularly critical in the Clean Air Act where, for example, regulations relating to hazardous substances, originally proposed by EPA early last year have yet to be published because of the delays imposed by OMB.

Third. Government lines of authority would be clearer. It would be easier for Congress and the public to establish responsibility for changes in guidelines and regulations such as the OMB mandated changes in EPA regulations relating to State implementation plans under the Clean Air Act. Because each agency's comments would be required to be made public, and their commenting opportunities limited to the same time frame as the public, responsibility for recommended policy changes which surface in final guidelines would be simpler to assign.

It would end the current process, under which the issuing agency must often tell less than the truth, taking responsibility for all changes in guidelines or regulations, regardless of whether the changes were developed at the issuing agency or imposed upon them by another Federal agency.

Fourth. Most importantly, this bill will make Congress a more responsible partner in the budgetmaking procedure, Congress will have budgets recommended by the individual agencies-something it is denied today. With these, Congress can assume a much greater role in priority setting than is possible now when the only information available to Congress is information furnished by OMB after it has established priorities for all the Federal agencies. OMB priorities are, of course, established within the context of a maximum level of expenditures which the administration deems appropriate. Agency budgets are then presented to Congress as wholly adequate to perform all of the functions of the agencies. No one, of course, believes this but it is a position of untruth which many civil servants are forced to take in justifying their budgets.

A more truthful procedure and one which gave greater recognition to the congressional power of the purse would be for the administration to provide both the budget request of the individual agencies, indicating what those agencies believed necessary to accomplish their functions and, subsequently, the budget request of OMB indicating the administration's allocation of priority among those functions and the maximum level of expenditures the administration deems appropriate. With these documents, Congress could then more acccurately make decisions on appropriate allocation of priorities and levels of expenditures and exercise better oversight over implementation of laws it has passed. These powers are now limited because Congress does not have available to it all of the information relating to individual agency needs to perform their tasks according to the congressional mandate.

It is my belief that this legislation is necessary to meet the challenge stated to us by our distinguished majority leader that "if there is one mandate to us above all others, it is to exercise our separate and distinct constitutional role in the operation of the Federal Government. The people have not chosen to be governed by one branch of government alone."