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Little wonder that the small voice of the people—unorganized, inarticulate, docile, and yes, complacent—has been drowned by the thunder of politically powerful pressure groups.
Too many of us have not had the intestinal fortitude to say “No” to these pressures. As a matter of fact, quite candidly, too many of us over the years have virtually outdone ourselves in currying the favor of organized pressure groups that advocate more and more spending as the solution for more and more problems, this being the way to get more and more votes.
The results: More and more deficits, more and more debt, and more and more interest on the debt; and, at last, a superpolitically sensitive President who correctly interprets the mood of the American taxpayer who, in turn, is fed up with it all and has had enough,
So the brakes have been applied; the impoundment of funds is resorted to as a bald instrument of economic policy; worthwhile programs are victimized along with those that are unworthwhile and which we ourselves have shown neither the wisdom nor the guts to terminate, and we suddenly have a serious constitutional question on our collective hands.
But neither the fact that the Congress has been derelict in its past responsibility, nor the fact that this administration in the short period of 5 years will have accumulated a Federal funds deficit by June 30, 1974, of $134 billion-in other words, $134 for every minute since Jesus Christ was born, and also 26 percent of the then total national debt of $505 billion, going back well over 100 years—none of this relieves the Congress of its responsibility to squarely confront the constitutional issue that has now been joined.
Does the President have the authority to impound funds? Article I, section 9, clause 7 of the Constitution reads as follows:
No money shall be drawn from the Treasury but in consequence of appropriations made by law;
While it is clear, Mr. Chairman, that no funds may be expended without the authority of Congress, there is no constitutional provision explicitly requiring the President to spend funds made available by the Congress. However, it is my belief that other provisions of the Constitution, as I shall refer to them later, impliedly and logically deny the President's use of impoundments purely as an instrument of fiscal and economic policy.
But to say that the President does not constitutionally possess this authority is not to say that much of the public, perhaps à majority, even a sizable majority, does not applaud the substantive effect of at least some of his actions in reducing or eliminating unwanted, ineffective, and costly programs; I think the public approves and supports what he is doing,
The President's actions have political appeal, and I think they are what the people want, especially in the present context of growing deficits, burgeoning national debt, and continuing inflation. We have too long overstated the theme that ours is a nation of poor people, that this country is, from sea to shining sea, in abject poverty, and that money is the solution for every problem. The taxpayers have had enough of this, and I will wager that a few random telephone calls back home will suffice to convince most Members of Congress that such is the case.
But it is to say that the Congress has a duty to act forthwith to retrieve if it can and reestablish if it can its constitutional power of the purse. If Congress really is determined to do this, I think it is imperative that Congress move in the following directions:
(1) It must demonstrate a proper restraint in the consideration of future spending programs, and this restraint must guide both the legislative committees and the Appropriations Committees. In other words, the constitutional power of the purse must be exercised by Congress more responsibly, prospectively, than in the past.
(2) Congress must apply a ceiling on budget authority and both the authorizing and the Appropriations Committees must govern themselves accordingly. Incidentally, I think it is appropriate to mention here that Congress, in consideration of the appropriations bills, has, during the past 4 years, effected reductions amounting to approximately $20 billion in the budget authority requested by the President. Nonetheless, if Congress does not place a ceiling on budget authority, it will be saddled with the blame for the tax increase that will inevitably result.
The administration has suggested a ceiling on fiscal year 1974 expenditures of $269 billion, which is $19 billion over the 1973 expenditure, and has submitted a budget trimmed to that amount. Keep in mind that the administration's budget makes no mention of funds for reconstruction in Indochina even though the administration has already made a commitment for such, meaning only that such funds, when they are requested, will come out of the hide, so to speak, of other budgeted programs-or out of a tax increase which will be blamed on us, on Congress, if it goes over the $269 billion ceiling. Overstepping the ceiling will also subject Congress to blame for the inflation which, in my judgment, will soon again show signs of an upward trend as the direct aftermath of premature scuttling of most of the phase II price and wage controls.
In any event, any ceiling on budget authority should be a congressionally imposed ceiling, not a Presidential ceiling, if we are to restore and preserve congressional power of the purse.
(3) Congress must find some way, perhaps through a permanent joint committee, to exercise a continuous overview of revenues and expenditures, to relate anticipated revenues with budget authority, and to provide guidance to the two Houses in establishing priorities and ceilings in a meaningful, effective, and responsible way.
I think there has been too much poor-mouthing of the Congress, with respect to the tools which it already has at hand. It merely needs to determine the direction in which-and show the will—to use them. It is not a helpless giant, and it is not necessary that we fill the corridors with millions of dollars worth of computers which will stand idle 360 days out of the year, nor is it necessary that Congress arm itself, man for man, in an effort to match the Army and the executive branch. The executive branch administers the laws; the Congress enacts them. But Congress does have available to it 5,000 employees of the General Accounting Office, many of whom can readily be made available to the Appropriations Committees upon request.
I think it is necesary for us to explore such a joint committee approach as I have suggested or some other permanent approach which
will afford us a better utilization than we have heretofore demonstrated, of the congressional tools which we have at hand.
(4) Congress must try to devise workable, feasible legislation, which will be sustainable in the courts if they dare enter into this political thicket and which will protect its constitutional authority to determine how the people's moneys will be spent, how much will be spent, and for what purposes. To devise such legislation and to enact it into law will not, and I repeat, will not be an easy task, as we shall all eventually surely see. But try we must, and I congratulate the chairman of the Separation of Powers Subcommittee on the effort that is being made here.
No Senator is so preeminently qualified as he for such a difficult, such a challenging and important task. He has my support and the support of all Senators in both parties who view this matter, not as a partisan matter, except perhaps incidentally, but rather as a grave and far-reaching challenge to the rightful position of Congress in a constitutional system of separation of powers.
The separation of powers concept in the Constitution traces its development from Plato and finds its fullest development prior to the American Constitution in Montesquieu's “The Spirit of the Laws.” There he states:
To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpose the other.
For the American Federalists, the system of checks and balances written into the Constitution so contrived "the interior structure of the Government that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." This they considered the prime advantage to be gained from Montesquieu's principle of the separation of powers. The principle itself they held to be “the sacred maxim of free government."
It is in this light that we must look at the delineated powers as they became expressed in the Constitution. There all legislative power is rested in the Congress (art. I, sec. 1) including the power to appropriate money (art. I, sec. 9). The President, on the other hand, is given no role in legislation except the power to recommend “such measures as he should judge necessary and expendient” (art. II, sec. 3) and the power to veto measures passed by the Congress (art. I, sec. 7).
He also has the responsibility to "take care that the laws be faithfully executed.” (Art. II, sec. 3.) Certainly the founders did not intend the President any discretion when they imposed that duty upon him. On the contrary, it was intended that he faithfully execute all laws passed by the Congress. An appropriation bill enacted into law is a law, as much as is any other. The President has no authority to decide which laws will be executed or to what extent they will be enforced except through his veto power.
It is also evident that the founders intended to limit the veto power, giving the President a limited veto, subject to being overridden by the Congress.
Despite the clear intent of the framers to limit the President's power to legislate, and especially to not allow him the power of an absolute veto, by impoundment the President is, in effect, able to veto
measures absolutely after they have passed the Congress and been signed by him. Such a procedure grants to the President not only an absolute veto, immune from being overridden, but also a line, or item veto in that he may impound whatever part of an appropriation he wishes and enforce other parts of the same bill. Such a power clearly is prohibited
by the Constitution, which only empowers him to veto entire bills. Thus, by impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy through executive power. Such an illegal exercise of power of his office flies directly in the face of constitutional provisions to the contrary.
Against this historical background, it is difficult to understand how the Congress has allowed the present practice of impoundment to go unchallenged. But it has come into being because, as I have already stated, we in the legislative branch have allowed the executive branch to usurp our job.
For years, as I have said, we in the Congress have appropriated huge sums of money for various programs that aided our various constituencies with little regard for their overall effect on the tax burden on the American people and the growing inflation in our country. We believed we could have "butter and guns” and that almost any social ill could be solved by pouring unlimited amounts of money on the problem.
In the name of holding down inflation and rising taxes, Presidents impounded more and more of the funds that we had appropriated.
In 40 years, and especially within the last 10, we in the Congress have let the executive branch arrogate to itself that one power that had been so carefully nurtured by the framers as the people's one great power against the Executive—the power of establishing priorities as to how the moneys were to be spent. Congress now belatedly realizes what has passed it "in the night.” And it is this power which the Congress must attempt to regain and use wisely.
It must be the legislative branch that determines what programs are to be funded if the United States is not to become an executive form of government. To that end, the Congress has created a Joint Committee on the Budget, but much more is needed.
As I have already indicated, but it is worth repeating, the legislative committees and the Appropriations Committees must work more closely to try to hold each program's needs down to a proper part of the whole. The Congress must face the issue of priorities in our Nation and allocate our resources in relation to those priorities. If each substantive committee exercises some self-restraint on its priority legislation, all of us will benefit by the more effective and judicious use of the limited appropriations available.
In order to properly determine what our priorities should be and to be able to budget properly, the Congress must also know what items have been impounded in the past and must have a mechanism to inform itself of impoundments in the future that the Congress feels are of high priority and without congressional sanction.
Mr. Chairman, as I stated earlier, the enactment of sound, workable legislation is going to require the best in all of us. Over the weekend, I have given a great deal of thought to S. 373, reviewing its parts care
fully. I, therefore, offer what I hope will be some constructive suggestions. They are as follows:
(1) In light of the history of the administration's respect or lack of respect for the word "promptly" as used in legislation seeking impoundment information, I wonder if the subcommittee ought not consider inserting the words "within ten days” in lieu of the word "promptly) on page 3, line 9, in section (d) of the bill, where the President is required to notify the Congress if revisions are made regarding information transmitted under section (a).
(2) I would recommend that, beginning on page 1, line 3, the words "funds appropriated or otherwise obligated for a specific purpose or project" be deleted and, in lieu thereof, the committee insert, after the word “any", the words “budget authority made available.” The reason for this recommendation is that the bill, as drafted, speaks of "funds appropriated or otherwise obligated."
In my judgment, funds that have been "otherwise obligated” cannot be impounded. Moreover, the words “funds appropriated or otherwise
obligated for a specified purpose or project” would not include contract to authority or authority to spend debt receipts. Included in authority to
spend debt receipts, for example, is the REA loan authority, and included in contract authority, for example, would be water pollution control. The bill as written leaves a large loophole in this respect.
The Congress needs to be informed regarding impoundments of any and all budget authority, whether the funds are appropriated, whether it is a contract authority (for example, the highway program and water pollution control program) or otherwise—not just “funds appropriated."
There would also appear to be no sound reason for the words "for a specific purpose or project,” because such words appear to place a limitation on the information which is to be submitted to the Congress. It would be better for the Congress to be informed on any and all budget authority, whether it is for a specific purpose or project, or otherwise (for example, loan authorizations, appropriations, contract authority, et cetera, as I mentioned).
It should be noted that the fiscal year 1974 budget provides budget authority in excess of $10 billion on contract authority and in excess of $1.8 billion in authority to spend debt receipts. Certainly, if any of these items are impounded, the Congress should be informed. It may involve funds appropriated 1 year, 2 years, 4 years, 5 years from
Senator Ervin. If I can interrupt at this point without inconvenjencing you, we have received a report from the Office of Management and Budget giving us what they call the funds impounded on the appropriations. I have not had time to read the entire thing and analyze it, but I am informed it totally leaves out the $6 billion of funds authorized to be contracted by the Environmental Protection Agency, which required more appropriation.
It is very significant that that was omitted, not withstanding the Virginia statute, the only statute really that the Oflice of Management and Budget invokes to justify the refusal to spend funds, and says that “as used hereafter in this section,” the term "appropria