Hearings, Reports and Prints of the Senate Committee on Government Operations

(3) the delaying, deferring or refusing to permit a potential grantee to obligate funds (whether by establishing contract controls, reserves or otherwise);

(4) the cancellation or termination of any authorized projects or activities for which funds have been appropriated; and

(5) any other action by the Executive which effectively precludes or delays the obligation or expenditure of authorized or appropriated funds. (B) Nothing contained herein shall require any person to approve the expenditure or obligation of funds not otherwise permitted by law.

Section 2

Neither the President, the Director of the Office of Management and Budget, nor any other official in the Executive Branch shall impound, order the impounding, or permit the impounding of funds. Nothing contained herein shall be considered by any person or court to constitute a ratification or approval of any previous impounding of funds.

Section 3

(A) If the President, the Director of the Office of Management and Budget, or any Cabinet officer or other agency head desires to impound any funds, he shall transmit to the Senate and the House of Representatives a request for legislation by means of a special message containing

(1) the amounts of the funds to be impounded;

(2) the account, department or establishment in the Government from which the funds are to be taken;

(3) the program(s) affected by the proposed impounding and, if more than one program is affected, the extent of impounding on each;

(4) the duration of the proposed impounding;

(5) the reasons for the impounding; and

(6) to the maximum extent feasible, the estimated fiscal, economic, and budgetary effects of the impounding.

(B) A copy of the request shall also be transmitted to the Federal Register and shall be reproduced there at the earliest possible date.

AMENDMENT TO THE ANTI-DEFICIENCY ACT

Section 3679 of the Revised Statutes, as amended, is hereby further amended by adding thereto the following:

(j) Except as specifically provided for by particular appropriations or authorizations acts, nothing in this section shall be construed to authorize any officer or employee of the United States, for reasons other than those contained in subsection (c) (2) of this section, to expend, obligate, or otherwise commit within a fiscal year less than the full sums authorized or appropriated by the Congress for that fiscal year. The phrase 'whenever savings are made possible' in subsection (c) (2) hereof shall be strictly construed to include only those instances in which the programs, projects, or other purposes for which the appropriation, or authorization was made may be fully achieved or carried out without the expenditure or obligation of the full sums authorized or appropriated. The phrase 'other developments subsequent to the date on which such appropriation was made available' in subsection (c) (2) hereof shall not be construed to authorize the impounding, withholding, reserving, deferring, or freezing of funds or obligational authority for reasons related to the control of inflation or the reduction of overall federal spending, or for any other reason not specifically authorized by other provisions of subsection (c) (2), as amended, by the laws providing for the particular expenditure or obligation.

1 The Anti-Deficiency Act, 31 U.S.C. § 655, as amended.

STANDING STATUTE

Sec. 1. Any member of Congress may bring an action to enforce the provisions of [S. 373] or otherwise to prevent the impounding of funds as defined in Section 2 thereof in the United States District Court for the District of Columbia without regard to the amount in controversy.

Sec. 2. In any action brought by a member of Congress to enforce the provisions of [S. 373] or in any other action brought by any person to prevent the impounding of funds as defined in Section 2 of [S. 373], the defendant(s) shall have twenty days within which to answer or move against the complaint and an extension of time may be granted only for extraordinary reasons. Any such action shall be entitled to a priority in any court of the United States over all cases other than emergency matters. This priority shall also apply to all such actions commenced prior to the effective date of this Act.

Sec. 3. In any action involving the enforcement of [S. 373] or the impounding of funds as defined therein, any member of Congress shall have the right to file a brief amicus curiae in the United States Supreme Court or in a court of appeals at any time prior to oral argument. In a district court any member shall have the right to file an amicus curiae brief unless the court determines that the filing thereof will unduly delay the action.

Sec. 4. Nothing contained herein shall be construed as implying the absence of the standing of a member of Congress to bring any action in any court of the United States whether in his capacity as a member of Congress or as a citizen.

Senator CHILES. You have included a statute, a proposed statute for the Congress to pass. Would you just outline very briefly the changes your statute would make?

Mr. NADER. Yes.

Here are the changes very briefly:

One, that no impoundment may be effectuated even on a temporary basis without the approval of Congress;

Two, that the congressional approval or disapproval of any impoundment be handled in the same manner as a request for a supplemental appropriation:

Three, that the definition of "impoundment" contained in any such legislation should be slightly broader than that contained in S. 373;

Four, that such legislation should contain provisions excluding from the definition of impoundment of Anti-Deficiency Act reserves, so long as that act is simultaneously amended to clarify its narrowness;

Five, Congress should make certain that, in enacting anti-impoundment legislation it does not appear to be tacitly approving past impoundments:

Six, legislation should be enacted granting standing to any Member of Congress to challenge in court any violation of the statute prohibiting impoundment and then, as subsidiary recommendations not in our proposed statute, Congress should modernize its budgetary procedures. establish its own Office of General Counsel, and pass legislation subjecting the Director of the Office of Management and Budget to Senate confirmation.

Senator CHILES. Would you also summarize for us how you think the proposals that you have set forth would have a better chance for being enforced by the court rather than S. 373?

Mr. NADER. Yes. Mr. Morrison will reply to that, if you will.

Mr. MORRISON. Mr. Chairman, there are two problems insofar as the courts are concerned.

No. 1 is that the definition of "impoundment" does not preclude every practice that should come within S. 373. An imagina

tive executive could find ways to circumvent it. What we have tried to do is tighten up the line as much as we possibly could.

The second problem with S. 373 is that it conflicts with the AntiDeficiency Act. Some of the language in paragraph C of that act, which speaks about effecting change and changes of circumstances have been attempted to be used to justify impoundment. We do not believe a fair reading of the statute supports this, but we believe every effort should be made to close the door so that that type of argument cannot even be raised with any chance of success.

The third problem is the 60-day period. It is really more than 60 days because the 60 days do not start to run until the message is transmitted to the Congress. S. 373 gives the President 10 days in which to transmit the message to Congress, and the 60 days runs from the receipt. Let's suppose that the Executive does not transmit it on time. within those 10 days. Does the 60 days start to run from the time when the President should have submitted it? I think probably not, but that could be clarified in the statute itself.

The second major area of problem under this is the reference to 60 days of continuous session. While the cross references are not entirely clear, I think that S. 373 as written would imply that if Congress adjourned, say in October, for a lengthy period of time until the following January, and that if the President put in his impoundment message before that time, we would have October, November, and December. We start to run the 60 days all over again or perhaps on an interrupted basis, thereby giving the President as much as 150 days

in a situation like that.

Finally, let us suppose the President sends a message in which he says he would like to impound $10 billion, $10 million, or, whatever the figure is, for the entire year and in fact he does impound at that rate for the period of 60 days. He may well have in the back of his mind that he does not wish to impound the full amount, but only the 60-day portion, and he could achieve his entire objective by asking for more than 60 days and agreeing when Congress cuts it off at the end. Furthermore, we are terribly troubled by having the President being named as the sole defendant. Just yesterday a statement was published by the President indicating he had delegated to the Office of Management and Budget the reporting requirements of Public Law 52-99, which Senator Humphrey introduced. So already the President has stepped aside from that particular responsibility and has given it to somebody else.

We believe that somebody else, be it the Director of the Office of Management and Budget or a Cabinet officer or any agency head, should also be accountable for the funds spent not under his jurisdic

tion.

For these reasons, we believe that S. 373 can be substantially improved upon, as well as that there should be no impoundment whatsoever without congressional authority, just as in the converse case of a supplementary appropriation.

Senator CHILES. Thank you.

Senator ERVIN. If this proposed legislation were enacted, would it not be in the President's own interest to comply with it?

Mr. MORRISON. I do not know if I am in a position to make that judgment. I would hope it would be in the Executive's interest to avoid a confrontation with the Congress.

Senator ERVIN. Notwithstanding the fact that the President, in the past, has done things of which Congress has expressed disapproval, I am not willing to accept the theory that the President of the United States is not going to keep his oath to see that the office is faithfully executed.

I think we will have to proceed on that theory, or otherwise we will have to require that failure to abide by the statute is a criminal violation, and then I suppose he could pardon himself under the Constitution; I do not know.

The President ordinarily impounds funds, I would think, because he thinks Congress acted unwisely in appropriating those funds. I would assume that if he feels Congress is acting unwisely that he would veto the measure. However, this law has gone back as far as Thomas Jefferson's day, and gives the President the chance to persuade Congress that the Congress acted unwisely. It gives the President a chance to point out to Congress that Congress ought to repent of this action and ratify his impoundment of funds.

So it seems to me that it gives the President an opportunity to persuade Congress that it acted unwisely.

Mr. MORRISON. Senator Ervin, with respect to the bill, that may apply to any other law which the President may think unwise; our position is we do not see why the impoundment should be treated any differently where the President has to come back to the Congress. Senator ERVIN. Now, with reference to the 60-day period, it does say the Congress shall act within 60 days. The Congress should act within 24 hours. As for the suggestion that would be better to go to the courts, instead of to enforce the law, it seems to me justice all too often travels on leaden feet and it would be more than 60 days before you get a legal decision.

Mr. NADER. Of course that law makes the standards of accountability very explicit. We can go back to historical precedents to indicate that Presidents have not withheld their desire to inore the will of Congress in repeated cases. The highway case in Missouri is an example. Another example is a law which imposed on the Department of Transportation the duty to complete certain standards in automobile and tire safety in 1968, and these standards are still not out 4 years later. There are a great many illustrations where, unless the burden is put much more heavily on the executive branch, the process will be thwarted. I think that a bill which has a 60-day provision in effect endorses, temporarily to be sure, but endorses the proposals to impound funds. I do not see why that should be an endorsement any more than you should pass a law which endorses the expenditure of funds which are not appropriated; that is, supplemental appropria

tions.

Senator ERVIN. The 60-day period is to give Congress an opportunity to act. It is to the advantage of the Congress.

Mr. NADER. Maybe to clarify our respective positions--why is this any different than a request for supplemental appropriations? That is when the President wants to spend more money, he must go through

appropriations to get that money. Why should he not go through these committees when he wants to spend less money?

Senator ERVIN. I cannot see any way by which the President could be forced to make a request of Congress-that is the problem with a supplemental appropriation or the supplemental elimination of a previous appropriation

Mr. JACKS. I am not so confident of that, Senator, because if in fact the power to appropriate funds and the power of the pursestrings is the congressional prerogative, then what Congress is doing here is delegating to the President when it lets him spend less than was appropriated. It is delegating to him some of that power.

I think in this situation the Congress does have the power to make the President come back for a request if he wants to spend more than appropriated.

Senator ERVIN. What can the Congress do with a President who refuses to make a request that the Congress will use this appropriation? Will they put him in jail or what?

Senator JAVITS. Will the Senator yield?

Senator ERVIN. Yes.

Senator JAVITS. I made the suggestion so I would like to respond, if I may.

The President wishes to impound. Their statute and the Senator from North Carolina's statute would prevent him from impounding. He wants authority to hold on to the money. So I do not have to make him make a request. He is coming to us saying that he wants to do something the law prevents him from doing and they are suggestingand I raise the point-that he could do it by acting for reduction through supplemental appropriation. I do not have to make him make the request because he wants to do something the law prevents him from doing.

Senator ERVIN. That is exactly the reason I think the bill will work, it in effect tells the President he has to spend the funds unless he can persuade Congress to approve his impoundment.

Senator JAVITS. I do not want to interfere with the SenatorSenator ERVIN. I have never seen a bill yet that could not be improved, and also I think there is a great deal of controversy.

I agree that you can find some lawyers that can construe any statute any way, and with the multitude of courts we have you can find a decision to support almost any position. An old lawyer out in St. Louis made a talk to the law school and said never prepare your case for trial because, if you do, you may lose confidence in it, and you can rest assured if you have to appeal, there can be found precedents which will sustain any issue.

There is some controversy on certain points, and I think you have made some very valuable suggestions here. This bill is not a complete solution to this problem, as you point out.

Congress has to do something about exercising some responsibility to bring its appropriations into line with the available resources to meet those appropriations. It has done virtually nothing to that effect, but the advantage of this bill is that it gives Congress the only way in which it can express its collective judgment that the President ought

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