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IMPOUNDMENT OF APPROPRIATED FUNDS BY THE

PRESIDENT

WEDNESDAY, FEBRUARY 7, 1973

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,

COMMITTEE ON THE JUDICIARY, AND THE
Ad Hoc SUBCOMMITTEE ON IMPOUNDMENT OF FUNDS,
COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 3302, Dirksen Senate Office Building, Senator Lawton Chiles presiding

Present: Senators Chiles, Ervin, Metcalf, Muskie, Percy, and Javits.

Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief counsel and staff director; Prof. Arthur S. Miller, staff consultant; and George Patten, legislative assistant to Senator Chiles, chairman of the Ad Hoc Subcommittee on Impoundment of Funds.

Senator CHILEs. We will convene the hearing.
Senator Ervin.

Senator ERVIN. Mr. Chairman, the first witness that I understand we will have today is my long-time friend, Brooks Hays.

In my book Brooks Hays is one of the finest Americans I have ever known. I had the privilege of becoming well-acquainted with him during the brief time I served in the House of Representatives in 1946. I have had many contacts with him and have watched his career ever since then. He has been a great public servant. He is a man who has engaged in many civic activities and, among other things, he has the distinction—I do not think I know of any other person who ever served in Congress who has held the honor-of being elected president of the Southern Baptist Convention, and that office is the nearest thing to the papacy that the Baptists have. So I used to refer to him in those days as the Baptist “Pope.”

It is a great pleasure to have the Baptist “Pope,” or ex-Baptist "Pope," to appear before the committee today.

Senator Chiles. Mr. Hays, we are delighted to have you before the committee.

STATEMENT OF BROOKS HAYS, CONSULTANT, WAKE FOREST

UNIVERSITY

Mr. Hays. Thank you, Senator and Mr. Chairman. You embarrass me, particularly as to my Baptist papacy. I am reminded as to what one of my fellow Congressmen said when he had an audience, along with some other colleagues of mine, with Pope Pius XII. When he

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came out of the Vatican, the newsmen gathered around and asked this Congressman, “What is your impression of the Pope?"

The Congressman said, “Well, he seems to be a very religious man." I do not come as a religious person, though I certainly was proud of the Baptist office. But I am proud of the Presbyterians, too, if you will allow me to say it without patronizing.

When I tried to brag on the form of government one time as a student

Senator Ervin. You just remember you are predestined to do that.

Mr. Hays. That sort of strained my Baptist theology. He said, “Dad. you do not do it very well when you brag on my church.” He said, "You sound like the owner of a Ford speaking to the owner of a Cadillac.” He said, "You have a good car, too."

But what I would like to say, it seems to me, and I do exercise my thinking along this line.

You know, Thomas Jefferson believed, as few men did in his time, in complete separation of church and state, and yet I think it is a valid observation that in some of the feelings of those days, there is some trace of Presbyterian in his philosophy, and since he was not a Presbyterian, it excited some research student to find a reason for it. He found that, in fact, that Jefferson sat at the feet of George Wythe at William and Mary College, and he came up with a beautiful statement about it, which I have an idea you can anticipate, since you have an idea of what that anticipation means.

He meant that since Jefferson was not a man whom the Lord did not predestine by birth and ancestors, he did so by Presbyterian instructors. There is some relevance then, in the very appropriate reference you have made in a man's interest in state relations, and on constitutional doctrines in this manner.

There is certainly no difference between Presbyterians and Baptists.

Mr. Chairman, if you do not mind, I am going to read this. I am not as modest as Senator Barkley, and being your constituent I can get by with almost anything, but remember Senator Barkley? He wanted the speeches read, and the next morning he wanted the impression of the public. Once he asked me, "How did I do in this little town?”

I said, "Well, I have three things to say about it:

"First, you read it; second, you do not read very well; third, what you read was not worth reading."

Mr. Chairman, what I have to say I really believe is worth reading, so if you will bear with me-I know you are pressed for time, but I have given some thought to this.

As one who has served in all three departments of the Governmentcxecutive, legislative, and judicial—I am tremendously interested in the broad sweep of the timely studies this subcommittee is making. I believe these hearings will be highly significant in the continuing and unfinished effort to improve the mechanisms of the Federal system.

Since 16 years of my public service were in the Congress, I confess, to a certain bias in favor of the legislative branch. However, my 7 vears in the Department of Agriculture prior to my election to the Ilouse of Representatives, my 2 years as a director of the Tennessee Valley Authority, almost 1 year as Assistant Secretary of State, and 2 years as special assistant to the President of the United States, give

me a sympathetic understanding of the administrative problems of Government.

My understanding of the necessary interrelationships between the branches of government was sharpened during my service on the Presidential Commission on Intergovernmental Relations during the Eisenhower administration, and my association with the judiciary occurred when I was a young attorney serving as referee for a probate court.

My years as a White House staff member taught me certain lessons about administration of the executive branch, and I am reminded of something that Jesse Unruh, California's long-time Speaker of the House, said to me during a conference in which I sided with the Executive. Jesse commented, “Brooks, you have been out of Congress too long." But I have not been out of Congress long enough to blind me to the grave dangers of further erosion in the legislative branch's authority under the Constitution.

I strongly favor the underlying principles of Senator Ervin's bill which is cosponsored by a majority of his colleagues. Congress should act at once to set up these or comparable procedures to prevent distortions growing out of the assertion of power by the executive department which the Constitution never intended that it have.

There had been infractions, of course, prior to the recent actions of this administration which have focused public attention upon the problem. Actions by the Executive to which I believe Senator Ervin and other members correctly object are not inspired by an alien, and sinister, or new influence in the Government. But just as a snowball becomes larger the longer it rolls, so the invasions of legislative authority become more menacing with neglect. Something must be done about it. I hope that the White House will cooperate with the Legislature in seeking a solution.

This and other administrations have tended to forget an elementary principle of Government; namely, that the White House function in the giant operations of the National Government is to coordinate, counsel with, and sometimes command but not continually to regiment. The departments must not be regarded a feifdom by the White House staff, some of whom are always novices.

Back in 1947 there was an abortive movement toward a democratically-constructed congressional budget. It is regrettable that the plan was effectively abandoned, due largely to the reluctance of so many congressional leaders, both Senators and Representatives, to do away with familiar practices. Such a movement should redevelop today, for more than 20 years ago there was overwhelming evidence that the present fragmented committee handling of the budget often leads to ridiculous results.

As Harold D. Smith, former Director of the Budget, once observed in an address before the American Political Science Association on December 28, 1939:

The wall of formality which the separation of powers theory has erected between the Executive and the Congress needs adjustment where it separates the budgeting and appropriating process. This process must in its very nature be a joint enterprise of the Executive and the Congress.

The activities of the legislative—when I speak of the legislative, I am speaking of the jurisdiction of the substantive Legislative--and

Appropriation Committees must be better coordinated if we are to develop improved substantive decisions. Likewise, there should be better coordination of action by the separate Senate and House committees

As I walked out of the House Office Building one day with the late Representative Preston of Georgia, we met à delegation from the Pentagon, a dozen generals and admirals on their way to the Armed Services Committee. They were accompanied by aides who carried books and documents. "Here," said my colleague,"Is something symbolic of a significant aspect of the American Government, the preeminence of the civilian authority and the importance of the legislative process. We must not permit it to be lost."

“You see," he added, "they are coming to us; they must ask us for the power they wield.”

But there are no built-in guarantees, Mr. Chairman, that this relation will continue. Without intelligent handling of the processes of Government, the system can become weakened.

It is unfortunate, Mr. Chairman, that the Congress is often illequipped to maintain its authority, chiefly because Congress does not vote its committees the funds that are essential to build a professional service with adequate facilities and skills that can match that of the executive department. Congress should amend the Reorganization Acts and thereby help to bring the Legislature into a more viable relationship with the Executive.

We might profit by having a symbolic meeting place. Presently, the Executive comes to Congress to propose or inform and, on the occasion of delivering a veto message, to scold.

The White House may or may not be getting its way. The Congress may or may not be getting its way. The mile from the Capitol to the White House often looks like a very long mile. Maybe Charles L'Enfant should have included a halfway house between the two where differences might be resolved without the agonies of a power struggle which sometimes leaves one side with a gloating victory and the other an unnecessary loss of prestige.

Mr. Chairman, I am speaking impersonally and in a nonpartisan spirit. Perhaps President Nixon feels that there is a vacuum into which functionaries under his command should move. I would insist, however, that Congress should take notice of the Executive's occasional unwarranted assertion of power and, at the same time, become less tolerant of its own procedural errors.

In other words, the procedural distortions at the other end of Pennsylvania Avenue must be met by procedural clarifications at this end of the avenue. Only Congress can meet this situation, and it will require a boldness equal to that with which past and present Executives have invaded the authority of Congress.

On the question of impoundment. I want to acknowledge the admirable desire of Presidents to avoid waste. There seems to be validity to claims that this has been the purpose of some impoundment actions. But if Mr. Ehrlichman's comments on various television shows are to be accepted at face value, there have been less acceptable motivations behind recent impoundment actions.

The Executive has substituted its judgment about priorities and disbursements for that of the Congress. Vr. Ehrlichman defended

impoundment by comparing the position of the Executive to a customer in a grocery store who was given too much money to spend and too brief a period in which to spend it. He argued that it was not possible to spend the money intelligently, so there was no longer any duty to spend it.

The analogy is weak. An appropriation is not a mandate to spend every cent by a given date on articles chosen by the executive branch. The mandate is to purchase specific things or services at the best price and this legislative direction, in the form of an appropriation statute, is beyond the arbitrary power of the Executive to change. He is expected only to exercise the standards of good stewardship.

It seems to me that this is basic in the constitutional pattern. Howerer, I recognize that unless the finest craftsmanship is practiced, we will bog down in legalisms at the expense of economy.

If I may make one suggestion regarding the language of S. 373, Mr. Chairinan, I would like to point out that, as drawn, the bill only permits the Congress to vote the impoundment "up or down.” There is no provision for partial approval.

It would be wise, I believe, to recognize that there might be appealing reasons for allowing executive impoundment of some portion of an amount.

I believe the Congress should focus on two courses of action: (1) A clear legislative delineation of the limited Executive powers with reference to impoundment; and (2) Improved communications between the Executive and the Congress so that the wisest and best course can be laid out, and the public interest be conserved, without resort to a power struggle.

The second is as important as the first.

If the frailties of human nature produce dubious determinations by the Executive and intransigent responses by the legislative branch, we can also assure that the latent concern for the public conscience can be so stimulated that technical considerations of power will give way to mutually acceptable courses of actions and the tensions be avoided.

One illustration comes to mind. In 1959, the two Houses of Congress sent to the President an historic piece of legislation designed to relieve the TVA of annual bickerings over financing, and to fix precisely the geographical boundaries for that agency.

I was one of the three directors, the others being Brig. Gen. H. D. Vogel and Mr. Arnold Jones. President Eisenhower asked us to meet him in the White IIouse to discuss a phase of the legislation which raised strong reservations in his mind regarding his approval of the bill. His objection was based on the possibility of an impairment of executive power which, as President, he was determined to prevent.

"I will not permit the authority of the Presidency in this vital area to be eroded. Unless my fears are dispelled, I will have to veto this bill."

Those fears were not fully removed after a long discussion, and the Board members decided to contact the leadership of Senate and Hlouse, both Republican and Democratic, and if they would agree to put through a clarifying bill to allay Presidential fears, the landmark measure would be signed immediately by President Eisenhower. This was agreed upon.

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