he can deploy the funds just as the forces, the President has generally acted under some edict or general law of the Congress.

Senator PERCY. Senator Metcalf, did you want to say something? Senator METCALF. I thank the Senator from Illinois.

What this does is to give the President a technique by which he can impound funds and come to the Congress and say, "Look, I need to do what you think President Johnson needed to do back in 1966, but I want to do it in accordance with the Constitution and the advice and consent of Congress in the impoundment," but this gives him a tool. Senator HUMPHREY. And it also compels him to justify why the impoundment, and therefore it is a matter of public education and public information, and the Congress shares in the responsibility on the decision as to impound or not to impound.

Senator PERCY. Senator Humphrey, it is impossible to predict what a Congress would have done, but if this law had been in effect and the President had come to the Congress at that time and said he had impounded these funds-highway trust funds, housing funds, et cetera do you think the Congress would have given him the authority at that time, taking into account the temper of Congress?

Senator HUMPHREY. I do not know. I really do not know; maybe it would not. But, you know, free people have a right to make mistakes as well as a right to make great decisions, and I just do not happen to believe Congress is made up of mentally incompetent, socially undesirable people who have no concern for the American society. Senator PERCY. Thank you very much.

Senator HUMPHREY. I happen to believe we are made up of a pretty good group of people. I have sat with the other side and people who are deeply concerned. I will not say the President and his advisers are not concerned; of course they are. They have a point of view. They have a way they think they are best serving this Government, but in this instance we have authoritative government, but I believe the appropriate policy rests in the hands of the Congress and, if it is to be tampered with, it must be with the express will of the Congress. The Congress on several occasions has taken the initiative of cutting its own budget.

For example, in 1950, after the Congress had seen what it had done. the sort of catchall, it said, "Look, we have overappropriated, Mr. President." We were getting then, as you may recall, some of the expenditure for foreign aid and military so the Congress said cut the budget half a billion dollars, but do not do it and trim the national defense. That was an express desire.

Senator PERCY. Would you also say, on the other side, that Congress has abdicated its responsibility many times and has caused President after President to take rather drastic action because of the inequity, say, of a highway trust fund loaded with billions of unused funds while mass transit is starving. The efforts of the Congress to change that law come right up against the highway lobby, which is very, very difficult to budge and move?

Senator HUMPHREY. I am on your side, as you know.
Senator PERCY. I just wanted to hear you say it again.

Senator HUMPHREY. But let me tell you this: I do not believe we ought to be saved from our folly by a strong-willed President. I think the problem has to be faced here in the Congress.

The issue of trust funds themselves, of what we call designated or delegated funds, is one that many people argue about, but we have had a trust fund, it served the country basically well. Now we need to get our thinking around to where we can adjust that trust fund as

we want to.

My argument is simply that by bypassing these questions and letting the Executive do it, the Congress refuses to shape up.

Now, this Congress is always worried about whether or not it is spending too much money. We have cut every President's budget since World War II. Now, whoever is the President it seems he wants to make it appear that the Congress is off on a lost weekend of spending. Now, the fact of the matter is that the budget deficits since World War II have been ones much deeper were it not for the Congress cutting the funds. We have reduced every single appropriation for 26 years except this last one on social security.

The other appropriations outside of social security were below what President Nixon asked for. We provided a 20-percent increase in social security benefits. We raised the money at the same time. No conventional economic theory will say if you appropriate on the one hand and tax on the other that you unleash inflationary practices and what happens, the same President says we overspend and knows darn well the only reason he can make that statement is, we put in an increase in social security. He then sent every recipient, a note, saying, I am very happly you get this, I signed the bill. I am all for it, immensely happy, Happy New Year, Merry Christmas.

You cannot have it both ways.

Senator PERCY. It seemed to work, too.

Senator HUMPHREY. It worked very well.

Senator PERCY. I would like your judgment. You will recall back in 1967 and 1968, Senator Williams and I worked on an absolute ceiling. A bipartisan group of us worked together and required the Johnson administration to cut the budget $8 billion.

We knew times were inflationary and we felt deficit spending by the Government was adding to the spending by the budget.

Do you think that was a responsible act by Congress and a very wise use of its authority and power?

Senator HUMPHREY. Senator, a spending ceiling must be the product of very careful analysis.

For example, this budget has a spending ceiling of $268.7 billion. Now, the real question is: Does this meet the needs of the American people? There is another question: Are the tax laws of this country just? Are the reforms that need to be brought in that might bring in more revenue-if the only reason we have a budget of $269.7 is because we do not want to raise taxes? There might be other reasons. Maybe you just have to put some justice in taxes and then maybe we can take care of title I in the Education Act.

How come a year ago education for the deprived was a major Presidential address? This year, 1 year later, it is practically cut out of the budget. What has happened?

Are all the deprived taken care of since last April?

I was in Michigan when some of the press worked me over that we would have a big program of providing funds for the educationally deprived as a way of meeting the busing question, and I said I like

what the President is saying, about putting that extra money in there and, boy, did I catch it. The New York Times decided that I had absolutely broken the Ten Commandments and rewritten the Old and New Testaments and a few other things, and went after me.

I happened to think it was a good idea. I do not think it is a substitute for some busing, but I thought it was a good idea. Now I find out it was not a good idea, because the people who prepared this budget said, "Drop it out."

We know that these problems are going to take years of our time to even maybe make a dent upon them, but we have to have a time frame. We have to be able to allocate our resources within that time frame and some way of accountability.

We do not have the mechanism and that is why the public is looking to the executive branch. At least they have some people. At least they have experts, professional staff, all the modern tools to be able to make evaluations. We sit over here and we still think-frankly, over in the Senate we are still taking down our remarks by individual shorthand. You would think that a tape recorder was not around here yet. It is just about time we spoke about it openly-we are out of date, out of step, out of style, and we have made our own trouble and our own mess and the President of the United States, this President, knows how to move and he has moved on us and we will look bad until we get this House shaped up and remodeled.

Senator PERCY. I think we would all agree with your conclusion. I have one last question. I have a proposal cosponsored by Senator Cranston under consideration by the Joint Committee of the House and Senate. Our proposal is simply that at the beginning of each year a Joint Committee made up of representatives of both Appropriations Committees-House and Senate Finance Committee, and Ways and Means Committee meet, take a good look at the resources of the country, get all the information they can-what our income is going to be, what our economic outlook is and what we think our expense level should be, and then establish a ceiling on spending based on expected revenue.

Then the Joint Committee would present that report to each House for its determination. If adopted, it would take a two-thirds vote to break that ceiling.

Does anything along that line seem to make sense where we undertake the responsibility ourselves, keep the authority for establishing priorities but do so in a responsible fashion?

Senator HUMPHREY. I think it makes a good deal of sense, Senator, and I had said earlier in my testimony that I thought the Joint Economic Committee itself, with the orientation of that committee, might well fufill such a function.

I would like to see established under some auspices, possibly by the JEC, possibly a new committee, an Office of Budget Anaylsis and Program Evaluation on the part of the Congress of the United States, not for confrontation with the executive branch, but cooperation, so that the budget for fiscal 1975 will be in preparation starting about March of this year.

There is no reason in the world why there ought not to be some mechanism of the Congress of the United States, both staff and membership, that can start to work alongside of the Office of

Management and Budget, the OMB, that we ought to be working together.

That is our Government, it is not one branch, it belongs to all of us. I think your proposal and other proposals we have had offer the basis for our decision, but Senator, we have to decide. It is better to do something that is not quite so good than to decide to do nothing. We have been piddling around here for years.

I have been around here since 1949 with a sabbatical of 2 years and 4 years in purgatory. We have been arguing about this business since time immemorial. We are either going to fish or cut bait or look worse every year. What is being done at the Office of Management and Budget will become a fixed pattern and the next President of the United States, whoever he may be, will build on what this President has done.

This Congress will look more and more like it is unneeded and excess baggage.

Senator PERCY. Do you think the Office of Management and Budget and Deputy Director should be subject to Senate confirmation? Senator HUMPHREY. I should say I do.

Senator METCALF. Thank you very much on behalf of all the committee.

This has been most important. You have been very patient in giving us the opportunity to hear your testimony. That has been varied and wide, and this is testimony that will be read in the political science schools where you were teaching during that sabbatical for a number of years.

Mr. Edmisten, the counsel, has asked me to announce the committee. will reconvene at 2 o'clock with Senators Williams, Church, and Eagleton: Comptroller General Elmer Staats, and a representative of the National Rural Electric Cooperative Association to testify.

(Whereupon, at 12:55 p.m., the committee recessed, to reconvene at 2 p.m., the same day.)

AFTERNOON SESSION

Senator CHILES. We are ready to reconvene our hearings. This afternoon we will be pleased to hear as our first witness the distinguished Senator from Idaho, Mr. Church, who long has been an advocate for Congress, assuming its constitutional duties.

STATEMENT OF HON. FRANK CHURCH, A U.S. SENATOR FROM THE STATE OF IDAHO

Senator CHURCH. Thank you very much, Mr. Chairman.

I have a prepared statement; its length appalls me. I know, however, that whatever discomfiture I feel about the length of the document is probably mild compared to the committee which must hear it. I have thus taken the liberty to exclude certain portions with the expectation that the entire text will appear in the record.

Senator CHILES. The committee will be delighted to have the entire statement appear in the record.

Senator CHURCH. Thank you.

Mr. Chairman, I am pleased to have this opportunity to come before the Senate Judiciary Subcommittee on Separation of Powers and

present my views about the current constitutional crisis confronting our country, and specifically to testify on behalf of S. 373, a bill to protect Congress' power over the public purse by restricting the practice of Executive impoundment.

Under the Constitution, the right to appropriate belongs to Congress. Article I, section 9.7, of the Constitution reads:

No money shall be drawn from the Treasury, but in consequence of appropriations made by law *

In this century, however, through a process of subtle attrition, Congress has gradually surrendered this traditional wellspring of strength. For example, the Budget and Accounting Act of 1921 enlarged the President's spending discretion and established a procedure whereby the Executive no longer needed to send up to Congress itemized budget requests as had been the custom, and replaced this procedure with a budgeting and appropriating system based on a "keep the faith" attitude among executive officials and appropriations committees. The act also created the Bureau of the Budget, now reorganized into the potent Office of Management and Budget. This legislation has, over a period of years, tilted the balance of political power clearly in favor of the Executive. Instead of "More Power to Congress," as was the Hamiltonian demand during the discussions preceding the Philadelphia Convention in 1787, Congress, divesting itself of its own power, granted "more power to the Executive."

The record on impoundment since World War II discloses thatfar from abating the practice has grown markedly, expanding beyond the general area of national defense to challenge frontally congressional control over all aspects of civilian spending. The expansion of Executive prerogative is closely connected with our marathon involvement in war.

CURRENT CONSTITUTIONAL CRISIS

Breaking the Executive's hardening habit of impoundment is now one of the crucial tests before us-if Congress and constitutional government are to survive. To salvage a position of power and policy, both bodies of the Congress must draw the line; members need to live up to their oath of office and join together in a concerted effort to restore the power of the purse as required by the Constitution.

S. 373. which I wholeheartedly cosponsor, requiring the President to come to Congress for affirmative votes by both Houses for each specific instance of impoundment, is a fitting legislative bulwark on which to stand and fight. The Supreme Court represents, one would hope, another forum for fortifying Congress' dominant position in regard to control over the purse where suit might be brought against the Executive for impounding Federal funds.

As you are aware, Mr. Chairman, I have given the subject of Executive impoundment some detailed thought, and I very much appreciate the fact that my Stanford Law Review article of June 1970, entitled "Impoundment of Appropriated Funds: The Decline of Congressional Control over Executive Discretion," was made a part of this subcommittee's March 1971 hearings. Since I wrote that law review article, however, the situation has worsened. According to recent press reports, the Nixon administration is currently withholding, freezing, and im