STATEMENT OF HON. ELFORD A. CEDERBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. CEDERBERG. It is a pleasure to be in this cool room this afternoon. I notice that the television cameras have departed, and the press table is almost empty, but I still think there are two sides to every story, and the two sides should be told.

I am grateful to you and the members of the committee for giving me the opportunity to testify on H.R. 5193, the Mahon impoundment bill.

At the outset, I want to state my conviction that all of us share a common objective; namely, to find constructive and responsible channels through which Congress can exercise its power of the purse. As an institution, holding what we have considered to be fundamental constitutional powers over Government spending, we in the Congress are finding those powers consistently frustrated. I am first and foremost a Member of this House, and I share that sense of institutional frustration.

However, I strongly believe that an impoundment bill-any impoundment bill-is a device which cannot technically achieve its objective, and addresses the wrong objective in the first place. It is important that these two points be fully explained.

First, before I address the technical aspects of H.R. 5193, I want to emphasize my profound personal and professional respect for the Chairman of the Appropriations Committee, who is the sponsor of H.R. 5193. He is my good friend, and a capable and dedicated chairman. No one in the Congress is better equipped by experience and judgment to draft legislation dealing with Federal spending. The technical shortcomings of H.R. 5193 do not reflect on his capabilities, but rather on the impossible task of trying to draft a legislative item veto of individual administrative decisions made in the executive branch. Let me be specific.

The bill would require costly and complex new reporting procedures, and most of the reports would never be used. The bill defines "impoundment" as any action which delays the obligation or expenditure of funds. It covers every such action, however routine or administrative in nature. Since "delay" is not defined in the bill, it must be assumed to mean any lapse of time after legal availability of obligational authority, or after the existence of an obligation to make an expenditure by issuing a Government check.

In the course of 1 month, hundreds of actions take place in the executive branch which have the effect of somehow delaying obligation or expenditure. Most of them are not now subject to formal monitoring and reporting because they are routine exercises of administrative discretion. Yet the bill would require a report to Congress on every such action. Since most of these actions would not be contested by the Congress, most of the reports, and the money and personnel required to prepare them would be wasted.

For us to require all of this new redtape is particularly ironic in view of efforts elsewhere in the Congress to reduce the Federal paperwork burden. In fact, we have directed the Comptroller General to identify unnecessary executive branch reports to Congress. If this bill

becomes law, I strongly recommend that he immediately examine the reports thereunder.

The bill contradicts existing law. The bill does not explicitly refer to or amend the Antideficiency Act, but it directly contradicts several basic provisions of that act. For example, under the Mahon bill failure to apportion immediately, and in the full amount, constitutes impoundment. Yet the Antideficiency Act allows a period of 20 to 30 days before appropriations must be apportioned or reserved, and authorizes apportionments by quarter, or by any other time period suited to a particular program or account. These practices, long considered essential to sound financial administration, would be impoundments under the Mahon bill.

Therefore, if the bill becomes law, it will add to the list of laws governing debt, revenue, and spending which contradict each other, and require the President to decide which law he shall faithfully

execute.

The concurrent resolution feature of the bill is of doubtful constitutionality. The bill would employ a concurrent resolution, which is not presented to the President, and therefore not subject to veto, to wholly or partially disapprove impoundments. I am old fashioned enough to believe that the Constitution means what it says, and section 7 of article I says very clearly:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives * * *

I realize that congressional practice and precedent support limited exceptions to this requirement. However, these exceptions do not appear to include the kind of positive legislative action which would be taken by concurrent resolution under H.R. 5193, Jefferson's Manual states:

Although the requirement of the Constitution seems specific, the practice of Congress has been to present to the President for approval only such concurrent resolutions as are legislative in effect (IV, 3483, 3484), which is not within the scope of the modern form of concurrent resolution (section 110).

And in Hinds precedents we find the statement that:

A concurrent resolution is without force and effect beyond the confines of the Capitol (VII, 1037).

Accordingly, the concurrent resolution as employed under H.R. 5193 appears highly vulnerable to legal challenge. If the challenge were successful, Congress would again appear impotent.

In sum, Mr. Chairman, from a technical point of view, this bill demonstrates that legislation which is intended to permit the Congress to individually disapprove or modify administrative and managerial decisions in the executive branch would be impossible for the executive branch to administer, and for the Congress or the courts to enforce. Second, and on a more basic level, I am convinced that impoundment is not the central question in our shared concern over the congressional power of the purse. While that constitutional power is not fully explained by the Constitution, legal precedent and common sense reject the idea that an appropriation necessarily compels the President to

obligate or spend the money. This is the basis upon which our power of the purse has been successfully challenged.

We passed a law last fall which placed a dollar limitation on the Federal debt. That debt limit was explicitly based on a spending total of $250 billion in the current fiscal year. During congressional consideration of that legislation, both the House and the Senate also approved explicit ceilings of $250 billion on expenditures in the current fiscal year. Although that spending ceiling was voided because the House and Senate could not agree on details of implementation, it remains a clear expression of congressional intent.

In addition, when weighing individual or total obligations and expenditures, the President must take care to faithfully execute such laws as the Employment Act of 1946, which established as Government policy the promotion of maximum employment and purchasing power, and the Antideficiency Act, which authorizes reserves against contingencies, and to effect savings and economies.

Against this background, a Presidential budget review undertaken last fall estimated that expenditures in the current fiscal year-all authorized by Congress-would total about $261 billion, $11 billion more than the $250 billion assumed and intended by the Congress and the President. The Congress was unable to agree upon, much less enact, the necessary individual reductions. The President made those choices, and impoundment was one of the instruments he used.

Those who would restrict the use of that instrument should acknowledge the probable consequences. The $11 billion in expenditures which were cut in this fiscal year would have grown to $17 billion in fiscal 1974, and $22 billion in fiscal 1975. The result would be either highly inflationary deficits, or a tax increase equal to a 15-percent surtax on personal income.

We in the Congress all have individual disagreements with individual actions taken by the President to hold spending to $250 billion. Our common objective is congressional initiative in the establishment of positive budget priorities within responsible totals. An impoundment bill, which is a negative reaction to executive branch initiatives, is not worthy of our objective.

However, if the Congress in its wisdom determines that some type of impoundment bill is indeed necessary, and I have serious doubts whether it is, I certainly agree with my chairman that the House Appropriations Committee is the logical vehicle through which individual impoundment actions should be first considered.

We established the Joint Committee on Budget Control-of which I am a member-for the very purpose of recommending mechanisms and procedures for establishing and enforcing positive congressional budget priorities.

While on the public record that committee and its objectives have received wide support; in fact, we are here today squandering our public credibility by fighting the wrong battle with inadequate weapons. We will end up with less public confidence and respect, and therefore with less influence in exercising our power of the purse.

My answer is that until we put our own house in order we have a very weak case to put before the President or the people.

Our case will be weak as long as we continue the spectacle of au

thorization and appropriation bills which are passed months after the fiscal year begins, or not passed at all.

Our case will be weak as long as we confront the President with laws which contradict each other.

Our case will be weak as long as we approve individual authorization bills which in sum far exceed the total we clearly intend, or the taxes we are willing to approve.

Our case will be weak until we acknowledge that Congress, and not the President, bears primary responsibility for our current fiscal dilemma.

Mr. Chairman and members of this committee, our real business lies elsewhere. Let's get on with it.

Thank you.

The CHAIRMAN. Thank you, Mr. Cederberg.

Yesterday morning the president of Purdue University was in my office. He is down here interviewing the congressional delegation. He listed, I think it was, eight different departments of the university in which the President has impounded funds. I am just talking about Purdue University. I asked him questions regarding Purdue University at Lafayette, and Indiana University at Bloomington.

One of the officials of Indiana University was also in Washington. There are several departments of the university that have been cut. The total amount of impounding money that was curtailed from the university was about $3,250,000, if I remember correctly. Then he gave me the number of students that would absolutely have to be cut out and sent home because of the impounding of educational money for just the two universities.

I asked the president if his university was isolated, if that applied to just his university. He said as far as he knew every major university in the country received the same curtailments of funds.

I asked how many students that would affect, who will practically have to drop out of school or change their courses on account of those various departments being curtailed. He couldn't answer as to an estimate, but he said that it would probably amount to several million students over the country who would have to curtail their education. I said, "What is the reason for it?" He said, "Well, the money has been cut off." He didn't mention impounding, but he said "curtailed," which is the same thing as impounding.

That applies not only to universities but to other schools throughout the country. They apply to school districts. There is not much difference in my mind between vetoing and impounding. It has the same effect, you might say, as far as the education of our children is concerned.

There have been three major educational bills vetoed by the President. Had they not been vetoed, probably he would have impounded the funds anyhow. The impounding of these funds and also the curtailing, vetoing, you might say, of what 435 Congressmen and 100 Senators passed-the majority of these two great legislative bodies who come from all the districts, from all of the States. They know the condition of the educational problems that they are facing. Don't you think these two legislative bodies know what is necessary

to educate the youth of this country far better than one man down in the White House?

Mr. CEDERBERG. The Congress should be a little more active and get its authorization bills out. For instance, in the higher education bill we didn't even get the authorization until way late last year. So this is one of the problems that causes any administration a great deal of problem. In a fact, I alluded to it in my statement.

The CHAIRMAN. That doesn't affect a situation where the last 3 years three major education bills were vetoed. Evidently the President is making no effort whatsoever to supply the funds at his disposal that keep these various departments in Purdue and Indiana University and every university in the country going.

Mr. CEDERBERG. The simple facts are that under this administration more funds have been appropriated for education than in any other 4-year period in the history of the country. Maybe you don't think it. is enough. I think probably we could use some more.

The CHAIRMAN. Don't you think the Congress knows more about it, 435 Congressmen and 100 Senators, than one man in the White House? Don't you think they know more about what is needed for the various universities?

Mr. CEDERBERG. I look at some of the actions we have taken in the past, and frankly, I am not sure.

The CHAIRMAN. Let's get to another thing.

The Congress knows of the jeopardy to the health of millions of people in this country by drinking impure water out of the lakes and streams. I think of the terrible conditions in the cities, especially, where 71 percent of the people live. In a lot of these industrial areas the water that comes into the homes, by reason of pollution, is colored. It is a health hazard in many, many urban areas throughout the United States. When the Congress passed a $12 billion appropriation to clean up the waters of this country and protect the health of the people, coming from all these congressional districts and from all the States, don't you think they knew more about preserving the health of the country than one man in the White House?

Why did the President impound, you might say, out of that $12 billion for a 5-year period to clean up the water and the lakes, $6 billion? Half of it-50 percent.

Mr. CEDERBERG. There are several reasons. In the first place, as you know, this was contract authority. It didn't come through the Appropriations Committee at all.

The CHAIRMAN. They announced at the White House that $6 billion would be curtailed.

Mr. CEDERBERG. What has happened is that we have a lot of projects that weren't even ready to go. Secondly

The CHAIRMAN. Mr. Young?

Mr. CEDERBERG (continuing). Let me complete my statement. Secondly, this administration has spent more money for clean water and clean air than in any other 4-year period in the history of this country.

The CHAIRMAN. Back in McKinley's day they didn't have the problem on pollution that we have today.

Mr. CEDERBERG. I haven't seen anyone coming in with any tax increase bills to pay the bills. I don't see any of those introduced. I haven't introduced one. Maybe the Chairman has.