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pound appropriated funds, as Mr. Nixon has done to the extent of about $12 billion in the current fiscal year.
The measure-already cosponsored by 51 of the 100 senators-would allow a President to impose his “hold” on congressionally mandated spending for only 60 days. Unless Congress affirmatively endorsed his impoundment action within that period, he would have to bow to its previously expressed wish and spend the money.
Ervin and a half-dozen other senators who testified yesterday at hearings he chaired with Sen. Lawton M. Chiles Jr. (D-Fla.) agreed that Mr. Nixon has precipitated a "constitutional crisis" by his frequent use of the impounding powers, which have been employed occasionally by most Presidents since the time of Jefferson.
But they disagreed on whether Ervin's bill would bring Mr. Nixon to heel, and they conceded that Congress will have to improve its own handling of the budget before it can regain control of spending from the executive.
While Ervin's Judiciary Subcommittee and Chiles' Government Operations Subcommittee began a joint hearing on the Ervin bill, the policy committees of both parties in the Senate were discussing-without final action--the related question of a congressional spending ceiling for next year.
Mr. Nixon in his budget message Monday urged Congress to ratify his $268.7 billion ceiling for fiscal 1974 before acting on any individual spending bill.
Senate Republicans met with Roy Ash, new head of the Office of Management and Budget, but postponed any decision on a statement drafted by Sen. John G. Tower (R-Tex.) endorsing the President's request. Tower said many members were in disagreement with specific cuts Mr. Vixon is proposing.
Meanwhile, the Democratic Policy Committee endorsed a resolution sponsored by Sen. John V. Tunney (D-Calif.) calling on the Joint Congressional Budget Committee to recommend by Feb. 15 a procedure for establishing a congressional budget ceiling.
Tunney's resolution, due to go before the full Senate Democratic Caucus today, does not contain any target figure. But Senate Majority Leader Mike Mansfield (D-Mont.), who had already accepted Mr. Nixon's number, said after a meeting with House Speaker Carl Albert (D-Okla.) that “we generally agreed to stay within the limit laid down by the President but to do our best to realign priorities."
It is the contention that Mr. Nixon-hy impounding funds Congress has appropriated for various domestic programs-is substituting his own priorities for those imposed by the legislative branch that underlies the arguments made yesterday for the Ervin bill.
Consumer advocate Ralph Nader, who has joined several taxpayers' suits chal. lenging Mr. Nixon's constitutional authority to impound highway, health and environmental funds, told the committee that "in terms of the number of programs affected, the dollar amounts withheld and the bullramming defiance behind it, the current post-election rash of impoundments exceeds any comparable period in the past."
Nader told the senators that the Ervin bill “falls far short of what is neces. sary to restore the constitutional balance in the spending process."
Where Ervin's bill would allow a President to impound funds for 60 days. pending congressional action, Nader urged that Congress declare the impoundment process “illegal per se."
He said if the President wants to reduce spending below the appropriated amounts, he should be required to submit a supplemental appropriation request “to lower spending levels, just the way he would if he wanted to increase them."
That same view was urged by Sen. Jacob K. Javits (R-N.Y.), a member of the subcommittee handling the legislation.
Ervin, arguing that the President would be likely to veto any bill restricting his impoundment authority that severely told them, "I don't want to go quite that far-at least as a first step.".
Despite the disagreement on the form of the remedial legislation, yesterday's hearing evidenced the broad support for some step to restore Congress' traditional "power of the purse."
Among others speaking from the witness stand or the committee table against executive encroachment on fiscal powers were Republican Sens. Charles H. Percy of Illinois and Edward J. Gurney of Florida, and Democratic Sens. Quentin X. Burdick of North Dakota, Lee Metcalf of Montana, Edmond S. Muskie of Maine, Hubert H. Humphrey of Minnesota, Frank Church of Idaho, Thomas F. Eagleton of Missouri and Harrison A, (Pete) Williams Jr. of New Jersey.
Today, Ervin and Chiles will collect more supporting testimony from colleagues in the Senate and House, before their first direct clash Thursday with administration's scheduled opening witnesses, budget director Ash and Secretary of Agriculture Earl L. Butz.
A number of the senators conceded yesterday that the President would not have been able to assert his impoundment powers "so brazenly," as Ervin put it, had Congress not abdicated effective control over governmental spending.
"As individuals,” Ervin said, "too many of us have found it more comfortable to have someone else—the President-make the hard decisions and relieve us of responsibility."
"The fight against impoundment is one only the President can win," Chiles warned, "until Congress puts its own house in order."
(From the Washington Post, Feb. 2, 1973)
Ash CLARIFIES STAND ON IMPOUNDMENTS
(By David S. Broder) Budget Director Roy L. Ash yesterday conceded that President Nixon has no "explicit" statutory authority to impound appropriated funds, but said his action in doing so this year “is fully consistent with [his) ... constitutional duties."
In his first appearance before Congress since becoming director of the Office of Management and Budget, the former Litton Industries chief said the larmakers should put their own budgetary house in order if they want to end the practice of impoundment.
Ash said a bill to limit the President's authority to withhold appropriated funds-cosponsored by over half the Senate-would be a "serious infringement" on the executive power and “substitute financial chaos for financial management."
Ash sparred easily for over an hour with the co-chairman of the hearing, Sens. Sam J. Ervin Jr. (D-N.C.) and Lawton Chiles (D-Fla.), but ran into trouble from Sen. Edmund S. Muskie (D-Maine).
Ash said he would recommend a presidential veto of a Muskie measure that would require government departments to submit their individual budget requirements to Congress at the same time they give them to OMB.
Muskie argued that having this information would help Congress meet Ash's request to act "more responsibly" in developing an overall budget. But Ash reiterated the view that orderly procedure and a half-century of precedent require departmental requests to clear through the President's budget agency before going to Capitol Hill.
"Don't give me that stuff," Muskie shouted. "Congress creates these departments. It provides their money. Are you saying for one minute that we don't have the right to the information they generate? If you are, I don't think your offer of cooperation is made in good faith.”
The exchange was broken off when Ash left to keep a White House appointment, promising to return next week. Next week the subcommittee also will hear from Secretary of Agriculture Earl Butz and Environmental Protection Agency head William Ruckelshaus on the "freeze" on certain farm and anti-pollution programs.
Ervin was angered yesterday morning when both men canceled their dates with the subcommittee on grounds that the administration wanted to present coordinated testimony by just two witnesses, Ash and Deputy Attorney General Joseph T. Sneed, Ervin said.
At midday he was considering subpoenaing Butz and Ruckelshaus, but White House congressional liaison chief William Timmons sped up to the Capitol to assure Ervin that they would appear as requested.
Ervin is the chief sponsor of a bill which would require the President to notifs Congress whenever he impounded funds and would force him to spend them unless Congress affirmatively approved the impounding action within 60 days.
Ash said the reporting requirement was an “unnecessary duplication" of a procedure enacted by Congress just last December and that requirement of congressional concurrence would "destroy the progress made over the years in financial management and control."
“The practical effect of this bill would be to free all appropriated funds for immediate spending without regard to considerations of common sense, efficiency, economy and effectiveness" he said.
Ervin challenged Ash on Mr. Nixon's assertion at his press conference Wednesday that he had an "absolutely clear" constitutional right to withhold appropriated funds. Ervin said he could find "not a syllable" in the Constitution or any law giving the President such authority,
Ash said he would “stipulate there is no explicit law that says the President has the authority to impound funds," but said 170 years of precedent implied such authority as part of the President's constitutional duty to “take care that the laws be faithfully executed."
Also, Ash said, spending more than $250 billion this fiscal year would cause the federal debt to exceed the $465 billion ceiling enacted by Congress.
"Congress could have raised the debt ceiling when it voted $261 billion in appropriations," he said, "but it did not."
"Somebody had to do the job," he said. “The President had to step in and take the responsibility" by impounding about $6.5 billion of funds. Those impoundments, Ash said, were "the smallest in eight years."
Chiles, Ervin and Muskie all contended, however, that Mr. Nixon had stretched the precedents by withholding funds from programs he disliked personally, even when Congress had passed those programs over his veto.
Today, the Senate Labor and Public Welfare Committee has recalled Ash's predecessor as OMB director, Caspar W. Weinberger, to testify on the impoundment question. There are indications that Weinberger's Senate confirmation as Secretary of Health, Education and Welfare may be held hostage until the question is resolved.
Also, Senate Foreign Relations Committee Chairman J. W. Fulbright (DArk.) told the Ervin-Chiles hearing yesterday he planned to amend the foreign aid bill to require release of funds for these important domestic programs if the administration wanted to continue foreign assistance."
Existing foreign aid legislation expires Feb. 28, so the Fulbright threat is also an imminent one.
The administration must report to Congress by Feb. 10 on currently impounded funds, which affect programs of conservation, environment, health, education, highway, construction and social services.
[From the Californian, Bakersfield, Calif., Feb. 1, 1973)
QUOTES IN THE NEWS “The Congress must not become a stepchild of the executive, and the presidency must not be allowed to assume the powers of divine monarchy."--Sen. Sam J. Ervin Jr., D-N.C., author of a bill to give Congress the power to 'override presidential impoundment of appropriated funds.
[From the Washington Post, Feb. 1, 1973] NIXON DEFENDS FUNDS IMPOUNDMENT
(By Lou Cannon) President Nixon declared yesterday that Congress has acted irresponsibly on money matters and said he intends to continue impounding funds if necessary to avoid a tax increase.
The President said he had a constitutional right to refuse to spend money appropriated by Congress and cited President Truman's refusal to increase the size of the Air Force despite a congressional appropriation and an overriding of a Truman veto.
"The constitutional right of the President of the United States to impound funds, and that is not to spend money, when the spending of money would mean either increasing prices or increasing taxes for all the people ... is absolutely clear,” Mr. Nixon said.
The President said that congressmen, none of whom had "campaigned on the platform of raising taxes in order that we could spend more," wanted to share responsibility with the executive branch.
"But if you are going to have responsibility, you have to be responsible, and this Congress ... has not been responsible on money," Mr. Nixon said.
While the President was in effect defying Congress on the impoundment issue, he sounded a conciliatory note on the question of executive privilege.
Various congressmen have complained that presidential appointees have restricted their testimony on grounds that they could not disclose conversations with the President.
The issue rose again Monday at a Civil Service Commission public hearing when Air Force Secretary Robert C. Seamans Jr. invoked executive privilege in refusing to explain the White House role in the firing of A. Ernest Fitzgerald, the former Pentagon executive who told Congress about the cost overruns on the (-5A aircraft.
It was Seamans' refusal to testify that prompted the executive privilege questions yesterday at Mr. Nixon's news conference.
The President said in response that he had personally made the decision to fire Fitzgerald and that Seamans' use of executive privilege related to a presidential conversation which had been repeated to the secretary of the Air Force.
Mr. Nixon added that it was not his intention to broaden the use of executive privilege or to allow it to become a protection for administration officials who are "under heat from a congressional committee."
"I will simply say the general attitude I have is to be as liberal as possible in terms of making people available to testify before the Congress, and we are not going to use executive privilege as a shield for conversations that might be just embarrassing to us, but that really don't deserve executive privilege." the President said.
Mr. Nixon also promised that he would issue "a precise statement" detailing the uses and limits of executive privilege in his administration.
The President's comments appeared to reflect a dual course of action in his dealing with Congress. On the one hand, as administration officials have fre. quently hinted, the President believes that he has substantial popular support for any showdown battle on impoundment because of public concern about higher taxes and inflation.
On the other hand, the President seems desirous of avoiding any showdown with Congress over that executive privilege issue.
The President also talked about Congress yesterday in relation to gun control, an issue that has arisen anew because of the shooting of Mississippi's Sen. John Stennis.
Mr. Nixon said that the Stennis shooting may now prompt Congress to pass a bill outlawing the Saturday night specials”-handguns of cheap manufacture which account for more killings than any other weapons.
The President said he supported such legislation and had asked Attorney General Richard Kleindienst before the Stennis shooting to give us a legislative formula, not one that would simply speak to the country and not get through, but one that can get through Congress."
As he has in the past, the President insisted that what was needed is a bill which will keep the guns out of the hands of the criminals and not one that will impinge on the rights of others to have them for their own purposes in a legitimate way."
[From the Miami Herald, Jan. 31, 1973]
CONGRESS “GAVE UP MEEKLY”—HHH, OTHERS DECRY LOSS OF POWERS
(By Paul Clancy) WASHINGTON.—Some of the better known members of the U.S. Senate admitted Tuesday that Congres has meekly surrendered most of its powers to the President and will have a hard time getting them back.
“We're out of date, out of step and out of style," Sen. Hubert Humphrey said.
Testifying at the opening of Senate hearings on the right of the President to trample on the budget-making authority of Congress, Humphrey said Congress *doesn't have a chance or a prayer" to compete with the White House.
He said Congress is still using antiquated and cumbersome appropriations procedures that are simply overwhelmed by the secret methods and elaborate public relations apparatus used by President Nixon.
"You talk about the Pentagon Papers being secret!" Humphrey said, thumping on a copy of the thick budget document. "They were as open as the Sears-Roebuck catalogue compared to this budget. It was prepared by people with a passion for anonymity.”
Humphrey, who served as vice president under President Lyndon Johnson, urged Congress to drastically reform its budget-reviewing process and hire enough accountants and lawyers to put itself on an equal footing with the President's Office of Management and Budget.
Sen. Sam Ervin (D., N.C.) who, along with Sen. Lawton Chiles (D., Fla.) is cochairing the hearings, agreed that Congress has practically asked the President to usurp its authority.
"The executive branch has been able to seize power so brazenly only because the Congress has lacked the courage and foresight to maintain its constitutional position," Ervin said,
There has been a crescendo of outeries from Capitol Hill over what President Nixon calls efforts to hold down the budget but the congressmen view as a snatching of their constitutionally directed power of the purse.
It may come down to a legal confrontation in the courts, most witnesses said, because Nixon is sure to veto almost any legislation Congress sends him.
Consumer Advocate Ralph Nader, who has joined Ervin and several senators in a court action against the administration, said Nixon has set up “do-it-yourself Congress" inside the White House.
Without following constitutional procedures, the President can make war, spend or not spend any funds he chooses, organize the executive branch, advise and consent on his own appointments by turning over the duties of cabinet members to White House assistants, and ignore laws such as those setting timetables for auto safety requirements.
Vader stressed that Nixon may have the power to do these things, but not legal authority.
"Congressional authority under the separation of powers doctrine remains intact in the Constitution; but congressional power has been abdicated by Congress and seized by the presidency," Nader said.
Republican Sen. Charles Percy of Illinois, a likely presidential contender four years hence, said Nixon was justified in freezing funds in some cases.
He said Congress has been "railroaded by the highway lobby" into tying up billions of dollars for road building "when they are desperately needed for mass transit for lower income people."
[From the Washington Star-News, Oct. 5, 1972)
SPENDING CUTS WOULD EXCEED $6.9 BILLION
(By Lee M. Cohn) Spending reductions totaling at least $6.9 billion would be needed to comply with the $250 billion federal expenditure ceiling proposed by President Nixon, congressional experts estimate.
Even deeper cuts probably will be required by the time Congress completes action on pending legislation, the staff of the Joint Committee on Reduction of Federal Expenditures implied in its latest budget scorekeeping report” released yesterday.
As of Sept. 30, the report said, legislation enacted by Congress would increase outlays $7.1 billion above Nixon's budget. Still pending on that date were Senate-passed bills that would raise expenditures an additional $11.7 billion and House-passed bills that would cost 3.2 billion, the report estimated.
The analysis is timely because of the congressional battle over the President's request for a rigid spending ceiling of $250 billion for the fiscal year ending next June 30.
DEMOCRATIC SUBSTITUTE Nixon demands and Democratic congressional leaders oppose granting the power to cut authorized spending wherever he chooses to hold the total to $250 billion,