CONGRESSIONAL RECORD -- SENATE

August 11, 1967

Page 22393

Mr. MUSKIE. Mr. President, the first point I should like to make is this: With the legislation which is now on the law books, and this bill as it has been amended up to this point, it seems to me that we have covered most of the situations or potential situations involving trade with Communist countries, either directly or as third party countries, which have been of concern to Senators participating in this debate. There has been discussion, Mr. President, especially about the so-called Fiat deal, or the so-called Fiat-type deal, as illustrative of the kind of situation which is of concern to Senators.

The Byrd amendment to which the Senate agreed yesterday, Mr. President, in my judgment effectively prohibits the use of Export-Import Bank credit for trade with Communist countries for the duration of our preoccupation in the South Vietnamese war. In my judgment, it was clearly intended to cover the Fiat-type deal. So, in terms of the problems which have been of concern to Senators, and which prompted them to support the Byrd amendment, the Senate appears already to have acted effectively.

With that as background, then, Mr. President, it seems to me that we ought to be very careful about dealing with the kind of involvement in the exercise of Executive authority which the proposed amendment represents. If we have already taken care of the problem of trading with Communist countries which has preoccupied the Senate for 2 days, then it seems to me we ought not to indulge in an exercise with obvious constitutional implications.

The Dirksen amendment, Mr. President, would give the President discretion, but then would permit either House of Congress to overturn his determination. It represents an effort to give Congress the authority to exercise Executive and not legislative power. In my judgment and in the judgment of people in the administration who are concerned with that problem, such a procedure is of doubtful constitutionality, for the following reasons:

First of all, it would be an attempt to shortcut the executive process by permitting one House of Congress to reverse an executive determination made pursuant to law, without following the legislative process prescribed by the Constitution. It represents, in short, the granting to the President of authority, by proper legislative process, and then withdrawing that authority without following proper legislative process; and it would do so in that field of Executive responsibility -- foreign affairs -- as to which the Constitution of the United States gives the President the greatest power. Furthermore, a resolution which was adopted by either House of Congress pursuant to the Dirksen amendment would not be subject to a presidential veto.

So what the Dirksen amendment, in effect, would amount to, Mr. President, would be a means of giving Congress a veto on administrative and executive acts of the President, exercised pursuant to legislative authority, rather than the reverse.

Second, Mr. President, the amendment would require inaction on any matter subject to presidential discretion for at least 2 months, and possibly for as much as a year, if Congress is not in session. This delay could well hamstring the executive process, and would perhaps prevent action determined by the President to be in the national interest.

President Johnson commented on this point when he vetoed the Military Authorization Act of 1965, by saying:

We cannot commit ourselves, for the prolonged period required by this bill, to delay action necessary to meet the realities of the troubled world in which we live.

This amendment, Mr. President, would place Congress in a seat at the Export-Import Bank, administering executive authority given to the President of the United States with respect to these important responsibilities in the world.

Yesterday, Mr. President, we rejected an amendment undertaking to prohibit the exercise of the Presidential discretion provided in the bill, because, presumably, the Senate was influenced by the argument that we could not afford to so tie the hands of the President for 5 years into the future, that change was going on in the Communist world, and that we ought to equip ourselves to influence that change and to take advantage of any opportunities created by that change:

Obviously, then, the Senate yesterday was moved by a very sensitive and delicate question involving the exercise of presidential discretion, and decided that it ought not to presume to look 5 years ahead, and say in advance that it could not conceive of an instance where it might be in the national interest for the President to exercise such discretion.

Now, having made that decision, the Senate must consider this method of making the exercise of the President's discretion inflexible.

Assume that the President does identify a moment or a change or an opportunity, at some point in the next 5 years, when the exercise of that discretion would be in the national interest -- an opportunity that it might be necessary to take advantage of with a minimum loss of time. The Dirksen amendment would say, "In that instance, the President will not be permitted to act as the circumstances might indicate, but he must bring Congress into the decision making process for a period that could extend for as long as 2 to 5 months.”

So what we refused to do yesterday -- hamstring the President with respect to the unknown future -- we are again asked to do, in a different form, today. And may I say, Mr. President, that we are asked to do it notwithstanding the fact that already, with the adoption of the Byrd amendment, the Senate has acted to deal effectively, I think, from the point of view of those who supported the Byrd amendment, with the problems which have stimulated these amendments and so much of this controversial discussion.

Mr. President, President Johnson and his predecessors have taken a strong position against proposed legislation containing provisions attempting to shortcut the legislative process.

As Attorney General Mitchell advised President Hoover, carried to its logical conclusion it would enable Congress, through committees or persons selected by it, gradually to take over all executive functions, or at least to exercise a veto power upon executive action, not by legislation withdrawing the authority which would have to follow, I may say parenthetically, the legislative process, but by action of committees or, in this instance, of either House acting separately from the other.

That is not a proper exercise of the legislative authority. It is an attempt to participate in the exercise of executive authority, neither of which alternatives is within the spirit of the Constitution.

As President Johnson stated in the veto message to which I have referred: By the Constitution the executive power is vested in the President. The President cannot sign into law a bill which substantially inhibits him from performing his duty. The times do not permit it, the Constitution prohibits it.

The President in that language was discussing a bill relating to the military, but the same considerations apply to his duty to conduct foreign affairs.

Mr. President, today, as has been true for so much of the time in the course of the debate on the pending bill, it is difficult to present the issues which are involved when Senators are preoccupied elsewhere. It is especially difficult to do so when one is dealing with a subject which is highly charged with emotion, in which the emotional argument is so obviously clear and evident that when one counters it, he must resort to dull, dry constitutional arguments.

What we are dealing with here is a constitutional problem. It is a constitutional problem as to which there are precedents relating to the view of the President -- and not just one President -- with respect to the view of other authorities.

In the Constitutional Convention of 1787, there was a great deal of discussion, in that long hot summer, of the wisdom of providing for a sharing of executive authority by a committee instead of by a single executive. And there was before that Constitutional Convention the example of an ineffective national government in the form of the Articles of Confederation which provided no executive authority, but only congressional authority. So, notwithstanding the fact that that Constitutional Convention was sitting a few years removed from a war against executive tyranny, it finally decided that if liberty and the affairs of a free country were to be effectively administered, it was essential to provide for a single executive armed with effective authority.

And that Convention found it to be especially important in the field of foreign affairs.

The issue now is whether, having given the President authority, we should permit him to exercise it as an unfettered executive, representing an independent arm of the Government, or whether at this stage --180-odd years after the Constitutional Convention decided to the contrary -- we will provide that Congress shall participate in the exercise of a function which is by its nature executive.

What we are talking about is the day -to-day administration of the affairs of the Export-Import Bank.

We are saying, under the Dirksen amendment, if the amendment is agreed to, that Congress shall participate in that day-to-day overview of the affairs of the Export-Import Bank.

Mr. TOWER. Mr. President, will the Senator yield?

Mr. MUSKIE. I yield.

Mr. TOWER. Mr. President, since the distinguished Senator from Maine has injected the name of the Constitutional Convention, are we to assume that a vote against the Dirksen amendment would be a conservative vote?

Mr. MUSKIE. I will have to review that observation a little in my mind, but if the Senator from Texas is persuaded that it is, there is a prima facie case in support of his authorization.

There really is not much profit in making a constitutional argument with a full Senate attendance. I do not know that there is much in making a constitutional argument with most Senators absent.

This is a serious argument, however, and I would like to emphasize once again that it seems to me pointless to raise this issue and to create this constitutional problem when for all practical purposes we have already covered the potential situations which appear to have been of concern to those Senators who voted for the Byrd amendment or for the Dirksen amendment of yesterday and who indicated an interest in supporting other legislation of that kind.

We have done the job, anyway. For all practical purposes, I see no reason why we should get ourselves tangled up in this constitutional problem.

Mr. TOWER. Mr. President, I think that the Dirksen amendment is certainly a wise and a reasonable amendment. Looking at it from the constitutional point of view, it is the responsibility of Congress to exercise oversight over the acts of the executive branch, particularly in regard to the treatment of public moneys.

I think that this is a reasonable step in the exercise of congressional oversight over activities of the Export-Import Bank. And I think, too, that it will impress on the very able officials of the Export-Import Bank the necessity for maintaining liaison with the Congress and the necessity of keeping Congress informed of what it is considering.

I think, too, that it will serve to enable Congress to be better prepared to act on legislation that does affect the operation of the Export-Import Bank.

For that reason, I intend to support the Dirksen amendment.

[INTERVENING DEBATE OMITTED]

CONGRESSIONAL RECORD -- SENATE

August 11, 1967

Page 22400

Mr. MUNDT. ... Since I am sure, from discussions with the Senator from Maine, that he has the same idea and understanding that I have; namely, that the action we took yesterday did accomplish what I say it did, I am hopeful he will accept this amendment and take it to conference, with the general understanding that if the Export-Import Bank has by that time decided and agreed that the Byrd amendment means, that it does rule out the financing of the Fiat plant, we can drop it. I simply want to be sure the Senate decision to stop the Export-Import Bank from financing the Fiat loan for an automobile plant in Russia is both precisely clear and compelling. There must be no loopholes.

The PRESIDING OFFICER. The Chair wishes to inform the Senator from South Dakota that the proposed modification he has discussed is not in order, for the following reasons:

The first part of the modification states:

On page 3, line 17, after "That" insert ", subject to the provisions of subsection (d) o1 this section,".

That language is already in the bill. Then, as to the subsequent modification:

On page 5, after line 17, insert the following:

To wit, section 2

There is already a section 2 in the bill. It is then followed by a subsection (d). There is already a subsection (d) in the bill.

The further modification

Mr. MUNDT. Mr. President, I suggest the absence of a quorum, and I will be happy to consult with the Parliamentarian and adjust the amendment during the quorum call.

Mr. President, I withdraw my amendment temporarily and yield to the minority leader.

The PRESIDING OFFICER. The amendment, as modified, is withdrawn.

Mr. DIRKSEN. Mr. President, yesterday I modified my amendment to include the word "lease" as well as purchase.

That appears in four different places in the pending bill. Mr. President, I send to the desk an amendment and ask that it be stated.

The PRESIDING OFFICER. The amendments will be stated.

The assistant legislative clerk read, as follows:

On page 3, line 9, insert after "purchase" the following: "or lease", and in line 12 after "purchase" insert "or lease", and in line 14 after "purchased" insert "or leased" and in line 16 after "sale" insert "or lease".

Mr. DIRKSEN. I have discussed the amendment with the manager and it is agreeable with him.

Mr. MUSKIE. Mr. President, I have discussed this with the representatives of the Bank and the administration.

The word purchase which was in the bill originally, I think, would clearly cover lease-purchase agreements anyway. The Bank does not get involved in straight leasing arrangements to any degree. However, to insure coverage of that kind of transaction, we have no objection to agreeing to the amendment of the distinguished minority leader.

The PRESIDING OFFICER. Does the Senator wish to consider the amendments en bloc?

Mr. DIRKSEN. Yes.

The PRESIDING OFFICER. Without objection, it is so ordered.

The question is on agreeing to the amendments en bloc of the Senator from Illinois [Mr. DIRKSEN].

The amendments were agreed to en bloc.

Mr. MUNDT. Mr. President, I am happy to report to the Chair that as a result of my conference with the clerks at the desk we have worked out the difficulties in the amendment so that my section 2 is renumbered section 3, in order to conform with the presently numbered sections of the bill.

I send the amendment, as modified, to the desk and ask that it be stated.

The PRESIDING OFFICER. The amendment, as modified, will be stated.

The assistant legislative clerk proceeded to read the amendment.

Mr. MUNDT. Mr. President, I ask unanimous consent, since the modified amendment has already been read, to dispense with the reading of the amendment at this time.

The PRESIDING OFFICER. Without objection, it is so ordered, and the amendment, as modified, will be printed in the RECORD.

The amendment, as modified, ordered to be printed in the RECORD, is as follows:

At end of the bill insert:

"Sec. 3. Section 2 of the Export-Import Bank Act of 1945 is amended by adding at the end thereof a new subsection as follows: "'(d) The Bank shall not guarantee, insure, or extent credit. or participate in an extension of credit in connection with the purchase of any product for the construction of a facility for manufacturing automobiles by the Union of Soviet Socialist Republics, or by any other nation or entity for use (to the knowledge of the Bank) in the Union of Soviet Socialist Republics.'"

Mr. MUNDT. Mr. President, I am happy to yield to the distinguished Senator from Maine. I think he will confirm what I have said. Perhaps we can dispose of the amendment very quickly.

Mr. MUSKIE. Mr. President, as the Senator knows, I vigorously opposed, or at least opposed with as much vigor as I am capable of, the amendment which has the effect which the distinguished Senator from South Dakota has described.

I think it is clear that the intent of the amendment offered by the senior Senator from Virginia and the cosponsors thereof covered the so-called Fiat proposal.

There having been a clear intent of the Senate, I so described it to the representatives of the Bank and the administration. It is my belief that the amendment does cover it, but if there is any doubt, I think that the Senator from South Dakota is taking a perfectly proper action in offering his amendment. I would have no objection to it, considering the action taken on yesterday.

The PRESIDING OFFICER. The question is on agreeing to the amendment, as modified, of the Senator from South Dakota.

Mr. BYRD of Virginia. Mr. President, I concur in the amendment as modified, that has been sent to the desk by the distinguished senior Senator from South Dakota.

I am pleased to be the cosponsor of that amendment.

I think the Senator from Maine has rendered a great service this morning in making a part of the legislative history his belief that the Senate in agreeing to the amendment which it agreed to yesterday afternoon intended to cover such deals as the so-called Fiat deal.

The Senator from Maine correctly interpreted the view of the author of that proposal. I join with the distinguished Senator from South Dakota. in urging the adoption of the pending amendment.

The PRESIDING OFFICER. The question is on agreeing to the amendment, as modified, of the Senator from South Dakota.

The amendment, as modified, was agreed to.

Mr. HOLLINGS. Mr. President, I am not calling up my amendment No. 251 because it was first proposed as a backup to the Byrd amendment. It answered the vagueness argument and bulls-eyed what was intended. In the event that we had not adopted the Byrd amendment, I wished to at least gain the support of those who refused to support the Byrd amendment in that it was vague and referred not only to war materials but to all materials. I supported the Byrd amendment because I believe it should pertain to all materials. I do not wish to limit the Byrd amendment or discolor it, and therefore will not call up amendment 251.

The PRESIDING OFFICER. The bill is open to further amendment. If there be no further amendment to be proposed, the question is on agreeing to the committee amendment in the nature of a substitute, as amended.

The amendment was agreed to.

The bill was ordered to be engrossed for a third reading and was read the third time.