December 20, 1974
Page 41660
THE IMPOUNDMENT OF SECTION 235 FUNDS
Mr. MUSKIE. Mr. President, the Congressional Budget and Impoundment Control Act of 1974 became law on July 12 of this year. That act contains, in title X, a new system for congressional review of Presidential impoundments and rejection of those it deems unwise.
It was my privilege to be a participant in the drafting of that act, a member of the committee which originally reported it, manager of the conference report, and subsequently, chairman of the Budget Committee it created. I thus have had a special interest in the impoundment question and a special responsibility to report to the Senate on the use of impoundment by the administration to frustrate congressional will.
The Budget Committee completed hearings yesterday during which we inquired deeply into the President's use of the impoundment power. Our witnesses included the Director of the Office of Management and Budget and the Comptroller General of the United States, the two principal agencies outside the Congress which have special responsibilities under the Budget Act regarding impoundments. We anticipate making a report to the Senate on all of the complex questions which have so far arisen under title X of the Budget Act.
On the Senate Calendar now, however, is an impoundment resolution which requires immediate comment. Senate Resolution 446, introduced by Senator SPARKMAN on December 11, is intended to overturn impoundment D75-48, which was reported to the Congress by the President on October 4, 1974.
I favor overturn of this impoundment, which involves more than one-quarter of a billion dollars in so-called section 235 homeowner assistance funds under section 235 of the 1968 Housing and Urban Development Act.
But I believe it would be a mistake for the Senate to pass Senate Resolution 446 at this time for the following reasons:
First, the Attorney General has ruled that this impoundment is not subject to the Budget Act. The President has so far agreed with his Attorney General, and, in the message which reported this impoundment to the Congress, stated that he was reporting information on the impoundment only "because I believe that it is appropriate to keep the Congress informed on the status of all funds withheld from obligation."
I do not agree with the administration's position that these funds are not subject to the Budget Act. I believe this impoundment is subject to the provisions of the Budget Act. I am informed, however, that the Department of Housing and Urban Development is urging the administration to stand by the Attorney General's position and to refuse to honor this Senate Resolution 446, if it is enacted. Thus, a likely result of the Senate passing this deferral resolution at this time will be to assure that another lawsuit will be required to release these housing funds.
For reasons I will explain later in these remarks, I believe such a lawsuit is both unnecessary and uncertain of result, so that a very possible consequence of the Senate acting on Senate Resolution 446 at this time is that the administration will succeed in impounding this important housing assistance until the authority expires next August 22.
The second reason I oppose acting on Senate Resolution 446 at this time is that the Comptroller General of the United States ruled, on November 6, 1974, that this impoundment is not a deferral subject to overturn by a resolution of the kind contemplated in Senate Resolution 446, but, in fact, should have been submitted by the President as a rescission request requiring the concurrence of both Houses of Congress. If such concurrence is not obtained with 45 days, then the money will have to be spent. Under the act, the 45-day period begins anew on the first day of our return in January and will expire early in March. The act further requires the Comptroller General to sue the administration if, after the elapse of those 45 days, it still refuses to spend the money. The act further provides that the Federal district court of the District of Columbia is required to give precedence to such actions, and to appeals and writs from decisions in such actions, over all other civil cases.
In the Budget Committee's just-concluded hearings on these impoundments, we obtained an assurance from the Comptroller General that he does intend to sue for the release of these funds at the end of the 45-day period if the President does not release them at that time. Should, however, the Senate choose to treat this rescission as a deferral by the passage of Senate Resolution 446, the standing of the Comptroller General to go into court to force the release of these impoundments will be called into question. Thus, a possible result of the passage of Senate Resolution 446 at this time is to preclude the Comptroller General from effectively suing the President to force a release of these funds if the President refuses to release them after the elapse of the applicable 45-day period.
The Senate is therefore confronted with this situation. If we pass Senate Resolution 446 today, treating this Housing Act impoundment as a deferral, it is the administration's position that our action is a nullity and without effect, because the funds are not subject to the act. Since the Comptroller General has already ruled that this impoundment is not a deferral subject to Senate Resolution 446 but is, in fact, a rescission request, the Comptroller may very well be disqualified from bringing suit if the administration refuses to honor Senate Resolution 446.
At the same time, in treating the impoundment as a deferral, congress impairs the Comptroller General's opinion that the impoundment is actually a rescission. This gives the administration grounds to assert that the Comptroller General has no standing to attempt to force release of the funds by legal action after the elapse of the 45 days applicable to rescissions.
Thus, should the Senate Pass Senate Resolution 446, the Comptroller General probably cannot bring suit when the administration refuses to spend the funds. Private plaintiffs will have to go into court. The administration has already suggested that such private plaintiffs do not have standing to sue after the enactment of the Budget Act. Moreover, such plaintiffs are not entitled to expedite a consideration of their case in district court, and many months may elapse before there is ever a hearing on the question of whether they have standing to sue.
It seems clear to me that the passage of Senate Resolution 446 would raise far more questions than it answers. It is the least likely alternative available to the Congress to force the release of these funds. It would, under the circumstances, be a serious mistake. As an alternative, I have suggested that the Senate postpone action on the resolution until its return 3 weeks from now in January and that, during the intervening time, we attempt to answer these questions so we can be sure that we understand all the possible consequences in the enactment of this resolution and alternatives to it.
The funds in question have been impounded for almost 2 years. The message reporting them to the Congress was sent more than 2 months ago. The procedures for disposing of that impoundment are very clearly stated in the act and have already begun to be executed by the Comptroller General. Senate Resolution 446, introduced only last week in the closing hours of this session, represents an untimely, ill-advised, and most unlikely method for disposing of this question. Rather than assuring an end to the impoundment, it makes it most likely that the impoundment will continue until these funds expire.
I believe this impoundment was wrong at the start. I think it is wrong now, and I want those funds released. Because I want those funds released, I am opposed to the hasty enactment of this resolution without a thorough understanding of its consequences. I advocate that we follow the procedures Congress spelled out in the Budget Act only 5 months ago for handling this issue, and that we not violate them by the enactment of Senate Resolution 446 at this time.