March 21, 1974
Page 7657
Mr. ROTH. Mr. President, this is an argument I have made before in this Chamber, so I will try to keep my remarks brief. The amendment follows very closely the language of the House-passed bill H.R. 7130 in which the issue of impoundments was thoroughly debated and upheld by a vote of 295 to 108. I have introduced this House title as a substitute for the existing title X of S. 1541, but I want to point out to my colleagues that I have added one important feature.
Under the language in H.R. 7130, the Comptroller General is required to rule on his interpretation of the legality of any impoundment, to act, in a sense, as the Congress agent, so that every reservation of funds need not necessarily be presented for a vote of affirmation or rejection. This is only sensible, since I feel that many of us agree that the Executive should have certain limited authority to save public money when this is done in the spirit of prudent administrative and managerial responsibility. But I have added the following clause, to insure that the Comptroller has the ability to challenge wholesale impoundments that might distort or even negate the intent of Congress.
That language is that–
The authority hereby conferred shall not be used for the purpose of eliminating a program, the creation or continuation of which has been authorized by Congress.
THE IMPORTANCE OF BALANCE
Mr. President, earlier in this debate over the budget reform bill, I made an earnest plea to have Congress put some teeth back into the legislation, to have us construct a system, a mechanism under which the budget resolution would become a meaningful step in the annual cycle of budget decisions. I feel most strongly that a resolution easily breached, is no resolution at all. Instead, it is a device to allow Congress the luxury of touting reform without being constrained by any real discipline.
As I see the legislation at this point, I feel that the President must have some latitude to recommend program reservation, provided that he cannot use this authority to totally subvert the will of Congress.
Specifically, this language seeks to change the thrust of the language in title X. My amendment would provide that impoundments made by the President will stand unless Congress overrules him. I think this makes only good sense. Let me point out why. Congress adopts, from time to time, a debt ceiling. The President, under the Constitution, has the responsibility and the obligation to abide by that debt ceiling.
He cannot spend in a manner that would exceed that ceiling, so long as there is no further action by Congress.
Yet if we passed this legislation as submitted, next year we could be putting the President in an inflexible position unless Congress chooses to act.
Last fall, Congress adopted a debt ceiling that is consistent with $250 billion in spending during the current fiscal year. Any spending beyond that amount would exceed the debt ceiling and violate it. So if the President is withholding for that purpose, he is merely trying to abide by the ceiling adopted by Congress, and that only makes sense to me.
But what we are saying under the present title is that the President could not use any Executive discretion at all. Unless Congress saw to it that all of its actions were truly consistent, we could possibly be in the ambiguous position of not complying with the debt ceiling, and that could raise all kinds of ramifications.
Let me stress that Congress has the opportunity to disprove any Presidential impoundment action by a simple majority vote, in either House. That is hardly an overwhelming task for us. We approve and disapprove hundreds of motions every year.
Second, we will not be bombarded with referrals to the floor. The Comptroller General will act as a filter, picking out those actions he feels have been taken without proper statutory authority. His expertise and counsel should help us to deal with this problem more expeditiously.
The existing title X, based on a bill submitted recently by Senator ERVIN, would ban all but the most tightly defined impoundments, and give the Comptroller General the right to sue, in our behalf, to have an action overruled in court. But should this be a matter we delegate to the courts? Are we saying that Congress, which most closely represents the interests of the program recipients, should wash its hands of the matter, delegating it to the GAO and the courts?
I, for one, feel we would be abdicating our authority and responsibility if we did. Why under the system I propose, one House of Congress could settle the issue in a day, in a matter of hours, if it
took such umbrage with a Presidential impoundment referred through the Comptroller. All that would be required under expediting rules is a simple resolution of disapproval from the Appropriations Committee and a simple majority vote of one house. With a minimal quorum present, as few as 26 Senators could overrule the President under my proposal.
Mr. President, I would like to make a couple of observations. I think most of the principal points have already been covered.
First, I should like to reemphasize that at one time, the distinguished principal sponsor of this title proposed the use of congressional disapproval.
Second, the chairman of the House Appropriations Committee apparently feels that this is an appropriate method of bringing about some control, as does a firm majority of the entire House.
So it is hardly a partisan fight. We are all faced with the real, and ever present problem of gaining effective control over our actions.
But I think the most important point to make is that Congress will not be fulfilling its responsibility merely by the impoundment proposal now contained in S. 1541. We would be making it impossible, really, to bring the budget within control. The House and the Senate do not – I would like to emphasize do not – consider each appropriation in the context of the whole budget. And under the mechanism the Senate has approved, I suspect we will not depart too far from our present-day patterns of behavior.
If we really are going to be fiscally responsible, we ought to adopt a legislative budget, break it down by priorities, and set the limits of each of those categories. We are not doing that. But here we are saying to the President, "You cannot impound unless the courts get around to approving your action." We could get by, doing nothing, just sitting on our hands. We would not be required to indicate our vote.
I think it should be our obligation, when impoundments are reported, that we stand up and be counted.
At the present time, the President does not have a very effective voice in the final enactment of spending bills. We have 13 regular appropriations, each including many items. They come late in the year. Normally it is impossible for the President to veto them.
I feel that this bill in its present form will only continue the fragmented budgetary process; and by passing this measure, we are going to make it more difficult to bring control into the picture.
The President is impounding now because Congress has not been willing to live within a budget and establish difficult priorities. He is acting because there is a vacuum. I think it is our responsibility to adopt both a comprehensive procedure which will insure that Congress has to "face the music," and failing that, at least has to be counted on the occasion of any impoundment which the Comptroller feels has been made outside the legitimate territory of statutory guidelines.
Mr. MUSKIE. Mr. President, may I say first that title X as a way to deal with the impoundment issue was developed as a way to cut through the impasse between the House and Senate versions of the impoundment legislation.
The version enacted by the Senate, three times in the Congress, provides very precisely that impoundment shall not take effect unless approved by Congress.
The House version provides that impoundment shall take effect unless disapproved by Congress.
Clearly, the difference between the two is that with the House version, the burden is placed on Congress to act. With respect to the Senate version, the appropriation initially approved by Congress stands until Congress itself agrees to the modification.
What we are talking about in impoundment legislation is to strengthen the hand of Congress in a situation where power has shifted toward the President because of his excessive use of authority under the Antideficiency Act. Those two pieces of legislation enacted in two Houses, so diametrically opposed to each other, have left us in an impasse for several months. Neither side was interested in going to conference because there was no way of compromising those two fundamentally contrary theories.
It is for that reason that Senator ERVIN and I introduced legislation, which is now incorporated in title X of the bill, which seeks to cut through the impasse. We seek to do it by a simple amendment of the Anti-Deficiency Act.
It might be useful if I explain the technique.
The purpose of title X is to define and clarify the authority of the President and other officers and employees of the executive branch to place appropriated funds in reserve. The Anti-Deficiency Act, as amended in 1950 (31 U.S.C. 665), permitted executive officers to establish reserves "to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available." The language of section 1001 in the pending measure retains the authority to establish reserves for contingencies, or to effect savings whenever savings are made possible by changes in requirements or greater efficiency of operations. That language in the Anti-Deficiency Act is retained. Indeed, it is essential in terms of sensible administration of programs authorized by Congress. But the "other developments" clause would be deleted by this bill because it has been treated by some officials of the executive branch as a justification for establishing reserves because of economic or other developments. Clearly that use was never intended by the Congress. It is that use which has provoked this controversy over impoundments.
Section 1001 further defines the boundaries of the Anti-Deficiency Act by prohibiting the use of reserves for fiscal policy purposes or to achieve less than the full objectives and scope of programs enacted and funded by Congress. The apportionment process is to be used only for routine administrative purposes such as to avoid deficiencies in executive branch accounts, not for the making of policy or the setting of priorities.
The committee's amendments to the Anti-Deficiency Act are fully consistent with the legislative intent and history of the 1950 amendment. The 1950 language was anticipated in a June 5, 1947 joint report by the Bureau of the Budget and the General Accounting Office. The Senate Committee on Appropriations had asked the two agencies to recommend ways of improving the Anti-Deficiency Act. The resulting report, which recommended clarified authority for setting aside reserves for contingencies and savings, stated that the authority "must be exercised with considerable care in order to avoid usurping the powers of Congress." In reporting the antideficiency language in 1950, the House Committee on Appropriations explained that the technique of setting aside reserves was not to be used to thwart the will of Congress: "It is perfectly justifiable and proper for all possible economies to be effected and savings to be made. But there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds." H. Rept. No. 1797, 81st Cong., 2d Sess., p. 311. Moreover, nothing in the language or legislative history of the Anti-Deficiency Act suggests in any way that Congress intended the executive branch to place funds in reserve as part of economic policy.
That the committee's amendments to the Antideficiency Act are also consistent with recent decisions by Federal courts is demonstrated with regard to withholding funds for fiscal policy purposes. Judge Oliver Gasch of the U.S. District Court for the District of Columbia disagreed with the administration that the executive branch could withhold funds simply because it
desires to control overall federal spending or to give priority to other programs which it believes are more laudable:
Control of federal spending is an entirely laudable objective, but there is no authority either in Article II of the Constitution or in the case law, for the defendants' position that they may achieve this by refusing to comply with the terms of a statute.
Massachusetts v. Weinberger (Civ. Action No. 1303-73, D.D.C.) and District of Columbia v. Weinberger (Civ. Action No. 1322-73, D.D.C.). Reprinted at 119
So, Mr. President, title X is designed to correct the problem that was generated by improper interpretation of the Anti-Deficiency Act by the executive, to use it for purposes it was never designed to serve. So, in order to break the impasse between the House and the Senate, which has left us in a stalemate on this issue for the past several months, this technique was developed by Senator ERVIN and myself. I think it makes a great deal of sense. It makes a great deal of sense that it be included in a piece of legislation dealing with congressional procedures dealing with the budget, procedures designed to develop budgetary and fiscal discipline in the ways in which Congress manages its fiscal affairs.
It is our belief, those of us who have participated in the development of this legislation, that it will have that effect. If it will not, then this is all a hopeless exercise. If it will not, Congress will find other ways to be spendthrift, I am sure. But if budget reform legislation achieves its objective of fiscal discipline in the Congress and in the executive, there will be no need in the future for the kind of confrontation between the executive branch and the Congress which has been represented by this impoundment issue.
May I make the point that the impoundment issue has reached several of the district courts. It has been decided by one circuit court and in nearly every case where there has been a judicial decision, the result has been favorable to the congressional position on impoundment, justifying – at least, from the point of view of this Senator – my interpretation of the legislative history behind the Anti-Deficiency Act.
So I think that the technique in this bill devised by Senator ERVIN and myself is right on point. It deals with the problem in a precise way. It simply extends the Anti-Deficiency Act in accordance with its initial philosophy.
For that reason, in order to settle this issue, and in order to get it resolved, in order to get impoundment legislation adopted, I would oppose the amendment of the distinguished Senator from Delaware, who has contributed much to the development of this budget reform legislation, but who I believe is eminently wrong on this issue.
Mr. ROTH. Mr. President, I agree with the distinguished Senator from Maine that the question of impoundment should be resolved. I believe very strongly that the President should not use the power of impoundment to kill or basically eliminate any program that has been authorized by Congress. As I mentioned earlier, it was for that reason that I did add a proviso to the House version that would make that perfectly clear in the legislation.
What concerns me is the cure. It seems to me that Congress, itself, and not the courts should be the one to decide whether or not an impoundment should be put into effect. I believe that is the responsibility of Congress. There has been much talk in recent months and in recent days not only about the President improperly using the impoundment, but likewise, about Congress not living up to its full responsibility.
All I am proposing is that the enforcement procedures be put in Congress rather than in the courts. I should like to point out that what I have proposed is not a partisan matter. As a matter of fact, it has been adopted by the U.S. House of Representatives, of which the Democratic Party is the majority. So what we are arguing about today is not, as I said, partisan in nature.
Second, it seems to me that what we are saying here is that Congress does have a responsibility to look at each proposed impoundment of the President. My proposal would give greater authority to Congress, as we could kill any impoundment, whether or not it was within the antideficiency legislation.
For that reason, I urge the adoption of my amendment, on the grounds that, in my judgment, it would bring a greater voice in governmental affairs to Congress and greater responsibility to its Members.
Mr. President, I intend to ask for the yeas and nays at the appropriate time.
Mr. MUSKIE. Mr. President, the distinguished Senator and I are interested in resolving this impoundment issue. He would prefer to see it resolved in Congress rather than in the courts.
May I say, in commenting on that, that the only progress toward resolving it has been made in the courts, and no progress has been made in Congress. On that record, I do not think we should adopt a procedure which excludes the judicial process from a resolution of the issue.
I repeat that all title X does is to incorporate the original intention of the Anti-Deficiency Act, so that it will clearly not support the abuse of the impoundment authority which the courts have documented, the abuse of the impoundment authority as exercised by this administration.
So if the Anti-Deficiency Act was originally sound – and I believe it was – as originally intended, all title X does is to reestablish it on its original base. I do not see how there can be serious quarrel with that objective.
Mr. PERCY. Mr. President, I have agreed to many of the efforts of the distinguished Senator from Delaware and what he has tried to accomplish. Ever since he became a Member of the Senate, he has been the voice and the conscience of the taxpayer. He has been the watchdog over the Treasury, and has served with distinction on both the Joint Study Committee on Budget Control and the Government Operations Committee working on this bill. As I said the other day, he has become a worthy successor to another great Senator from Delaware, Senator WILLIAMS.
In this case, I think we have agreement in philosophy, but a difference in how we implement our philosophy.
I was interested when Arthur Burns, in talking of the budget reform legislation, made this comment with respect to impoundment of funds:
Once those procedures are modified to enable Congress to regain control over total outlays and to determine priorities among competing programs, there should be no occasion for broad scale impounding of funds by the President.
That, of course, is the hope all of us have.
I have the feeling that sometimes when we have been able to shift responsibility, we have not always taken the action we would take or the position we would assume if our action were final and had to stand.
I have no hesitancy in saying that I have heard Members of this body vote on issues, and then when they have been asked, "How can you justify such a large spending figure?" they have said to me, "Oh, the House is going to cut it, anyway." That was a recognition that what we did was vote for too much, but what we were actually doing was voting a bargaining position. We did not believe – in fact, we hoped – that the House would not accept the figure because the figure we put in would be an irresponsible one.
I presume that in years past, as Presidents have impounded funds, Congress, as a whole, has in a sense said, "Well, we will send it downtown. Let them take the rap down there for not spending the money. After all, it will be their decision. We added money to the program. We provided the funds; and if the President wants to take the rap for cutting them back, then let him do it."
I have seen President Johnson have to step up and stop the construction, in the middle of a building boom in Chicago, of a second big Federal building, because he felt it would simply add to inflation, that it would be a misuse of funds at that particular time. Why not build certain of our Federal buildings – those that are not urgently needed – at a time when we need a stimulant to the economy, rather than when they would add to inflation? We have seen the same in the spending of highway trust funds, and so forth.
I believe that the whole philosophy of what we are trying to accomplish in this bill is now to have Congress take back the responsibility that the Constitution gives us and to have us say to ourselves that once we put these figures in and commit spending at these levels, we have to count on the fact that they are going to be spent. Now we have had district courts support the fact that their interpretation of the situation is such that the President cannot impound these funds, and in effect they must be spent.
Therefore, I feel that we should now put Congress in the position where it has to bite the bullet; it has to take the final responsibility; and it cannot pass the buck to the executive branch of the Government and say, "We are going to pass all these bills and then if it is improper, if it should not be done, if it is going to have an adverse effect on the economy, whatever it may be, you take the rap for impounding them." We are going to have to take the rap. I want us to take the rap; because if we have that final responsibility, we may not authorize that much money in the first instance and we may once again become what the Constitution expected us to be – the watchdog of the Treasury – by keeping that responsibility right here in Congress, where it belongs.
We are doing so now, with the provisions of this bill, providing for ourselves adequate staff, adequate research, and adequate backup for these positions.
For that reason, I would tend to oppose – in fact, I will have to vote against – the amendment offered by the distinguished Senator, though I respect very much his overall efforts, with a great portion of which I have found myself in agreement.
Mr. ROTH. Mr. President, I ask for the yeas and nays.
The yeas and nays were ordered.
Mr. ROTH. Mr. President, I should like to answer the distinguished Senator from Illinois. There is not a great deal of need to continue the discussion further, as this matter has been much debated.
What I am saying to him is that the legislation in title X, in its present form, simply means that Congress is passing the buck. It is passing the buck to the courts. What I am asking is that we take that power back here, that Congress should determine whether or not an impoundment should go into effect.
I point out, further, that under my amendment – which, as I noted earlier, has been adopted by the House – only a simple majority of either House is required to veto an impoundment of the
President. I think that has great advantages. First of all, it does provide some flexibility in Federal spending. I believe that the average citizen in this country feels that this Government spends too much unwisely, and will heartily endorse any efforts we make to cut back on Federal spending.
Second, I agree with those who say that the President should not preempt a program by impoundment. He will not be able to do that under my amendment. We are merely giving the Congress the effective voice to say yes or no to any proposal of the President.
Mr. President, I urge adoption of my amendment in order to bring more power back to Congress rather than passing the buck to the Federal courts.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. ROTH. I yield back my time.
The PRESIDING OFFICER. Does the Senator from Illinois yield back the remainder of his time?
Mr. PERCY. Mr. President, as far as I know there are no Senators who wish to speak on this matter.
I yield back our time.
The PRESIDING OFFICER. All time is yielded back. The question is on agreeing to the amendment of the Senator from Delaware. The yeas and nays have been ordered, and the clerk will call the roll.
The legislative clerk called the roll.
The result was announced – yeas 28, nays 60, as follows:
So Mr. ROTH'S amendment was rejected.
Mr. MUSKIE. Mr. President, I move that the Senate reconsider the vote by which the amendment was rejected.
Mr. PERCY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.