I will make it short. I understood you to tell Senator Chiles that the President could stop executing the law in the hope and expectation that Congress at some future time would repeal that law or change it? Did I understand you to say that? Mr. ASH. I am not sure I understood the point that you were making. It may have been regarding Senator ERVIN. I understood you to tell Senator Chiles that you thought the Antideficiency Law empowered the President to refuse to spend an appropriation in the hope or expectation that at some future time Congress would repeal the law when it made that appropriation. Mr. Asн. No, sir; I think that is not the way to characterize the discussion that we had. I was particularly quoting that which you had earlier quoted. In apportioning any appropriation, reserves may be established because of changes in the requirements or other developments subsequent to the date on which such appropriation was made available. Senator ERVIN. That does not say anything about the President being given the power of cutting into the program funded by Congress, by its appropriation. Mr. ASH. I am not sure I am tracking exactly. Senator ERVIN. I say those statutes do not give the President power to nullify the appropriation bill as passed by Congress, to read those as inappropriation. It says apportionment for expenditure, not for cutting into expenditure. Mr. ASH. No; but, if conditions change, we obligate the President to change. If there was a bill passed by the Congress to paint the White House once again and even a different color, and if we went over Senator ERVIN. Is this apportionment done for expenditure of appropriations, to avoid deficiencies? If apportionment reserves may be established to provide for contingencies, it means contingencies which would arise carrying out the programs. It also says that the three other cases in which reserves may be established are, one, to effect savings wherever savings are made possible or through changes in requirements-that is, changed requirements of the project and if you change it, to make it less than the amount of money expended. The next is when it is possible by or through greater efficiency of operations. If you find a better, more efficient way to develop the project at less expense, then you can do that. The other one is, other developments subsequent to the date on which appropriation was made available. Now, for example, on the recommendation of OMB, the President impounded environmental funds. There have been no changes to cause less pollution in our watercourses, have there? The pollution is still there, so there have been no subsequent developments after that appropriation was made. These children have not become educated since the appropriation was made for their education, and yet those funds have been impounded. I think it is just as clear what the Anti-Deficiency Act means. It just means you can reserve a share for a contingency which arises as a re sult of carrying out the project, or where there has been a change in the requirements of the projects which make it less expensive, or where you can get greater efficiency and operation of the project, or where there is some change or development after the appropriation is made. I do not see in any of these cases that any of these needs have vanished for which these appropriations were made. I do not think that the President or the OMB think that they can decide better than Congress that the change in the development of that thought is a change in the development of this condition. Mr. Ash. Sir, your reputation for the law on the subject is widespread and I am not going to attempt to answer it here, knowing that a representative of the Justice Department can do better than I, but I would say that one change of condition that we all are mindful of is the total adds up to $261 billion, not $250 billion, and that $11 billion added on top of the economy as it is, is a very substantial other development and condition. Senator ERVIN. To save time, I will put in the record a statement prepared by Congressman Evins from Tennessee, chairman of the Subcommittee on Public Works and Atomic Energy, figures for 1973 showing the funds which he says that he got from the different departments administering these different programs by OMB.1 Senator CHILES. Senator Muskie. Senator MUSKIE. Mr. Ash Mr. ASH. I have been invited to make a statement here. I have made it and have made a very important commitment that I be back to the White House in just about 25 minutes from now. I am willing to come back at any other time, but I would, if possible, like to be able to make that other commitment. Senator MUSKIE. Are you willing to lift the debt ceiling? Mr. ASH. If I can leave within 10 minutes. Senator CHILES. We are going to have these hearings on the sixth and seventh and I am sure that there are some other questions that Senator Muskie, who has been here patiently during all your testimony, and I think probably Senator Javits and Senator Roth have also been waiting. Would the seventh be convenient? Mr. As. The seventh--I am before the House Appropriations Committee on the sixth, but I would work out coming back here on the seventh, and if 10 minutes will do any good I will stay with you for that time. I am sorry I made this other commitment-I did not make it, I had it imposed on me-that I cannot get out of. Senator CHILES. Would you like to start into 10 minutes? Senator JAVITS. I would suggest maybe we could profit from reading what the questions and answers are, too. Senator CHILES. Senator Muskie has been here. Senator CHILES. Would you like to start into 10 minutes? Senator JAVITS. That's fine with me. Senator MUSKIE. I will be glad to touch upon relevant points. First of all, Mr. Ash, in your statement you say much of the present difficulty results from a lack of congressional mechanism to review 1 See page 563. and act on the overall situation in advance of taking appropriation and other legislative action. I would guess, therefore, that you would support legislation that I introduced yesterday that would require that all agencies, when they send their budgets to the Budget Bureau, submit them at the same time to the appropriate committees of the Congress so that we may be equipped with the same information that the Executive is at the same time that the Executive is, and thus prepare ourselves better in your estimate, to deal with these important budget responsibilities. Mr. Asн. I am not sure that that would be the most effective way for the Congress to deal Senator MUSKIE. May I remind you, Mr. Ash, before the creation of the Budget Bureau in the early twenties, all budget requests came to the Congress first. Mr. AsH. Yes, sir. Senator MUSKIE. And the purpose of establishing the Budget Bureau was to help the Congress do a better job. The original purpose has since been twisted into a denial of relevant information to the Congress that is submitted to the Executive. If what we are talking about is priorities and determining which programs are better, are we not entitled to have the evaluation of the relevant agencies at the same time the Executive is so that when we are asked to consider your reshaping of those priorities, we have the exchange of the same information that you do, apart from the legislation which you have not seen and you cannot comment on the mechanics? Mr. Asi. Well, I am sure, sir, in the process of hearings that always take place regarding the budget, there is considerable opportunity to consider the many options, possibilities, alternative ways of Senator MUSKIE. Who is the better judge of how we can perform our procedures, you or the Congress? Mr. Ash. I think the fact is, as you may know, the President has expressed a strong willingness to be cooperative with the Congress but without attempting to suggest what method the Congress adopts. We agree it is the business of the Congress to determine the method it adopts. We will be cooperative in working with any group of people. Senator MUSKIE. If the Congress enacts this piece of legislation, in your judgment, would you recommend that he sign it? Mr. ASH. I don't even know that particular piece of legislation. Senator MUSKIE. We are speaking of principle and not the legislation. The principle is at the time the President receives budget recommendations from the agencies and departments, that the same information come to the Congress so that we can start off on the same base of information, get started at least at the same point, even though we may anticipate that we would end up at a different point. All I am asking is that we get the cooperation to which you pay lip service to get the information at the same time you do. Now, what possible objection do you have to that? Mr. ASH. I would recommend that such a bill not be signed to the degree that I understand it for the following reasons: Given the present structure within the executive branch of the Government, a very fragmented one, individual programs in many cases, not each and every case, but in many cases, only have a meaning in the context of each and every other program because they are so fragmented, even programs of like kind are so fragmented across the Government and if such reports came into the Congress, each went to its particular committee, I think that there would be no Senator MUSKIE. Only one committee I am talking about, the Appropriations Committees of the Congress. I am not talking about legislative committees, I am talking about committees that have responsibilities for implementing your budget. We did this in State government when I was Governor. As a matter of fact, the information didn't just go to the legislature but to the public on the day that it went to the President. What is your objection to that in principle? Mr. ASH. One of the difficulties is that increasing amounts of the total budget don't even go through the Appropriations Committee, yet need to be considered even as the Appropriations Committee does its work. Senator MUSKIE. What is the possible rationale for not giving it? You do in the budget document. You give us a lot of information about spending that doesn't go through the Appropriations Committee and today in your testimony you refer to moneys that don't go through appropriations process. I think that what you are doing is reflecting an instinctive reaction on the part of the Executive to refuse to cooperate with the Congress. Mr. ASH. I think it is just better information that can be provided through the Office of Management and Budget. Senator MUSKIE. We will have that anyway. I am talking about supplemental information that equips us to judge your evaluation of the priorities. Mr. ASH. Then maybe that would also suggest that each agency, division, or subdivision submit its own thinking out of the context of higher orders of view that might be applied. Senator MUSKIE. I haven't asked for that. Mr. Ash. What I have asked for is departmental budget recommendations. The fact that I am not asking for something unreasonable doesn't justify your answer that I am asking for something unreasonable. Mr. ASH. I said the same reason would apply. Senator MUSKIE. I don't regard it as the same reason. I am assuming that each department has its own organization and as a department as a whole it develops its recommendations to the President. That is what the President has to act upon. Now, if the President, in addition, gets the recommendations of every functionary in every department, maybe we ought to have that also, but he doesn't as I understand it. You get the recommendation to the department heads and the agency heads. I am asking that you provide to the Congress the same information that the Budget Bureau receives at the same time so that we can start from the same base of information that you do. Now, you ask us to come out at the same point. You know the old saying, if we have to participate in the landings we ought to participate in the takeoffs. That is what this bill says. You seem to resist it in principle. You haven't seen the mechanics, of course. I am not asking you to comment on that. I am asking you to comment on the principle. Mr. Asu. I think that better judgment can be applied to the individual agency thinking when it is brought side by side with other agencies, other kind of scrutiny Senator MUSKIE. But it is not, Mr. Ash, it is not. Agency head after agency head has refused to give me the substance of recommendations made to the Budget Bureau because the Budget Bureau figures are required once and are administration policy. Over and over again I have been refused the information that was submitted by the agency to the Bureau of the Budget in the first instance. So, don't give me that stuff. What I am talking about, and you don't have to play with words to answer, do you think we are entitled to that inforniation? You may have a better idea of how it might be done. We are not talking about mechanics. Do you think we are entitled to that information? Mr. Ash. I think you are entitled to all of the information that I am sure you get in the process of the hearings that take place. Senator MUSKIE. The information I am talking about we do not get in the process of hearings. You are telling me that we are entitled to that doesn't answer my question. Mr. ASH. There is one executive branch of the Government, not many, and again by the Constitution that executive branch is charged with managing its affairs. Individual agencies, individual departments are parts of, rather than the whole, of that executive branch. The President has the basic authority and more than that-the responsibility to come to the Congress with what his recommendations arc, the information for those Senator MUSKIE. But just what on earth do you really think is the function of the Congress in discharging its constitutional duty over appropriations? Where do we get this information? We had in the two appropriations committees of the Congress five bodies dealing with HEW appropriations. That is all we had. Do we have to create matching bureaucracies up here working parallel and side by side with every executive department to generate the information, duplicative information that you get and seem so hesitant today to provide to us so we can intelligently discharge the responsibility which on the first page of your testimony you say we don't discharge efficiently and intelligently. How do we get this information? The Congress creates these departments and provides the funding to run them and the salaries to pay them. Are you saying that you doubt for an instant that we are entitled to the full information generated in these departments and submitted to the Budget Bureau, that we are not entitled to it? I can't understand how you can sit in that chair and pay lip service to cooperation and hesitate for an instance in response to that question. Mr. Ash. I think you are entitled to the kind of information and all of the information that I believe the hearings allow you the opportunity Senator MгSKIE. Who is to decide what information we are to have? Mr. Asн. You are. Senator MUSKIE. All right, the answer to my question is yes? Mr. ASH. You have many opportunities to get that information. |