we have not even coordinated the 300 various committees and subcommittees of our two Houses which are able to influence amounts of money we spend.

One step which Congress should take is to establish a massive congressional committee on the budget. It should be the largest of our committees in terms of manpower and resources. It should have the ability to analyze the budget in its entirety in such a way as to permit the Congress to look not only at appropriations requests but at mandatory, long-term, continuing obligations, the amount of money the Government has available to spend and the means of funding new obligations which the Government may wish to undertake.

As we continue the debate over how to give Congress control over the budget we must be clear about the details of the crisis and the role of the participants in it. It is not fair for Congress to say that because it cut President Nixon's appropriations requests that President Nixon precipitated the budget crisis. Congress, in each of the past 20 years, has consistently cut appropriations requested by each administration. Part of the problem lies in the Congress failure to come to grips with the approximately 70 percent of the budget not subject to the normal appropriations process-the so-called mandatory, back door and other continuing appropriations which we have set up as a kind of unmonitored perpetual spending machine.

In the second session of the 92d Congress, this body did cut the Nixon administration's appropriations requests by some $1.2 billion. But mandatory and other nonappropriation expenditures increased by some $8.9 billion. This is a disparity we must analyze and resolve.

Some people have charged that President Nixon lacks compassion for the people of this country simply because he made substantial impoundments in areas of social welfare. This is irresponsible and unfounded. Under the same reasoning, President Johnson, the architect of the plethora of so-called Great Society programs, would be open to the same charge because he withheld, in 1966, $1.1 billion in highway funds, $760 million for housing and urban development, and large amounts of money for education, agriculture, health and welfare. The label does not apply in either instance.

The Congress was clearly warned by the Nixon administration of the necessity for a spending ceiling. The legislative history of the debt limitation bill last Congress clearly establishes that we in Congress neglected to direct the President to make cuts in areas of Congress choosing.

Like other Senators, I have disagreed with some of the President's choices of budget cut targets. I would not have cut back many programs I regard as essential, such as the water bank program, or the several Farmers Home Administration programs. I certainly would not have terminated REAP, which has enabled farmers who exist on incomes which are only 78 percent of those of the nonfarm sector, to assist in the protection of our Nation's most precious resources— soil and water.

On the other hand I believe that foreign aid should have been cut even further, and I would have made sure that welfare money did not go to those who are in fact able to work on their own.

In other areas I have found myself somewhat in agreement with the administration's selections. For instance, in the State of Florida.

there are a number of hospitals which have legitimate needs for hospital construction funds. However, I understand how the President, after seeing that on a nationwide basis there is not a shortage of hospital beds, and that so-called secondary financing does provide a source for some construction costs, would take action to terminate the Federal hospital construction funds totaling $189 million.

Federal antipoverty programs have tripled in the last decade. Figures released last year indicate that if all of the Department of Health, Education, and Welfare programs currently authorized were fully funded, the Federal budget would double. But we also know that too much of the Federal moneys targeted for the poor have wound up in the pockets of highly paid bureaucrats in Washington and not in the pockets of the poor. Obviously, then, some reduction of these expenditures has been entirely appropriate, and probably not enough has taken place.

The well intentioned but wasteful programs of the Great Society have grown by 20 percent in the last 3 years alone. If Mr. Nixon were to have increased taxes to fund these activities he would have been supporting legislation premised upon a philosophy of paternalistic government which President Nixon does not share. Instead, Mr. Nixon chose not to bankrupt the Nation according to the bankrupt liberal philosophy of the Great Society.

The overwhelming mandate Mr. Nixon received during the last election is clear evidence that he has the backing of a majority of Americans in his effort to curb Government spending. This mandate helps explain a recent Gallup poll, which revealed that 60 percent of those responding favored cuts in Government spending as opposed to increased moneys for social programs, and to illuminate another poll, this one by Lou Harris, in which 62 percent of those responding said that they favored increased Federal moneys to help the poor. However, in the Harris poll, only 22 percent were in favor of increased money for persons on welfare, and an overwhelming 69 percent opposed such increases.

These polls, taken together, signify that Americans are aware of the need to help those who cannot help themselves, but that in view of the enormous, runaway expenditures of the budget, they do not want to go on blindly funding old programs.

Mr. Chairman, you are to be commended on these hearings. While I do not believe that S. 373 goes far enough in actually providing Congress with a budget control mechanism, it is a welcome first step in developing the debate which will lead to our establishing such a mechanism.

S. 373 does contain certain principles which Congress will most certainly want to incorporate in its ultimate solution to the budget problem. The bill requires a complete, rapid accounting of impounded funds not only to the Congress but to the public in general. For purposes of this accounting, it defines impoundment in a broad manner, thus assuring that all persons who are affected in any way by executive actions which preclude obligations or expenditures of appropriated funds, will receive notice of that action at an early date.

S. 373 contains certain provisions which I believe are unwise. It requires Congress to consider, individually, each and every impoundment reported to it.

Such a provision would, unnecessarily I believe, swamp our congressional workload. The number of record votes in the Senate has tripled since the 85th Congress of 1957-58; it has more than doubled just since the 87th Congress of 1961-62. In the 91st Congress there were 666 record votes; last session there were 955. This indicates we are already hard at work on legislation, and the additional reconsideration of legislation which would result from separate review of each impoundment seems likely to strain unnecessarily the legislative process.

In my view S. 373 does not go far enough. It puts Congress in the position of reacting to Executive impoundments on a piecemeal, afterthe-fact basis. Congress must take action to establish its own overall view of the budget and to conduct its legislative business on its own initiative. I hope hearings will result in positive proposals to that end. Senator GURNEY. I would like to commend you for starting these hearings which I think are some of the most important in which we will engage in this Congress; perhaps some of the most important in our time.

There has been a great deal of discussion and talk about the waning of the power of Congress and the growing of the power of the Executive. There isn't any question that that is going on. Historically it seems to me in all levels of government, whether city or county or State or here in the Federal Government, the legislative body, elected by the people, has historically set budgets, controlled spending, estabished priorities. The Federal Government in Washington, in recent years, has been the only example where the Executive has usurped some of that power by impounding funds to effect what are basically line item

vetoes.

It seems to me that we in Congress are to blame for what has happened. We established the Office of Management and Budget. We gave this power to the executive branch. We set up the kind of tool that the Executive can use to control the budget; and believe me, the OMB does control the budget. In fact, many students of government believe that the Office of Management and Budget today is probably second in importance and in raw power in this Government to the Executive himself, and that Congress has indeed been relegated to a secondary role. Hopefully, this bill will start a first chapter in the efforts of Congress to reassert its control over the budget.

I certainly must agree with the expressions made by everyone here that if we are going to do that we have to plan and coordinate, we have to establish priorities and we have to set up a tool for the use of ourselves, either as Senator Percy or Senator Javits or some of the others have suggested. I myself think we ought to establish a committee on the budget itself and staff it with perhaps the largest staff of any committee in Congress if we are really going to look into this thing and establish a control over the budget in a responsible way.

So I think what you have started here, Mr. Chairman, is indeed one of the most important things that has been started in our time in the Congress, and I certainly hope these hearings will become fruitful and lead to a way by which Congress can reestablish and reassert its power of the budget.

Thank you.

Senator ERVIN. At this time I would like to thank Arthur S. Miller, professor of constitutional law at George Washington University and

consultant to the Committee on Separation of Powers; Rufus Edmisten, counsel to the committee, and George Patten, legislative aide to Senator Chiles, for the assistance they have given the committees in preparing for these hearings.

I want to ask Senator Chiles to take over the chair to preside as chairman of the ad hoc committee. Counsel, you may call the wit

nesses.

Mr. EDMISTEN. Mr. Chairman, the first witness is Mr. Ralph Nader, who is accompanied by Mr. Alan B. Morrison and W. Thomas Jacks, attorneys for Public Citizen, Inc.

Senator ERVIN. Mr. Nader, we are delighted to have you and your colleagues testify before us this morning.

STATEMENT OF RALPH NADER, ACCOMPANIED BY ALAN B. MORRISON AND W. THOMAS JACKS, ATTORNEYS, PUBLIC CITIZEN, INC.

Mr. NADER. Thank you, Mr. Chairman.

I would like to introduce the two gentlemen with me. On my right is Mr. Thomas Jacks. On my left Mr. Alan Morrison, who are attorneys for Public Citizen, Inc., and have engaged in the legal aspects of the impoundment issue.

Mr. Chairman, distinguished members of the Subcommittees on the Separation of Powers and on Impoundment, we are grateful for the opportunity to comment upon S. 373 and the subject matter of executive impoundment in the context of congressional-executive relationships.

A serious constitutional crisis has been intensifying in recent years over what has been called a radical imbalance of power in favor of the executive over the legislative branches of Government. It is important. to note that the word "power" is used instead of "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. Power, it has been repeatedly said, abhors a vacuum. So we find ourselves in this country witnessing a relentless de facto repudiation of critical provisions in the Constitution which frame the branches of Government as countervailing forces against one another so they can be more accountable to the people. These forces are supposed to reflect varying proximities of popular representation bearing on governmental decisionmaking. Thus, the Congress is viewed as being "closest to the people" who make their periodic judgments at election time. Consequently, the Congress is given the "power of the purse" to impose taxes and appropriate

revenues.

But events in the growth of human societies do not forever curtsy to words, however generically rooted they may be in the Constitution of the Republic. The Founding Fathers were farsighted but not clairvoyant. They did not, perhaps they could not, provide safeguards against

1. The overwhelming advantage which an operating branch of Government has against an enabling branch of Government;

2. The consequences of massive complexity in a huge bureaucratic apparatus administering programs about which a tiny Congress-whose

annual $500 million budget compares with less than 3 days' expenditures of the Pentagon-is unequipped even to gather the requisite information, much less to review and monitor such programs;

3. The pace of decisionmaking, facilitated by or required by modern technology, and the velocity of executive acts which favor the accretion of presidential power vis-a-vis the Congress; and

4. A Congressional phenomenon, possibly reminiscent of Erich Fromm's concept of an "escape from freedom," which willingly abdicated to the presidency the responsibility as long as amenities and consultations were given their due form and ritual.

During the past generation, the Presidency began rapidly to overshadow the Congress. The erosion left Congress with even less initiatory will than ever, and it developed a posture of checking the executive branch by waiting for fully drafted legislation to be proposed by the President, and then exerting its power of delay or obstruction-a sure sign of institutional slide on its part. Over the past decade the vast allocation of discretionary authority and emergency powers, and the sloppy, uncoordinated, blanket-type budgeting process in Congress have combined to permit the President increasingly to turn the congressional flank. As fiscal crisis begets fiscal crisis, the President, whether by initiative or others' default, increasingly becomes his own Congress. Power can rarely be destroyed; it is merely transferred to other forums and agents. Thus, not only is the congressional ability to obstruct presidential directives for ongoing programs atrophying quickly, but Congress itself, as an inchoate holder of certain governing duties, is withering away. What were once ad hoc or emergency presidential exercises are now becoming institutionalized erosions of congressional powers. What this means in practical terms is that a tradition is building up. with the passive acceptance of a misinformed public, that is, directly contradictory to the constitutional doctrines of separation of powers and checks and balances taught in our schools. Democracy comes hard, but it goes easily and, as the poet once said, frequently on "little cat's feet."

Thus, the President, building on his predecessors' precedents, has developed a "do it yourself" Congress right inside the White House complex. Without following the constitutional procedures which are to be performed by the Congress, the President now can in fact make war; enter into treaties-now called executive agreements-develop budgets whose crucial details are not known to the Congress; provide his own "advise and consent" for the real Cabinet officials by having presidential assistants perform their work with the immunity from inquiry that is the widening "tradition" of executive privilege: fundamentally reorganize various parts of the executive branch; and spend funds not appropriated or refuse to spend funds appropriated by Congress. The latter is the problem of impoundment which is the specific subject of this hearing.

Before discussing more closely the impoundment crisis and the proposed remedies, two points should be emphasized. First, the constitutional issues raised in this hearing apply to many other Presidential usurpations or, as some would prefer to describe it, congressional abdications. It is not at all clear that pragmatism requires a piecemeal treatment of these problems just as it is not at all clear that any statutory responses are adequate to stop constitutional disruptions of