Senator MUSKIE. I have asked you a question. You said we are entitled to decide. All right. If the Congress asks this question is your answer to it yes?

Mr. ASH. Which question are we back to now? The one of whether

Senator MUSKIE. Mr. Ash, I have 10 minutes and I have some other points. You know what I am asking.

Mr. ASH. I would say that you have the benefit-that the hearing process, as I understand it

Senator MUSKIE. I have told you the hearing process in my judgment isn't adequate. I have told you as one Member of the Congress that I think that getting the information that I have described would be a great additional help. If the Congress confirms that judgment and we pass this bill would you recommend to the President that he sign it in order that we may get it?

Mr. ASH. I don't believe I would. I would want to study it further, but I don't believe I would.

Senator MUSKIE. All right. Then I do not take in good faith your offer of cooperation.

Senator ERVIN. Pardon me a minute. We argued the Gravel case before the Supreme Court, and Justice Douglas asked what I thought was a very important question. He asked if the executive branch has title to such information.

Senator MUSKIE. Apparently, Mr. Ash, it does. Let me ask you another question. Is the President's 1974 budget in balance?

Mr. Ash. It is in full employment balance. It is not in Federal funds balance under the unified

Senator MUSKIE. In terms of dollars it is in deficit?

Mr. Asu. That is right, sir.

Senator MUSKIE. Now, you say the deficit has been carefully measured to achieve some goals.

Mr. ASH. Yes, sir.

Senator MUSKIE. Now, as I read the morning papers, the administration and Congress admit that their estimates of GNP are higher than that of most economists, so if that is the case, the deficit will be larger than that projected by the President?

Mr. ASH. I believe that the

Senator MUSKIE. If the GNP on which your revenues are based is higher than what it will be, your deficit will be larger?

Mr. ASH. Not unless expenditures are curtailed to a lesser revenue. Senator MUSKIE. I am talking about your budget, not what we appropriate.

Mr. AsH. It is a fact just as you have said, Senator, that if actual revenues are less than those planned and those that are planned are based upon an estimate of the GNP, and if expenditures continue exactly as planned, then the resultant deficit would be larger than indicated: that is correct.

Senator MUSKIE. Second, I understand that your objective of your economic program this year is not full employment, it is something less. As a matter of fact, you don't seem to agree on what your measure of full employment is going to be. I am not sure you have adopted 41% percent. You seem to be working on something just under 5 percent.

So it isn't a full employment budget in an economic standpoint either, is it?

Mr. Ash. It is based upon the definition that 4 percent unemployment constitutes the full employment level for the purpose of determining a budget deficit; it is based upon a 4 percent stipulated unemployment level.

Senator MUSKIE. Let me ask you this: If the Congress should disagree with you with respect to what the full employment goal ought to be or with respect to the projections of GNP, is it your view that Congress has any authority to implement its judgment on those two points on what it does on appropriations?

Mr. ASH. It absolutely has.

Senator MUSKIE. If the Congress should decide that GNP should be higher or that full employment goal should be different than those you project, and based upon those projections, the Congress comes out with a different deficit than yours, should the Congress have the right to implement its view on those points?

Mr. ASH. It should translate into legislation, both on the tax side. and the appropriation side, all of its judgment.

Senator MUSKIE. I am not talking about appropriations.

Mr. ASH. They should translate all of them.

Senator MUSKIE. If the Congress sends appropriations to the President, based upon its evaluation and our full employment goals and other relevant factors, is it still your view that if the President on those points differs from the Congress, he can impound appropriations and refuse to execute the Congress' judgments on those points?

Mr. AsH. All Presidents over the years have exercised their judgments.

Senator MUSKIE. We are now talking about the basis upon which it is exercised.

Mr. AsH. And even on that basis.

Senator MUSKIE. And so what you are saying is with respect to full employment goals, with respect to economic projections, in effect, the Congress has nothing but an advisory role to play?

Mr. ASH. No: I am not saying that one bit.

Senator MUSKIE. Well, in implementing appropriations the President can impose his view, you have said. Since he doesn't do that, doesn't it leave the Congress power to impose their judgment?

Mr. ASH. That is drawing a black and white conclusion. Over the many years past, there has always been as a matter of recurring operation, as a Presidential action, applied to congressional appropriation.

Senator MUSKIE. Never upon the basis

Senator CHILES. Senator, I am afraid we are getting beyond the time limit.

Senator MUSKIE. Well, I am sorry. It is just beginning to get interesting.

Senator CHILES. Mr. Ash, we appreciate your appearing and look forward to hearing from you again.

Senator ERVIN. Senator, without objection, I would like a copy of the Antideficiency Act to be placed in the record.

(The copy of the Antideficiency Act referred to follows:)

"THE ANTIDEFICIENCY ACT”

(Section 3679 of the Revised Statutes, as amended) (31 U.S.C. 665)

SEC. 3679. (a) No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.

(b) No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of property.

(c) (1) Except as otherwise provided in this section, all appropriations or funds available for obligation for a definite period of time shall be so apportioned as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations for such period; and all appropriations or funds not limited to a definite period of time, and all authorizations to create obligations by contract in advance of appropriations, shall be so apportioned as to achieve the most effective and economical use thereof. As used hereafter in this section, the term "appropriation" means appropriations, funds, and authorizations to create obligations by contract in advance of appropriations.

(2) In apportioning any appropriation, reserves may be established 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. Whenever it is determined by an officer designated in subsection (d) of this section to make apportionments and reapportionments that any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he shall recommend the rescission of such amount in the manner provided in the Budget and Accounting Act, 1921, for estimates of appropriations. (3) Any appropriation subject to apportionment shall be distributed by months, calendar quarters, operating seasons, or other time periods, or by activities, functions, projects, or objects, or by a combination thereof, as may be deemed appropriate by the officers designated in subsection (d) of this section to make apportionments and reapportionments. Except as otherwise specified by the officer making the apportionment, amounts so apportioned shall remain available for obligation, in accordance with the terms of the appropriation, on a cumulative basis unless reapportioned.

(4) Apportionments shall be reviewed at least four times each year by the officers designated in subsection (d) of this section to make apportionments and reapportionments, and such reapportionments made or such reserves established, modified, or released as may be necessary to further the effective use of the appropriation concerned, in accordance with the purposes stated in paragraph (1) of this subsection.

(d) (1) Any appropriation available to the legislative branch, the judiciary, or the District of Columbia, which is required to be apportioned under subsection (c) of this section, shall be apportioned or reapportioned in writing by the officer having administrative control of such appropriation. Each such appropriation shall be apportioned not later than thirty days before the beginning of the fiscal year for which the appropriation is available, or not more than thirty days after approval of the Act by which the appropriation is made available, whichever is later.

(2) Any appropriation available to an agency, which is required to be apportioned under subsection (c) of this section, shall be apportioned or reapportioned in writing by the Director of the Bureau of the Budget. The head of each agency to which any such appropriation is available shall submit to the Bureau of the Budget information, in such form and manner and at such time or times as the Director may prescribe, as may be required for the apportionment of such appropriation. Such information shall be submitted not later than forty days before the beginning of any fiscal year for which the appropriation is available, or not more than fifteen days after approval of the Act by which such appropria

tion is made available, whichever is later. The Director of the Bureau of the Budget shall apportion each such appropriation and shall notify the agency concerned of his action not later than twenty days before the beginning of the fiscal year for which the appropriation is available, or not more than thirty days after the approval of the Act by which such appropriation is made available, whichever is later. When used in this section, the term "agency" means any executive department, agency, commission, authority, administration, board, or other independent establishment in the executive branch of the Government, including any corporation wholly or partly owned by the United States which is an instrumentality of the United States. Nothing in this subsection shall be so construed as to interfere with the initiation, operation, and administration of agricultural price support programs and on funds (other than funds for administrative expenses) available for price support, surplus removal, and available under section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612(e)), with respect to agricultural commodities shall be subject to apportionment pursuant to this section. The provisions of this section shall not apply to any corporation which obtains funds for making loans, other than paid in capital funds, without legal liability on the part of the United States.

(e) (1) No apportionment or reapportionment, or request therefor by the head of an agency, which, in the judgment of the officer making or the agency head requesting such apportionment or reapportionment, would indicate a necessity for a deficiency or supplemental estimate shall be made except upon a determination by such officer or agency head, as the case may be, that such action is required because of (A) any laws enacted subsequent to the transmission to the Congress of the estimates for an appropriation which require expenditures beyond administrative control; or (B) emergencies involving the safety of human life, the protection of property, or the immediate welfare of individuals in cases where an appropriation has been made to enable the United States to make payment of, or contributions toward, sums which are required to be paid to individuals either in specific amounts fixed by law or in accordance with formulae prescribed by law.

(2) In each case of an apportionment or a reapportionment which, in the judgment of the officer making such apportionment or reapportionment, would indicate a necessity for a deficiency or supplemental estimate, such officer shall immediately submit a detailed report of the facts of the case to the Congress. In transmitting any deficiency or supplemental estimates required on account of any such apportionment or reapportionment, reference shall be made to such report.

(f) (1) The officers designated in subsection (d) of this section to make apportionments and reapportionments may exempt from apportionments trust funds and working funds expenditures which have no significant effect on the financial operations of the Government, working capital and revolving funds established for intragovernmental operations, receipts from industrial and power operations available under law and any appropriation made specifically for

(1) interest on, or retirement of, the public debt;

(2) payment of claims, judgments, refunds, and draw-backs:

(3) any item determined by the President to be of a confidential nature:

(4) payment under private relief Acts or other laws requiring payments to designated payees in the total amount of such appropriation:

(5) grants to the States under title I, IV, or X of the Social Security Act, or under any other public assistance title in such Act.

(2) The provisions of subsection (C) of this section shall not apply to appropriations to the Senate or House of Representatives or to any Member, committee, Office (including the office of the Architect of the Capitol), officer, or employee thereof.

(g) Any appropriation which is apportioned or reapportioned pursuant to this section may be divided and subdivided administratively within the limits of such apportionments or reapportionments: The officer having administrative control of any such appropriation available to the legislative branch, the judiciary, or the District of Columbia, and the head of each agency, subject to the approval of the Director of the Bureau of the Budget, shall prescribe, by regulation, a system of administrative control (not inconsistent with any accounting procedures prescribed by or pursuant to law) which shall be designated to (A) restrict obligations or expenditures against each appropriation to the amount of apportionments or reapportionments made for each such appropriation, and (B) enable

such officer or agency head to fix responsibility for the creation of any obligation or the making of any expenditure in excess of an apportionment or reapportionment. In order to have a simplified system for the administrative subdivision of appropriations or funds, each agency shall work toward the objective of financing each operating unit at the highest practical level, from not more than one administrative subdivision for each appropriation or fund affecting such unit.

(h) No officer or employee of the United States shall authorize or create any obligation or make any expenditure (A) in excess of an apportionment or reapportionment, or (B) in excess of the amount permitted by regulations prescribed pursuant to subsection (g) of this section.

(i) (1) In addition to any penalty or liability under other law, any officer or employee of the United States who shall violate subsection (a), (b), or (h) of this section shall be subjected to appropriate administrative discipline, including when circumstances warrant, suspension from duty without pay or removal from office and any officer or employee of the United States who shall knowingly and willfully violate subsection (a), (b), or (h) of this section shall, upon conviction. be fined not more than $5.000 or imprisoned for not more than two years, or both. (2) In the case of a violation of subsection (a), (b). or (h) of this section by an officer or employee of an agency, or of the District of Columbia, the head of the agency concerned or the Commissioners of the District of Columbia, shall immediately report to the President. through the Director of the Bureau of the Budget, and to the Congress all pertinent facts together with a statement of the action taken thereon (31 U.S.C. 665),

Hereafter, any appropriation required to be apportioned pursuant to section 3679 of the Revised Statutes, as amended, may be apportioned on a basis indicating the need for a supplemental or deficiency estimate of appropriation to the extent necessary to permit payment of such pay increases as may be granted those employees (commonly known as wageboard employees) whose compensation is fixed and adjusted from time to time in accordance with prevailing rates (5 U.S.C. 5102, 5341). (31 U.S.C. 665a).

NOTES

Except as indicated below, this is derived from section 1211 of Public Law 759, 81st Congress 64 Stat. 765.

Subsection (e) (i).—The reference to heads of agencies was added by the Act of August 28, 1957. 71 Stat. 440.

Subsection (g).--The last sentence of the subsection was added by the Act of August 1, 1956, 70 Stat. 783.

In addition to the exceptions specifically provided for in the Antideficiency Act, some appropriations or programs have been specifically exempted from the operation of the Act, in whole or in part, by other law.

Senator ERVIN. Our last witness for today will be Mr. Lewis Cenker of the National Association of Home Builders.

Mr. Cenker, we appreciate your being with us today.

STATEMENT OF LEWIS CENKER, FIRST VICE PRESIDENT OF THE NATIONAL ASSOCIATION OF HOME BUILDERS; ACCOMPANIED BY BURTON WOOD, GENERAL COUNSEL, AND CARL A. S. COAN, JR., LEGISLATIVE COUNSEL

Mr. CENKER. Mr. Chairman, members of the several subcommittees, my name is Lewis Cenker. I am a builder from Atlanta, Ga., and I appear here today as first vice president of the National Association of Home Builders. I have with me Burton Wood, our general counsel, and Carl A. S. Coan, Jr., our legislative counsel.

I am honored to be here and to share with you our views on the very serious problems created by executive impoundment of funds specifically authorized and appropriated by the Congress. As the trade association representing the American homebuilding industry, with over 67,500 members in 546 State and local associations through