Senator BYRD. Again, I compliment you and I wish you well in your efforts.

Senator ERVIN. I would like to say a little in defense of the Congress.

We have an expression in North Carolina which frowns upon the pot calling the kettle black, and it seems to me that that homely adage applies here.

As the President stated in his press conference the other day, the Congress is financially irresponsible. Well, that offended me at first, and I came to the conclusion that the President had told the truth, but he told the half truth.

Every President that has lived in the White House since I came to the Senate-Presidents Eisenhower, Kennedy, Johnson, and President Nixon-has recommended that Congress authorize expenditure of Federal funds which would necessitate funding through the deficit financing process. If it is financially irresponsible for Congress to appropriate more funds than the current taxes are raising, it is likewise equally financially irresponsible for the President to recommend the expenditure of funds which require funding through the deficit financing process.

While I am talking about the Presidents, the most financially irresponsible one, above all of them, is the present occupant of the White House, because during the first 4 years of his administration the Federal Government has spent approximately $110 billion more than the resources that were available to the Federal Government.

I may be a minority, but I have always thought that if a President is going to recommend the expenditure of more money than taxes raised, that he ought to request Congress to increase taxes to take care of the excess expenditure, and if Congress is going to appropriate more money than it had available, it should enact new tax laws.

As I construe the budget the President has recommended, it recommends that we spend money, and prognosticates that it is going to require about $30 billion of deficit financing to finish the program recommended by the President.

Senator BYRD. Mr. Chairman, I think both the pot and the kettle are black.

The President talks about the necessity for increased taxes if the Congress goes over the ceiling. Last year-2 years ago, the President recommended a program of general revenue sharing and Congress last year enacted this program to the tune of $6 billion a year for the next 5 years in general revenue sharing. I am glad to say that I voted against this.

Senator ERVIN. So did I.

Senator BYRD. Mr. Chairman, let me say this: There are many communities in my State and every other State in this Union for which this money was a windfall. This money is going to be coming into these communities; they do not know what to spend it for; they send out hundreds of thousands of letters asking people what this money should be spent for.

The money will be spent for a swimming pool or something down here where there are greater needs. But we are already tied to the tune of $30 billion for general revenue sharing in the next 5 years, including the one that has just passed.

90-538-73-22

So here is one of the areas which I think will help to necessitate a tax increase. The President talks about the necessity for avoiding a tax increase. He talks about this tight budget and, as I have already indicated, sends up a budget request that is $19 billion greater $19 for every minute since Jesus Christ was born-than the outlays for 1973.

In addition to this, during the first 5 years, as I have already pointed out, he will have run up a total Federal funds deficit of $134 billion, which is just 26 percent, or one-quarter, of the total national debt which has accumulated since national debts came into being in this country.

Then he talks about sparing the people continued spiraling inflation and points the finger at Congress while, at the same time, he removes phase II controls which he did not want and the Congress forced upon him against his will, in the beginning.

Here, in the Congress, we can say we, too, are a little black because every time we bring a bill to the floor, some senator, and I include myself-I think I offered about the greatest amendment of all, about a billion dollars last year, but very justified in a sense because the Federal Government was already committed to pay it; it had to do with black loan payments. But every time we get to the floor with an appropriations bill, we all join in running roughshod, barefooted, over the appropriations committee. We also authorize bills that add expenditures ad infinitum, in perpetuity, without any thought of the economics involved.

Mr. Chairman, I thank you very much.

Senator ERVIN. I regret I have to keep my word not to ask any questions, but I will ask you one more. I am getting obsessive in verbiage.

But it is not true under the Constitution that Congress cannot bring about the expenditure of a single penny of Federal money without the consent of the President unless Congress passes an appropriation bill over the veto of the President by two-thirds majority in each House, and virtually all of this $110 billion deficit, as I figure, incurred in the first 4 years of the administration's present occupant of the White House and was consented to by the President.

Senator BYRD. No question about it.

That deficit, which on June 30, 1973, will be $473 billion, would have been $493 billion had the Congress not cut $20 billion out of the budget authority requested by the President during the past 4 years.

Senator ERVIN. So if either the Congress or the President can be convicted on the charge of financial irresponsibility they would both have to be found guilty as principals acting jointly, as principals in the first degree?

Senator BYRD. No question but that they are both guilty, Mr. Chairman.

Senator CHILES. The tables you offered have been included in the record, Senator.

Senator BYRD. Thank you, Senator.

(The full prepared statement of Senator Byrd follows:)

PREPARED STATEMENT OF HON. ROBERT C. BYRD, A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

Mr. Robert C. Byrd. Mr. Chairman, I am pleased to appear today to join in support of S. 373, introduced by Chairman Ervin and co-sponsored by almost one-half of the Senate, myself included. I wholeheartedly subscribe to the vital principle which this legislation seeks to restore and preserve, namely, the constitutional power and authority of the Congress to determine in what amounts, and the purposes for which, the Nation's revenues will be spent.

We have today been brought face to face with what recent newspaper editorials and network commentators have called the "constitutional collision of our generation" and "the constitutional crisis of the century." It is a crisis that has crystalized quite abruptly as a result of certain impoundments of budget authority by President Nixon during the past few months, but it is a process that has been going on for years under various presidents representing both political parties. The distinguishing feature of the recent impoundments which has sparked the storm of controversy lies in the fact that while some impoundments are legal and appropriate-for example, the withholding of current funds to protect against future deficiencies in programs-many of the recent impoundments have not been sanctioned by the Congress, and, in the judgment of the co-sponsors of this legislation, such impoundments constitute an instrument resorted to solely for the implementation of fiscal and economic policy.

This is where the grave constitutional question arises, and it comes at a time when the whole issue of separation of powers is being raised in many areas simultaneously-executive privilege, war powers, and so on. In all of these, the problem is one, perhaps not entirely of our own making, but, nonetheless, one to which Congress itself has substantially contributed by acts of commission as well as omission.

Regarding the constitutional issue involving impoundments of budget authority as an instrument in the exercise of fiscal and economic policy, several United States Senators, the Majority Leader and I included, have joined with you, Chairman Ervin, in filing an amicus curiae brief in the case of State Highway Commission of Missouri v. John A. Volpe, Secretary of Transportation and Caspar W. Weinberger, Director of the Office of Management and Budget. The case is on appeal to the Eighth Circuit from the U.S. District Court for the Western District of Missouri. The District Court ruled last June that the Secretary of Transportation does not have the power to impound Federal highway funds indiscriminately. But the case does not go to the question of the Constitutional power of the President to impound legislatively appropriated funds, since the case turns on statutory construction of the Federal-Aid Highway Act which includes a section prohibiting impoundment except under strict limitations. Therefore, S. 373 goes to the broader question of impoundmentlimiting the power of the Executive to impound except where that impoundment is sanctioned by the Congress.

As I have indicated, the problem with which we are here dealing is one that is largely of Congress' own making. Candid reflection compels the admission that, for too long now, the Congress has been unwilling to wield its power of the purse in accordance always with the highest sense of responsibility. I hesitate to suggest that it is too much to expect of the Federal Legislature considering the countless cross currents of spending pressures to which it is constantly subjected, and keeping in mind its constitution of 535 members with differing views and differing constituencies-that it at all times act in a fiscally responsible manner. But one cannot deny the patently evident fact that a high degree of fiscal responsibility, political independence and statesmanship has not been the constant standard by which the Congress has measured its collective judgment regarding the authorization and funding of programs.

In many instances, Congress has acquiesced in the creation and funding of costly and unsound programs urged upon it by Presidents of both parties. It has all too often yielded, also, to the political pressures of blocs and groups with vested interests in continued and increased funding for various and sundry programs. It cannot be gainsaid that organized special interest groups, with political clout, have, on many occasions, influenced the creation and perpetua

tion of costly pet programs, the financial burden of which is borne by the general public. Any effort to cut back or eliminate programs once started-notwithstanding their exhorbitant cost and inefficiency-has invariably been met with organized resistance and cries of anguish from one pressure group or another. Little wonder that the small voice of the people unorganized, inarticulate, docile, and, yes, complacent-has been drowned by the thunder of politically powerful pressure groups.

Too many of us have not had the intestinal fortitude to say "no" to these pressures. As a matter of fact, quite candidly, too many of us over the years have virtually outdone ourselves in currying the favor of organized pressure groups that advocate more and more spending as the solution for more and more problems, this being the way to get more and more votes. The result: more and more deficits; more and more debt, and more and more interest on the debt; and, at last, a super-politically-sensitive President who correctly interprets the mood of the American taxpayer who, in turn, is fed up with it all and has had enough!

So, the brakes have been applied; the impoundment of funds is resorted to as a bald instrument of economic policy; worthwhile programs are victimized along with those that are unworthwhile and which we ourselves have shown neither the wisdom nor the guts to terminate; and we suddenly have a serious constitutional question on our collective hands.

But neither the fact that the Congress has been derelict in its past responsibility, nor the fact that this Administration in the short period of five years will have accumulated a Federal funds deficit by June 30, 1974, of $134 billion— 26 percent of the then total national debt of $505 billion, going back well over 100 years-none of this relieves the Congress of its responsibility to squarely confront the constitutional issue that has now been joined.

Does the President have the authority to impound funds? Article I, Section 9, Clause 7 of the Constitution reads as follows:

"No money shall be drawn from the Treasury, but in consequence of appropriations made by law; ***”

While it is clear that no funds may be expended without the authority of Congress, there is no constitutional provision explicitly requiring the President to spend funds made available by the Congress. However, it is my belief that other provisions of the Constitution, as I shall refer to them later, impliedly and logically deny the President's use of impoundments purely as an instrument of fiscal and economic policy.

But to say that the President does not constitutionally possess this authority is not to say that much of the public-perhaps a majority, even a sizeable majority-does not applaud the substantive effect of his actions in reducing or eliminating unwanted, ineffective, and costly programs; I think the public approves and supports what he is doing. The President's actions have political appeal, and I think they are what the people want, especially in the present context of growing deficits, burgeoning national debt, and continuing inflation. We have too long overstated the theme that ours is a nation of poor people; that this country is, from sea to shining sea, in abject poverty; and that money is the solution for every problem. The taxpayers have had enough of this, and I will wager that a few random telephone calls back home will suffice to convince most members of Congress that such is the case.

But it is to say that the Congress has a duty to act forthwith to retrieve and reestablish its constitutional power of the purse. If Congress really is determined to do this, I think it is imperative that Congress move in the following directions: (1) It must demonstrate a proper restraint in the consideration of future spending programs, and this restraint must guide both the legislative committees and the appropriations committees. In other words, the constitutional power of the purse must be exercised by Congress more responsibly, prospectively, than in the past.

(2) Congress must apply a ceiling on budget authority, and both the authorizing and the appropriations committees must govern themselves accordingly. Incidentally, I think it is appropriate to mention here that Congress, in consideration of the appropriations bills, has, during the past four years, effected reductions amounting to approximately $20 billion in the budget authority requested by the President. Nonetheless, if Congress does not place a ceiling on budget authority, it will be saddled with blame for the tax increase that will inevitably result. The Administration has suggested a ceiling on FY 1974 expenditures of

$269 billion and has submitted a budget trimmed to that amount. Keep in mind, that the Administration's budget makes no mention of funds for reconstruction in Indochina even though the Administration has already made a commitment for such, meaning only that such funds, when they are requested, will come out of the hide, so to speak, of other budgeted programs-or out of a tax increase which will be blamed on Congress if it goes over the $269 billion ceiling. Overstepping the ceiling will also subject Congress to blame for the inflation which, in my judgment, will soon again show signs of an upward trend as the direct aftermath of premature scuttling of most of the Phase II price and wage controls.

In any event, any ceiling on budget authority should be a Congressional imposed ceiling-not a presidential ceiling—if we are to restore and preserve Congressional power of the purse.

(3) Congress must find some way, perhaps through a permanent joint committee, to exercise a continuous overview of revenues and expenditures, to relate anticipated revenues with budget authority, and to provide guidance to the two Houses in establishing priorities and ceilings in a meaningful, effective, and responsible way. I think there has been too much poor-mouthing of the Congress with respect to the tools which it already has at hand. It merely needs to determine the direction in which—and show the will-to use them. It is not a helpless giant, and it is not necessary that we fill the corridors with millions of dollars worth of computers which will stand idle 360 days out of the year, nor is it necessary that Congress arm itself, man for man, in an effort to match the Executive Branch. The Executive Branch administers the laws; the Congress enacts them. But Congress does have available to it, 5,000 employees of the General Accounting Office, many of whom can readily be made available to the appropriations committees upon request.

I think it is necessary for us to explore such a joint committee approach as I have suggested or some other permanent approach which will afford us a better utilization, then we have heretofore demonstrated, of the Congressional tools which we have at hand.

(4) Congress must try to devise workable, feasible legislation, which will be sustainable in the courts and which will protect its constitutional authority to determine how the people's moneys will be spent, how much will be spent, and for what purposes. To devise such legislation and to enact it into law will not be an easy task, as we shall all eventually surely see. But try we must, and I congratulate the Chairman of the Separation of Powers Subcommittee on the effort that is being made here. No Senator is so pre-eminently qualified as he for such a difficult, such a challenging and important task. He has my support and the support of all Senators in both parties who view the matter, not as a partisan matter, except perhaps incidentally, but rather as a grave and far-reaching challenge to the rightful position of Congress in a constitutional system of separation of powers.

The separation of powers concept in the Constitution traces its development from Plato and finds its fullest development prior to the American Constitution in Montesquieu's "The Spirit of the Laws". There he states: "To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. . . . Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? .. To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; . . .".

Montesquieu then specifically addressed the issue of the Executive usurpation of the legislature's powers to appropriate: "The executive power has no other part in the legislative than the privilege of rejecting. . . . Were the executive power to determine the raising of public money, otherwise than by giving its consent, liberty would be at an end; because it would become legislative in the most important point of legislation. . . . If the legislative power were to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would be no longer dependent; . . .".