Utilizing these financial base data, we then developed the programing capability for each of the five future years. Projects were then developed for approval by the State Highway Commission on a quarterly basis, which forecast our scheduled highway lettings during the period. The State Highway Commission formally approved the five-year program, with the approved program being furnished members of the Legislature and distributed locally throughout the State.

Under our advanced construction programing process, as the current year is completed, an additional year is added-thus maintaining a continuing five-year construction program.

Since 1968, the holdback in federal funds has frustrated our attempt to maintain the integrity of this program, and its credibility with the Highway Commission, members of the State Legislature and highway groups throughout the State. Due to the succeeding cutbacks, we were not able to maintain the five year program at the magnitude anticipated. In effect, the direct result of the annual withholding of a portion of Oklahoma's apportionment of federal-aid highway funds has been to extend what was a five year program to a seven to nine year program period. Not only have we been denied the use of the money in a timely fashion, the highway users of Oklahoma have been denied the benefits they could have enjoyed by having an improved highway system. These benefits can be measured not only in inconvenience, but in the very real terms of economic loss and the cost of accidents.

In order to illustrate our point, we are including the following tabulation, cov. ering the period 1964 through 1973, showing the federal funds withheld each year beginning in the fiscal year 1968 apportionment.

While it is true that some of the withheld funds have been released to the states under various supplemental releases, special purpose apportionments, redistribution of funds, and other so-called windfall releases; the total effect on the program can be considered to be as indicated by the cumulative holdback figure. The fact that these funds were not available when anticipated is the basic issue.

Summarizing our position, we strongly feel that unless some mechanism exists whereby the states can be assured that the funds accruing in the Federal-aid Highway Trust Fund will be made available to them in a timely and appropriate manner, as we read the intent of Congress in establishing the Trust Fund, it will be impossible for these states to make plans for the orderly development of their highway system, or to maintain any degree of creditibility with the citizens of these states. This is particularly true now that the current policies, procedures, and regulations promulgated by the Department of Transportation, under the guise of environmental protection and other items, make it impossible to develop a highway project within a reasonable length of time.

We firmly and fully agree with the intent of Congress in that we must take all practical steps available to us to minimize and eliminate, where possible, such things as pollution, adverse social and economic impacts, and other related features. We do question the practicality of the Department of Transportation's approach to some of these items.

If we can provide any additional information concerning Senator Ervin's bill, or any other facet of the Federal-aid Highway Program, please feel free to contact us. We hereby request this statement be entered into the records of the Committee's hearings on this matter.

Sincerely,

C. D. PAYNE, Chairman.

R. A. WARD, Director.

For more than a half century the Executive branch has, on various occasions, seen fit to withhold appropriated funds for various reasons. This practice, while questionable from the congressional viewpoint, was not a serious problem until the post-World II period. In the past five years impoundment has accelerated and become a matter of increasing concern to the Congress.

The legal justification for withholding funds lies in the Anti-Deficiency Aets of 1905 and 1906 which were, as the name implies, intended to avoid deficiencies in Federal spending and not to provide the Executive with a budgetary offset.

[From the Arkansas (North Little Rock) Professional Engineer, October 1972]

SPECIAL REPORT-IMPOUNDED HIGHWAY FUNDS DELAY SAFETY IMPROVEMENTS [This article is reprinted with permission from the August 1972 issue of the "American Road Builder"]

(By U.S. Senator Jennings Randolph, Chairman, Senate Public Works Committee) On numerous occasions I have spoken out against the practice by the Executive branch of the Federal government of withholding funds appropriated by the Congress. This has been the case for many years, by Presidents of both political parties and has involved scores of agencies and programs. However, I feel very strongly about the impoundment of highway funds.

These highway funds provided through the Highway Trust Fund supported by user taxes can be spent for no other purpose than highway transportation. Consequently, the withholding of highway obligational authority from the states in no way makes funds available for other government activities.

If for no other reason than safety-the number of lives saved, the personal injuries avoided, the economic benefit by reducing personal property losses-all of the funds which have been withheld should be released as soon as possible. The longer we delay improving our existing primary and secondary systems and completing the Interstate System, the longer it will be before we can make significant strides in reducing the more than 50,000 deaths which occur annually on our country's roads.

To demonstrate my deep concern on this impoundment question, on June 30 I offered a substitute amendment to the then pending Federal Debt Limitation Bill. My proposal was designed to require the release of impounded highway funds as a condition precedent to any increase in the debt ceiling. I took this action as a means of placing the problem before the U.S. Senate.

My purpose was to dramatize the importance of the separation of powers of the Legislative and Executive branches of government. Through the 196 years of this republic, each of the two branches has guarded its prerogatives with understandable jealously.

It is a tribute to the basic soundness of our system of government that it has responded to the needs of our Nation and possesses the flexibility that enables it to adjust to the requirements of any given time. The responsibilities of each branch of government are defined by the Constitution but there are often areas where interpretations may vary. One of these questions is whether the Executive branch is bound to expend funds in the amounts and for the specific purposes directed by the Congress.

The question of impoundment is crucial to the continuing refinement of our understanding of the duties of the executive as opposed to the legislative branches. The Sub-committee on Separation of Powers, under the chairmanship of Senator Sam J. Ervin, Jr., of North Carolina, last year conducted hearings on this question.

DISTRIBUTION OF FEDERAL AID, HIGHWAY FUNDS, FISCAL YEAR 1973

At the end of fiscal year 1972, approximately $6.2 billion in impounded highway construction authority has been accumulated. This amount is well over the total Federal funding for a full year for highway development. In the new fiscal year which began July 1, 1972, the Administration has already moved to continue the cutback in highway transportation development. For the 1973 fiscal year, Congress authorized $5.625 billion, but the Administration intends to reduce activity by approximately one-fifth for a total highway program of $4.4 billion. The release of these 1973 funds temporarily reduces the total of impounded highway money but the long-term outlook is for a steady increase in the total.

Construction of vital segments of the Interstate Highway System have had to be postponed and other projects cut back correspondingly. Since 1956, the Interstate System has been our most extensive highway activity. This nationwide system of freeways is now 79 percent complete, and I am confident that this percentage would be even higher had Interstate development been allowed to continue at the rate intended by the Congress and planned for by the states.

These delays take place at a time when, as we all know, construction costs continue to rise precipitously. From the time Interstate construction began in 1956, through 1970, the highway construction cost index rose by more than 41 percent. There is no indication that the long-term prospects are for anything but continued increases. It behooves us, therefore, to complete the Interstate System as rapidly as feasible, for on an undertaking of this size, every delay can be measured in additional outlays that eventually will be required.

The members of the Committee on Public Works continue to be concerned over impoundment of highway funding. In the Federal-Aid Highway Acts of both 1968 and 1970, there were strong expressions of congressional opposition to this ill-considered practice. These statements, however, have had no impact on the Administration. I have also communicated regularly with both the President and the Secretary of Transportation urging them to provide the full amounts authorized this year and to release the accumulated impoundments of the past. These efforts, too, have produced no results, I regret to report. The committee intends to act again this year to insist on its right to determine the funding level for the Federal-aid highway program.

The most concise explanation for the Administration's action is contained in a letter I received in May from William L. Gifford, special assistant to the Presi

dent. In this response to communications from me, Mr. Gifford gave the following reasons for the Administration's action.

The Administration believes that the requested level of 1972 and 1973 funding for the Federal Highway Program meets the following key criteria:

Consistent with the overall Federal economic and budgetary situation, which requires careful fiscal management and prevention of further inflationary pressures.

Adequate to maintain reasonable progress on highway construction, including the Interstate System, and a concentrated safety effort.

I do not believe that either of these reasons are consistent with fact. The unique nature of the Highway Trust Fund, as I have said, has restricted its use for highway purposes only. Other than for misleading bookkeeping purposes, the balances in the fund have no effect on other government spending. As to the inflationary aspects of highway building, I have already referred to the continuing upward trends of the cost of highway construction. The Interstate System and other roads will have to be built eventually. If we delay now, they will be built in the future at a considerably higher cost.

Mr. Gifford's contention that the Administration's highway program is adequate is a matter of subjective judgment with which I do not agree. The Congress authorized a higher level of activity based on its assessment of needs, of the ability to pay for such a program, and on the program's total impact on the Nation. We do not authorize any program capriciously and the importance of highway transportation to the well-being of our country demands that we give careful consideration to our actions.

As I stated earlier, the question of impounding highway funds has implications broader than just its effect on our Nation's transportation system. I regret that the Executive branch fails to recognize the clear division of authority provided in the Constitution of the United States. It is, therefore, essential that the Congress assert itself to insure the implementation of programs which it believes to be in the public interest, but also to maintain itself as a body capable of responding to the needs and wishes of the people.

Because of the need to get on with the business at hand and pass the debt ceiling bill to which was attached the much needed increase in Social Security benefits before Congress recessed for the Democratic Convention, I withdrew my amendment. However, the Chairman of the Finance Committee, Senator Russell Long (D-La.) has given assurances that at a later date, this year, he will be ready to join with me and other concerned Senators to handle this impoundment matter and to stop the practice.

NEWS RELEASE FROM REPRESENTATIVE OGDEN R. REID JANUARY 16, 1973

WASHINGTON, D.C.-Congressman Ogden R. Reid (D-NY) today announced the introduction of legislation to strip the President of his power to ignore Congressional mandates and to restore "the Constitutional prerogatives of the Legislative branch."

At a press conference in Washington, Congressman Reid charged that the Executive has "usurped powers vested in the Congress by the Constitution" and has thereby “endangered the balance of powers which is the cornerstone of our democratic form of government.”

Congressman Reid said that, although the Constitution vests Congress with sole authority to approve expenditures and programs, the Executive has frequently refused to follow Congressional mandates. In some cases, it has refused to carry out approved programs, such as the water pollution abatement law passed by Congress last year. In other cases it has used funds for programs without proper Congressional authority, such as the Cambodian invasion of 1970, the Phoenix assassination program and the recent massive bombing of North Vietnam.

The New York legislator noted that the Executive frequently evades Congressional supervision by exercising so-called executive privilege and refusing to provide information about its actions.

The Reid bill creates an Office of Budget and Expenditure Oversight which is solely an agency of Congress and has broad powers to withhold funds or compel spending by the Executive in accordance with Congressional mandates. The new agency also would have the authority to pass on the Administration's legis

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