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this point is best understood by reference to our REA telephone loan program, at least the program we knew until January 1, 1973.

Loan funds appropriated by Congress have usually been released to the REA Administrator on a quarterly basis and, generally, the Administrator received about one-fourth of whatever OMB budgeted for the year each quarter. Thus, the fact of impoundment of the difference between the budget and what Congress appropriated was really not clear until the very close of the fiscal year when it would be obviously evident that more funds were appropriated that had been committed to loans. Technically, however, this was the only time those funds could be said to have been impounded. If the same is true with other areas perhaps this question as to the timing of the impoundment process should be spelled out in the legislation. Or, perhaps some method of recognizing impoundment on, say, a quarterly basis, should be spelled out in the legislation.

A second point. What is to stop the President from immediatey re-impounding the funds for a project or an agency assuming Congress refuses to act within the specified 60-day period. Presumably the Executive could, on the 61st day, reimpound the monies released as of the 60th day, and the process would start all over again. This is a technicality, but if this Committee feels it a valid point, perhaps language should be drafted to specify that funds, once impounded and allowed to be released cannot be re-impounded.

The final point I would like to make is philosophical. I do not believe that Congress has ever formally recognized the Executive's right to impound funds. This legislation, by addressing itself to, and correcting some of the evils of impoundment, at the same time legitimizes this right. I think it is a matter for the Committee to consider.

In summary, the technical questions notwithstanding, our Association believes this legislation is of great importance and will restore to Congress its rightful authority in our governmental process. We support such legislation.

Senator CHILES. Our next witness will be Mr. Jack P. Nix, who is the Superintendent of the Georgia Public Schools representing the Council of Chief State School Officers.



Mr. TALMADGE. My name is Bill Talmadge. I work for Senator Herman Talmadge from Georgia. Senator Talmadge had originally planned to be here to introduce Dr. Nix to the committee but has been detained on the Senate floor. He asked me to appear here to do that for him.

Dr. Nix has been a schoolteacher in Georgia. He has been a county school supervisor. He has been head of our vocational education program. He is eminently qualified to testify before the committee and Senator Talmadge expressed his regret that he couldn't be here and asked I commend Dr. Nix and his testimony to the committee.

Senator CHILES. Thank you very much, we are very delighted to have that introduction, and Mr. Nix we are delighted to have you with us today.


STATE OF GEORGIA Dr. Nix. Thank you, Mr. Chairman, and members of the committee. I would like to thank Mr. Talmadge for his being here and making those comments about me.

I have prepared a written document and I have submitted it to your staff.

Senator CHILEs. We will accept that in full for the record.

Dr. Nix. And I will in recognition of the late hour briefly comment about some of the things that I have in there, Mr. Chairman, and to leave you with two suggestions.

First, it is a privilege to be here and to comment on behalf of our council. This is a council composed of all of the 50 State superintendents and superintendents of the territories and we are united on a national level and trying to have some input into the Congress in terms of legislation thet is good for public education throughout the country.

I would also like to express to you and to the members of this committee our sincere appreciation for all of the legislation and appropriations that you have made possible throughout the years in helping us to put together a more effective program of public education for the people of this Nation.

As you are well aware, we have some very staggering problems in the whole process of education in this country and we need all of the support that we can get from the Federal level, from the State level, and from the local level not only in funds but also in helping us to have some certainty as to when and what amount of funds will be made available to us.

In the past we have recognized the problems that are surrounding the whole process of a continuing resolution and we have expressed ourselves through the Members of the Congress over the years, but I find myself today somewhat in the position of looking at this continuing resolution we are operating under now as being a blessing and a bonanza to some extent with this impoundment problem we are confronted with.

It is true that the Congress has been good enough to pass two appropriations bills and you have passed two continuing resolutions and you have expressed your priorities and your concerns, but we have this impoundment problem now that is confronting us not only for fiscal year 1973, but who knows what will come in 1974 or 1975 unless this Congress takes some action to assure that the intent of the Congress is carried out in the expenditure of the funds that the Congress appropriates. Also, in order to make it possible for those of us who are school administrators to effectively plan for the utilization of the Federal funds in order to get the most education for the dollars spent, the uncertainty that surrounds the whole business of whether or not we are going to get funds makes it extremely difficult for us to staff, for us to have facilities, materials, and equipment to get the educational job done.

In fact, in our State, under the NDA-3 and impact aid programs our system, boards and local superintendents planned and budgeted last fall for the utilization of these funds. Now we find that there is a great deal of a question as to whether or not we will even get those funds. Some of the systems have employed staff, they have bought equipment, they have bought material, and if these funds are not forthcoming then it will mean that either the program will have to be eliminated or seriously curtailed or in some instances local property taxes will have to be raised, and this I think is a concern not only to those of us within a State but to the Congress as well. And some of our systems, Mr. Chairman, that I checked with just in the last few days have reached their maximum constitutional millage limitation within our State and without these funds then there is no choice but for the reduction of educational opportunities for the children within those systems.

Now, I am of the opinion from reading the material that I have been able to obtain that it was the full intent of the Congress that Federal funds support education at basically the fiscal year 1972 level. I think this is pretty well spelled out in your continuing resolution.

But with the present action of the President, this administration, and the impoundment of these funds, there appears to me to be somewhat of a real power struggle and this power could be something awesome, you might say, in the future whenever we have someone that could act without being accountable to anyone, and whether or not he is going to spend moneys appropriated by the Congress.

In fact you might say a person with this kind of power could retaliate against his enemies and he could reward his friends with the business of controlling the funds that could be distributed over this country.

You have had, I am sure, Mr. Chairman, testimony from other representatives before this committee related to the constitutionality of whether or not this can or cannot be done, and I would not propose to expound or expand upon what has been said concerning the legality of what the President is doing, other than to say that if my humble opinion as an educator, not as a lawyer, that there is a great deal of question as to whether or not our Founding Fathers fully intended for one department of our Government to have this amount of power.

Now I would like to say to you and to the committee that our Council of Chief State School Officers supports the bill that Senator Ervin has introduced, S. 373, but I would like to make one suggested improvement for the bill, if you please.

As I understand S. 373 the President would be required to notify the Congress within 10 days concerning the impoundment of funds, and would have to release the funds within 60 days if the Congress didn't approve. My suggestion would be, sir, for the committee and for the Congress to consider having the President notify the Congress first, and then to have some hearings, and then, during these hearings, to establish the priorities, and if the Congress didn't approve the impoundment of the funds, then the President would not be permitted to impound them. So this is, to me, turning the cart around a little bit, but it would certainly assure the Congress that before he starts doing violence to our priorities, as reflected in your appropriations, you would at least have a chance to hear from the people of this

а country, and then to reaffirm your previous list of priorities in terms of the way you have passed the appropriations bill.

The other suggestion that I would make, Mr. Chairman, would be that to either include as another provision, or as an amendment to S. 373, or to amend the Budget and Accounting Procedures Act, whereby the Budget, the OMB, is now required to notify agencies within 30 days after an appropriation is made, to the point where OMB would have to notify the Congress at the same time so that you then would know whether or not he was impounding funds. This way the Congress, I think, would have a better chance of keeping up with what OMB is doing with these funds that you have appropriated. Mr. Chairman, those two suggestions I would leave with you, and to say to you in closing, that we need your help, we need the help of the Congress, in order that we can adequately plan for the education of the people of this country in terms of carrying out the intent of the Congress in support of public education. In the final analysis, unless we develop the mental abilities and manipulative skills of the people of this country commensurate with their potential for successes as adults, then I think our whole way of life would be in jeopardy in the years to come.

So, Mr. Chairman, I appreciate the privilege of appearing before your committee, and I hope that if you have questions, I will be able to respond.

Senator CHILEs. Mr. Nix, we thank you very much for your statement, and for the suggestion that you have made. There is a bill that has recently been introduced by Senator Muskie which would require opening up of the budget meetings of OMB, and would allow the Congress to be able to take note of those meetings. We have had considerable talk about that bill since we started these particular hearings.

We appreciate your bringing the problems to us as you face them at the State level. I know it is very difficult to try to do any planning, any hiring, with the kind of chaotic conditions that you now have going on up here.

Dr. Nix. Mr. Chairman, I would also like to say that the council stands ready to present to this committee or other committees of the Congress any information that you might request in support of this legislation, or other legislation, to try to help the Congress do what is best for the public schools of this country.

Senator CHILES. I thank you very much, sir.
We have a question.

Mr. EDMISTEN. Mr. Nix, I note that Senator Ervin asked me to ask you this question: He philosophically disagrees with some of the educational programs, and has indeed voted against them. For instance, the ESAP program. However, that is not the question. The question is whether or not, when the will of the Congress has been voiced by the legislative process—and such legislation is the law of the landthe President or anyone else has the constitutional authority to frustrate that will of Congress, regardless of the philosophical view that one may hold.

Dr. Nix. Yes, this the whole issue. In terms of which programs are to be supported, I think, this ought to be a determination of the Congress. In terms of ESAP, I don't agree with the way the bill is written, because it bypasses the States and you cannot do adequate educational planning for the proper utilization of those funds. It goes straight from the Federal Government to a local school system, and I am very much in disagreement of this, and have so expressed to the members of our congressional delegation.

I think that they pretty much agree with Senator Ervin on this. I do support some help in this area but not in the way that it was presented in that particular piece of legislation.

But the whole question that I am addressing myself today here to, is simply the fact that we need to know, as school administrators, what the Congress really wants us to do, and when the Congress speaks, by passing an appropriation bill, then before those funds are withdrawn, then that the Congress have some further input into what funds are to be withdrawn, and/or if they are to be withdrawn at all. This, then, will give to us a better foundation on which to plan for efficient utilization of any or all funds that Congress puts out.

Senator CHILEs. Thank you, sir.
(The prepared statement of Mr. Nix follows:)

STATE OF GEORGIA Chairman Ervin, honorable members of the Subcommittees on the Separation of Powers and Impoundment, it is an honor and a privilege to appear before this distinguished group and to offer testimony on behalf of the Council of Chief State School Officers, the people of Georgia and particularly the public school children of this nation.

The problems facing public education in this country are staggering. They are philosophical, physical and financial. To confront and successfully meet the daily challenges of operating public schools requires the best efforts of every person involved at every level-state, local and federal.

The statement I have to present to you today reflects a serious, almost critical failing on the part of the federal commitment to the educational effort—a commitment without which public education in this nation will almost certainly falter temporarily and probably regress permanently.

The problems of educational funding at the federal level are historic. You are familiar with some of them, and you have heard complaints in years past from administrators about the difficulty of planning and conducting successful education programs without the advance certainty of funding at a given level. Educators are all too familiar with the requirements and difficulties of operating under a Continuing Resolution. That is not the issue here. To be sure, I never thought I would be in the position I find myself today, of considering the Continuing Resolution a blessing and a bonanza. Certainly, if we did not have this resolution to rely on, at least until February 28, public education in Georgia and in every other state would be in chaos. So we are very appreciative for what we have as the result of your action in passing the Continuing Resolution last summer and extending it twice. Especially after your conscientious efforts in passing not one, but two appropriations bills that were carefully planned and drawn up to reflect the priorities you, the Congress, see as most important for the allocation of federal funds. And especially, too, after hearing the President in his budget message chastise the Congress for “delaying consideration of the budget, then resorting to the device of the continuing resolution to carry on activities for which appropriations have not been made."

So the Continuing Resolution is, in the current situation, both a problem and an asset. The problem, of course, arises in the Office of Management and Budget interpretations of the Continuing Resolution and the effect of those interpretations on the day-to-day lives of children in public school classrooms. The impact of the impoundment of educational funds by OMB is very direct and very real in Georgia and in every other state.

The State of Georgia, like other states, receives a substantial amount of federal funds for categorical education programs each year. Once appropriated by Congress, these funds are distributed to the state and local education agencies in a variety of ways---formula grants, projects, contracts, and so forth.

As I have noted, we are accustomed to operating under the Continuing Resolution, certain in the knowledge that the funds finally appropriated by the Congress would eventually be forthcoming from the budget office.

But our faith has not been rewarded in the current fiscal year, especially in two major programs.

Under Title III of the National Defense Education Act, expressly covered by your Continuing Resolution, the states were to have received $50 million, the sume appropriation as in FY 1972. Georgia's share would have been at least $1.3 million for the purposes of Title III, which funds the purchase of equipment for mathematics, science and reading programs, remodeling of buildings and purchase of audiovisual equipment for use in these programs. I realize that $1.3 million doesn't sound like a major sum, but it is significant to the school systems involved. These LEA's, in anticipation of receiving at least the same amount


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