One of the bluntest examples of the Executive Office's attitude toward congressional authority in fiscal matters was heard on the January 30, 1973, CBS Morning News with John Hart program. Newsmen Dan Rather and Nelson Benton were interviewing Presidential adviser John Ehrlichman. The following exchange came during a discussion of Federal budgetmaking practices:

Mr. RATHER. Well, speaking of testimony before Congress, the budget is now primarily made up according to Sam Ervin, the Senator from North Carolinaby-and managed by the Office of Management and Budget. But the man who directs the Office of Management and Budget and his associate, as I understand it, are not required-they don't require Senate confirmation. Is that correct? Mr. EHRLICHMAN. That's right.

Mr. RATHER. Well, why should they? If they're going to have that kind of power, why shouldn't they be accountable at least to Senate confirmation?

Mr. EHRLICHMAN. Well, Senate confirmation ways-when you talk about thatwhat you're saying is the Senate ought to participate with the President in the choice of the individuals. It happens that the way the Office of Management and Budget is set up-by act of Congress by reorganization plan-is that all the powers that formerly were in the Bureau of the Budget and other places around the Government, have been delegated to the President of the United States, and he in turn delgates to the Office of Management and Budget, to that Director, any powers and duties which he wishes to delegate. So that the only powers that the director of OMB and his deputy have are derivative from the President personally. They're not set up by statute.

Now, you're getting into this area of just five or six personal assistants to the President whose powers are only derivative of the President's power and you get to the basic constitutional question of whether, in effect, the President ought to be confirmed by the Senate. He isn't. He's elected by the people.

Mr. RATHER. But you're getting into the area of one-man rule. I mean (interruption).

Mr. EHRLICHMAN. Sure, well, that's what the President of the United States is, Mr. Rather.

Mr. RATHER. One-man rule?

Mr. EHRLICHMAN. Yes, sir; he is the only elected officer-elected by all of the people of the United States, unlike Senators and the Congressman.

The constitutional system has contemplated that the President would always have reserved to himself a few personal assistants, to assist him in the discharge of his duties. And, the Congress had said-by its actions-that this budget process is the President's duty.

So, I think we have to be very scrupulous about preserving the constitutional system.

I had a good talk with Senator Ervin about this yesterday. To my knowledge neither the President nor any of his assistants have disavowed the stance taken by Mr. Erlichman. I assume that his comment that "*** the Congress has saidby its action-that this budget process is the President's duty ***" he meant the passage of the Budget and Accounting Act of 1921 under which the Bureau of the Budget-or the Office of Management and Budget-was established.

It is undeniable that the Congress passed that act. And, what Congress can enact it can amend or repeal. The Executive's practice of reinterpretation, misinterpretation and distortion of the law makes it clear that the time has come to amend it. To make it crystal clear to the Executive that Congress has no intention of abdicating his responsibility for the national budget.

Our constitutional system must be preserved-not twisted into a new and dangerous shape.

The law must be changed to make the Director and Deputy Director of the Office of Management and Budget be confirmed by the Senate. These powerbrokers must become responsible to the Congress for their actions and responsive to the needs of the people. This Nation cannot afford to allow a miniscule group of elitists who believe they know best what's good for the people-without consulting them or their elected congressional representatives, or being accountable at the ballot box-to dictate the shape and direction of our future. We must rise above politics in considering this proposal.

Many people support the President's budget-cuts decisions, especially those persons who do not support social programs or other domestic programs. But, the evidence shows that even these people do not want to put all the power in the hands of one man.

Regardless of who they are, if Congress would assume its full responsibility it appears clear that all Americans would prefer to have the authority for decid ing how much to spend and on what to be in the hands of the Congress rather than

one man.

I urge this subcommittee, the full Committee on Government Operations and the Congress to act favorably on this proposal to require Senate confirmation of the Director and Deputy Director of OMB as one of the steps we are taking in regaining control of our constitutional responsibilities in fiscal and legislative matters.

PREPARED STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. Chairman, I appreciate this opportunity to testify in favor of H.R. 3390 which would require Senate confirmation of both the Director and Deputy Direc tor of the Office of Management and Budget.

Since the Budget and Accounting Act of 1921 the role of Budget Director has grown from one of the President's bookkeeper to today's role as essentially deputy President. In 1921 he presided over a budget of $5 billion. Today he presides over a budget of over $260 billion. Just in the last 4 years, for example, the budget of OMB has more than doubled.

It has been said that OMB has become a super department with life and death powers over the expenditures of funds, the development of programs, the management of government and the careers of Federal employees.

This is a tremendously powerful and highly sensitive post. The fact that it does not require confirmation is a mockery of the whole institution of confirmation.

The character incompetence of the man that holds this post should be above reproach. From what I have read about the background of Mr. Roy Ash-who currently holds this post-the bright light of Senate scrutiny would go a long way toward determining whether he is an appropriate appointee for such a powerful Federal position.

Mr. Chairman, I am sure a number of witnesses before the committee will go into greater detail on the critical need for the passage of this bill. However, I would like to direct the committee's attention to another Federal post that should require Senate confirmation.

I recently discovered from my own investigation that seven out of 11 of the assistant secretaries for administration of the executive departments do not require Senate confirmation, because of the former Civil Service status of these positions.

The departments not requiring Senate confirmation are: Agriculture: Health, Education, and Welfare; Housing and Urban Development; Interior; Justice; Labor and Transportation.

As you are probably aware, 10 of the 11 positions are now open and the administration has made it clear that these will be political appointments made by officials of OMB and not from the ranks of the Civil Service.

This appears to be consistent with recent administration moves to run the Government out of an unanswerable central staff in the White House and further downgrade the responsibilities of the Cabinet Secretaries who are answerable to the Congress. This position is extremely powerful and sensitive in that the asistant secretary for administration controls the budget process and funding allocations of the programs within the agency as well as personnel policies.

The rules of games have changed in terms of these important positionstherefore, the positions should now require Senate confirmation like all other assistant secretaries.

I am now drawing up legislation to require that these positions be confirmed. PREPARED STATEMENT OF HON. FRANK E. EVANS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Mr. Chairman, I am happy to appear before this committee in support of legislation to require Senate confirmation of the Director and Deputy Director of the Office of Management and Budget. The bill I have introduced, H.R. 4370, is identical to the one that recently passed the Senate. However, the wording or sponsorship of a particular bill is much less important than the goal, which

is to bring the Office of Management and Budget fully into the constitutional system.

Mr. Chairman, I am sure that many Members of Congress share my deep concern over the manner in which the Office of Management and Budget has conducted its affairs during the last few years. In the name of efficiency and proper management, the President, through unelected officials at OMB, has effectively taken away from Congress the power of final decision of the Nation's priorities.

Determining this Nation's priorities is the function of the Congress and the President working with each other under the constitutional declaration that these are two co-equal branches of Government. However, for many years, the President, through the Office of Management and Budget, has acted as the superior and final, sole word in this area, and the Congress has been merely a protesting appendage to the Office of the President.

As a consequence, the true decisionmaker in this Government has not been the 535 elected Members of the Congress and the President, but the President alone, acting through the unelected, unreviewed bureaucracy of OMB.

Now, it may be true that the Congress has not properly organized itself, that we are slow, that we are inefficient, that we are, as the bureaucratic parlance of OMB might have it, "not optimally cost effective." Yet I daresay that any sixth-grade civics student ought to know, and certainly the President and the Director of the Office of Management and Budget ought to know, that what is efficient, what is cost effective, and what is quick may not be legal. Strong executives may make the trains run on time, but they cannot begin to match the efficient vision of the Founding Fathers in terms of freedom and popular sovereignty. We have seen whole programs terminated by the Office of Management and Budget, in order to meet the policy priorities of the President. But these are not just programs, these are actions required by law to carry out the ideas legislated by the Congress of the United States. We have the new Director of the Office of Management and Budget claiming that the President has the power to terminate programs which he claims to be unwise or imprudent, that the President has the responsibility, if not the authority, to pick and choose among the programs voted by Congress. In sum, we have the President and OMB claiming that the sum total of congressional appropriations are merely a set of tools handed over to the President to fashion his program according to his own set of priorities.

But who is OMB to decide whether Congress has acted "wisely" or "prudently?" Where in the Constitution or the laws of the United States does OMB or the President find the authority to wield, in effect, an item veto over the programs and funds voted on by the Congress?

Mr. Chairman, in 1969, the then Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel, the "Department's lawyer," stated in a memorandum to a White House aide: "With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent."

Now the Nixon administration disavows that statement and that conclusion. Should it not be noted that it was made by the Honorable William H. Rehnquist, now an Associate Justice of the U.S. Supreme Court? During the recent hearings of the House Appropriations Committee, both Treasury Secretary George Shultz and OMB Director Roy Ash declined to answer inquiries as to the legal authority of the Executive to terminate entire congressionally mandated programs. Each declined on the basis that he was not an attorney. Does this mean that the officials in the Nixon administration who have acted to terminate entire governmental programs acted without regard to whether they had the legal authority to do so? I should not, and I think not. Rather, I think they acted less out of ignorance of their legal powers and more out of defiance of the Congress to do anything about it.

Mr. Chairman, this is neither the time nor the place for a full discussion of whether the Antideficiency Act and other legislation permits the President to impound funds to achieve his own policy goals. However, I do commend to the attention of the members of this committee the recent statement before the Senate Subcommittee on Separation of Powers of the Honorable Elmer B. Staats, Comptroller General of the United States. After discussing the limited authorization of impoundments by subsection (c) (2) of the Antideficiency Act,

Mr. Staats told the subcommittee: "We are not aware of any specific authority which authorized the President to withhold funds for general economic, fiscal, or policy reasons." As to the administration's arguments that the Economic Stabilization Act of 1970 or debt ceiling laws justify withholding of funds, Mr. Staats laid that argument to rest by stating that "there is nothing explicit in those laws which authorize (sic) the President to go beyond the Antideficiency Act in accomplishing the objectives of these acts." Furthermore, the doctrine of constitutional law prohibiting unduly broad and vague delegations of power by the Congress to the Executive militates against an excessively expansive reading of those two laws so heavily relied on by the administration to carry on its impounding activities.

We are a Federal Government of limited powers. Surely a sensitive reading of the constitution and an understanding of the positive virtues of a balance of power between co-equal branches leads me to the conclusion that the President has greatly overstepped his ground.

In view of the need to restore that balance, I hope that the Congress will pass this legislation with efficiency, with optimal efficiency. With reference to the suggestion of the Justice Department that legislation passed now affecting the present OMB Director and Deputy Director might be unconstitutional, without stating any opinion on that issue, I certainly would agree to an amendment which would meet that concern by, in effect, abolishing OMB and reconstructing it.

Article II, section 2 states a presumption in favor of Senate confirmation of the President's agents. This subjects the President's officers to the proper influence of the Congress, to insure that each of these officers knows that while appointed by the President, he must also faithfully execute the laws passed by the Congress. Senate confirmation is often a routine matter, but occasionally it serves as an opportunity to impress upon a nominee the fact that, while the nominee will serve the President, ultimately he serves a higher master, the laws and the Constitution of the United States.

Thank you, Mr. Chairman and members of this committee, for the opportunity to express my views on this most important issue.

STATEMENT OF HON. J. J. PICKLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Chairman Holifield and members of the subcommittee, I submit this statement to support S. 518.

I have joined Congressman John Melcher of Montana in introducing H.R. 3290. This bill requires the confirmation of the Director of the Office of Management and Budget by the U.S. Senate. H.R. 3290 does not require the confirmation by the Senate of the Deputy Director of OMB.

The Senate bill, S. 518, does provide for confirmation of both the Director and the Deputy Director.

Since the Deputy Director so often acts for the Director, and since we have seen recently a pattern where the No. 2 person in an agency may actually have more influence than the No. 1 official at the agency, I feel that it is necessary to require that both officials be confirmed by the Senate.

As to supporting this basic concept of confirming OMB officials, first, I want to state that agency heads who are as powerful as the OMB is, should be subject to Senate review. When our Founding Fathers wrote into the Constitution provisions for the review by Congress of high executive branch officials, I do not think that they intended these provisos to be circumvented by the President labeling agency heads as members of his personal staff. When the OMB was the nonpolicy formulating Bureau of the Budget, it was not necessary to have Congress review who headed the agency. Now, however, the OMB is the most powerful agency in the bureaucracy.

On several occasions I have called the OMB the U.S. invisible government, because it seems that its decisions are made away from the light of public disclosure by "back-room boys."

By requiring confirmation, the Congress can begin to shed a little more light on the workings and policies of OMB.

Second, I have made several speeches about the very disturbing practices of the OMB-mainly impoundment. In doing so, I have pointed out repeatedly why OMB may unintentionally be threatening our constitutional concept of public government.

I ask that my speech of January 11, 1973, be made part of the hearing record of this committee. This speech reviews completely my position on the policies of OMB.

(The speech follows:)

[From the Congressional Record, Jan. 11, 1973]

EQUAL POWER OF THE CONGRESS

(Mr. Pickle asked and was given permission to address the House for 1 minute, to revise and extend his remarks and include extraneous matter.)

Mr. PICKLE. Mr. Speaker, I make remarks today in conjunction with the introduction of a bill to put an end to setting national priorities with a bookkeeper's. ledger.

Today, I am introducing, along with my colleagues a so-called impoundment bill. I call this bill an equal power to the Congress bill.

The bill I am introducing was presented last year by our outstanding colleague, former Congressman Bill Anderson of Tennessee. I cosponsored the Anderson bill last year, and I take this opportunity to salute his work in this area. I salute his initiative, also.

And even though Bill is not here to reintroduce his bill, those of us in Congress, who question the President's capricious impoundment of congressionally appropriated moneys, must continue efforts to get the Anderson bill passed, in some form at least.

Already several of my distinguished colleagues have introduced impoundment legislation, and I understood some Members will do so today.

Some of these bills will be the same, or similar, while others will be substantially different.

Mr. Speaker, whatever the final form is, we need an impoundment bill.

Mr. Speaker, I plan to listen to all ideas; I plan to work to get something that will pass both Houses of Congress above being bullheaded for my bill only. I urge all Members to do likewise.

Basically, Mr. Speaker, the bill I introduce today is to require congressional approval of Federal moneys impounded by the executive department.

The bill would require the President to notify Congress within 10 days if appropriated funds are impounded. The notification must include the amount of funds, the specific projects or governmental functions affected, and the reasons for impounding the funds.

Unless, and I emphasize unless, Mr. Speaker, both the House and the Senate ratify the impoundment, the President could hold up Federal moneys approved by Congress no more than 60 days.

This legislation would require the House and the Senate to take up debate on the impoundment by resolution to approve or disapprove of the freezing of funds under a privileged rule that would not refer the impoundment notification to committee for study or hearings.

The bill provides that Congress must ratify the impoundment within 60 days or else the money must be released. Also, there are several safeguards to make sure Congress allots sufficient time to consider the impoundment resolution within the 60-day period.

Quite frankly, Mr. Speaker, the Office of Management and Budget has become the "invisible Government" of the United States.

This title used to be reserved for the CIA; but, Mr. Speaker, there is a committee of Congress to oversee the CIA.

The newspapers are the only source I have to learn where the Presidential ax will fall, and has fallen. The OMB is delivering the blows of that ax, Mr. Speaker.

It would be humorous, if it were not so serious, but I and my staff cannot keep up with what congressional programs are being abolished daily.

Now, Mr. Speaker, nearly 200 years ago, the Constitution established the basic framework of our Government.

The people were to elect, first House Members, and then later in our history, both House and Senate Members.

These Members of Congress were to come to Washington, examine how much money the Government had, and decide how to spend that money.

Although not as simple as I have described, generally the Congress is still supposed to function on these principles.

92-416-73-4