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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 deciding 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 Director 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

The executive branch was to take the moneys appropriated by Congress, and administer the money in the most efficient manner.

Mr. Speaker, it just does not work this way anymore.

Instead, through the OMB, the executive branch has begun to act as if it alone could handle the general welfare of this Nation.

Last July 26, I held a special order on the impoundment problem.

At that time, I warned the Congress that someday we would wake up and find that everything we legislated could be meaningless. I warned that we could complain when money for our district was withheld, but that someday everybody's district could suffer. I warned that many philosophies-liberal, conservative, rural, urban, and so on-would be affected. I warned that someday constituents would request our help and we could do nothing.

Mr. Speaker, I do not intend to repeat what I said last year-this would only clutter up the Record.

I do say, with a large degree of alarm, that the someday that I spoke of last year is here. Someday is today.

Since Christmas we have seen rural programs abolished, health funds made meaningless, housing efforts crippled, the environmental commitment rendered puny, education grants slashed, and on and on.

I have sounded the alarm; I have not minced my words.

Before continuing. I must address myself to those who say "So what, when a Democratic President does it, the Republicans holler; and when a Republican President does it, the Democrats holler."

I think that we have passed the stage of partisan rhetoric.

My distinguished friend, former President Lyndon Johnson, said this about the impoundment of funds many years ago when he was in the U.S. Senate: "Do we have a centralized control in this country? Do we no longer have a coequal branch of Government? I had the thought that we had a constitutional responsibility to raise an army; I had the thought that we had a responsibility to appropriate funds. I had the thought that once the Congress passed the appropriation bill and the President approved it and signed and said to the country that 'this has my approval' that the money would be used instead of sacked up and put down in the basement somewhere"

That Mr. Johnson later impounded funds as a President does not detract from the validity of the questions he asked as a Senator.

To those who say, "Why, Thomas Jefferson impounded money for gunboats, and thus impoundment is as American as apple pie," I reply, "If impoundment is apple pie, it is an unhealthy pie-so full of cholesterol to clog the proper arteries of constitutional spending pipelines to give our form of government a massive heart attack."

Let us also examine past impoundments.

Thomas Jefferson did not spend the money for the gunboats because they were no longer needed.

Can we say the same for our water pollution program? I think not.

Abraham Lincoln impounded funds under his war powers as Commander in Chief during the War Between the States.

But the impounding of funds was not much of an issue in those days. Departments and agencies communicated their financial needs informally to the Congress with no coordination by the executive branch. As the country grew, however, the system displayed obvious difficulties, and in 1921 the Bureau of the Budget was founded. It was a part of the Treasury Department until 1939. Then, because of the vast financial problems of the depression and the organizational problems created by the New Deal agencies and law, the Executive Office of the President was created and the Bureau of the Budget became an official arm of the President.

This agency wielded increasing power over the various agencies and departments in determining their requests. Although this power was of concern to some, I do not think anyone ever basically questioned the right and duty of the President to formulate a budget and use an instrument such as the Bureau to do it. The first major conflicts between the President and the Congress occurred after World War II when President Harry Truman used impounding as a major method to convert from peacetime to wartime priorities. And up until very recently, almost all impoundment questions have centered around military anpropriations. President Harry Truman froze the funds for the U.S.S. United States and for military aircraft. President Dwight Eisenhower impounded funds

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