Good evening, ladies and gentlemen, and welcome
to THE ADVOCATES, The PBS Fight of the Week. Tonight's broadcast is coming
to you from the Departmental Auditorium on Constitution Avenue in
Washington, D.C. The subject of debate tonight is a major bone of contention
between the President and the Congress, namely, the power of the purse, and
specifically this question, "Should the President spend the money Congress
Arguing in support of the proposal is Representative Morris
Udall, Democrat from Arizona. Appearing as witnesses with Mr. Udall are
Democratic Senators Hubert Humphrey from Minnesota and Edmund Muskie from
Maine. Arguing against the proposal is Charls Walker, Deputy Secretary of
the Treasury in the first Nixon Administration and now a Washington
consultant. Appearing as witnesses for Mr. Walker are Caspar Weinberger,
formerly Director of the Office of Management and Budget and
Secretary-Designate of Health, Education, and Welfare, and Republican
Senator William Roth of Delaware.
Ladies and gentlemen, may I have your attention
Moderator Michael Dukakis has just called
tonight's meeting to order.
Good evening, ladies and gentlemen, and welcome
once again to THE ADVOCATES. We focus tonight on the growing debate over the
separation of power between the President and the Congress; and
specifically, our question is this: "Should the President spend the money
that Congress appropriates?" Advocate Morris Udall says, "Yes."
Next year's federal budget is $280 billion, and what
we're talking about tonight is whether taxpayers and members of Congress are
going to have something to say about where this money goes. When the
President impounds funds, he deprives local citizens and local governments
of benefits they pay taxes for and they're entitled to receive. Impoundment
is arrogant. It's unconstitutional. It ought to be stopped.
Advocate Charls Walker says, "No."
Congressman Udall is going to have a mighty hard
time selling that bill of goods here this evening. Not only does the
President have the power to impound, but at this critical juncture he must
impound in order to protect your pocket-book against soaring prices, higher
taxes, or both.
Thank you, gentlemen. Impoundment is a word that
you're going to hear often this evening, so first, a word of explanation
about it. The Constitution establishes a system whereby the Congress and the
President share the power to allocate our national resources. To the
Congress, it gives the power to make laws and to appropriate money. To the
President, who may recommend to Congress but who ultimately may be overruled
by it, the Constitution charges, and these are the Constitutional words,
"take care that the laws be faithfully executed."
Now when Congress, as keeper of the purse, appropriates
money, and the President refuses to spend it, it means that the President
has impounded those funds. There may be many reasons for Presidential
impoundment, and Congress has long recognized that a President, in order to
effectively execute its laws, should have some measure of discretion as to
when and how he spends those funds.
But in the last 20 years or so, the Presidential power of
discretion over spending has increased. And in the view of some, at least,
it has gone long beyond the point which is necessary for the faithful and
adequate execution of the laws.
Last week, the Administration reported to Congress that it
had impounded $8.7 billion during this fiscal year, and that doesn't include
three billion that the President has refused to spend on water pollution
control. Congressional critics charge that by impounding those funds, the
President has overstepped his Constitutional authority. But, in turn, the
President argues that the Constitution gives him, in his words, "an
absolutely clear right" to withhold those funds and that he's determined to
use that right to stop inflation and to prevent the need for higher
And so during tonight's debate, listen to the answers to
these two key questions: First, is the President, as a matter of law,
required to spend those funds, and secondly, should the President spend
these funds as a matter of national need?
Congressman Udall, why should the President spend the money
that Congress appropriates?
This impoundment issue we're discussing tonight
strikes to the very heart of our unique American Constitutional system. You
know, the men who wrote our Constitution were haunted by one major fear, and
that was concentrated power in the hands of one man - power to send men to
war, power to raise taxes, power to take property. And they established a
system of divided and separated powers and a system of checks and balances
designed not just for efficiency but to insure government by the people. And
until today, somehow, it's worked.
The vital power of the purse, the power to write laws about
taxes and spending, was placed in the Congress, that branch of government
closest to the people. And the President was given a veto as a partial check
on that power. But today, this carefully balanced system is in real danger,
challenged by a President who claims almost unlimited power to spend those
appropriations he approves and to strangle those that he dislikes.
You'll hear much tonight about the shortcomings of Congress
and about the efficiency and superior wisdom and virtue and high motives of
Presidents. But the central issue won't go away. And that issue is, "Shall
the Congress or shall the President make the laws that govern this
To tell you about this crisis and its dangers, we first
call on Hubert Horatio Humphrey.
Welcome to THE ADVOCATES, Senator Humphrey. Nice
to have you with us.
U.S. Senator Hubert Humphrey, former Vice-President,
Democratic Presidential nominee, he's been a major national figure since he
entered the Congress in 1949. He served as Mayor of Minneapolis, long-time
student of Congression-Presidential relationships. Senator Humphrey, let me
get right to the heart of one argument we'll hear tonight, and that is that
this is an attack by a Democratic Congress on a Republican President and
that Richard Nixon didn't invent impounding. Did other Presidents impound,
and if they did what's the difference between what they did and what
President Nixon is doing?
Well, of course, other Presidents have impounded,
but that doesn't make it either Constitutional or desirable or right. This
has happened within recent years. But there is a difference between slowing
down an appropriations use or a modest impoundment, even though I consider
that unconstitutional, and frustrating the will of the Congress by
You're saying that the President doesn't just slow
down when he impounds, that he has used this to kill programs. Could you
give us an example or two?
He's killed R.E.A., two percent loans. He killed
Senator, for those of us who don't come from rural
states, you'd better explain what R.E.A. is.
He's killed Rural Electrification for telephone
and electricity two percent loans. He has killed what we call the Rural
Environmental Assistance program which is vital to the whole pollution
control system in this country. He's terminated them, not merely limited
Now you're a student of the Constitution. Does the
Constitution give the President the power to determine whether or not we're
going to have a Rural Electrification program, or is he is trying to muscle
in on powers the Constitution gives to Congress?
He's muscling in. There is no authority within
the Constitution for the President to impound to impound funds. On the
contrary, the Constitution specifically states that the Congress makes the
laws and has the power of the purse. And Mr. Renquist, Supreme Court Justice
now, when he was Assistant Attorney General ...
A strict constructionist, no doubt.
A strict constructionist, according to the
President's own description, reminded the President in an opinion that the
Constitution does not provide any such broad sweep of power either by reason
So we're simply asking the President to obey the
law, to obey the opinions of his own Constitutional experts.
We're asking him to faithfully execute the laws
and uphold the Constitution.
Senator, there's something called an "item veto"
that some governors have in this country which means that you can take an
appropriation bill, allow the whole bill to pass, but veto specific items.
Was it debated in Philadelphia by the founding fathers whether the President
should have an item veto and what did they decide?
It was debated. It was decided that it should not
be a part of the Constitutional system. The president has the right to veto,
but he must veto a total bill. He cannot pick and choose. And what you see
now with the present Administration is President Nixon literally exercising
item veto by terminating programs within a department.
Is there any difference between the item veto that a
governor has in a state and the impoundment veto that he's utilizing
Not one bit. Not in its effect.
Senator Humphrey, the founding fathers 180 years ago
created a system of Democratic government that's worked pretty well. And in
that government, at least the Constitution I have rather than the one that
some other people seem to be using these days, the legislative power was
given to the Congress. Why do you suppose this arrangement was made rather
than giving it to the President?
Well, as you indicated in your opening remarks,
the Constitutional fathers had a great distrust of power concentrated in any
one man. They placed the legislative power in the Congress because they knew
the Congress was closer to the people, and the Congress is. Every two years
members of the House, one-third of the Senate every two years, members of
Congress go home to their constituents often. The President seldom moves
around the country much less going home to his constituents. They provided
within the Constitution the power of the purse and of the law to the
Congress of the United States.
All right, Senator, let's turn to Mr. Walker. He’s
going to ask you some searching questions in cross-examination. Mr.
Senator Humphrey, just to set the record straight,
you know that Mr. Justice Renquist has moved on to another job and is no
longer a member of the Administration.
That is correct, but he once was a member of the
Administration, apparently highly thought of, and his opinion was rendered
as according to what I have stated.
And you recall that Attorney General Ramsey Clark
wrote Mr. Johnson a memorandum stating that impoundment in the case of the
Highway Trust Fund was legal, but Senator, what …
I disagreed with that.
All right, very good. We're talking about the legal
advisors to the President.
Senator, putting aside for just a second here the
questions of check and balance, don’t you agree with the vast majority of
members of Congress and economists that we must sharply cut back the federal
deficit or we will have more inflation, higher taxes, or both?
Well, no president in my memory has purposely
provided for the Congress budgets with such massive deficits as the present
occupant of the White House. There are deficits … Just a minute.
But should they be cut back?
There are deficits now of approximately $100
billion accumulated. The Congress of the United States has reduced
Presidential budgets by $20 billion the last four years …
I'm sorry, Senator…
It is the President that is the spender, not the
Senator, the deficit for this fiscal year is
estimated at $25 billion.
Do you or do you not agree that the health of the
economy demands that that deficit be cut back?
I happened to think that had the Nixon
Administration's economic policies been what they ought to be we wouldn't be
in that kind of recession that led to that kind of deficit.
Well, I don't think …
Well, let me just add further that …
No, sir. I don't think I'm going to get an answer
to my question. I guess you're answer is that that the deficit ought to be
increased or stay where it is.
No, I think we ought to have a President that
recommends policies to the Congress of the United States ...
What do you think?
… that will do away with that deficit. He either
ought to recommend tax reform that will increase more revenue or bring us a
Very well. I take it, then, that you are in favor
of cutting back the deficit. Now, doesn't Congress have to accept ... Sure,
you're not for big deficits. …
Mr. Walker, in fairness to the Senator, I think he
said that he was for tax reform which was necessary to cut that deficit
But getting the deficit back. Now, doesn't Congress
have to accept at least a part of the responsibility for this deficit
problem and the spending problem?
The Congress takes the budget that the President
has presented, and the Congress has reduced that budget, Mr. Walker, and you
know it, every year for the past four years, with the exception of last year
when we increased Social Security benefits provided the revenue by an
increase in taxes; the President said he wasn't for it, but in October
reminded every voter that he gladly signed it.
Let me make this point, Senator Humphrey. There are
figures and figures and figures. There are figures with respect to
appropriations which do not take into account whatsoever the backdoor
financing, the Social Security financing, and all of these other matters. If
you just talk about cutting budget appropriations alone, the figure is as
phony as a three dollar bill. Doesn't Congress have to accept some
responsibility? Let me give you an example. The President of the United
States, in January, 1972, sent a budget to the Congress of $246.3 billion.
He asked for a spending ceiling of that amount and then $250 billion. And
Congress, for 11 months, did nothing and appropriated close to $260 billion.
You can't lay that at the door of the President.
Might I add the President sent up a supplemental
budget request for four billion dollars, and ...
That makes it 250.
Now, wait a minute. And might I add that the
reason for the increase in the total budget, as you know and I know, is
because of the increase in the Social Security payments; and we're just not
going to let you off the hook to pretend that some how or another that was
inflationary because it wasn't, because the taxes were raised to pay for it.
And that is not inflationary, and every economist knows it.
Well, let's put it this way around. Do you think
that this fiscal year, one way or another, Uncle Sam ought to be able to
struggle along on a quarter of a trillion dollars and the Congress ought to
I do, and might I add this, that I think that the
point is that the President, before he acts as if somehow or other he has
one-man rule, should come to the Congress with his suggestions and ask for
the modifications. Impoundment is not the privilege or the prerogative of
the President. The President may recommend to the Congress. If the Congress
sees fit, we will then comply. If we don't, we'll take the responsibility
for the decision.
And he came in January, 1972, and he made that
request, and 11 months later he did not have action.
A brief response, Senator.
Might I add that the President of the United
States came in and broke his own budget ceiling, and you know it, by the
supplemental request. And you know, furthermore, that when the Social
Security benefit increases were made that nobody could get at the head of
the line any sooner to claim credit for it than the present President of the
United States. So, let's knock it off. That's a fact.
But the extra ...
Mr. Walker, I'm sorry. You're going to have
another shot or two at Senator Humphrey. Don't go away, Senator.
Congressman, a quick question for Senator Humphrey.
Senator, there seems to be an underlying argument
here on the part of our opponents that Congressmen are subject to pressure
groups, that we are subject to lobbyists, while Presidents are above the
battle, scarcely aware that elections are going on. Some of us had the crazy
idea last Fall that milk producers and feed grain people and a lot of other
people were having the federal spigots opened up as we got into September
and October. Have you observed any difference between Presidents and
Congresses with regard to playing politics?
Well, all I know is that had the President of the
United States told the farmers of America last October that he was going to
terminate six of their programs that are vital to the agricultural economy,
that he was going to raise the interest rates on commodity credit
corporation loans, that he was going to change the entire American
agricultural program, he wouldn't have gotten many votes in the agricultural
areas of America. What happened between November and January that requires
the President to use the meat ax to the tune of a billion, 591 million
dollars on agricultural funds. I'll tell you what happened. He won the
election. He had the votes. And he decided now that he was going to keep the
All right, Senator, back to Mr. Walker. Another
What also might have happened is that he decided
that he would not put the people through more inflation and higher taxes.
But do you recall that President Johnson in 1967 impounded $10.8 billion or
seven percent of the budget, twice the figure at the present time. And he
took this money from housing. He took this money from education. He took
this money from the Highway Trust Fund, the Land and Water Conservation
Fund. So if it's right for Twiddle-Dee, why is it wrong for
Well now, I don't know who you want to call
Twiddle-Dum, but …
That's an assumption we might not accept, but a
very brief answer, please, Senator.
First of all, it was five billion, 300 million
dollars. Secondly, it was wrong. Thirdly, no programs were terminated. And
fourthly, most of the funds were released before the end of the fiscal year,
which still doesn't make it right. President Johnson made mistakes, and
we've heard a lot about them. Mr. Nixon is compounding them, and he is using
executive arrogance to terminate programs that are authorized by the
Congress of the United States for which funds are appropriated, and he is
bypassing the will of the Congress, the expressed will of the American
people. He cannot justify terminating these programs. He could justify
coming to Congress, asking for their revision. I say that he is committing
an unconstitutional act, and the Congress of the United States and the
courts of this land will have to bring him up short.
I'm sorry, Mr. Walker. Senator Humphrey, thanks
very much for being with us on THE ADVOCATES. Thank you. All right, Mr.
Udall, another witness, please.
Mr. Walker talks as though impoundment were the
intervention of some friendly big brother in Washington saving us
simultaneously from inflation and high taxes. Well, to a lot of mayors and
governors and struggling citizens who've paid taxes and who expect some
federal programs that Congress has passed to be delivered, it looks like a
much different problem. And to prove this and a lot of other things, we're
calling our next witness, Edmund S. Muskie.
Welcome to THE ADVOCATES, Senator Muskie. Nice to
have you with us.
Senator Edmund Muskie, Vice-Presidential nominee in
‘68, leading Presidential candidate in '72, former governor of Maine, he
chairs Senate subcommittees on air and water pollution and on
intergovernmental relations. He was the chief sponsor of the 1972 Water
Pollution Control Act. Senator Muskie, as a former governor and as an author
of many important bills in the Congress and as a student of local
government, could you give us some idea of the impact on mayors and
governors and school boards and local people when the President impounds
funds from programs that Congress has passed?
Well, let me give you an illustration. Within the
last year or two, in a well-publicized action, the Administration threatened
to take the City of Detroit, among others, to court for not cleaning up its
waters. Well, the citizens of Detroit got themselves together, put together
a program which amounts to $568 million; then the President announced in
December an impoundment of the money that the Congress had approved over his
veto and which deprived the city of $240 million of federal funds necessary
to do the job.
So, they're troubled either way. Either way, they're
So, there's trouble either way. They're under the
potential hammer of federal enforcement on one side, and then the Federal
Government sneaked out the back door on its commitment on the other
In this impoundment debate, Senator Muskie, we've
heard a great deal about the fact that oh, the Administration would love to
follow Congressional intent in most cases, but sometimes they just can't
find out what we mean, and there're a number of conflicting laws, and
therefore they have to make up their mind. Now, you're the author, the
father, the principal sponsor of the 1972 Water Pollution Bill which
provided for five billion dollars to be spent last year. The President said
thanks a lot, we'll spend only two. Was it clear in the Congressional
procedure, was it clear? What was the intent of you and the other sponsors
of that act?
The intent was to write a federal commitment. We
took two years to write that law, and one thing we had in mind was the
complaint of citizens and cities that the federal government never measured
up to its commitment to provide matching funds. And we resolved to write
this law so that the federal commitment was clear and irrevocable. And that
intent was clear throughout the two years of consideration, throughout the
Senate debate, throughout the House-Senate Conference, in the report to the
Senate of the Conference, and in the debate over the vetoes.
Senator Muskie, what can we do about this serious
constitutional crisis? How do we get the President to obey the law?
A brief answer, please, Senator.
Well, we can struggle to find legislative means. We
can go to the courts, and we're doing so. But ultimately, only the power of
the people brought to bear upon the President can insure that he faithfully
executes the laws in accordance with the oath he took on the 20th of January
All right, Senator, let's turn to Mr. Walker. Mr.
Walker, you're on for some cross-examination.
Senator Muskie, isn't it true that a number of your
colleagues voted for your clean-water bill with the clear understanding that
the President could impound the money?
If they did, they didn't listen to the debate or
read the legislation.
Well, Congressman Harsha of Ohio whom, as you know,
is the ranking minority member from the House side made the very statement
on the floor of the House of Representatives, "We have emphasized over and
over again that if federal spending must be curtailed and if such spending
cuts must affect water pollution control authorizations, the Administration
can impound the money." And furthermore, our witness Senator Roth is going
to state that he had that clear understanding even though he voted for the
bill and voted to override the bill.
Well, let me say, as the principal author of the
bill, I did not have that understanding, and I made the intent of the bill
clear on the floor of the Senate not once but three times. And anyone who
listened to the debate or read it knew that the emphasis was on a federal
commitment, as to the City of Detroit, a federal commitment of the funds
necessary to support state and local action.
Senator, I assume that extended beyond just
Detroit. It involved commitments to ...
It involved every community in the country, every
community in the country.
Uh huh. Mr. Walker.
Well, evidently we do have some uncertainty, and
Senator Roth can help, perhaps, with that. But in order to clear up
uncertainty, why don't you simply introduce this same bill requiring the
President to spend each year at least the amount of money you have in
How could we be clearer? We enacted that
legislation by a unanimous vote in the Senate, by a unanimous vote in the
House. The legislation went to the House-Senate Conference, came back to
both houses, was overwhelming approved. The President vetoed it at midnight,
one of the last days of the session. And within 24 hours, both the House and
the Senate had overridden it. The President got only 12 votes in the Senate
and 23 votes in the House to support his veto. Now, how many times, may I
ask, must the Congress speak before our intention is clear? And may I
I am still ... No, let me ask another
Senator, let's let Mr. Walker ask another
I am still puzzled, I don't think that's quite
what I asked, I'm still puzzled why you do not enact legislation which,
instead of saying the President may spend, he has got to spend the amount.
This has been done before.
We said in this legislation, if you've bothered to
read it ...
We said that the President shall allot - there're
no if's, and's, or but's - the amounts authorized for each year by January
1. The President allotted in December five billion dollars of 11 billion so
mandated and failed to do so by January 1 of this year and, in my judgment,
broke the law.
Well, let's move on to another piece of
legislation. Let's move on to another impoundment and see if there're some
differences involved. The President has impounded money for a canal across
Florida because the Environmental Protection Agency said it would injure the
environment. Did he have the right to do this?
The President has the right to try to save money
or take into account other considerations to delay projects, as, for
example, in the case of the water bill. If there are not sufficient
contracts signed and sufficient obligations committed to meet the
authorization figure in the legislation, of course, we don't want the
President to throw away the money.
Can he delay the canal permanently in the E.P.A.
continues to say it will harm the environment?
If the Congress has authorized a project, he
cannot delay it permanently without coming back to the Congress and asking
for Congressional approval.
Even if there is clearly another piece of
legislation that requires him to take into consideration these side effects,
he has to go ahead and hurt the environment down there.
I know the National Environmental Policy Act, and
it doesn't lay down any such mandate as you've described. It requires that
there be an environmental impact statement to evaluate the environmental
impact. But there are no punitive measures laid out in the act prescribing
what action the President can take and certainly none that mandates him to
cancel projects, simply to evaluate them.
I'm sorry, Mr. Walker, you will have another
opportunity to ask Senator Muskie some questions. Congressman Udall, another
Senator Muskie, one of the arguments made here
tonight about impoundment of funds is that the President has a higher duty
and a superior obligation and his ultimate wisdom to save us from the
ravages of inflation. They chopped out three billion dollars of your water
pollution money for Detroit and Tucson, Arizona and Bangor, Maine and Sioux
City and a lot of other places. What do you suppose this will have to do
with inflation? Do you think those water projects will cost less two or
three years from now than they might have cost if we'd spent the money
No. Well, in 1966, Mr. Udall, the Senate approved
a water pollution bill, and six billion dollars was provided to catch up
with the backlog. We failed to fund it. The Congress and the Executive,
alike, failed to provide the money. And so last year, we had to write the
bill over again, and we had to provide $18 billion to catch up with the
backlog. That's a measure of what it costs to delay. You know, we had this
interesting argument on the other side that what they're interested in is
saving money. The way to save money in the water pollution field is to do
the job now.
O.K., Senator, let's get back to Mr. Walker.
Another question, please.
Senator, I still think that the answer to your
problem would be to enact legislation that Presidents should spend not less
than, but both you and I ...
: We've passed such legislation.
Both you and I very much want Congress, both you
and I very much want Congress to play its proper Constitutional role in
determining spending priorities. But in the light of these facts, how can it
do so? It sets no budget or spending ceiling for itself. It makes piecemeal
appropriations without regard to an overall budget. One committee proposes a
program; a second committee appropriates the money; and a third committee
has the responsibility for raising the money. Tell me how in the world that
system can work.
You have about 10 seconds, Senator.
If I had your view, I'd do what President Marcos
of the Philippines did - eliminate Congress. But we're not about to do that.
We're not about to do that. The Congressional process can stand reform
... but may I suggest that President Nixon's
operation can stand even more. As he, himself, acknowledged after he took
office for the second time as he proceeded to accept recognitions, to cut
White House staff - I don't know how many he's cut - but of course, we need
constant reform of the process, but that is something different from
destroying and undermining the Constitutional power over appropriations,
which is the Congress. That's throwing the baby out with the bath.
Gentlemen, I'm afraid I have to interrupt.
Senator Muskie, thanks very much for being with us. All right, Mr.
I think we've made it clear that President Nixon's
kind of impoundment violates the spirit and the clear intent of the
Constitution. It's an assault on the fundamental rights of the Congress. And
it has burdensome effects on citizens and local government. The President,
we contend, has the power and the right to make budget recommendations. And
he has the right to veto spending bills if he finds them unwise. But when he
signs a money bill or when it's passed over his veto, he must be bound by
that Congressional decision.
Thank you, Congressman Udall. For those of you at
home who may have joined us late, Congressman Udall and his witnesses have
been arguing in support of a proposal that the President spend money which
Congress appropriates. Now, we're going to turn to Mr. Walker and his
witnesses who oppose that proposal. Mr. Walker, the floor is yours.
Ladies and gentlemen, the President of the United
States under the laws of the land and under the Constitution has the right
and the clear responsibility to refuse to spend appropriated funds when such
spending would hurt the country. Not only does he have this right, he should
have the right because Congress, in effect a committee of 535 people, is
simply too unwieldy a body to administer this huge government. Furthermore,
President Nixon has exercised this right responsibly.
Now, let me say that Congress has the Constitutional
authority to play a greater role in the appropriations process, and we would
hope that it would do so. But Congress has failed in this job. Over the past
few years, Congress has had chance after chance to bring federal spending
under control but instead has consistently appropriated too much money. If
Congress does decide to put its house in order and take more responsibility
for setting priorities, well and good. But Congress' fiscal house is not now
in order, and we are facing an urgent problem which has to be met now.
The problem is this: Excessive federal spending threatens
to reignite the fires of inflation which have hurt millions and helped only
a select few, an inflation we are now bringing under control. It is not
mid-morning, it's not mid-afternoon, and not early evening. It's one minute
to midnight, and only the President is able and willing to do this necessary
job, the job of protecting your pocketbook from soaring prices, higher
taxes, or both.
No one understands these problems better than the man who
managed the budget for the past two years, the Honorable Caspar
Welcome to THE ADVOCATES, Mr. Weinberger. Nice to
have you with us.
Mr. Weinberger was the Director of the Office of
Management and Budget until he was tapped by President Nixon to be Secretary
of Health, Education, and Welfare. Secretary Weinberger, where does the
President get his authority to impound funds?
Well, from the Constitution, from his duty to
enforce all of the laws, from certain specific laws that Congress passes -
the Antideficiency Act, the Employment Act in 1946 which requires him to
take all steps to prevent inflation, the Debt-Ceiling Act ...
Mr. Weinberger, I'm sorry, what is the
The Antideficiency Act is a very simple little
act that says the President should spend the money that the Congress
appropriates in the most efficient and effective way possible, and that if
it isn't possible to do that, it directs him to take other steps necessary
to maintain economies and to prevent deficiencies in appropriations.
We established that President Johnson engaged in
impounding. Does it go back earlier?
Goes way back to Thomas Jefferson, One of the
most interesting examples of recent impounding - and I don't really know of
a President who hasn't had to do it; I don't know how you could run the
executive branch without doing it because events change and the Congress
isn't in session all the time and a lot of things have to be done on an
interim basis both to prevent inflation and, as President Nixon is doing
now, to prevent taxes - but one of the most interesting examples was one
that President Truman did. And I imagine if we were talking about such an
incident tonight there would be waves and waves of applause because what
President Truman did was decide that when the Congress said they wanted a
70-wing air force, President Truman said, "No, I think you need a 40-wing
air force, and I will not spend the money." And they passed the bill over
his veto, and he refused to spend the money.
One of the most interesting things about this is that ever
since Jefferson there have been complaints about this. But the Congress has
not only acquiesced in this rule but most Congressmen, when they're not on
stage, will tell you that they have to have this kind of authority.
To get down to figures and a little perspective,
how much money has President Nixon impounded?
He's impounding at this point 8.7 billion out
of some 260 billion that the Congress directed to be spent which he's
reduced to 250 billion, a little under 250.
And why has he impounded this money?
Well, he's impounded this money for a number
of reasons. The bulk of it which is highway money is because it simply isn't
ready or can't be spent, or because the Congress has directed that buildings
be built and we don't own the land yet, or it's directed that we build a
nuclear submarine or nuclear carrier and the ship is not finished; we have
literally no one to pay the money to. That's a big part of it, usually the
biggest part. He's impounded others because to start on those expenditures
would embark us on an inflationary course that in two years, maybe three
years, would balloon. I don't think very many people realize how rapidly
these expenditures balloon. You have an expenditure program that starts out
modestly, - and we call it modest in Washington these days of two or three
billion - and in one year it's up to six or seven, and in another year it's
up to 15 or 18 billion. And those are some appropriations in that category
that the President has ordered withheld simply to prevent more taxes being
Gentlemen, let's ...
Your thesis is that the President has the
responsibility and the right to impound, and he has done so...
He has the duty …
That's his thesis, and we're going to turn to
Congressman Udall, Mr. Walker. Congressman Udall, some question,
Mr. Weinberger, the Constitution gives Congress at
least two key powers. One is over spending, and the other is over taxes. And
you advance an interesting theory with the spending power - because Congress
is inefficient, can't do the job, the President has to move in and do the
The Constitution gives the Congress the right
to appropriate the funds, Congressman.
Yeah, but one of your arguments is that because
there's inefficiency and we don't really do the job the Executive has to
move in and make sense out of the process.
No, that is true, but that isn't my argument.
My argument is that if no one else does this, you're going to have many
situations in which the President would be literally unable to hand the
money which has been appropriated to anyone to receive. There is no one
Let me test that philosophy. You say that Ed
Muskie's five billion dollars in water pollution, you cut it back to two
because of inflation and other considerations …
It isn't five billion. It's going to work
itself out to about ...
Well, whatever the figure ...
… 18 to 21 billion. And that's quite a
I want to talk about the principles.
All right, let's talk about the
Just for our benefit, 18 to 21 billion over what
period of time, gentlemen?
Over a three- to four-year period, depending
on how rapidly the Congress would try to force the spending, which would
mean higher taxes and would mean something else. It would mean a lot dirtier
water because it would mean people simply could not afford the inflationary
effect of this kind of program on pollution equipment.
Well, let me test this theory of yours. Congress
says you spend five; you decided to spend two. Suppose Congress set a tax
rate at 10 percent, and the President said, "Sorry, in order to fight
inflation, preserve the general welfare, the tax rate will not be 10
percent, it will be 12 percent or 14 percent or eight percent or two
percent." Why can't he do one if he can do the other?
Because with the appropriations, what Congress
is doing is authorizing and appropriating a spending program which, over the
years since Jefferson, every President has interpreted as giving ...
So you can ignore the Constitution on spending, but
you can't ignore it on taxes.
May I just finish, Congressman. No. Just let
Congressman, let's let him finish, please. Go
… which every President has interpreted as
being the outside limits of the spending but which common sense and reason
dictate he cannot be forced to spend every penny of it if it can't be spent
usefully, economically, and efficiently. With a tax rate, you don't have a
spending program. You have a specific tax law, and no Congress has given the
President -and I don't think they should - the ability, although President
Kennedy asked for it, to move the tax rates up and down as he wishes.
Well you're talking, here, about a principle, not
about Richard Nixon, all-knowing and all-virtuous, you're talking about a
principle of Presidential power; and let me test that principle. It may be a
little painful, but let's suppose for a moment that we had just inaugurated
George McGovern, and his press secretary ...
You've set a hard case, Congressman, but go
No, I'm going to make it hard. I'm going to give
you a tough case because we're testing a tough principle. McGovern announces
this month in February that to prevent inflation under the Antideficiency
Act of 1905, he's cutting out and impounding all funds for the B-1 bomber,
the space shuttle, and the antiballistic missile. Would you send him a
telegram of support or maybe go to Capitol Hill and testify that he could do
I would probably do a few of those things, but
I wouldn't have for a moment any doubt that he had the Constitutional
authority to do that because that's exactly what President Truman did. I
would question strongly the wisdom of it, not his basic Constitutional right
to do so.
Let me ask you one more thing. You talk about the
inefficiency of Congress and why we take so long and we can't make all these
decisions and so forth. On the Water Pollution Bill we had months of
hearings, public hearings, governors, conservationists, mayor, citizens
testified, debates in the House and Senate, conference committees. We
decided five billion dollars we needed this year for water pollution
And six billion the next, and seven billion
the year after.
Indeed. And you decided not five but two, and three
billion next year.
How many public hearings did you hold, and how many
witnesses testified before the decision was made?
We relied on the legislative history of that
act which made it very, very obvious with repeated statements throughout the
debate on the bill that the President did have the authority not to spend it
all and that that was why it was said repeatedly the President should sign
the bill because he doesn't nave to spend it.
Was anyone who ...
Gentlemen, I'm sorry I have to interrupt.
Congressman Udall, you will have another opportunity to ask Mr. Weinberger
some questions. Back to Mr. Walker. Mr. Walker.
Mr. Secretary, if one read the press, you'd get
the clear implication that all the cuts or impoundments made by the
President have been made in social programs, poverty, environment, etc. Is
No, that's exactly the opposite of the truth.
We are withholding two billion dollars out of this years appropriations from
the Department of Defense appropriation bill. In the Health, Education, and
Welfare bill, we are impounding 35 million, and that is entirely because of
construction problems. They simply aren't ready to build the buildings or to
allocate the funds to the contractors. So that's two billion against 35
Let's go back to Congressman Udall. Another
question or two, Congressman.
One of the points that you've made in this great
discussion is that if Congress would shape up and buckle down and do our
Job, that maybe you'd give us back some of the Constitutional power we have
to decide appropriations policy. Who decides when Congress has shaped up and
we get our Constitutional powers back?
Well, Congressman, you've repeatedly said
this. You're the one that says Congress needs shaping up. I haven't said a
word about it. I would hesitate to say that.
Gentlemen, in fairness, I think it was Mr. Walker
who suggested that Congress might shape up, not Mr. Weinberger.
It may be a valid point, but my point is that
someone has to have the overall responsibility, and we would be delighted if
Congress would share it with the President, and that's why we asked for a
Well, it's generous of you to offer to share a
power the Constitution gives to us and not to the President.
Well, we don't read it that way,
Mr. Weinberger, I'm afraid I have to break in.
Thanks very much for being with us.
All right, Mr. Walker, another witness,
We'd like now to call as our next witness the
Senior Senator from the State of Delaware, the Honorable William Roth.
Welcome to THE ADVOCATES, Senator Roth. Nice to
have you with us.
Thank you very much.
Senator Roth is a member of the Senate Finance
Committee, the Government Operations Committee, and a special blue ribbon
committee that has been set up by the Congress to do something about the
budget in the Congress. Senator, should Congress force the President to
spend all the money it appropriates?
Well, Mr. Walker, it's my judgment that if Congress
should mandate that the President had to spend all funds that were
appropriated, we'd not only be talking about the $260 billion we
appropriated during the current year but we'd also be talking about $250
billion in the pipeline. So we'd be saying a half trillion dollars have to
be spent, and obviously, I think most people would agree that if we did that
today it would cause inflation or we would have to raise taxes very
Senator, when you use the expression, "in the
pipeline," can you tell us what you mean?
I'm talking about the funds that are left over from
prior years that have not been spent.
All right, Mr. Walker.
Senator, isn't the President frustrating the will
of Congress when he makes these impoundments?
Mr. Walker, I wish it were possible to tell what is
the Congressional intent in the area of spending. You've got 535 different
members of Congress, and frankly, if you polled them, I doubt if you could
get 10 percent to agree. But let me say what's the important point. The fact
remains that we have given a mixed bag of directives. On the one hand, we
have created many programs that require spending. We have a debt ceiling
which, last time we upped, we specifically limited spending for current
fiscal year '73 to $250 billion. We have also passed the Full Employment Act
of 1946. And every President, since Truman on down, has said that the
President is responsible for the economy. Now, I think what the President is
really trying to do is to reconcile these conflicting objectives.
But let me talk to you, if I might, just a minute, about
appropriations and what's meant by an appropriation. There are very, very
few Congressmen that think an appropriation is mandatory spending. It's
perfectly clear - you can go back to statements by Mahon, by Senator Truman,
Speaker Cannon - appropriations are permissive, not mandatory. Let me
explain. There're some pretty good reasons ...
Senator, I'm sorry. Statements by Mahon? Who is
He is the Chairman of the House Appropriations
Oh, Representative Mahon.
Now, let me make this point, if I might, going back
to some of the specific legislation. For example, we have 13 different
appropriations. One of them, for example, involves environment. It involves
agricultural policy. It involves consumer protection. Well, I happen to be
opposed to farm subsidies and would like to stop it. So I'm faced with the
question when the appropriation comes up, "Do I vote for it because I'm for
consumer protection and I'm for environment, or do I vote against it because
I'm against farm subsidies?" And none of us think that when we're voting
final passage that we're mandating spending. That's just a fact of
In your mind, was the Clean Water Bill spending
Well, you know, I'm like Senator Cooper on the
Senate floor because I was one that supported Senator Muskie in this
legislation. I voted to override his veto. But I'd like to reiterate what
was said earlier. Congressman Harsha the leader in the House side spelled
out very clearly the language you read that the President has authority to
impound those funds, and Muskie made favorable reference to it. It didn't
talk, in the final form, about allotment of all sums. That language had been
changed. The word "all" had been dropped, and it said, "not in excess of."
This is typical. Congress waffles. At one moment, when they're trying to
override a veto, we try and say, "Oh yes, the President has authority." But
on the other hand, after it's done, we like to criticize.
Senator, I don't know whether Congressman Udall
agrees with you that he and his colleagues waffle, but let's find out.
Well, I don't have my waffle iron with me, Senator
Roth, but it seems to me that you have little faith in the institution to
which you belong. I have found you an honorable man who doesn't waffle, who
doesn't mislead his constituents. Are you suggesting that the great majority
of the members of the Congress haven't the ability to face up to the issues
and decide them fairly and squarely?
Well, Mr. Udall, I'd just like to, if I might, read
a statement from your distinguished brother who was former Secretary of the
Interior. It reads very much what I think. It says ...
Well, I hope you won't take too much of my time. I
have heard my brother on a variety ...
Well, I like to answer your question. He says, "To
my way of thinking, the Congress itself is largely to blame for the erosion
of its powers. Presidents, in preparing their budgets and expending
appropriated funds, are increasingly forced to make judgments about national
priorities and long-term goals. Yes, in a time of rapid change, the
appropriation committees of Congress still essentially use the same
procedures and staff functions to evaluate the various programs."
Well, now I get a chance to ask my question, which
was we are not very efficient up in Congress, and we don't handle
appropriations very well, and if we'd just shape up, then maybe they'd give
us back our Constitutional powers. Who decides that? Does the President
decide when we've shaped up sufficiently, or do we decide?
No, I think we decide. I think the responsibility
lies with us. As a matter of fact, as a result of a debate last year on the
spending limitation, we set up a joint committee. I'm a member of that joint
committee. We're meeting right now trying to decide how we can change
procedures, how we can change our committees, so that we will take a
comprehensive look at the whole bailiwick.
The problem today, if I might just complete my
answer, is that people want to talk about spending. They don't want to talk
about the other side, how we're going to finance it. And that's what's
got to be done if Congress is going to be responsible.
Well you know, you read me a quotation, let me read
one to you. This is John Ehrlichman, the President's top domestic advisor,
right here in the month of February, the year of our Lord '73. He said that
"the Administration will not spend money it considers wasteful even if
Congress appropriates the funds over a Presidential veto." He said, "the
President's power to impound funds is not impaired if he first vetoes an
appropriation on the grounds that it is too costly and Congress later
overrides by a two-thirds margin." Does that square with your version of the
Well, let me give you my version of the
Constitution. I think Congress can mandate spending, but it has to act with
precision, and it has to act with clarity. That's where the failure is, that
we have waffled these gray areas. We have not looked at the whole picture.
And until we do so, the President hasn't taken the power, we've given it by
failing to act as we should act in the Congress.
Are you willing to concede, then, that we have a
serious problem, and it's a serious subject, and that we ought to place some
limitations on the President's power to impound and we ought to clarify the
situation so that we know when he’s bound to spend the money Congress
Oh, absolutely. I believe very strongly, and I'd
like to emphasize it. I think Congress does have a responsibility to take
over control of the purse string, but I think we've got to do it in an
intelligent way. We've got to face Congressional reform. I consider
Congressional reform a primary requirement of this session of Congress, and
it's particularly true in this area of fiscal responsibility.
All right, Mr. Walker, another question,
Senator Roth, you stated in your direct testimony
that, in your view, the President is not frustrating the will of Congress.
If so, why are some Congressmen so critical of the President on this
Well, to be perfectly honest, I think we've let too
much politics creep into it. I don't think this is time for a confrontation
between the executive branch and the Congress. I think it's time we sit down
together and try to work out this problem because Congress does have a very
important role of setting guidelines in spending. At the same time, it's the
President that must manage it. But it makes good politics. And I must say
the Republicans did it when L.B.J. was President just as well as the
Democrats are doing it with Nixon. It's nice today to complain about
spending, but if we spend everything and we have inflation tomorrow, then,
of course, everybody is going to complain about inflation. The President's a
All right, let's go back to Congressman Udall.
Another question or two, please, Congressman.
Can you tell me, Senator Roth, of a single program
in the administration of Lyndon Johnson where the President did not simply
withhold or delay some funds until a later time but actually and
deliberately and openly set out to kill a program like the Impact Aid to
Education program, the highway program, the R.E.A., the Electrification
program? Can you cite me a case where Lyndon Johnson didn't just delay
programs but he killed programs and said he was going to kill them?
Well, let me, if I might, correct one fact. The
President has not killed, for example, the Highway Bill. As a matter of
fact, we spent last year, I think, five billion roughly. We're going to
spend five billion this year. We're going to spend five billion next year. I
must say very honestly I'd like to impound it until he opened up the mass
transportation. But fundamentally, the current President and Johnson were
doing the same things. Mr. Johnson impounded funds involving housing. Mr.
Johnson involved funds that involved the highway …
And that's what President Nixon ... Well, that
Can you list me a program that he killed, that he
said this program is no good and it's unwise, and we know Congress has
approved it, but I don't like it and I'm going to end it? Can you name me a
program of that kind that President Johnson ...
Well, I would answer you this way. Basically, the
current President is deferring programs. If Congress does not like what the
President is doing, tomorrow, it can meet tomorrow and mandate that any
program be spent. But the problem is that Congressional intent is not
Well, why doesn't he ask us for guidance if the
intent is unclear. He couldn't find his way up there to give us a "State of
the Union" address, but I'm sure ...
Well, I can give you … May I ...
… I'm sure if the people who make the law wanted a
Congressman Udall, let's let Senator Roth answer
If I may answer your question ...
In the first place, I tried to, for example, get the
Congress to set a spending limitation last January. By doing so then, we
would consider every appropriation in light of that ceiling. It was 10
months before it considered it. That's the problem. There's such a long time
delay between a Presidential request and Congressional action that it's very
unwieldy. What we've got to do …
All right, Senator, I'm sorry. I have to
interrupt. Thanks very much for being with us on THE ADVOCATES. All right,
Thank you very much, Senator Roth. I think you've
made it clear that Congress can, by reforming its procedures, play a more
responsible role in our cherished system of checks and balances. But let's
be very clear about one thing. This system of checks and balances does not
exclude the President of the United States in meeting his oath under the
Constitution of the United States. His right to check an overspending
Congress is just as much a part of the checks and balances as what these
gentlemen have been discussing tonight.
Thank you, Mr. Walker. Now your summary, please,
Ladies and gentlemen, what we've been talking
about is not a Presidential grab for power. If anything, there has been a
Congressional abdication of power. There is no doubt that the Constitution
and the laws of the land grant the President the right to impound
Congressional appropriations. The President cannot spend money that Congress
has not appropriated. That's the control of the purse string. But that does
not mean he has to spend all the money that the Congress does
Now any President will, from time to time, make decisions
that you or I disagree with. But that risk is small in comparison with the
consequences of a drifting leaderless government when decisive action is
required. Today, inaction will hit you right in your pocketbook through
inflation, higher taxes, or both.
So, on the proposition tonight, in the interest of your
country and in your own interest, vote, "No." The President does not have to
spend all of the money that Congress appropriates.
Thank you, Mr. Walker. Congressman Udall, your
In the long run, the appropriations and the
impoundments we've been talking about tonight won't really matter very much,
nor will the partisan differences between a Republic President and a
Democratic Congress in 1973. But there's something in tonight's debate that
is vital and permanent, and it isn't going to fade away because it's part of
the Constitutional crisis. The President claims today that his power to
faithfully execute all of the laws entitles him to faithfully execute some
of the laws and, in effect, to repeal others that he doesn't like. And this,
I say, is an unprecedented grab for power, and if it sticks, we will have
drastically changed the Constitution without bothering to amend it.
No citizen, no President, is above the law. President
Nixon should set an example of restraint for himself and his successors by
faithfully executing and obeying all of the laws, all of them. And failing
this, the Congress must find legal and Constitutional ways to preserve its
Thank you, gentlemen. Now, ladies and gentlemen,
you here with us in Washington and the thousands more of you watching us at
home over your television sets have an opportunity to get in on the act and
let us know how you feel about tonight's question. What do you think? Should
the President spend the money that Congress appropriates? Should Congress
act to require him to do so? Send us your vote on a letter or postcard, and
mail it to THE ADVOCATES, Box 1973, Boston 02134. We will tabulate your
views and distribute them to the members of Congress, to the executive
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And now, let's take a look at next week's program.
(On Video) Amnesty - a Presidential prerogative, first
exercised by President George Washington nearly 200 years ago, a word that
means, "to forget," a word that always comes up after a war.
Now that the long war in Indochina has finally ended,
President Nixon has told the nation he will not forget. Should unconditional
amnesty be granted to those who have evaded military service? A question
next time for THE ADVOCATES.
It's been a real pleasure and privilege to have
had such a distinguished group of advocates and witnesses with us tonight on
our program, and so with thanks to our advocates and to their very
distinguished and able witnesses, we conclude tonight's debate.
THE ADVOCATES, as a program, takes no position
on the issues debated tonight. Our Job is to help you understand both sides
This program was recorded.