Mr. MARTIN. Then in your opinion the President would have the power to veto a concurrent resolution action by the Congress?

Senator ERVIN. That is right. That would be the second time he would have a chance to veto the same proposition, really.

Mr. MARTIN. That is all, Mr. Chairman. I am glad you agreed with me, sir.

Senator ERVIN. I have just been informed they are about to vote in the Senate on a very important amendment. I expect I will have to leave to get there in time.

I could come back and take up after my friend, Jamie, finishes, if anyone wishes me to. No, I can't. I have to go to the Judiciary meeting on the Patrick Gray nomination.

The CHAIRMAN. Senator, we are very grateful for your testimony. We are sorry that the situation is such that you have to go to the Senate and vote. Probably there will be no possibility of your coming back this afternoon to answer questions?

Senator ERVIN. I will try to get back if I can get out of the Judiciary Committee meeting on the Patrick Gray matter.

The CHAIRMAN. If you can get out of there, it would be just like a breath of fresh air for you to come back over here to the House.

Senator ERVIN. I will come back if I possibly can. I think the question and answering period elucidate the points very well. I think Mr. Delaney's questions were very illuminating on this question and also Mr. Martin's.

The CHAIRMAN. Thank you for appearing, Senator.

Mr. PEPPER. I want to say "Amen" before you go.

Senator ERVIN. Thank you. All I would say to the committee prior to acting on this matter, let's get a bill that will really make it certain that Congress has what the Constitution gives it, the power of the

purse.

The CHAIRMAN. The next witness will be Congressman Whitten. Congressman, we are glad to have you here. You may proceed in

your own way.

STATEMENT OF HON. JAMIE L. WHITTEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSISSIPPI

Mr. WHITTEN. Thank you very much, Mr. Chairman.

I have listened with interest to the statement by our distinguished friend and Senator. I would not take issue with him on many of the points made insofar as the description of efforts to reach this matter by statute.

I do think we face very serious times.

As you know, I am cochairman of the Joint Committee on Budget Control. I am glad to report that the steering group on that committee has agreed on the final draft of our report, and that it will be available later.

I am here to testify in connection with the bill that was introduced by the chairman of the Appropriations Committee, Mr. Mahon.

May I say that I did not prepare the bill, though I suggested some modifications which are included. I think this bill approaches the matter about as well as you can at this stage.

But let me repeat to you what I firmly believe, and I think as fine a lawyer as our Senator Ervin is, and with the questions and answers you received, you can see that when you deal with a constitutional question or deal between the division of powers, it is not only difficult, but to me, impossible to write a bill or a statute that entirely covers the issue or stops the practice.

Let's review this matter. We have three equal and coordinate branches of government. How can one equal make another equal do anything. If so, one would be subordinate. How can the court, if it decided to do so, make the President act, when they send the decree issued by the court to the President for the executive branch to enforce? How can the Congress make the President act when we in turn have to look to him to execute our laws?

There are ways that these things can be handled, and fortunately our forefathers recognized this and provided for it. Three equals can run anything only so long as they each have an appreciation of the responsibilities and the obligations and the limitations of the other.

In this instance I think the Executive has clearly shown either disdain for the actions of the Congress or exercised power to bring balance. I can't say that that is not contemplated by the Constitution because it provides for checks, but only to bring about balance. What can the Congress do? There are a number of things. The most obvious is impeachment which is completely out of the window and not even to be considered.

But Congress does have control of the appropriations process, and if we can't reach some means of coming together, these two equals, the executive and legislative, the only course left is retaliation. Retaliation in terms of withholding appropriations necessary for the operation of the executive branch. Such action would mean a breakdown in Government which none of us can afford.

I have served in the Congress a long time. I was here, and I think one or two of the other Members here were also, when the Congress provided that two employees in the Interior Department, by name, could not be paid a dime for their salaries out of the Treasury. They weren't.

Some 2 or 3 years later the Supreme Court, in a lawsuit, ruled they should be paid, and because we wanted to, we did.

Earlier this year we had Mr. Ash, the Director of the Office of Management and Budget, the Secretary of the Treasury, Mr. Shultz, to come before our committee. At that time I asked, "Gentlemen, if the Congress should hold expenditures within the limits or below the limits that the President deems sound, would you agree to abide by the action of the Congress in selecting the projects and the programs which are the choices of the people's branch of the Government where, after all, the authority constitutionally lies."

I could get no commitment, nor could I get any assurance. Back to the Mahon bill-may I say that if you give us a rule on this, and I hope you will. I personally would offer a number of amendments if someone does not. I feel we should make it plain that by passing the bill we are not admitting the right of impoundment by the President. I would provide a new paragraph stating that "this act shall in no way be interpreted as authorizing the President or any

one in his name to impound, or otherwise withhold funds appropriated by Congress."

I want to make that plain. Not only that, I would strike out the word "require" in the title. I don't believe we can require by mere

statute.

But I do think that in the passage of this act that we would be appealing to public opinion, and would be trying to reach the sense of balance between departments which is so essential to our Govern

ment.

I have to admit that I think, as perhaps you do, that we are faced with the very real danger of inflation. I was in China in World War 11. They had to quit printing $10 bills because the cost to print them was more than the bill would buy.

For us to continue on that basis of spending without regard to income is unsound. I don't mean we intend to. We need to call a check. We need to stop, look, and listen, bearing in mind that retaliatory action would benefit neither branch. But if we are to attempt to control by statute my thought would be to include in the appropriations for the Office of Management and Budget this year, a provision that "no part of these funds shall be used to withhold, or otherwise prevent funds from being used as directed by Congress." What is to keep you from doing it? What is to keep you from saying, "No part of this appropriation shall be used to run the White House?"

I point this out because goodness knows that it is not what we wish, that is not our intent.

I say that the check up to this point may have made us realize some things, but we will progress only if we now reach balance. Otherwise, if each sets out to block the other, we cannot have anything but chaos.

I see my good friend, former Senator and fine Congressman, Claude Pepper, there, who was before our Joint Committee where I happen to be cochairman. He likened these three divisions of the Government to the Russian chariot, the troika, where I believe the Senator said, you have three horses to one chariot. Certainly the three could run off in three directions at one time, but they can't do it, and accomplish anything, to which I add, they can get in front of each other and block each other. This is what our Constitution provides, that another can block the other two, but then the original purpose to govern and provide for the welfare of the people is lost.

At the present time we have one branch, the executive branch, which is absolute in choosing that which shall be allowed, and that which shall be denied, although the Constitution provides that legislation and the selection be done by the people's branch. We are the ones who have the right to appropriate the money and designate how it is to be spent.

Congress is not helpless in this case, but if we don't get cooperation we will be driven to retaliation.

We need to bring the Mahon bill out, which acknowledges that the executive branch is pulling a power play, but we must be sure to insist that the right does not exist.

You can show the funding of the people as expressed through the Congress, which is their branch. When you do that, if you don't get

reaction or proper action by the executive branch, then you can turn to the next power that you do have, and that is withholding funds. Certainly we can't make him spend it, and goodness knows, the Pres ident can't make the Congress appropriate it.

This situation is deadly serious to a country that has to operate. I am not making any threat. We may reach an impasse where this is the only thing left to save the programs so essential to the American people.

I could spend all of my time talking about the damages already done by canceling the soil conservation program where 1.1 million Americans have put up 70 percent of the cost to save our land for further generations, a program provided by the Congress, included in a bill signed by the President, announced by the President, carried out by the President, until December 26, 1972, when the President killed the going program.

We can't, as the people's representatives, let that continue.

I think in a spirit of togetherness, we should adopt the Mahon bill, and, say to the executive branch that, "if you do do these things, you shall notify the Congress and let the Congress take appropriate action as to say that it shall cease."

I have to agree that when we do that we have gone as far as I think, under the Constitution, you can go in that direction. But I repeat again, while we can't make him spend, goodness knows any President can't make Congress appropriate. So you can easily have a stalemate in either direction.

I urge you to report out the Mahon bill for another reason: I listened very closely to my friend, Senator Ervin, and I agree with all of the wonderful things he has said, his ability and standing as a fine lawyer.

There is one provision in the Mahon bill which I think is very, very essential.

It provides on page 4-I had something to do with this one sectionI quote "where special message specifies more than one impoundment of funds the resolution may relate to any one or more of such impoundments, and the resolution, with respect to any impoundment, may express the disapproval of the Congress of any amount thereof, and may set forth the basis on which such impoundment is disapproved." The reason for this that funds have been impounded all year. Now, you have at best 21⁄2 months left of this fiscal year. To ask us to restore the full year's amount for 22 months use is fiscally unsound. You can see the position we are in.

This provision was written so we could condemn that which we disapproved of, but take into consideration the calendar period that might be left.

I could go on and on. We all are familiar with the Constitution. I am familiar with the cases which claim that other Presidents have withheld money. However, not one such case can accurately be used as a precedent for what we face today. When the Director of the Office of Management and Budget refuses to commit himself when asked the question: "If the Congress pulls its spending levels back, even to the level of the President, or below the level, will you bind yourselves to carry out the projects and the order of priorities fixed by the people of the United

States through their branch, the Congress?" we need to seek another course of action. I repeat, I could not get any such commitment.

When thing reach that stage, it is time we consider using our biggest weapon, but we should try the Mahon method first. If it doesn't work, then we are faced to use the other method, that of withholding the funds which can be used for this purpose.

I will be glad to answer any questions as best I can.

The CHAIRMAN. Thank you. That is a good statement.
Mr. Delaney?

Mr. DELANEY. I will pass. I realize what you say there. There is absolute truth in it. How could you spend a year's appropriation in a month or two?

Mr. WHITTEN. I suggested that section. I didn't write the bill, but you understand, if I may say to my friend, if we report this bill out it should be opened up for amendment, but I will repeat again, we are expressing the will and the opinion of the American people.

I personally having practiced law, can't see any authority, where the Congress, by mere statute can require affirmative action by an equal branch.

Mr. DELANEY. I agree with you.

The CHAIRMAN. Mr. Quillen?

Mr. QUILLEN. Yes, Mr. Chairman.

Mr. Whitten, the parade of witnesses today and yesterday have been testifying the Mahon bill won't work.

Mr. WHITTEN. May I say that I don't think any statute would work insofar as making the Executive do what you tell him to do. I have to admit that.

I think the Mahon bill clearly enables us to express ourselves as a people's branch as to how we feel, to condemn the actions taken, to call on them to cease, to call for other actions to be taken.

If that doesn't work, then we can take the next step.

Mr. QUILLEN. You heard the dissertation a moment ago about a concurrent resolution being passed, with its effect limited to the confines of the Capitol and not going to the President for approval or disapproval.

That is what the Mahon bill provides.

Mr. WHITTEN. If you have three equals, and I am not being facetious, how can one equal make another equal act? It comes down to a very low shelf when you look at it that way.

We do have a Government of checks and balances. It was intended that in proper cases the check be used to bring the balance, but only to bring the balance.

As my friend the Senator said, you can't go off in three directions, but if each sets out to block the other, and they can do that under our Constitution, which means we must find some way to avoid a confrontation.

I think the Mahon bill is a step in the right direction. A very necessary step to put the Congress in the position of having been fair, before resorting to something a great deal stronger.

Mr. QUILLEN. Mr. Whitten, I think you made a very good statement. It reminds me of a statement that John Marshall and Noah Webster made after listening to the debate on seating the second Congressman

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