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GAO has authority or power to say that when an expenditure is not properly made, to disallow expenditures. Now, is there anything in the statute, as you see it, and this is a general question to all three of you gentlemen, that would make it impossible for the GAO to look at and to report to Congress all instances when the money was not spent, a report on a periodic basis, quarterly basis, semiannual basis, and so on? Could not the statute be read that way, to give them authority to do that, and if it does, as a matter of policy then, would you think it would be a good idea ?

Professor MaxSFIELD. I do not thing that there is any doubt that the Comptroller General has had that authority ever since 1921, barring arguments about some particular types of Government agency. For a long time, Government corporations challenged his right to get in and the Federal Reserve or the FDIC or some other agencies might today contest how far he could go into their books. But, broadly across the Government agencies, I do not think there has been any doubt that he has the right to investigate and to make reports on the honesty or efficiency—

Professor MILLER. Oh the failure to spend. Do you think as a matter of policy it would be a good idea ?

Professor MaxSFIELD. Institutionally, he is more or less committed to trying to limit expenditures, I suppose, so he might collect information.

Professor MILLER. No; I differ from that. It is to see that expenditures are made in accordance with law.

Professor COOPER. Without much reflection and reserving the right to change my mind, after I have thought about it for more than five minutes, I do not think that that would be a good idea policywise.

It seems to me you have to deal directly with the Budget Bureau. There is no reason why the Budget Bureau, in line with some kind of reasonable requirements, should not do the work of reporting impoundments to you.

Professor Maass. I would just add that in my statement I suggested that any such legislation should provide that the President would make the recommendation, would send the proposed order impounding funds to Congress, just as the President sends the proposed estimate of supplemental money that he may need to Congress.

My feeling here is that if you put this responsibility on the President, it is not likely to be exercised as frequently as if you devolve the responsibility on the Bureau chiefs.

Certainly we discovered this, did we not, in the 1950's when the authority to assert executive privilege to withhold information from Congress was used by Bureau chiefs. Since then, beginning in 1960 with President Kennedy, and continuing with President Johnson and President Nixon, they have said that only the President personally will use Executive privilege in this regard, and I believe that such a procedure has reduced the number of times that Executive privilege has been used. This is important.

Now, I know that you are not suggesting that the Comptroller General do anything other than report on impoundments, and I can see nothing wrong with the suggestion, but I think it is much better to put the finger on the President.

Professor MILLER. The only question, I suppose, that could be raised in this, and this is an observation, is that the GAO can be directed by a Member of Congress, you see, and the President-it is a little hard for the Member of Congress to direct the President.

Professor Maass. Yes. Professor MILLER. I have nothing further. Mr. EDMISTEN. I would just like to ask Professor Cooper what he thought of Mr. Caspar Weinberger's testimony this morning, especially when, in my view, he was saying that the Director of the Office of Management and Budget was about the second most powerful man in the U.S. Government.

Professor COOPER. My view of his testimony is, as Professor Bickel suggested afterwards in some conversation, that he did a very good job with a very bad case. Still, the fact that a man of this importance and an agency of this importance are now asserting the kinds of claims we heard today, should be a danger sign for those concerned with congressional prerogative, especially in the context of history.

Professor BICKEL. The conversation you speak of was off the record, but I might as well put it on the record. I do not want to seem to suggest that a lawyer does not perform much of a trick that entitles him to high distinction in his profession when he puts up a good argument in a pretty good case. But it is when he comes in with a lousy case and makes an argument that rises to the level of plausibility that he shows his true professional strength, and that is what I thought Mr. Weinburger was doing.

Professor COOPER. I would suggest that it only rises to a level of plausibility because we have had a decade and a half in which to have forgotten what the original understandings and limitations were, and in which the Executive has successfully extended this practice by great lengths.

Professor MILLER. I am only saying I did not find it plausible.

Professor STOLZ. Since everybody is throwing in their two bits. I will add that I thought it was pretty plausible.

Mr. EDMISTEN. On behalf of the chairman, I would like to thank all three of you gentlemen very much. I think it has been very beneficial, and I hope we can schedule more roundtable discussions of this type.

I shall take your suggestion, Professor Miller, and request that our consultants be about the business of drafting a statute, to which you referred.

Professor BICKEL. We shall pass your request on.

Mr. EDMISTEN. Mr. Coulter, the vote is in process. The chairman has asked me to request that you begin, because I know time is of the essence to you and we appreciate your patience very much.

For the record, we have with us as witnesses, Raymond C. Coulter. Deputy Solicitor, Department of the Interior, and Dr. Warren J. Wisby, Director of the National Fisheries and Aquarium, Department of the Interior.

As our panelists will recall, this mornirg in the testimony from Mr. Weinberger and his assistant, the matter of the National Aquarium was very much in the forefront. We would appreciate it if Mr. Wisby would simply relate to us the chronological events involving the National Aquarium. Then we shall have some questions.



Mr. COULTER. I might, by way of preface, indicate that it is our understanding that what the chairman has asked is that he would like a chronological history of events with reference to the aquarium.

Mr. EDMISTEN. Yes, sir.

Mr. Wisby. The chronological events begin in 1962, with authorization, at which time $10 million was authorized for construction of the building. The act says that the $10 million were to be repaid within 30 years from admissions which were to be charged, and that all maintenance and operating charges would also be paid from admission fees.

In 1964, we received our first appropriation of the construction amounts, and this was in the amount of $260,000, which was 1-year money earmarked for 1964, and which was to be used for planning of the facility.

In 1965, we received an additional $500,000, again 1-year money to be used for planning of the facility. Those amounts were obligated.

Mr. EDMISTEN. You mean that they were not impounded ?

Mr. Wisby. No; we obligated those amounts in planning for the facility.

In 1966 we received our first O. & M. appropriations, part of which was for operation of the existing National Aquarium in the basement of the Commerce Building. That amount was $214,000. The remainder of the $10 million, $9,240,000, was also appropriated. Of that amount, $50,000 was used in planning for construction; $9.1 million was placed in reserve.

In 1967 an additional $15,000 was spent for planning. The $9,100,000 continued in reserve, we might say, until 1969 when it surfaced briefly. At the time we had the printing presses ready to print the bidding documents, it submerged again, went back into reserve, and has been, since that time, unavailable for our use.

The site was chosen; all the planning is completed; the design is completed; working drawings are on hand. The building was designed, beginning in 1966 to be built for the appropriated sums in 1969, which is when the architect, in fact, delivered his working drawings, and was finished with the project. The terms of the contract with the architect were such that had no bids come in under the appropriated amount that we had, he would have had to redesign the project at his own expense.

The General Services Administration, which is charged with constructing the building, and the architect apparently were convinced that the building could be constructed for the appropriated sums at that time.

Professor MILLER. No contracts or invitations for bid or anything like that?

Mr. Wisby, No. We stopped the process just at that time; when the moneys were again impounded for reasons of economy.

Professor BICKEL. May I ask what these two items, reprogramed for pay costs, are?

Mr. Wisby. In 1970 and in 1971, the sums appropriated by the Congress for our operations and maintenance were $1,118,000 and $931,000 respectively. Of that amount $500,000 in 1970 and $400,000 in 1971 were removed from us and used for pay costs in the Department of the Interior.

Professor BICKEL. Removed from your general operating

Mr. Wisby. They were removed from the National Fisheries Center's operating budget and transferred.

Professor BICKEL. But these are separate from the $9.1 million?
Mr. Wisby. They are separate from the construction funds; yes.
Professor BICKEL. May I ask: footnote 1, is that $75 or-
Mr. WISBY. $75,000. These are all in thousands.

Professor BICKEL. That is what is left of the planning money which amounted to $810,000; is that right?

Mr. Wisvy. It is what is not in reserve or obligated of the $10 million; yes, sir.

Professor BICKEL. Which would be the leftovers from planning money?

Mr. WISBY. Yes.

Professor STOLZ. As I understand, as a practical matter, from the 1966 figure, when the $9.1 million was appropriated, that moner could not have been used ?

Mr. WISBY. No. Actually we would not have been ready to use the money until 1969 when our contract called for completed plans from the architect.

Professor Stolz. So, by anybody's definition the first time the money was impounded was in 1970, or 1969?

Mr. Wisby. Yes, I suppose. At least we were not delayed by placing it in budgetary reserve up until then.

Professor BICKEL. Off the record. (Discussion off the record) Professor MILLER. Excuse me just a moment. What sort of order, transmission, memorandum, et cetera—I am not asking for the contents, but how were you notified about this and by whom? Just the mechanics or the procedure for this, please?

Mr. WISBY. Of the termination of the project?
Professor MILLER. The impoundment and so on.

Mr. Wisby. Simply through the Office of Budget of the Bureau of Sport Fisheries and Wildlife. I do not know how

Professor MILLER. Did they send you a memorandum, or call you up on the phone?

Mr. Wisby. They called us up on the phone.

Mr. MILLER. This is not something you could file. It has to be a matter of record ?

Mr. WISBY. I think somebody in the Office of the Budget has a memorandum in the files. We were simply told to cease operations.

Professor BICKEL. But it would be a matter of record if you asked for the money and could not get it.

Professor MILLER. Just as a matter of interest-perhaps this is an improper question—why do you not ask for a written memorandum?

Mr. EDMISTEN. I think maybe we should.
Mr. COULTER. A written memo of what?
Mr. EDMISTEN. Termination of the project.

Professor Stolz. Does it not come in the form of an apportionment memorandum from the Bureau of the Budget.

Mr. COULTER. This comes to Dr. Wisby through his own bureau budget office, which comes from the departmental budget office, down that route, and from OMB to them.

Professor Miller. This is all by telephone ?

Mr. COULTER. I cannot answer that, Professor. I am sure there must be some written documents somewhere.

Professor BICKEL. Could I just follow this down a little farther? And I am going to be repeating just to make it clear in my own mind.

Mr. Wisby. Yes.

Professor BICKEL. As of 1966, here is this $9.1 million. You are ready to let a contract at that point ?

Mr. Wisby. No, sir.
Professor BICKEL. You were not at that point ?

Mr. Wisby. No, sir. Planning started at that point. That is, design of the structure started at that point.

Professor BICKEL. So, in 1966—when was the contract ready?

Mr. Wisby. In the spring of 1969, we had all the products in our hands which would be required to build a building,

Professor BICKEL. So, for the first 3 years of this thing you have, in effect, in reserve, the money put in reserve because it is not ready to be spent ?

Mr. Wisby. Yes, sir.

Professor BICKEL. Now, when you are ready to spend it, which is in the spring of 1969, and you are ready to let the contract, you were satisfied or whatever has to be gone through to satisfy whoever has to be satisfied, that this could be done at this price, had been gone through. You were satisfied that it could be done at that point for the $9.1 million figure? Mr. Wisby. Yes, sir. Professor BICKEL. Does that remain true as of today?

Mr. WISBY. I think it would be difficult to say. We have designed a number of deductible alternates into the building, which is common practice. It may be that we could build a building today which, even if some things were omitted, would still be a modern, progressive, educational aquarium. I think the only way we could find out today is if we actually went out for bids.

Professor BICKEL. Candidly, but no doubt in estimate, would it be your feeling that if 2 months from now you suddenly got a call through the same channels that says: the policy is changed; inflation has been beaten; raise the flag and build a building. Would it be your estimate that what you would have to do is pretty well start afresh, go to Congress for some more money, because the situation over that period of impoundment had changed sufficiently so that in effect, that project back in 1969 was dead and you would have to really start again?

Mr. WISBY. I think it would be highly unlikely that we could build the finished building today for that amount of money.

Professor BICKEL. So you would have to start afresh with some replanning or some redesigning?

Mr. Wisby. Yes, perhaps by insertion into the original act an escalation clause of some sort.

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