Page images
PDF
EPUB

EXECUTIVE IMPOUNDMENT OF APPROPRIATED FUNDS

THURSDAY, MARCH 25, 1971

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:15 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin, Mathias, and Gurney.

Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Prof. Ralph K. Winter, Jr., Yale University Law School, consultant; Prof. Alexander M. Bickel, Yale University Law School and the Center for Advanced Study in the Behavioral Sciences, Stanford, Calif., consultant; Prof. Preble Stolz, University of California School of Law, Berkeley, Calif., visiting professor of law, Yale University; Prof. Loch K. Johnson, University of North Carolina; and Prof. Arthur S. Miller, the George Washington University National Law Center, consultant. Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness.

Mr. EDMISTEN. Senator, we are very honored this morning to have the distinguished junior Senator from Virginia, William B. Spong, Jr. Senator ERVIN. We are delighted to have you with us this morning and pleased that you would come and represent your State.

STATEMENT OF HON. WILLIAM B. SPONG, JR., A U.S.
SENATOR FROM THE STATE OF VIRGINIA

Senator SPONG. Thank you, Mr. Chairman. I have some hesitancy about bringing parochial matters into these hearings, but I believe that the information that I have to give to this subcommittee will be of some help to you in your deliberations.

It is a privilege to appear before you and the Judiciary Subcommittee on Separation of Powers. Your hearings on the Presidential impoundment of appropriated funds are especially relevant to the citizens of the Arlandria community of Northern Virginia.

They have been directly affected by the freezing of $175,000 appropriated in fiscal 1971 for preconstruction planning on a flood control project at Four Mile Run. They don't understand how or why this could happen when there is unanimous agreement that the project is urgently needed and should be built. In my judgment, Mr.

(227)

Chairman, this is a classic example of why citizens come to believe that government is unresponsive to their needs.

Mr. Chairman, it would be helpful to the subcommittee's understanding of the situation if I briefly reviewed the history of the flooding, and of my efforts to expedite congressional action on the authorization and appropriations.

The modern history of damaging floods begins in the early 1940's. The first evidence of property damage occurred in about 1942. It was confined mostly to streets, although there was some minor basement flooding.

Representatives of the U.S. Corps of Engineers testified before the Senate Public Works Subcommittee on Rivers and Harbors in September, 1969, that there had been five major floods since 1963. On the basis of 1969 prices, the Corps estimated damage from the five floods at $8,140,000. The most severe of these occurred on July 22, 1969, when approximately 520 dwelling units and 78 places of business were inundated. The Corps estimated damage from that flood at $4,315,000. Eleven days later another flood caused damage estimated at $700,000.

The alarming thing, Mr. Chairman, is that the frequency and severity of the floods is steadily increasing, even though there has been an almost complete prohibition against construction in the Arlandria area since 1964.

There have been six flood watches in the Arlandria community since the 1969 floods. In a flood watch, police and fire units are sent into the area. They use lights, sirens, and loudspeakers to warn the people that the water is rising and that they may have to evacuate their homes.

Four of the six developed into actual evacuations involving up to 50 persons. Officials of the city of Alexandria informed my office late yesterday that the period of evacuation on these four occasions has varied from 1 to 2 hours. The most recent flood watch occurred on February 13 of this year.

As far as I have been able to determine, there has been only one fatality directly caused by flooding. That occurred in 1963. However, the Corps of Engineers observes at several places in its report on the project that additional fatalities could have occurred had floods come during the night.

Frankly, at the time of the 1969 hearings I didn't realize how much time would be required to complete the procedural steps involved in projects of this kind. It wasn't until June 25, 1970, that the project report was formally transmitted to Congress.

That very day, the Senate Public Works Committee, at my request, authorized the project pursuant to the provisions of Section 201 (a) of the Flood Control Act of 1965. Section 201 permits the Senate and House Public Works Committees to authorize flood control projects having a Federal cost of less than $10 million. Nineteen days later the House Committee adopted a similar resolution.

I might add, Mr. Chairman, and I think this is significant to your hearings, that this was the first project ever to be authorized under the 1965 statute.

Anticipating favorable action on the authorization, I testified on May 18, 1970, before the Public Works Subcommittee of the Senate

Appropriations Commitee in support of an appropriation of $175,000 for preconstruction planning on the Four Mile Run project in fiscal 1971.

I was elated when the Appropriations Committee included the funds I had requested in the bill reported to the Senate. The House accepted the Senate amendment, and the bill was signed by the President on October 7, 1970.

News accounts of the President's action made reference to the possibility that some of the funds in the bill would be impounded, so in a letter dated October 9, 1970, to Mr. George P. Schultz, Director of the Office of Management and Budget, I expressed the hope that funds for the project would be released for expenditure, and that the money would not be placed in a budgetary reserve status. On the same date I asked the Corps of Engineers to begin the work as expeditiously as possible, and to advise me if the money was placed in budgetary reserve.

The Office of Management and Budget advised in a letter dated November 17, 1970, that no decision had been made regarding the $175,000 added by Congress. I was told that OMB was aware of the problems occasioned by flooding along Four Mile Run, and that my views in support of the project would be given careful consideration. On November 30, 1970, the Corps of Engineers informed me that the money had been placed in budgetary reserve "without prejudice to the later release of such funds after the President had an opportunity to review the entire fiscal situation for fiscal year 1971, and its relationship to the budget for fiscal year 1972.”

In a letter dated December 2, 1970, I advised the Office of Management and Budget of the information provided by the Corps of Engineers, and expressed the hope that the money appropriated for fiscal 1971 would be released at the earliest possible time. On the same day I advised the Corps of Engineers that it would be reassuring to the citizens of Arlandria if funds for the project were included in the Corps budget request for fiscal 1972.

Unfortunately, no funds were included for Four Mile Run in the administration's budget request for fiscal 1972. I expressed my dismay over the omission in letters dated February 1, 1971, to the Office of Management and Budget and the Corps of Engineers. In my letter to ŎMB, I asked again that funds appropriated for fiscal 1971 be released for expenditure. I also advised that the urgency of the project had been recognized by Congress, and that delays served only to further endanger life and property in the Arlandria community.

Mr. Schultz responded in a letter dated March 9, 1971, that the $175,000 would not be released until after July 1, 1971. This, of course, is the beginning of fiscal 1972. This news was so disturbing, Mr. Chairman, that in my acknowledgement to Mr. Schultz I expressed the hope that the floods could hereafter be scheduled on a fiscal year basis.

Meanwhile, in a letter dated February 5 to the Corps of Engineers, I requested an estimate of its expenditure capability for the Four Mile Run project for fiscal 1972 on the assumption that the funds for fiscal 1971 would be released. I also asked to be advised whether the Corps of Engineers had included any funds for the project in the fiscal 1972 budget request it submitted to higher authority.

I received the response of the Corps on Tuesday of this week. I was told that the Corps could utilize an additional $300,000 in fiscal 1972 if the $175,000 in budgetary reserve were released next month.

However, if the funds in budgetary reserve are not released until July, 1971-and I have been told the funds would not be released until after that date-then the Corps could use only an additional $100,000 for the Four Mile Run project.

This means, Mr. Chairman, that the people of Arlandria not only have lost the year they thought they had gained through the appropriation of $175,000 in fiscal 1971, they stand to lose more ground in fiscal 1972. I cannot request the Appropriations Committee to recommend funding at the level of $300,000 in fiscal 1972 when the Corps of Engineers says it can utilize only an additional $100,000 for that year.

Of course, there is always the possibility that any additional appropriation for fiscal 1972 will be impounded. The fiscal 1971 money was frozen because it was not a part of the administration's budget request, and as I have related earlier in my testimony, there is no money in the fiscal 1972 budget request for this project. Incidentally. Mr. Chairman, the Corps has advised that information concerning its budget recommendations to the Office of Management and Budget are not permitted to be released. I therefore am unable to advise what priority the Corps of Engineers gave the project.

The total cost of the project is estimated at $16,635,000, of which $9,926,000 is to come from Federal funds. I have been assured by both the city of Alexandria and the county of Arlington that they are prepared to provide their share of the cost.

It seems clear that the authority of Congress to determine priorities has been effectively frustrated in this particular case. The Senate and House Public Works Committees recognized the urgent need for the project when they set a precedent by authorizing construction pursuant to Section 201 (a) of the Flood Control Act of 1965. The Congress recognized the need by appropriating the $175.000 recommended by the Senate and House Appropriations Commit

tees.

It is regrettable that the Office of Management and Budget has not adhered to the intent of Congress on this project.

Mr. Chairman, I would emphasize, and I believe Senator Gurney will recall when Section 201 (a) of the 1965 statute was invoked for the first time, that there was a clear recognition of the urgent need for this particular project. Yet this priority, which has been determined by the proper committees of the Congress, has just been thwarted and ignored ever since the appropriation was made.

Senator ERVIN. This Four Mile Run is almost in the shadow of the U.S. Capitol, is it not?

Senator SPONG. Yes, sir, it is just on the other side of the Potomac. Senator ERVIN. And they have very drastic flooding there in any time of unusual rainfall?

Senator SPONG. That is true.

Senator ERVIN. And Washington papers have carried, since I have been in the Senate, very poignant descriptions of what has happened to the people and the property in that area it seems to me some 10 times since I have been in the Senate.

Senator SPONG. That is true and I think there have been many occasions when every office seeker and potential office seeker has rushed over there when the floods were at their worst to be seen telling people what was going to be done for them. I do not blame the people over there for being pretty disgusted by the whole thing. Senator ERVIN. The Members of Congress were so informed about the matters when you presented this in the nature of an emergency amendment that you had no trouble in getting adopted by both houses of Congress.

Senator SPONG. We had the authorization. On the day that Congress got the final report, the Public Works Committee was in session marking up another bill. The committee members were familiar with the project and they immediately authorized it. Within 3 weeks, the House Committee did the same thing. Then the Appropriations Committees acted almost immediately to make funds available to begin this project. I considered that action rather unusual.

Senator ERVIN. And the project has been held up but so far as you know, the floods have not.

Senator SPONG. The floods, I am afraid, will continue, Senator Ervin.

Senator ERVIN. And notwithstanding that the Constitution of the United States gives Congress the power of the purse and Congress has acted, these people are denied what I consider to be relief in an emergency situation because the presidential appointee has frozen the funds and in all probability, the President never heard of the matter himself-or, rather, took no action.

Senator SPONG. Well, no action has been taken.

Senator ERVIN. It was taken in the name of the President, because it is not included in the presidential budget.

Senator SPONG. The chairman is absolutely correct. The will of the Congress has been ignored, but more than that, the determination. of priorities in the legislative process has been thwarted.

Senator ERVIN. Is it not true that if such action becomes habitual and funds appropriated by Congress are frozen by the executive branch of the Government, merely because they were not recommended for expenditure in the presidential budget, the powers of Congress under the Constitution will be thwarted and assumed by the President and the power of the purse, instead of belonging to the Congress, will belong to the President?

Senator SPONG. I think that is correct, and I think the effect of what I have related to the subcommittee this morning sustains that. Senator ERVIN. Senator Gurney, do you have any questions? Senator GURNEY. Well, first of all, I want to commend our colleague on his fine statement and also to back him up on what he says about this particular project. I was serving on the Public Works Committee at that time and it is true that this was an emergency situation; the committee approved it as rapidly as any project, certainly, that came before it while I was there and did consider is as a matter of urgency.

There are a couple of things I would like to ask, Senator Spong. In your statement on the last page, you mention that the Corps has advised that information concerning its budget recommendations to the Office of Management and Budget are not permitted to be re

60-337-71-16

« PreviousContinue »