Mr. PORTER. No. Chairman DAWSON. Mr. Henderson? Mr. HENDERSON. No questions. Chairman DAWSON. Mr. Poland? Mr. POLAND. As I understand it, Mr. Roosevelt, your basic proposition is allocation of power between the executive and Congress and if we are going to have this "completion of congressional power to control the financing of Government" which you advocate, would it not then be necessary to repeal that portion of the Anti-Deficiency Act which gives to the Bureau of the Budget the authority to establish reserves for precisely the reasons, as I understand it, that you mentioned, to effect savings when savings are made possible through changes in requirements or when they are made possible through greater efficiency of operations or made possible by other developments subsequent to the date of the appropriation. Would it not be necessary to take that away from the Bureau of the Budget? Mr. ROOSEVELT. It might be necessary as I have read it to require whatever decisions they make they should submit to the Congress for approval instead of just to the executive. The principle here would modify that to the extent that whatever decision was reached in the Bureau of the Budget, they would have to come to the Congress for approval of the carrying out of that decision. Mr. POLAND. It would then be a matter of suggestion rather than determination on the part of the Bureau. Mr. ROOSEVELT. On the part of the Bureau. I want to make it very clear that I think that the determination resides in the Congress, the suggestion properly resides in the executive. Mr. POLAND. That is all. Thank you. Chairman DAWSON. Thank you very much, Mr. Roosevelt. Chairman DAWSON. We will have Congressman Zelenko's statement at this point. (The statement referred to follows:) STATEMENT OF HON. HERBERT ZELENKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. Chairman, I wish to thank you and the distinguished members of this committee for permitting me to testify in support of my bill, H. R. 11541. It has come to the attention of the Congress that in many of the Government departments, in particular the Department of Defense, moneys appropriated for particular purposes by the Congress have not been used for the projects for which they were designated and appropriated. That such moneys in some instances have been withheld and used for other departmental purposes or permitted to lapse. Such practice not only violates the Constitution but is contrary to the letter and spirit of the various appropriation bills. This practice has been indulged by appointees and bureaucrats in the several departments. These persons have usurped the authority of the Congress and have acted contrary to its mandate. It is necessary for the Congress, therefore, to take action to remedy this untenable situation. It is for this reason that I urge early and favorable action on H. R. 11541, the bill which I have introduced to make it unlawful for any officer, agent, or employee of the United States or any department, bureau, or agency thereof to withhold or impound or otherwise prevent any moneys appropriated by the Congress. Thank you. Chairman DAWSON. Our next witness will be Mr. Porter. STATEMENT OF HON. CHARLES O. PORTER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON Mr. PORTER. Thank you very much, Mr. Chairman. My bill addresses itself to a slightly different and more specialized problem. Actually all I am trying to do with this bill is to invoke a penalty clause for another paragraph and I will explain that in detail in just a moment. This is an amendment to the Antideficiency Act and it arises out of what happened last year when the Postmaster General came to Congress and said he had to have more money or he would cut essential services, including all of third class mail and post offices being operated on Saturdays. I am sure you all remember it. It goes beyond that instance and is not directed at Mr. Summerfield. It arises out of that situation. I want to show the committee exactly what I am trying to do. The antideficiency section that we have in mind has to do with how moneys are apportioned and the best example I have-I am sure you are familiar with it all of you-is if you give your wife so much money for food and she comes to you at the first of the last week of the month and says, "I know you gave me money for the whole month, honey, but if you want to eat, you have to have so much money." You can't punish her, I suppose, at least not in my family. In this case the Congress has a policy plainly set forth in the Antideficiency Act and tells the Department to decide how they will spend their money so there will not be a substantial dimunition of services. There are exceptions provided for when something special comes up. In this case there was no such exception, as I will show you in a moment. What they did was to make reapportionments on July 13, December 14, and February 4. On July 13, 1956, the first quarter was increased $7 million and the third and fourth quarters were decreased $3.5 million each. On December 14, 1956, the second quarter was increased $10 million and the third and fourth quarters were further decreased by $3 million and approximately $7 million, repsectively. On February 4, 1957, the third quarter was increased $20 million and the fourth quarter was decreased by $20 million. These three reapportionments decreased the fourth quarter apportionmen by a total of approximately $30.5 million which resulted in the fourth-quarter apportionment being $40,727,100 less ***. Is that a crime and should it be a crime? My bill would make that subject to criminal penalties. Congress already has a law. What I put up to your committee today is this: You should either enact or propose my bill, report it out favorably or one like it appropriately amended, or you should take it off the books because when there can be something merely precatory-the ideas agree with some of the previous testimony that there is a different situation here this is the portion that I am seeking to have amended. As it is now, the law reads that (a), (b), and (h) of the Antideficiency Act have a penalty: Administrative discipline, including, when circumstances warrant, suspension from duty without pay or removal from office; and any officer or employee of the United States who shall knowingly and willfully violate subsections (a), (b), or (h) of this section shall, upon conviction, be fined not more than $5,000 or imprisoned for not more than two years, or both. My bill adds (c) (1) in with (a), (b), and (f) to be covered by the penalties applicable. That is in the law. The Comptroller General, in a letter to the Postmaster General, commented on this. (c) (1) Except as otherwise provided in this section, all appropriations or funds available for obligation for a definite period of time shall be so apportioned as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations for such period; *** In other words, you don't spend your money in such a way that you wind up telling the Congress, "If you want these services in the Post Office Department, you are going to have to give us some more money." You have to spread your money out. There are certain exceptions where you have a lot more mail, but that doesn't apply here. The Comptroller General said: If it is determined by the Congress that the deficiency appropriation is necessary for "Operations" or if the services of the Post Office Department are drastically curtailed in the event no deficiency appropriation is made, there could be no question but that the Director of the Bureau of the Budget had not complied with the requirements of subsection (c) (1) of section 3679, Revised Statutes, as amended (31 U. S. C. 665). It should be noted, however, that the penal provision contained in subsection (i) (1) of the act is applicable only to violations of subsections (a), (b), or (h) of the act and not to subsection (c) (1). My bill tries to make the penalty provision apply to subsection (c) (1) which was violated. The House hearings on the Post Office Department's request for supplemental funds for operations for 1957 show that, when the Department requested the reapportionment of its funds, it did so in the belief that the requested pattern of management of its funds for the fiscal year would result in the necessity for a deficiency or supplemental appropriation. Such action is not technically a violation of any specific provision of the Antideficiency Act. However, it is not consistent with the spirit and purpose of the act. It isn't a crime unless there is a penalty. Mr. Cannon-of course this is not a partisan matter: Our colleagues, Mr. Taber and Mr. Gary, agree that the law has been violated. As Mr. Gary put it: Are we going to continue to appropriate for the departments of Government or are we going to abdicate in their favor? Mr. Cannon had some remarks which I want to read: Every department observed and obeyed the law until this year. The Post Office Department is the first to break over. Postmaster General Summerfield tells the press he is "heartsick." He would not be heartsick if he had obeyed the law. But he took funds out of the fourth quarter and spent them in the second quarter. And he took money out of the fourth quarter and spent it in the third quarter. It was done deliberately and on notice. All of this in my bill refers to actions that are willful and deliberate. This isn't something that just somebody happens to do and finds himself faced with 2 years in jail. He had noticed when Congress passed and the President signed the bill. He had notice again when he first started using the money at the beginning of the first quarter in July 1956. He went before the Bureau of the Budget and asked for a supplementary estimate. The Budget told him Congress had given him $2, 184, 000 for operations and he had to live within it. They refused to recommend a deficiency appropriation. Again the 1st of January he went before the Budget Bureau and asked for a supplementary estimate. And again the Budget Bureau told him he would have to live within the amount Congress had appropriated for the purpose. He waited until the last minute and finally bludgeoned the Budget Bureau into giving him a supplementary estimate and then calls in the newspapermen and tells them unless Congress surrenders he will stop delivering the mail. He lays down an ultimatum to Congress and arrogantly gives them 3 days in which to come across. Regardless of what the Constitution says, the Department is writing its own ticket and naming its own appropriation, and the taxpayers of the Nation and the men they send to Washington to represent them can go jump in the sea. It is strong language. I don't think we will jump in the sea, so I propose this bill be passed. We may have our problems in persuading the Attorney General to prosecute the Postmaster General if he does that again. I am not considering that here. I suggest that this particular portion of the law which says you should apportion your money and abide by those apportionments and not come up to Congress and say, "We spent all our money in those other quarters; if you want us to continue the services of the State Department of the Labor Department or the Post Office Department you have to give us some more money." I am sure, as the Comptroller General says, doing that violates the spirit of this act and the letter of the act also and that there ought to be a penalty. Chairman DAWSON. Were any measures taken by the executive department against Mr. Summerfield for this thing that was a willful violation? Mr. PORTER. No, sir; not to my knowledge; and I was in touch with the Attorney General. Chairman DAWSON. Was he permitted to hold office after that? Mr. PORTER. Yes, he still holds the office, Mr. Chairman. Whether this will come up again I don't know, but my point is that we ought to fix this statute up or do away with it. We shouldn't have it on the books saying he should apportion and then when he doesn't apportion or when he borrows from the fourth quarter and then comes in with an ultimatum to us, we have no recourse at all by the nature of the situation. The whole matter boils down to the Postmaster General's willful and knowing violation of the Antideficiency Act by purposefully refusing to apportion the appropriation money as required by law. It may be said that he did ask the Director of the Budget to approve supplemental appropriations and that the Director of the Bureau of the Budget, through inexcusable ignorance with respect to the use of postal revenues, refused to transmit this information to Congress. I want to comment on that. As I know Mr. Merriam will remember, it was stated that the former Director of the Budget did not know that postal revenues went to the general fund. This was widely discussed in the newspapers. It was never officially denied in the newspapers. However, Mr. Merriam said, and I am sure it is the case, the Director of the Budget did know that the general fund receives the revenues from the Post Office Department. It didn't matter whether you handled more mail. That didn't make any difference as far as the revenue available to the Post Office went. I have all the reports which you sent me, Mr. Chairman, and the objections come under two headings, about which I would like to speak briefly. The reports say that the bill applies just to officials of the Bureau of the Budget. I don't believe it does, reading my bill. That is a legal question but reading my bill, all it does is put in this other section (c) (1). If it would mean that only Budget Bureau personnel could be prosecuted, then Budget Bureau people better see that this doesn't happen and not approve any expenditures that violate the spirit or the letter of the Antideficiency Act so that question, it seems to me, can be sold by holding the Budget Bureau to its duty or if necessary amending the bill to apply to an official like Mr. Summerfield when he knowingly and deliberately gets himself out on a limb so we have to rescue him because we are not going to shut down the Post Office Department or any other essential Government service. The other objection is that it is too indefinite. This is raised by the Attorney General and some others. This committee can figure out for itself from what I have read here that it is definite, it is a matter of apportioning money and it is a matter of record. They took funds out of the second, third, and fourth quarters to help the first, and you know if you are going to wind up behind the eight ball you will have to come crying to Congress with an ultimatum. I see nothing indefinite about that or that it would cause anybody to be caught unawares, as this implies, and since the law especially says deliberate and willful as it has to be and in this case the House committee found it was willful, he did this purposely and knowingly. (c) (1) says: so as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations for such a period. In other words, don't overspend. Don't go ahead and anticipate that you are going to get more money out of Congress. If you are in trouble the act has very definite provisions. I am sure the committee knows all about. I will be glad to answer any specific questions. Most of these add up to about the same; I think I have answered the main objections to it. I just say to the committee it was a very sad incident when we were faced with letting the third-class mailing completely out, which would have cost the Government far more money that we would have saved. Although the Post Office budget would have looked better, it would have cost us more money if we cut out third-class mail as the Postmaster General was proposing to do. We had no alternative. It was a humilitating thing. Mr. Cannon points that out and his language is justified. We should make the criminal provisions of this act apply to section (c) (1) if we will have an effective act; otherwise let's repeal the act and forget about it. Chairman DAWSON. Mrs. Harden? Mrs. HARDEN. No questions at this time. Chairman DAWSON. Mr. Lipscomb? Mr. LIPSCOMB. No questions. Chairman DAWSON. Mr. Michel? Mr. MICHEL. We don't have specifically written into the law that these apportionments should be by quarters. It is a matter of agreement between the Bureau of the Budget and departments; is it not? Mr. METAM. This is Mr. Bradley, legal counsel of the Bureau. Mr. BRADLEY. There are several alternate methods. Most annual appropriations are apportioned by fiscal quarters. The law also authorizes by months, operating seasons, activities, projects, objects or any combination. Mr. MICHEL. My question was if it was not written in specifically by quarters, how then can we have a criminal proceeding against one for defection of something that isn't actually written into law. Mr. PORTER. It is well established that it has been done by quarters in the Post Office Department for a long time and this law, of course, says whatever the apportionment is, and however you do it, do it so |