in the act appropriating the same." The bills contain no penalty provision for any violation of the proposed prohibitory provision of law. Whether the withholding, impoundment, or prevention of prompt use or application of appropriations should be made unlawful is a matter of policy primarily for determination by the Congress. We do, however, want to point out some possible effects of this proposal which we feel should be carefully studied before the bills are considered favorably. The language of the bills is extremely broad and might be construed to prohibit many actions beyond what may have been intended by the sponsors of the bills. (See explanation of the author of H. R. 11441 at p. 4063 of the Congressional Record for March 17, 1958.) These bills would not only supersede the authority contained in subsection (c) (2) of section 3679, Revised Statutes, as amended (31 U. S. C. 665) (commonly called the Antideficiency Act), but they would make the exercise of such specific authority unlawful. That subsection provides as follows: "In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available. Whenever it is determined by an officer designated in subsection (d) of this section to make apportionments and reapportionments that any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he shall recommend the rescission of such amount in the manner provided in the Budget and Accounting Act, 1921, for estimates of appropriations." This The quoted subsection authorizes the Director of the Bureau of the Budget, or other apportioning officer, in apportioning any appropriation, to establish reserves to provide for contingencies or to effect savings in certain circumstances. provision was enacted when the Antideficiency Act was completely revised by section 1211 of the General Appropriation Act, 1951 (64 Stat. 765). In reporting out that legislation, the House Appropriations Committee explained the purpose of the Antideficiency Act amendments in the following terms in the House Report (No. 1797, 81st Cong.) at page 9: Economy neither begins nor ends in the Halls of Congress. Under the Budget and Accounting Act, it is the responsibility of the executive branch of the Government to submit annually to the Congress the estimates of the amounts which officials in the executive branch feel are required to support the necessary activities of the Government. The Congress reviews these estimates and decides the maximum amounts which must be appropriated for these various activities, and the annual appropriation bill provides the sums so determined by the Congress. Appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity. The administrative officials responsible for administration of an activity for which appropriation is made bear the final burden for rendering all necessary service with the smallest amount possible within the ceiling figure fixed by the Congress. Every official of the Government who has responsibility for administration of a program must assume a portion of the burden for the deficit in the Federal Treasury. In the first place, he must take into account the condition of the Federal finances when he recommends to the Bureau of the Budget the amount which, in his judgment, is necessary for supporting his activity. In the second place, it is his responsibility to so control and administer the activities under his jurisdiction as to expend as little as possible out of the funds appropriated." See, also, the explanation of subsection (c) (2) at page 6836, volume 96 of the Congressional Record for May 10, 1950. Language to revise the Antideficiency Act had been drafted by the General Accounting Office and the Bureau of the Budget at the request of the Subcommittee on Deficiencies, Senate Committee on Appropriations, 80th Congress (see p. 142 of the Senate hearings on the second deficiency appropriation bill for 1947), and jointly submitted to that subcommittee by a report dated June 5, 1947 (B-66949). The new subsection (c) (2) was enacted in substantially the same language recommended in that report. The explanation contained in that report for the new subsection (c) (2) is, in part, as follows: "In addition to the matters just referred to, the Antideficiency Act, while designed to prevent deficiencies, does not fill the need for machinery to conserve appropriations which are in excess of actual requirements. This inadequacy has led the Congress to adopt such expedients as the provisions of the Second Deficiency Appropriation Act, 1944, and of the Second Deficiency Appropriation Act, 1945, referred to above, and the personnel ceiling legislation. "The need for a continuous study of appropriations in order to determine whether such appropriations are required for the purposes for which they were provided is just as real in the case of appropriations for the ordinary day-to-day operations of the Government as it is in the case of appropriations for 'the national While the appropriation defense, war agencies, and the prosecution of the war.' acts referred to above provided for a continuous study of appropriations made for those particular purposes with a view toward repealing any parts of such appropriations no longer needed, there is no express statutory provision for a similar study by the executive branch of other appropriations, except in the law requiring that personnel ceilings be established by the Director of the Bureau of the Budget. Under that law the Director is required to establish reserves to the extent he determines that savings can be effected as a result of 'reduced personnel requirements.' The result of this is that, when savings accrue early in a fiscal year from causes other than reduced personnel requirements, there is no general statutory authority under which appropriated moneys can be reserved or impounded so that they may be returned to the Treasury. The natural tendency is to obligate such savings toward the end of the fiscal year even though there may be no essential need therefor. Briefly, there is no specific authority such as would be necessary to provide a continuous review of all appropriations, funds, and contract authorizations in order to insure that such funds will not be needlessly obligated in cases where circumstances developing after the formulation of the estimates or after the enactment of the appropriation act have made it clear that such appropriations, funds, or contract authorizations are in excess of actual requirements." We believe that the authority contained in subsection (c) (2) can serve a very useful purpose and doubt that these bills are intended to prohibit the effecting of savings made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which the appropriation involved was made available. If the object of the bills is to prevent delays in the prosecution of projects or programs or to prohibit the elimination, through the establishment of reserves or the withholding of funds, of projects or programs for which funds have been appropriated, it is suggested that language to that effect might more appropriately be added as a proviso following the first sentence of section 3679 (c) (2), Revised Statutes, as amended (31 U. S. C. 665 (c) (2)), or as a proviso in the appropriation for each project desired to be so limited. would not impair the authority to effect savings in appropriate cases and yet might accomplish what is intended by these bills. This Also, we do not know just what is meant by the language "otherwise prevent any moneys appropriated by the Congress from being promptly used." [Italics added.] As you know, numerous appropriations in substantial amounts are made These appropriations, commonly referred to as "available until expended." "no-year appropriations," sometimes are not completely obligated for several years. The above-quoted language could be construed to require the obligation of such funds prior to the time most advantageous to the Government. For example, it might be desirable not to begin a new research and development program until some existing research or testing program is completed and the results become available. It would be desirable to clarify this language or, at least, to explain fully in the committee report what is intended. Sincerely yours, FRANK H. WEITZEL, Assistant Comptroller General of the United States. COMPTROLLER GENERAL OF THE UNITED STATES, Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, House of Representatives. DEAR MR. CHAIRMAN: Your letter of May 1, 1957, acknowledged May 2, requests a report on H. R. 7103. H. R. 7103 would extend the penalty provision contained in subsection (i) (1) of section 3679, Revised Statutes, as amended (31 U. S. C. 665 (i) (1)), commonly referred to as the Antideficiency Act, to violations of the requirement for apportionment of certain appropriations so as to avoid the necessity for deficiency or supplemental appropriations. The requirement that the appropriations be so apportioned is contained in subsection (c) (1) of that act and the responsibility for 27693-58- -2 making the apportionments or reapportionments is vested in the Director of the Bureau of the Budget by subsection (d) (2) of the act. The Antideficiency Act was completely revised by section 1211 of the General Appropriation Act, 1951 (64 Stat. 765), primarily to improve the control over the use of appropriations so as to prevent the incurring of obligations at a rate which would lead to deficiency or supplemental appropriations, or to curtailment of necessary activities if such appropriations are not made, and to fix responsibility on those officers of the Government who incur deficiencies or obligate appropriations without proper authorization or at an excessive rate. At that time, the General Accounting Office considered the possibility of making a violation of subsection (c) (1) subject to the penalty provision in subsection (i) (1) of the act and decided that a provision in the law to that effect was unnecessary. The effectiveness and enforcement of the Antideficiency Act was studied by a temporary subcommittee of the House Committee on Appropriations during the 1st session of the 84th Congress, which issued an interim report to the committee on June 30, 1955. The subcommittee concluded that, with certain exceptions, the basic objectives of the Antideficiency Act were being achieved. We reviewed the effectiveness of the act at that time and advised the chairman of the Temporary Subcommittee To Investigate Effectiveness and Enforcement of the Antideficiency Act and Other Federal Fiscal Legislation by letter of June 26, 1956, B-123914, that we did not believe that amendment of the Antideficiency Act was required at that time. The single deficiency that recently occurred in the appropriation for operations of the Post Office Department, which apparently prompted the introduction of H. R. 7103, does not, in our opinion, warrant making a violation of subsection (c) (1) subject to the penal provisions of subsection (i) (1) of the act. We seriously doubt that such a provision would have any more deterrent effect than the present mandatory requirements of subsection (c) (1). The problem here involved is one of good administration of positive law rather than a deficiency in the law itself and the fact that one violation has occurred does not indicate that further violations of subsection (c) (1) will occur. In fact, we believe that public opinion, alone, is a more effective deterrent than any legislative changes in the Antideficiency Act which we could suggest; and that public opinion would tend to prevent any general practice of violating the Antideficiency Act in the manner involved in the Post Office Department. We therefore doubt that the enactment of H. R. 7103 is warranted at this time. Sincerely yours, FRANK H. WEITZEL, Assistant Comptroller General of the United States. EXECUTIVE OFFICE OF THE PRESIDENT, BUREAU OF THE BUDGET, Washington, D. C., May 24, 1957. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: This is in reply to your request for a report on H. R. 7103, a bill to amend subsection (i) (1) of section 3679 of the Revised Statutes to extend the penalty provision of such subsection to violations of the requirement of apportionment of certain appropriations to avoid the necessity for deficiency or supplemental appropriations, and for other purposes. The penalty provisions of subsection (i) (1) of section 3679 are now applicable to violations of subsections (a), (b), and (h). Each of these subsections prohibits certain specific actions, such as the making of expenditures in excess of appropriations, the employing of personal services in excess of that authorized by law, and the creating of obligations in excess of apportionments. Subsection (c) (1), to which the penalty provisions would be extended by H. R. 7103, is not prohibitory in forin and does not involve matters which are specific and definite. Rather, it requires that annual appropriations be so apportioned "as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations" and that no-year appropriations be so apportioned "as to achieve the most effective and economical use thereof." The essence of subsection (c) (1) is the application of the judgment and discretion of the apportioning official to a given set of facts. Those who are required to apportion appropriations for the executive branch, the legislative branch, and the judiciary will be hampered in exercising their own best judgment if they are faced with administrative or criminal penalties because an administrative official or a court may later form a different judgment. Subsection (c) (1) is wholly lacking in the definite standards which, under our constitutional system, should form the basis for the imposition of such penalties as fines and imprisonment. The amendment, if enforceable in the courts, would permit the branding of officers in the legislative, executive, and judicial branches of the Government as felons for judgments which, although made in good faith, might later appear erroneous to others. We do not recommend favorable consideration of H. R. 7103. Sincerely yours, PERCIVAL F. BRUNDAGE, Director. Chairman DAWSON. Our first witness will be one of the authors, Congressman Hébert of Louisiana. Congressman Hébert. STATEMENT OF HON. F. EDWARD HÉBERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA Mr. HÉBERT. Thank you very much, Mr. Chairman and members. of the committee, for giving me the opportunity to appear this morning. I do not have a prepared statement. I would like to discuss very briefly the philosophy behind the introduction of this particular piece of legislation and in general my concept of what I consider the responsibility of the Congress and the various bureaus of the Government. Chairman DAWSON. Won't you come closer, Mr. Merriam? We have Mr. Merriam from the Bureau of the Budget. Mr. HÉBERT. Sit next to me so you will hear very well what I have to say about you people. Mr. Chairman, I am old fashioned enough to believe that the Constitution really means what it says and that we have three distinct divisions of Government, and I am naive enough to have hopes that we can function under such a system. However, I believe in recent years we have drifted away from that concept and the situation has grown to such an extent that many of us who think like I do are quite concerned that the Government is being controlled by unelected officials in the various bureaus of the Government. I like to call the Bureau of the Budget the unseen hand that rocks the cradle of the Nation because nobody on the street or rather 99 people out of 100 do not know there is a Bureau of the Budget and 99.9 can't even tell you who the head of the Bureau of the Budget is, yet that Bureau and the individual who heads that Bureau is probably the most powerful man in the country and does run the country with the exception of the comptroller of the Department of Defense whom nobody knows the name of except Congress. This is the situation we find ourselves in. Under my concept of the Government under which we live the Congress is the responsible body for the conduct of the business of the Nation. The Congress is responsible for the appropriation of funds for the operation of the Government. Under our concept, the various departments and the various services come to the Congress and make out a case and defend their position as to the amount of money needed to operate the Government. First, they must have an authorization from the proper legislative committees and then must go before the Appropriations Committee to justify the authorization. The Appropriations Committee, in its wisdom then, either gives to the department making its defense or its plea for money the full amount of the authorization or a limited amount of the funds. procedure is duplicated in the Senate of the United States. This So, in other words, we have a 4-part review, 2 legislative committees of the 2 bodies, the 2 appropriations committees of the 2 bodies, then the bill is sent to the President and the President either approves the bill or vetoes it and then the Congress has an opportunity to override the veto or sustain the veto in any instance. In connection with appropriations, the Congress has steadfastly resisted any attempt to write into law what is known as a line veto item which you gentlemen and ladies of the committee are quite familiar with whereby the executive department would have the power to strike a line item from any appropriation bill without affecting the entire stature or position of the bill. Now, let us see what happens as a matter of fact. The various departments come before the Congress, receive their authorization, gain the appropriation for the appropriate amount in the wisdom of the committee and is backed up by the action of the two Houses. Now, during recent years this procedure has grown to almost fantastic proportions, and I speak for, mostly from the military side, though I know it exists in other sides of the executive department, that after the individual service has come to the Congress, has defended its position and justified its need for a certain amount of money, they must then in turn turn to the Bureau of the Budget and get on their knees and make another plea to spend the money which they have already justified. The same holds true in the Defense Department in the Office of the Comptroller of the Defense Department. I think it is a very unhealthy situation. I think it is a shocking situation whereby after the responsible elected officials of the people decide that certain moneys are needed and necessary, and appropriate those moneys, that the departments and the agencies affected must have to go back and yes, I say, get on their knees and plead to spend that money after the elected officials have acknowledged that they need it and then the Executive, by using this method, is using the line veto power which the Congress has specifically refused time and time again to give the Executive. That is the situation and that is the reason behind the introduction of the legislation. Now, we should ask-if I may be a little more specific-to indicate what has happened, and I speak from the experience on the military committees in the recent hearings on the reorganization bill, and the hearings will bear me out, witness after witness testified under oath that the real block in the development of our programs, in the missile program, if you please, particularly, and in other programs, the real block has been the Comptroller of the Defense Department and the Bureau of the Budget. We have heard a lot of hoorah and a lot of hullabaloo about reorganization of the Defense Department. Most of it is a lot of smoke thrown up as a screen. In reality, if the Bureau of the Budget had released the funds when they should have been released, and the Comptroller of the Defense Department had done that, we would |