Samuel Nunn

Mr. NUNN

Mr. NUNN. That may be worked on. I hope that will be corrected. They just found out about it. I do not think that is what the authors intended. But the President could take the line item that had Somalia troop deployment in it and restrictions on it, veto that, spend the money--no power of the purse at all in terms of our foreign troops deployment. Another would be the Hyde amendment. Many people in this body are very much concerned about the abortion question. When we legislate funding restrictions on abortion in this body, one way or the other, whether it is rape, incest, to protect the life of the mother, the President can take the money and veto the paragraph. Now, unless that is corrected, that is another tremendous, tremendous diminishing of congressional power and increasing the executive branch power.

Mr. NUNN. That is right.

Mr. NUNN. I yield to the Senator from West Virginia.

Mr. NUNN. We are talking about the balance of power between the branches of Government. We are talking about war powers. We are talking about the power of the purse. We are talking about serious business.

Mr. NUNN. That is correct. And the question now is--I know that my friends on the other side from Indiana and Arizona are going to try to correct that. The Senator from Michigan pointed out last night they are going to try to correct it. But in correcting it, can you correct it and still be able to get at earmarks? I do not think so. I think when you correct that, you are going to have to unwind the earmark language, which brings us back. This bill needs to be thought through. We are talking about serious matters here. We are not talking about something that is going to be in a 30-second ad or a bumper sticker. This is serious business.

Mr. NUNN. Right.

Mr. NUNN. I hope that will be corrected.

Mr. NUNN. Mr. President, I say to my friend from West Virginia if this bill were before the Senate, understood by people in this body and the American people, we would be going back to some other bill. We would be going to a rescission bill or we would be getting on welfare. This would go back to the shop for repair. This bill is in bad shape, and it is going to be looked on, it is going to be looked on with scorn if it passes the Senate. We are going to look silly. We are going to look like we make speeches and pass them into law instead of legislating. I would say to my friend from West Virginia there is another defect. The Somalia date for a time certain----

Mr. NUNN. Staff has the responsibility to circulate the reprogramming request to the respective members on both sides of the aisle. On the Democratic side of the aisle, we do that. If the staff on the Republican side does not let the Republican Senators know, then if I were a Republican Senator on that committee, I would be asking the staff some very tough questions. We let our members know about reprogramming. That is a question that is up to the Republicans because the chairman or the ranking member on the Republican side understands reprogramming requests. Many times they are pending for 3 weeks to 3 months. Many times there is tremendous discussion. We even have reprogrammings that get folded into the bill itself because they are controversial. As the chairman of the committee, I never passed a reprogramming request, if I had any member interested on my side raise an issue, without a full discussion. That is the job of the ranking member on the Republican side and the staff. So I think there are some tough questions that ought to be asked of the staff on the Republican side if the Senator from Indiana and the Senator from Arizona have never seen a reprogramming request. Your staff signed off on it in your name.

Mr. NUNN. The Senator is exactly right. As this bill is now written, it gives the President the ability to legislate by deletion.

Mr. NUNN. Correct.

Mr. NUNN. The answer is no, because the Department of Defense has been underfunded.

Mr. NUNN. The answer to the question is the Department of Defense always on reprogrammings asks for the money to be shifted to other defense needs, and our committee has supported that.

Mr. NUNN. I understand the question completely, and I hope the Senator will listen to the answer. I can state it but I cannot comprehend it for him. Maybe I have been under a false impression. I thought the Senator from Arizona and my Republican colleagues wanted to increase the defense budget. I thought my Republican colleagues had that in their Contract With America. I thought the Senator from Arizona wanted more money for defense. And now he is saying when a C-17 program lapses, do we want to send it back to the Treasury, or do we want to put it on high defense needs? I have been under the mistaken impression that the Senator from Arizona was concerned about readiness, was concerned about modernization and felt there were deficient funds in the Department of Defense.

Mr. NUNN. I will say to my friend from Arizona in response to that, the committee has the duty as we see fit to turn down reprogrammings, in which case the money would not be spent, in which case the money could be reallocated to any other Department in the regular process on the budget bills and on the appropriations bills. I thought my friend from Arizona just had a hearing----

Mr. NUNN. That is not the way we do it.

Mr. NUNN. This is----

Mr. NUNN. On deploying troops last year. It was the only way Congress--because the War Powers Act does not work. We know that. The Senator from West Virginia and I have alluded to that, along with the Senator from Virginia [Mr. Warner], and others. The Somalia restriction about how long troops can be deployed abroad, the President could veto that the way the bill is right now.

Mr. NUNN. And staff----

Mr. NUNN. Will the Senator yield for me to respond?

Mr. NUNN. Let me say to the Senator, all reprogrammings are approved by the majority and by the minority. That was the case when----

Mr. NUNN

Mr. NUNN. I would say it happens all the time. We have all sorts of programs that are either in trouble one way or the other that we go through reprogramming.

Mr. NUNN. I thank my friend from Arizona. It is my understanding that has not yet been adopted. Has that been adopted?

Mr. NUNN. Madam President, I have listened with care in the last few days to the debate on the so-called line-item veto. I have not heard all of it, but I have heard, I think, enough to understand the parameters we are talking about. And we are now debating the proposed substitute--the Separate Enrollment and Line-Item Veto Act of 1995. The sponsors have claimed that this bill will provide the means to remove, among other things, a particular focus on what is known around the country as pork-barrel spending from appropriations bills. The language of the proposal, however, does not live up to the sponsors' claims. I am going to raise several questions tonight that I hope can be clarified or answered. Although the sponsors have aimed at certain expenditures, as I see it, they have missed. In fact, this proposal provides the President with significantly less authority to control pork-barrel spending than would have been provided under either the Domenici-Exon expedited rescission proposal or the McCain enhanced rescission proposal. Madam President, I see at least five serious problems with the proposed substitute. First, it contains loopholes so large that the proponents of pork will be able to insulate whole barrels of pork from a Presidential veto if they choose to do so. Second, the separate enrollment procedures would allow the President to veto funding limitations as well as funding amounts, which would inhibit the ability of Congress to address legitimate policy differences with the President. Third, this proposal permits the President to increase, as well as decrease spending, by allowing him to sign into law those portions of an appropriation bill that increase spending, and to veto those portions of an appropriation bill that rescind or reduce spending. So, in other words, if a President chose to, under this authority, he could take an appropriation bill that had been passed by the Congress and he could basically increase the amount in that appropriation bill by doing away or vetoing the rescissions in that bill that reduce funding. So just the opposite of what the sponsors have intended could occur. This is just saying to the President, we think you are a whole lot better at this than we are, so we give you the authority. You make the decisions--increase or decrease. You do whatever you want. I do not think that is what is intended, but that is what the proposal does. Fourth, the proposed substitute, if not undermined by the use of loopholes--and I do not assume that these loopholes would be used by people with good faith, but I think that we have to assume that at some point they will be--if not undermined by the loopholes, this substitute will lead to what Senator Roth and the Republican members of the Governmental Affairs Committee describe as ``undesirable rigidity'' in the management of the executive branch and the legislative process. Finally, the proposed substitute does nothing to enhance the ability of Congress to address the real problems here--that is, the legislative practices such as unauthorized appropriations, legislative earmarks, and adding items in conference even though they have not been approved by the House or the Senate. Those are the abuses in the process. This proposal does nothing to get at those abuses. Those are the problems, but the target here has been missed. Madam President, to place my concerns in context, I would like to briefly summarize the current appropriations process. There are two types of documents that are produced by Congress in the appropriation process, and I really do not believe a whole lot of our Members understand this. The first document is an appropriation bill which is passed by both Houses of Congress. It is signed into law by the President. Last year's defense appropriation bill, for example, was 61 pages long. The bill is legally binding upon the executive branch. The second type of document is the reports issued by the appropriation committees and the House-Senate conferees. The three reports issued in connection with last year's defense bill are 853 pages, covering over 2,300 different line items. The policy directions in these reports is not binding on the executive branch. There is no requirement in law or Senate rule that an appropriation bill or report contain any specific level of detail. Most appropriation bills, particularly in the defense arena, set forth large lump-sum amounts that are not tied to specific programs, projects, or activities. Looking at an example from last year's Department of Defense Appropriation Act, the Act provides a specific sum for Army aircraft procurement, $1,063,164,000. The text of the act does not require the Army to spend that money on any particular type of aircraft. The detail is set forth in the committee and conference reports which specify the amounts for production or modification of a dozen different types of aircraft. Those report items are not legally binding on the Department of Defense. The Department, as a matter of law, can spend that $1 billion on any type of army aircraft selected by the Army or the Department of Defense, regardless of the types that are specified in the Appropriations Committee reports. Any restrictions, earmarks, or other special conditions that are in the committee report are not binding on the Department of Defense. As a matter of comity and custom, the Department of Defense generally, but not always, follows the guidance in the committee reports, but it is not required to do so. The Department of Defense routinely reprograms funds between various lines in the Appropriations Committee reports without any congressional involvement. Above certain thresholds, however, for example, operation and maintenance reprogrammings that exceed $20 million, there is a custom of obtaining prior approval for reprogrammings from the congressional defense committees. That is, when they shift funds from one account to the other. In the Department of Defense this happens hundreds of times in a year because there are certain programs that get behind schedule--they cannot be completed on time. Therefore, the money is not needed as originally anticipated. The money is needed somewhere else. They shift back and forth, back and forth. Over certain thresholds, they have to come back here for informal approval. There is nothing binding about reprogramming. They do not even have to come to us for reprogramming approval as a matter of law. That also is a matter of comity. Moreover, if Congress were to insist on such prior committee approvals, it would likely constitute an unconstitutional legislative veto. In summary, Madam President, there is no requirement for an appropriation bill or report to contain any specific level of detail. And the material in the committee and conference reports is not legally binding on the executive branch. Much--not all--but much of the pork, perhaps most, but at least much of the pork identified in the news media that we dwell on in here and that disturbs all members--and I know the Senator from Arizona has been particularly vigilant in that respect and I it, is not binding on the President but is spent as a matter of comity between the two branches. I am often amused when Presidents are talking about how their hands are bound and they can not do certain things because of Congress, and a whole lot of things they complain about are not binding on the Presidents of the United States. As a matter of comity, if they disregarded the reports year in and year out, they would be jeopardizing some of their own programs, but in my opinion we have had several Presidents who have basically talked about the line-item veto because they wanted to give the appearance that they had to accept things beyond their control, when they knew they had control, if they wanted to do something about it. Most of them do not want to do anything about it because they want their own pet projects. And it ends up being spent as a matter of comity between the two branches of Government. I know that is not going to change people's minds here, but that is the way the system works. We need to understand that we are trying to correct something and we are shooting at a target that is not really a target. In summary, Madam President, there is no requirement for an appropriation bill or report to contain any specific level of detail, and the material in committee and conference reports is not legally binding on the executive branch. Much of the pork identified in the media is not binding on the President but is spent as a matter of comity between the two branches. Now, committee reports that explain legislative provisions are legislative history, and they do have an effect. But what we are talking about now is committee reports that talk about expenditures and how that money would be spent, and that is not binding. Madam President, with that background, I would like to turn to the loopholes in the proposed substitute. The supporters of the proposed substitute assert that it will require pork-barrel projects to be set forth in the text of appropriation bills and enrolled as separate enactments. There is no such requirement in the proposed substitute. As drafted, the substitute merely provides that--I am quoting directly from it--``The committee on Appropriations of either the House or the Senate shall not report an appropriation measure that fails to contain such level of detail on the allocation of an item of appropriation proposed by that House as is set forth in the committee report accompanying such bill.'' The first defect is there is no requirement in current law, Senate rules, or the proposed substitute that the Appropriations Committee provide any specific level of detail in the committee report. The committee report does not have to have any specific level of detail in it. So the very heart of this proposal ties it to details in the committee report, but the detail does not have to be in there. If we enact the proposed substitute, the Appropriations Committee, if they choose to, can easily avoid a line-item veto by providing lump sum appropriations and then setting forth the detail in separate documents other than the committee report. These documents could include a floor statement by the managers of the bill, an agreed joint statement of the managers of the conference which is placed in the Congressional Record in lieu of or in addition to the formal conference report, or a simple letter from the leadership of the committee to the head of an agency. And I assume and I believe, based on previous practice and observations, that within a year or two that will begin to happen. In other words, there is no requirement that the committee report or a conference report contain a specific level of detail. No line-item detail is required, and there is no requirement that there be anything for the President to veto beyond a lump sum appropriation. (Mr. GRAMS assumed the Chair.)

Mr. NUNN. Madam President, if the Senator would withhold, I would like to make a few remarks.