forms of discretionary spending, tax expenditures circumvent the
extremely important two-step process of authorization and appro-
priation. Because these provisions come out of the tax writing com-
mittees in the House and Senate, those committees become, in ef-
fect, both the authorizing and appropriating authority.
Obviously, that fact is very appealing to any special interest
groups seeking Federal financial support since anyone who can by-
pass that two-step process will have a much higher probability of
seeing their interests fulfilled.
Make no mistake about it, many of these programs are worth-
while and serve a useful public purpose. The earned income tax
credit, for instance, has lifted many Americans out of the depths
of poverty, hard-working Americans whose only crime is that the
work they do does not pay enough to support their families.
But at the same time that some of these programs help American
families, many more are nothing more than a way of the special
interest groups to circumvent the normal authorization and appro-
priations process here in Congress. The problems associated with
tax expenditures do not need to continue. In its June report on this
subject, the General Accounting Office provided several rec-
ommendations that are worthwhile and should be seriously consid-
ered by Congress.
For example, the General Accounting Office suggested that fur-
ther integrating tax expenditures into the budget would highlight
the vast resources lost to the Federal Government. Moreover, these
expenditures should undergo program reviews within the congres-
sional tax writing committees that may lead to the redesign or
elimination of those that are deemed inefficient or outmoded. One
way to ensure such scrutiny would be to sunset most tax expendi-
tures, thus requiring the reenactment of those which are worth-
while at regular intervals.
Mr. Chairman, what is fundamentally at stake in this debate
and what I believe would be lost if we enact these so-called reforms
is the people's power over the purse. It was placed there by the
constitutional framcrs more than 200 years ago and with good rea-
son.
As Madison so eloquently explained,
ThiB power over the purse may, in fact, be regarded as the most complete and effec-
tual weapon with which any constitution can arm the immediate representatives of
the people for obtaining a redress of every grievance and for carrying into effect
every just and salutary measure.
That was the father of the Constitution who was sa)ang those
words.
48
If we enact legislation giving the President enhanced rescission
authority or line-item veto authority, we will have greatly damaged
the people's power over the purse as exercised by their immediate
elected representatives.
Furthermore, this incessant focus on changing procedure rather
than facing substantive policy questions head-on has, in my opin-
ion, significantly constrained the type of thought provoking debate
needed to bring about real solution. I believe that the lack of exten-
sive debate is one reason the decisions we face are so difficult for
Members of Congress.
Unless we publicly air the great issues of the day, thereby laying
the groundwork for consensus, the more we leave a vacuum, an in-
formational black hole that is all too easily filled by self-serving in-
terest groups, misinformation, media hype and outright political
demagoguery.
This obsession with process has also provided many members
with an easy way to avoid making hard choices. Often, proponents
of process fixes insist that we in the Congress do not have the will
to act, and thus, we must be forced to do our jobs responsibly.
Not having the will to act is, of course, a buzz phrase that really
means not having the courage to make tough choices. And some of
the very same people who advance and support these so-called re-
form proposals are the same ones who refuse to vote for a genuine
deficit reduction measure.
For example, in March of 1993, 45 Senators voted to waive the
Budget Act in order to permit consideration of an enhanced rescis-
sion proposal ostensibly as a way of cutting spending.
By August of that year, however, only 4 of those 45 were equally
willing to support the 1993 Reconciliation Bill, legislation achieving
well in excess of $400 billion of deficit reduction.
Likewise, on March 1 of this year, 63 Senators voted for the
much vaunted Balanced Budget Amendment to the Constitution,
and yet only 17 of them had voted in favor of the Reconciliation
Bill the previous August.
Is 't any wonder, then, given this kind of contradictory perform-
ance on the part of so many members — those members know very
well who they are — that the American people hold the institution
in such low esteem.
My point is this: Until we face our problems head on, they will
never be fixed.
In a representative democracy, the people must face issues and
understand them before elective officials can responsibly act to put
into effect acceptable workable solutions. As the American people
reflect on those issues and as we in the Congress debate the dan-
gers that would extend from enactment of enhanced rescission or
a line-veto authority, I hope we will all keep in mind the words of
H.L. Mencken, the great AJnerican author, who wrote:
There is always an easy solution to every human problem — neat, plausible, and
wrong.
Now, Mr. Chairman, if I may turn now to S.9, Enhanced Rescis-
sions. It is called the Legislative Line-Item Veto Act of 1993, Title
XI, Legislative Line-Item Veto Rescission Authority. But it is really
enhanced rescission authority. It is not line-item veto; it is en-
49
hanccd rescission authority, and there is a tremendous difference
between the two.
Section 1101: The President may submit to Congress a special
message rescinding budget authority from each Appropriation Act,
(a) by special message not less than 20-calendar days after enact-
ment, or (b) by special message accompanying his annual budget,
if such rescissions have not been previously submitted.
In other words, (a) requires a separate special message for each
Appropriation Act, but (b) allows one special message to cover more
than one Appropriation Act.
The President could veto an Appropriation Act, and Congress
could override, but the President could then, after having vetoed
the bill and having had the veto overridden — the President could
then submit rescissions under the 20-day authority of (a), which
Congress could disapprove under the procedures of S.9. The Presi-
dent could veto this rescission disapproval bill, requiring a two-
thirds vote, to override.
And finally the President could submit even more, although dif-
ferent, rescissions for any Appropriation Act in a message to ac-
company his annual budget.
Here, again. Congress could pass a rescission disapproval bill
which the President could veto, forcing a two-thirds override.
Also, although he has not explicit authority to do so, the Presi-
dent and his agency heads could tend to slow down, if not prohibit,
obligations of budget authority for items of Congressional interest
in order to have these items around, have them still available, for
rescission in connection with the President's budget submission.
Section 1101, Subsection (b): Any amount of budget authority
proposed for rescission under this bill shall be deemed cancelled
unless a rescission disapproval bill is enacted under law in the fol-
lowing timeframe.
Congress has 20-calendar days of session to enact and present
the bill to the President. The President then has ten days to sign
or veto the bill and, if vetoed, Congress has 5-calendar days of ses-
sion to override.
Section 1102 defines "rescission disapproval bill" as a bill or a
joint resolution which jointly disapproves a rescission of budget au-
thority in whole as sent in a special message transmitted by the
President under Section 1101.
The bill is silent as to who may introduce such rescission dis-
approval bills. They would be referred to the appropriate commit-
tees. The bill provides no discharge mechanism.
The bill provides that any rescission disapproval bill received in
the Senate from the House shall be considered as I shall describe.
No procedures are included for a consideration in the House of re-
scission disapproval bills received from the Senate. So it is a one-
way street.
Now as to the procedures in the Senate, floor considerations shall
be limited to not more than 10 hours, and a motion to further limit
debate is not debateable — cut it to 1 hour on a non-debateable mo-
tion.
A motion to recommit, except with instructions to report back
within 1 day, is not in order.
50
It shall not be in order in the Senate or House to consider any
amendment. I do not understand the reason to even have a recom-
mittal motion in the bill, unless it is just to chew up 1 day of time.
It shall not be in order in the Senate or House to consider any
amendment to a rescission disapproval vote. However, this may be
waived or suspended in the Senate by a vote of three-fifths of the
members, duly chosen and sworn. It does not say anything about
the House, whether the House can waive it at all by a vote of
three-fifths.
And inasmuch as the resolution is silent on that point, I take it
that the House could waive a point of order by a majority vote. A
simple point of order can be overridden by a majority vote in the
Senate, but if it is a specified 60 vote point of order, then it is dif-
ferent.
So we may have one house here offering amendments by over-
riding a point of order by a majority vote. In the Senate, there has
to be 60 members in order to override that point of order and be
allowed to amend.
There is no procedure for resolving House/Senate procedures or
differences, notning in there about a conference or amendments be-
tween houses. And presumably if the Senate can muster 60 votes
and amend, there may be some amendments in disagreement.
There may be some conferences. No procedure whatsoever.
In conclusion, this bill gives the President a heads-I-win, tails-
you-lose situation on rescissions. And it also allows the House to
take up, pass, and send to the Senate rescission disapproval bills
which protect House items, and this would leave the Senate as a
second-class legislative body.
It takes away from Senators the right to amend. You have to get
60 votes, Senator Sasser, before you could offer an amendment.
The Constitution does not say that you have to get 60 votes in
order to amend a bill. The Constitution does not say that you have
to have 60 votes before you can offer an amendment to a tax bill
or other bill that comes over from the House.
But this says 60 votes. You will have to have 60 votes before you
can offer an amendment, 60 votes. The Senate has to vote by three-
fifths of its members to allow amendments to be considered.
So much for that at the moment.
Now, H.R. 4600, which has been enacted by the House, H.R.
4600 provides for expedited rescission of budget authority or repeal
of targeted tax benefits.
Section 1012: The President may send to Congress a special mes-
sage proposing to rescind budget authority any time after enact-
ment — any time. Senator Domenici — or within 20 days after enact-
ment to repeal any targeted tax benefits and a draft bill to accom-
plish the same.
After introduction in the House, the bill is referred to the Appro-
priations or the Ways and Means Committee, as applicable. The
committee is discharged, unless the bill is reported vsathout sub-
stantive revision, by the seventh legislative day after receipt of the
special message.
During consideration, motions to strike — that is an amendment —
motions to strike any provision in the House require the support
of 50 members.
51
A vote on final passage will occur on or before the close of the
tenth legislative day after the date of introduction of the bill. If
passed, the bill is sent to the Senate within 1-calendar day. It gets
over here on Saturday in the event that the House passes it on Fri-
day.
The bill transmitted to the Senate shall be referred to the Com-
mittee on Appropriations or Finance, as applicable. It shall be re-
f)orted without substantive revision, meaning no amendment, no
ater than the seventh legislative day after its receipt in the Sen-
ate.
During floor consideration, any Senator may move to strike any
provision if supported by 14 other members. In other words. Sen-
ator Domenici, there have to be 15 Senators, 14 others plus your-
self, before you can move to strike; 15 percent of the Senators it
requires. It is biased towards the House, which only requires 50
members, about 11.5 percent, according to the old math.
Senator DOMENICI. How many?
Senator Byrd. Fifty members, 11.5 percent. But you have got to
get 15 percent, 14 other Senators than yourself.
And remember, in the committee, you can have the whole com-
mittee wanting to strike, but you cannot strike language in com-
mittee, because that bill has to be reported without substantive re-
vision.
On the floor, a motion to proceed to the bill is not debateable;
amendments to the motion are not in order; a motion to reconsider
is not in order; debate is limited in the Senate to 10 hours; a mo-
tion to further limit debate on the bill is not debateable; and a mo-
tion to recommit is not in order.
Any budget authority proposed to be rescinded under the bill
shall be made available for obligation on the day following the day
on which either house rejects the bill.
Therein lies a tale. Any tax provision to be repealed in a special
message shall be deemed repealed unless during the period of Con-
gressional consideration either house rejects the bill.
The only way to ensure the obligation of funds proposed by the
President for rescission is for one house to defeat the rescission bill.
Let me say that again: The only way to ensure the obligation of
funds proposed by the President is for one house to defeat the re-
scission bill. There is no other mechanism in this bill for the re-
lease of funds proposed to be rescinded.
This means that even though both houses may have voted to
strike certain proposed rescissions from the bill, those rescissions
will still be withheld from obligation, even if the President signs
the rescission bill, from which specific rescissions have been strick-
en. Even if he signs that bill, those rescissions can still be withheld
from obligation because the bill savs that they will be made avail-
able for obligation on the day following the day on which either
house rejects the bill.
With the support of 50 members, the House may move to strike
any rescission or repeal of a tax provision. If the motion is success-
ful in the House-passed bill, it therefore excludes any such provi-
sion.
There is no procedure for the Senate, in committee or on the
floor, to consider restoration of such excised provisions, because the
52
only amendment that is allowable is an amendment to strike. If the
House strikes out Senate items and the bill comes over to the Sen-
ate, the Senate cannot amend that bill to restore Senate items, be-
cause all the Senate can do is strike.
This puts the House at a great advantage. This will make the
Senate a third-class body.
There are no procedures or processes in the bill for handling
amendments between the houses or for conferences between
houses.
Also no mention is made as to what happens if the President ve-
toes a rescission bill that is sent to him by Congress. The proposed
rescissions would still be withheld from obligation. They can only
be freed by rejection of that bill by one house or the other or both.
That is pretty potent, Mr. Chairman.
Also the President can continue to submit an unlimited number
of rescissions from any appropriations bill throughout the year, so
long as they have not been previously submitted during the fiscal
year. He can just keep the Senate and the House tied up with re-
scission bills. Throughout the year, he can continue to send up to
Congress rescission after rescission after rescission, unless those
rescissions have been previously submitted.
Now as to S.526, which provides for separate enrollment of items
in appropriations bills and tax expenditure provisions in revenue
bills. Section 1101(a)(1): This bill delegates authority to the Sec-
retary of the Senate for Senate-originated measures and the Clerk
of the House for House-originated measures, to enroll each item of
appropriation or tax expenditure provisions of such bill or joint res-
olution as a separate bill or joint resolution as the case may be.
Section 1101(aK2) provides for the designation of the measure to
which it originally was a part, together with such other designation
as may be necessary to distinguish such bill or joint resolution from
other bills or joint resolution enrolled with respect to the same
measure.
Subsection (b) of Section 1101 provides that these separately en-
rolled measures, quote, "be deemed to be a bill under Clauses (2)
and (3) of Section VII of Article I of the Constitution of the United
States."
Now, Mr. Chairman, by the very language of the subsection, it
does not meet the constitutional test of Section VII of Article I.
Congress could easily avoid the intent of the legislation by enact-
ing lump-sum appropriations with directions provided only in the
conference report, not in the bill itself, and also could write appro-
priation language that contains no separate items of appropriation,
just a string of items but not clear separation, thus not divisible
for separate enrollment.
So as with the line-item veto. Congress, if it so wished, can get
around this measure simply by the way it writes up its bills. The
people would be fooled.
Mr. Chairman, that concludes my opening statement.
Chairman Sasser. Well, thank you very much, Mr. Chairman.
That was a very enlightening and informative discourse over the
whole question of enhanced rescission and other budgetary mat-
ters.
53
I think you were so crystal clear in your statements and observa-
tions, Mr. Chairman, that I have no questions. You have answered
all of my questions. And I will defer to Senator Domenici for any
questions he might have.
Senator Domenici. Well, my only question was: Where are the
other people on my side? And I've sent out word for that to see if
we have some more Senators coming.
I would say, however, as a Republican, Chairman Byrd, I am one
of the Senators that you referred to when you spoke of 44 voted one
way and looked to procedures, and on the other reference I happen
to be in that category, also. I do not conclude, as you do, as to what
my vote means, so I hope there can be some understanding there.
I mean, I do not choose to talk about the 56 Democratic Senators
who voted against a Dole/Domenici budget resolution that would
have truly started us down the path toward deficit neutrality, and
I do not choose to speak of those Senators in the way you have
here. I think they had reason for not being for that particular rec-
onciliation approach, just as I believe I had good reason not to vote
for the 1-last year.
Other than that comment, which I hope you take from a Senator
who I do not believe takes the backseat to anybody; I am trying to
get the deficit under control. And contrariwise, Chairman Byrd, I
am fully aware that the appropriation process has taken a big hit
when it is not the thing that is breaking the budget.
Likewise, I just want to make my own observations about the
reconciliation bill that you alluded to, essentially as compared with
the remedies that were already written in the law in the 1990 sum-
mit and the caps that were in place then, which you had a lot to
do with. The first 5 years under that reconciliation bill did nothing
but up taxes and cut defense — increase taxes and cut defense,
which puts a burden on appropriations. But for the rest of the
budget, it is left almost intact with all the infirmities that it had,
and CBO confirms it with the August assessment, saying there has
been no real challenge to the structural deficit, even with the 1993
reconciliation bill.
So, I am not always looking for an easy way out, and I was not
when I voted against that package. I also offered a very major
budget that got almost every Republican that structured that defi-
cit package differently.
Chairman Byrd, I have a question with reference to what is com-
monly called expedited rescission where the President sends up a
list of rescissions out of an existing appropriations bill. He cannot
go back in time or forward in time. He must respond to a bill you
send him by sending up a list of the items he would like to rescind.
The simplest form that I am familiar with is that that would be
reported to the floor of the Senate, and whether it goes through
committee or not is not necessarily relevant, but by a time certain
it is voted up or down in the Senate.
Now, I take it from your comments that you perceive that that
is too big a shifl in executive versus legislative power, and too big
a shifl away from the language in the Constitution as to where the
purse is supposed to be held, is that correct?
Senator Byrd. Yes.
54
Senator DOMENICI. On that one, might you just in your own way
take a couple of minutes to tell me why you perceive that? The
Senate has a right to vote, we do vote, we vote yes or no, so in one
sense we are speaking, we are speaking in something the President
asks us to speak on. And we choose as an institution to say if you
ask us to speak on an issue defined thusly, we will speak on it by
voting. There does not seem to me to be anything wrong with that
process-wise, but I would like to know whether your objections are
procedural or truly substantive in terms of power change.
Senator Byrd. Well, he asked us to vote on a health reform bill.
We did not choose to do it. I think that is up to the Congress to
determine whether or not it wants to vote on his bill up or down,
or whether it wants to make some changes.
Why should we, then, when it comes to appropriations bills, the
so-called expedited rescissions, write into the law that whatever he
wants, we have got to vote on it up or down? We would have al-
ready voted on it. The people's representatives have a right and a
duty, I think, to determine what the priorities are when it comes
to spending the taxpayers' money. The President is not directly
elected by the people. You are, Senator Domenici, and I am, but not
the President. He is indirectly elected.
He sends up his budget. Who is there to say that we have to vote
on his budget? The Republicans did not vote on Mr. Reagan's budg-
et when he sent it up here. So why should we have to vote on his
rescissions and put it into law? Why should we put it into law that
whatever Mr. Clinton says he wants rescinded, we have to vote up
or down on his rescission?
The people's elected representatives here in the Congress, under
the Constitution, have the power of the purse, and I do not con-
sider us to be under any obligation to any President, Mr. Clinton,
Mr. Reagan or any other President, to be mandated by law to vote
a second time on appropriations that have already been sent to the
President and which he may have vetoed and the Congress may
have overridden, and then he gets a second bite at those. That is
just for starters, my opposition. I could go on at length.
Senator DOMENICI. Let me just say, obviously, you make many
arguments today, both technical and substantive, that deserve
every consideration. In discussing the matter of fiscal policy and
appropriated accounts and the action of the United States Congress
in a very large appropriations bill, in some instances with thou-
sands of items, I do not believe that the President sending us back
a few of them to be rescinded is comparable to him sending us the
health care bill. You may in your wisdom, but I do not, as I see
it.
Senator Byrd. Senator, you did not say he could send a few. If
we mandate Congress, if we say Congress has to vote on his rescis-
sions, he may send more than a few.
Senator DoMENICI. Well, let us say some. In any event, I just
share this with you, I am very worried about the shift in power.
I want you to now that, and I am very worried about what a Presi-
dent who is angry at Pete Domenici can do to him. I am also wor-
ried about a President who needs votes from me, what he could do,
and for a long time that totally controlled my thinking.
55
I also understand that Members of Congress, in voting on an ap-