[Congressional Record Volume 141, Number 54 (Thursday, March 23, 1995)]
[Senate]
[Pages S4409-S4486]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     LEGISLATIVE LINE-ITEM VETO ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 4, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 4) to grant the power to the President to reduce 
     budget authority.

  The Senate resumed consideration of the bill.

       Pending:
       (1) Dole amendment No. 347, to provide for the separate 
     enrollment for presentation to the President of each item of 
     any appropriation bill and each item in any authorization 
     bill or resolution providing direct spending or targeted tax 
     benefits.
       (2) Abraham modified amendment No. 401 (to amendment No. 
     347), to require the Congress to approve the bills prior to 
     transmittal to the President.
       (3) Levin/Murkowski/Exon amendment No. 406 (to amendment 
     No. 347), to clarify the definition of items of 
     appropriations.
       (4) Hatch amendment No. 407 (to amendment No. 347), to 
     exempt items of appropriation provided for the judicial 
     branch from enrollment in separate bills for presentment to 
     the President.
       (5) Daschle amendment No. 348 (to amendment No. 347), in 
     the nature of a substitute.
       (6) Exon (for Byrd) amendment No. 350 (to amendment No. 
     347), to prohibit the use of savings achieved through 
     lowering discretionary spending caps to offset revenue 
     decreases subject to pay-as-you-go requirements.
  Mr. COATS. Mr. President, again, just for the information of our 
colleagues, under a unanimous-consent agreement, we have only until 10 
a.m. 
[[Page S4410]]  this morning for additional amendments to be offered. 
Those amendments must be amendments that have been cleared and are on 
the list as agreed to by the unanimous-consent agreement. Those must be 
offered by 10 a.m., after which we will turn to 2 hours of debate on 
the Daschle substitute amendment.
  So Members can expect votes throughout the day, but need to be aware 
of the fact that the time is fast running out for the offering of 
amendments. That time will elapse at 10 a.m. this morning.
  I yield the floor.
  Mr. EXON. Mr. President, I appreciate very much the Senator from 
Indiana outlining the procedures which are strictly in the order of 
what the agreement has been. Since I know of no person on the floor 
ready to offer an amendment, except possibly the Senator from 
Washington, I think it would not be out of order if we would proceed at 
this time if anybody wishes to offer amendments in order to receive 
priority before 10 o'clock. In lieu of that, I think it would be in 
order for statements to be made for whatever purposes.
  With that, I yield the floor, as I see my colleague from the State of 
Washington.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.


                 Amendment No. 388 to Amendment No. 347

    (Purpose: To limit the rescission of items of appropriation to 
                      unauthorized appropriations)

  Mrs. MURRAY. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Washington [Mrs. Murray] proposes an 
     amendment numbered 388 to amendment No. 347.

  Mrs. MURRAY. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 5, line 7, after ``and'' insert the following: 
     ``shall not mean appropriations authorized in a previously 
     passed authorization bill; and,''.

  Mrs. MURRAY. Mr. President, I had intended to offer this amendment, 
but in the interest of moving this legislation, I will ask unanimous 
consent, after I make a brief statement, that my amendment be 
withdrawn.
  The amendment I was going to offer would have allowed the President 
to rescind all unauthorized appropriations.
  I feel that this goes to the heart of the concerns of the American 
people about line-item legislation.
  Mr. President, we need a commonsense solution to cutting out pork, 
while at the same time, protecting those programs the American people 
really care about. I want to be able to be here and fight for the 
people I represent.
  I believe that the amendment offered at the end of yesterday's 
session by my good friend, the minority leader, and the distinguished 
Senator from Nebraska [Mr. Exon], goes a long way in achieving that 
commonsense solution.
  Like my amendment, this approach will allow the President to cut all 
those 11th hour deals in conference committees. It eliminates the back-
room wheeling and dealing.
  Mr. President, without this amendment, the Dole substitute to S. 4 
goes too far. It is a radical, unworkable approach to a difficult 
problem. It gives the President too much power over the American 
people. It is too complicated. It creates too much bureaucracy.
  The substitute before us enables the President randomly to veto 
programs that the people's representatives in Congress debate, and 
compromise on, and authorize in the name of our constituents.
  Yesterday I listened very carefully to the debate. I heard the 
comments of Senator Nunn and I heard the comments of my friend and 
neighbor, the distinguished Senator from Oregon [Mr. Hatfield]. Mr. 
President, the chairman of the Appropriations Committee gave a stirring 
speech, full of wisdom and common sense about why the line-item 
legislation is bad public policy.
  In particular, he noted the unprecedented transfer of power from the 
people to the White House. Mr. President, I urge our colleagues to read 
the speech made by the Senator from Oregon in the Record. I cannot 
support the Dole substitute--it is the breeding ground for abuse and 
political horsetrading.
  I want to give the President the ability to line-item veto all those 
portions of appropriations bills that have not been through the hearing 
and authorization process. All those pork items contribute to our 
deficit.
  This is the spending the American people are angry about: the 
unauthorized buildings, the earmarked research, and the special 
interest projects.
  But, Mr. President, the American people are not angry about the 
programs that have been authorized. These come to life under the full 
glare of public scrutiny--everyone is given a chance to weigh in. That 
is why we have public witness hearings in the Appropriations Committee.
  And, it is our job, Mr. President, to make tough choices and to craft 
compromises. Just like we do at home.
  Mr. President, after all the public negotiations, after all the 
compromises that make up the congressional process--we cannot allow the 
people's wishes to be subject to the arbitrary veto pen of one person.
  The Congressional Research Service tells me that it would take them 
days to compile the list of unauthorized appropriations in the fiscal 
year 1994 Transportation bill. And, I have another list from the CRS 
which shows that nearly $1 in $5 in the military construction account 
was spent on unauthorized appropriations. That is not insignificant.
  Mr. President, I intend to vote for the line-item legislation 
proposed by my colleagues from South Dakota and Nebraska. I want to 
make sure my constituents' wishes are not subject to the arbitrary 
budget axe of the executive branch. I want to return some rationality 
to this debate.
  Mr. President, the American people deserve a balanced budget. When I 
arrived at the Senate 2 years ago, I faced the daunting task of 
restoring some fiscal restraint to our budget--it was a budget of 
runaway spending. It was a budget of misplaced priorities.
  And, as a member of the Budget Committee, I was tasked by my 
constituents to correct the way our money is spent.
  That is the proper role of Congress. We, as the representatives of 
the people, have the obligation to form a budget. It is not the 
President's job to appropriate money--it is this branch's duty.
  I have learned a great deal about our budget over the past 2 years. I 
have worked with great Senators, like the former chairman, Senator 
Sasser of Tennessee, and the current ranking member, the Senator from 
Nebraska [Mr. Exon].
  Let me say, Mr. President, we are a richer country for the wisdom of 
my distinguished colleague from Nebraska. I look forward to working 
with him during the next 18 months, and I will miss his leadership when 
he retires from this body.
  Mr. President, my friend from Nebraska knows, as I know, that 
crafting a budget resolution takes courage.
  Reducing our deficit takes even more courage. And, I am proud of the 
record of the Budget Committee and the administration over the past 2 
years--as you know, we have reduced the deficit by nearly $100 billion.
  We did that by leveling with the American people. By making taxes 
fairer. By cutting more than 300 programs and totally eliminating 100 
more.
  That is the correct way.
  Trying to attack government spending through a radical, unworkable 
separate enrollment bill is not.
  Everyone wants to lower the deficit, which blossomed and grew during 
the 1980's. And, as I said, we have done a good job of it over the past 
2 years.
  I am afraid some of these proposals might go too far. We need to keep 
things in perspective. I am afraid as I look at the rescission 
package--these are the wrong cuts to the wrong people. And, scoring a 
few political points in a debate will have dire consequences for 
millions of average Americans. It might sound good in a debate to 
control the White House, but it won't feel good to the average 
Americans who sit around the kitchen table in my house.
  [[Page S4411]] Mr. President, I will support line-item legislation, 
but not the ill-conceived, radical amendment supported by the majority 
leader.
  I ask unanimous consent that my amendment be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendment (No. 388) was withdrawn.
  Mrs. MURRAY. Mr. President, I yield the floor.
  Mr. COATS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. EXON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 348 to Amendment No. 347

  Mr. EXON. Mr. President, in order to conserve time as much as 
possible and since we have only 10 minutes left, I will be glad to 
interrupt my remarks to accommodate any Senator with regard to bringing 
up a measure before 10.
  If not, I thought I would make some statements that I have with 
regard to the matter that we will be going into controlled time on at 
10 o'clock.
  Mr. President, I rise in support of the Daschle substitute and urge 
my colleagues to support it as well. Earlier this year I joined with 
Senator Domenici in introducing S. 14, which then enjoyed the support 
of the majority leader, the minority leader, and, of course, the 
chairman of the Senate Budget Committee, Senator Domenici. I believed 
then and I continue to believe now that S. 14, or a similarly crafted 
bill, would be the best course of action. S. 14 is now effectively 
before the Senate in the form of the Daschle amendment.
  As Senators know all too well, passing a line-item veto is only the 
beginning and not the end of the debate. We will need to go to 
conference with the other body, which has already passed a line-item 
veto bill in the form of an enhanced rescission bill quite similar to 
S. 4.
  The facts are, the Daschle substitute essentially is S. 14 and 
certainly is, in my view, far superior to the Dole substitute proposal 
that is before the body. Unlike the Dole proposal, it was not crafted 
in a matter of a day or two. Unlike the Dole proposal, it has seen the 
light of day and was not devised primarily as a means to obtain party 
unity. In fact, S. 14 enjoyed bipartisan support from the very 
beginning, and it thus represents the middle ground in this very 
important debate.
  In my statement yesterday, I outlined some of the concerns that I 
have with the Dole substitute. These concerns remain today. Those of 
you who may have been listening last night heard an excellent 
presentation from Senator Levin about the difficulties that will be 
faced by the cutting and slicing of the bills that will be required by 
the Dole proposal. Although it may sound rational on paper, we do not 
know how it will work in reality.
  No Senator should vote on these proposals without hearing or reading 
Senator Nunn's Senate speech of last night. We all know Sam Nunn, his 
integrity, his courtesy, his understanding of the issues. And we should 
at least listen to him.
  In addition, the Dole proposal raises serious constitutional 
questions. There are scholars who come out on each side of the issue, 
yet no one can deny that the question will not be fully resolved until 
the proposal is reviewed by the U.S. Supreme Court.
  I have long supported the idea of giving our President the line-item 
veto power. We should do so in a manner that will most likely stand the 
test of constitutionality. I have been in the Senate for over 16 years, 
and this is the closest we have come yet to actually passing a line-
item veto. We should do the job right. Mr. President, we should do so 
in a way that effectively covers special tax breaks and tax loopholes. 
We have to look at all of the pieces of our budget if we are going to 
solve deficits of over $200 billion annually, feeding the national debt 
that is rapidly rising, which is now at or near $5 trillion.
  The Daschle amendment will address tax loopholes and will assure that 
tax giveaways receive the same scrutiny as pork in our appropriations 
bills. By covering more of the budget, the Daschle substitute will be a 
more effective tool to help our President bring some fiscal sanity to 
the Government. The Daschle substitute will allow the President to 
scale back on appropriations, while the Dole substitute does not.
  Yesterday I talked about the dilemma that the President faces in 
signing a bill that on the whole is good but includes some bad parts. 
The same view would apply to individual amounts as well. I have found 
the Dole substitute to be an honest proposal that merits serious 
consideration. It took a step in the right direction by including some 
special tax provisions. I am pleased that the majority accepted my 
lockbox amendment. The Dole bill includes a sunset provision and will 
require Congress to review the bill in the year 2000.
  In many ways the Dole substitute, as amended, comes a long ways 
toward S. 14. Yet I remain disappointed by the process which has been 
followed to bring the Dole substitute to the floor. Bipartisan 
cooperation was cast aside in the name of party unity. Such action is 
an ill wind for future cooperation in the U.S. Senate. The Daschle 
substitute is a reasonable and responsible solution to pork-barrel 
spending. The Dole proposal, with all of its questions, remains at best 
a shot in the dark. It might hit the mark. It might not.
  The Daschle substitute will work. Once again, I urge its adoption.
                 Amendment No. 348 to Amendment No. 347

  The PRESIDING OFFICER (Mr. Kyl). Under the previous order, the Senate 
will now resume consideration of amendment No. 348 on which there shall 
be 2 hours of debate equally divided.
  Mr. EXON. I see the Senator from Georgia is on the floor.
  I would simply say at this time that his remarks last night and the 
remarks that he is amplifying today are so important that I have asked 
that the remarks printed in the Record last night be laid on every 
Senator's desk because I think every Senator should know about them.
  I now yield whatever time is required to the Senator from Georgia.
  Mr. NUNN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
  Mr. NUNN. Mr. President, I made a lengthy presentation last evening 
relating to the defects in this substitute that is now before us. I 
would like to say at the outset I believe the current practice, where 
rescissions come over from the President and if we take no action 
nothing is changed, is unacceptable. That practice gives the President, 
really, no authority to point out specific items in appropriations 
bills and to have any hope that they will be corrected if they are 
wasteful.
  I have always contended and still contend that Presidents have 
enormous power if they would just veto the whole bill and then indicate 
to the American public what is wrong with the bill. That would put the 
onus on Congress to correct it. But apparently Presidents do not choose 
to do that.
  I have listened with care in the last few days to the debate on this 
so-called line-item veto. There are several things I do not believe we 
have properly focused on. The first point that I think people need to 
understand is the current appropriation process. There are two types of 
documents that are produced by the Congress in the appropriation 
process, and I really do not believe the distinction between the two is 
commonly recognized in this Chamber.
  The first document is an appropriation bill, which is passed by both 
Houses of Congress. It is signed into law by the President, or vetoed--
usually signed. Last year's defense appropriation bill, for example, 
was 61 pages long. The bill is legally binding on the executive branch. 
It becomes law.
  The second type of document is a different type of document 
altogether and that is the report issued by the Appropriations 
Committees and the report issued by the House-Senate conferees. The 
three reports issued, just for instance, in connection with last year's 
Defense bill are 853 pages, covering over 2,300 lines. The policy 
direction in these reports, often known as pork-barrel spending to the 
critics--some of it--is not binding on the executive branch.
   [[Page S4412]] Much of what is complained about as wasteful spending 
by the President and by the media and by others, including people in 
this body, is not even binding on the executive branch. But people do 
not recognize that. Not all of it, but much of it.
  There is no requirement in law or Senate rule that an appropriations 
bill or report must contain any specific level of detail. I want to 
repeat that because that goes to the heart of what is wrong with this 
proposal. There is no requirement in law and no Senate rule, nor would 
they be if we passed this--there is no change here--that an 
appropriations bill or report contain any specific level of detail.
  Mr. President, I want to repeat that. There is no requirement in law 
nor any Senate rule that an appropriations bill or report contain any 
specific level of detail. Most appropriations bills, particularly in 
the defense arena but not limited to defense, set forth large lump sum 
amounts that are not tied to specific programs, projects, or 
activities.
  Looking to an example from last year's Department of Defense 
Appropriations Act, the act provided a specific sum for Army aircraft 
procurement, $1.164 billion. The text of the act does not require the 
Army to spend that money on any particular type of aircraft. Then the 
report comes along and indicates how the Congress expects the money to 
be spent. But that is a matter of political comity. It is not binding. 
That is the key to understanding what is wrong with this substitute 
proposal which we have before us.
  I would say most of the defects I have pointed out do not apply to 
either of the bills based on rescissions. These defects do not apply to 
the Domenici rescission bill, which is now before us and is known as 
the Daschle-Exon amendment, nor to the McCain rescission bill. Most of 
the defects I am pointing out here this morning do not apply to either 
of those. I do have some problem with the McCain proposal, as I said 
last night, because of the two-thirds requirement and the huge, huge 
shift of power to the executive branch of government, but that is a 
different matter.
  What is wrong with this proposal? This proposal is aimed at cutting 
out pork-barrel spending. That is the aim of it. I understand that. I 
share that goal. I quote directly from the Dole substitute:

       The Committees on Appropriations of either the House or the 
     Senate shall not report an appropriations measure that fails 
     to contain such levels 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.

  So what is it we are calling for the President to have on his desk to 
be able to veto out, to cut out, pork? In the words of the amendment, 
we are calling for such level of detail as is set forth in the 
committee report. There is no requirement that there be any specific 
level of detail in the committee report.
  So what are we saying is going to be on the President's desk? 
Nothing, unless the Appropriations Committees choose to do it 
voluntarily. We are basically creating a loophole big enough to drive 
all the pork through that has ever passed the Congress, if the 
Appropriations Committees decide to move in that direction.
  So that is what is wrong with this proposal. There can simply be an 
appropriations bill that says so many dollars for Army procurement. 
Then instead of having the information in a report, the Appropriations 
Committee can come out on the floor, and they can make a statement 
saying here is what we expect. And that statement would not be subject 
to being put in the bill. The President will not have anything to veto.
  The same thing could be done on a conference report. This proposal is 
shooting at a target and missing it completely, unless the 
Appropriations Committees decide to continue to put all of it in the 
appropriations report and then to incorporate that in the bill, which 
would be an entirely voluntarily act.
  So the authors of this bill are trying to reach a compromise and have 
totally missed the target.
  Mr. President, the other big feature that is wrong with this: Let us 
assume for a moment that the Appropriations Committee decides that, in 
spite of this legislation, they are going to continue to operate with 
detailed reports which will invite the President of the United States 
to take certain actions on items which he does not like. If they do 
that, what they are going to do then is they are going to put all of 
these line items in a report. They are going to put it in a bill. It 
will be enrolled. We will send down to the President thousands of 
bills. He will get Band-Aid hands doing it. We will get candidates for 
the Presidency on TV, and let us see who can sign the things the 
quickest because that will be the criteria of who will be President. 
They will have to sign 10,000 or 15,000 bills a year. We will have to 
get a great signature guy, or gal, in there for President of the United 
States.
  So let us assume, though, that they decide not to drive a pork truck 
through this huge loophole. Let us assume they do not. Let us assume 
they send all of these bills down there. Now guess what happens? The 
Department of Defense then has no flexibility for reprogramming. What 
that means in practical effect is, if the C-17 runs into a contractual 
problem or some kind of technical problem and it can spend only $500 
million of a $1 billion account, the $500 million that would otherwise 
be available to put on readiness or pay or some other urgent need will 
not be able to be reprogrammed because you will have a line item in 
there. What does that mean? It means every time the Department of 
Defense, or any other Department for that matter, decides they are 
going to change anything on the budget--and that happens every year; 
that happens to the tune of billions of dollars--they could not do so. 
Congress has the informal procedure we call reprogramming. They send 
over to us a letter to let us know over a threshold what they are 
doing, lets all four committees sign off on it. It is not telephone; it 
is in writing. All four committees have to sign on it--Appropriations, 
and Armed Services in the case of defense. Then they are able to shift 
money around. That is good government. It encourages managing programs 
right.
  What we are doing is we will now be saying they have to come over for 
a statutory change on every single item that is signed into law. Do you 
know how many bills they are going to have to
 come over here with every year? Hundreds of them. We struggle to get 
one supplemental through.

  This bill here is an absolute joke. It is a joke. I really have a 
hard time believing we are really even considering this.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. NUNN. I yield.
  Mr. BYRD. The Senator is exactly right with respect to the 
reprogramming requests. Every year we get committee reprogramming 
requests from the executive agencies. These reprogramming requests do 
not come to the Senate floor or the House floor. They come to the 
Appropriations Committee or the Armed Services Committee, or both.
  The chairman of the appropriate subcommittee on the Committee on 
Appropriations takes a look at this, along with the ranking member, and 
they both sign a letter giving their approval of the reprogramming. 
This allows the agencies to have flexibility in dealing with matters 
and changing circumstances. And it is utter nonsense--nonsense--to 
force the Congress, and in the first place to force the agencies to 
have to come on bended knees to the Congress to change the law so that 
they can spend the taxpayers' money wisely.
  It all goes to show how utterly insensible this approach is. This 
bill was brought in here on Monday of this week, this substitute. The 
Budget Committee and the Committee on Governmental Affairs, on which 
the distinguished Senator from Georgia sits, studied carefully S. 4 and 
S. 14 and sent those bills to the floor. They were put on the calendar. 
And neither of those bills is before the Senate.
  Mr. NUNN. That is right.
  Mr. BYRD. Neither of those bills is very likely to be voted on by the 
Senate.
  But this hybrid monstrosity has been brought in here on Monday, and 
on the same day that this substitute was offered a cloture motion was 
offered, saying to the Senate we are going to have 
[[Page S4413]] a cloture vote on the following day but one.
  Now, several flaws have already been pointed out. I pointed out the 
flaw, and several other Senators did, too, with respect to the 
presenting clause of the Constitution.
  Here we were, about to pass legislation that would give to the 
enrolling clerk of the originating House the authority and the power to 
break down an appropriations measure after it has passed both Houses in 
the same form, which means the conference report, and break that bill 
down into hundreds--as I pointed out with respect to the energy and 
water bill of 1995, it would be 2,000--around 2,000 small bills, 
``billettes,'' and send those to the White House. The Senate and the 
House would not have passed any one of those bills. Neither the Senate 
nor the House would have passed any one of those little ``billettes,'' 
and they would have been sent down to the White House, and the White 
House would presumably sign them or veto some of them and then they 
would be sent back to the originating body.
  I can just about guarantee the Senator that there will never be an 
override of any of those little bills, never be an override, and some 
of them may be of utmost importance to a region of the country or a few 
of the States or a single State.
  This is the forum of the States. The States are represented in this 
body. It is the only forum in which the States are represented as 
States. And I can just about guarantee the Senator that not one of 
those would ever be overridden because there would not be the national 
interest in one of those that there may be when an entire bill is 
vetoed by the President. And without the national interest, I pity the 
poor little northeastern region of this country that can only muster a 
few votes in the House if the President were, for political reasons--if 
the President for political reasons were to veto some of the little 
``billettes'' that were of vital interest to the northeast region. The 
northeast region, with its few votes in the House, would never be able 
to muster a two-thirds majority of that body to override that bill 
which would be of significance only to a region, or only to a few 
States.
  When I called this measure a monstrosity, I aptly named it. I will 
try to search Webster to see if I can find a more accurate definition 
of the measure. But several flaws such as that have been found.
  Now, the other side is attempting frenetically to fix those flaws 
that have been brought out. Just think, as the distinguished Senator 
from Georgia said last night, if this bill were to be before the Senate 
for a few more days, how many more flaws would be found.
  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. BYRD. Exactly. Exactly.
  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. BYRD. Right.
  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. BYRD. Will the Senator yield?
  Mr. NUNN. I hope that will be corrected.
  Mr. BYRD. In other words, the President may strip out the language 
that imposes a condition and make it a nonconditional appropriation.
  Mr. NUNN. Right.
  Mr. BYRD. Is that correct?
  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. McCAIN. Will the Senator yield?
  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. McCAIN. Will the Senator yield?
  Mr. BYRD. Will the Senator yield?
  Mr. NUNN. I yield to the Senator from West Virginia.
  Mr. BYRD. I do not intend to--this will be my last question.
  Would not the President then be given a tool whereby he could use the 
vetoed bill and formulate policy? He would not be using the veto pen 
necessarily to reduce the deficit.
  Mr. NUNN. Correct.
  Mr. BYRD. He would be using the veto pen to formulate national 
policy. We are giving him that kind of power in this bill.
  Mr. NUNN. The Senator is exactly right. As this bill is now written, 
it gives the President the ability to legislate by deletion.
  Mr. BYRD. Absolutely.
  Mr. NUNN. There is no doubt about it. I will tell you what else it 
gives the President. We passed a supplemental appropriations bill last 
week that had rescissions in it. Some of the President's favorite 
programs were cut. The Technology Reinvestment Program was cut $200 
million, as I recall. Environmental restoration funds were cut. Now 
this proposal is intended to just let him cut spending. That is what 
the authors
 intend. I know that. But it lets him veto rescissions. If we had had 
this in effect last week, the President could have vetoed the deletions 
or the reductions in his own budget and left the increases in.

  Mr. McCAIN. Will the Senator yield for a question?
  Mr. NUNN. I will be glad to yield. I just have brief time remaining, 
and I will yield right at the end of it.
  Mr. McCAIN. I am sorry that the Senator will not yield to me as he 
yielded to the Senator from West Virginia.
  Mr. NUNN. I say to the Senator, I will yield to him when I finish my 
remarks. I will be glad to yield, glad to have a discussion. I know 
there is limited time and I have to complete my remarks.
  As drafted, Mr. President, the substitute provides:

       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 as is set forth in the committee report 
     accompanying such bill.
  The whole thing is tied to the committee report, but there is no 
requirement for a committee report. This is an empty shell unless the 
Appropriations Committee decides they are just going to send a report 
to the President, incorporate it in a bill, have it engrossed, and give 
him a target to either increase or decrease spending, change policy, 
whatever he would like to do.
   [[Page S4414]] I know certain provisions are being worked out to 
change. We are on the floor of the Senate under a time agreement and we 
are now going to make fundamental changes by amendment in a bill that 
is flawed, badly flawed. We are going to, in the last hour, deal with 
questions of war powers; we are going to deal with questions of whether 
rescissions will be deleted. In effect, if they can delete a 
rescission, the President has increased the spending.
  The best indictment against this approach comes from the Republican 
majority on the Governmental Affairs Committee, because they brought 
out bills that deal with rescission. The Domenici bill, now known as 
the Exon-Daschle bill, that is based on rescissions, does not have 
these flaws in it. It does not tie the President's powers to items in 
the committee report. If it is a letter, if it is a statement of 
managers, the President can delete by rescission under the Domenici 
bill. That is the bill we ought to be voting for.
  I know the majority is going to vote against it, but the majority is 
going to regret this.
  Look at what the majority said in Governmental Affairs Committee in 
their report on this bill 10 days ago. And this goes right to the heart 
of the way we are now proceeding under this substitute. This is a quote 
from the majority report of the Governmental Affairs Committee.

       It is possible, although not desirable, to apply the state 
     budgeting system to the Federal Government and give 
     Presidents the kind of line-item veto available to Governors. 
     To maximize item-veto authority for the President, the 
     details in conference reports, agency justification 
     materials, and other nonstatutory sources could be 
     transferred to appropriations bills. . . .

  That is precisely what the substitute does, precisely.

       However, placing an item in appropriations bills would 
     produce an undesirable rigidity to agency operations and 
     legislative procedures.

  That is a quote. Exactly what this bill does.

       If Congress placed items in appropriations bills, agencies 
     would have to implement the bill precisely as defined in the 
     individual items.

  That is exactly what this bill does.
  You talk about tying up the Department of Defense. This bill is going 
to do more damage to the Department of Defense than anything I can 
imagine. They are not going to be able to shift money on lapsed 
contracts or delayed contracts with the permission of Congress to pay 
or to have readiness to make up for critical shortfalls.
  Last fall, the Republicans complained about readiness in the 
campaign. I share some of those concerns. We had a committee this week 
that reported at the request of the Senator from Arizona. Four retired 
generals talked about the problems with the defense budget--not enough 
funding for force structure, not enough funding for modernization.
  Now, what are we going to do? We are going to take all of this 
material, if the Appropriations Committee acts in good faith, and we 
are going to put it into a law. They are going to have no flexibility 
whatsoever unless they come back for statutory changes. We are going to 
have the most bogged down legislative process that I can imagine in the 
history of this Republic. We are going to have statutory changes by the 
hundreds requested on every single defense bill.
  Quoting again from the majority report:

       In cases where the specific amounts detailed in the 
     appropriations statutes proved to be insufficient as the 
     fiscal year progresses, agencies could not spend above the 
     specified level. Doing so would violate the law.

  Exactly what we are doing in this bill.
  I will not quote it because I do not have the time this morning, but 
the House Committee on Government Reform and Oversight, the majority 
Republicans, said the same thing when they brought out their rescission 
bill.
  So we have the absolute, unbelievable paradox where the majority 
reports of the Republicans on the Governmental Affairs Committee, in 
the House and the Senate, have decried the very approach that we are 
now about to vote on and pass. And it has all been done in the last 2 
weeks.
  This is not a Democratic kind of critique. This is a Republican 
critique of the legislation now being presented and supported by the 
majority.
  Continuing to quote the Governmental Affairs majority report:

       Agencies and departments would have to come to Congress and 
     request supplemental funds for some items and rescissions for 
     others, or request a transfer of funds between accounts. 
     Neither the Congress nor the agencies want this inflexibility 
     and added workload for the regular legislative process.

  Mr. President, I will conclude my remarks very briefly. There are at 
least five serious problems with the proposed substitute.
  First, it contains loopholes so large that 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 procedure 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. Some examples I have already given are 
abortion and troop restrictions on Somalia. He can veto those 
paragraphs. Maybe that will be changed, but it is my view that you are 
going to have a hard time changing that without deleting the ability of 
Congress to do away with earmarks, the very target the Senator from 
Arizona has been shooting at.
  Third, this proposal permits the President to increase as well as 
decrease spending by allowing him to sign into law those portions of an 
appropriations bill that increase spending and to veto those portions 
of an appropriations bill that rescind or reduce pending.
  In other words, if a President chose to, under this authority, he 
could take an appropriations bill that had been passed by the Congress 
and he could basically increase the amount in that appropriations bill 
by doing away with or vetoing the rescissions in that bill to reduce 
funding.
  Mr. President, I hope that will be cured. But, again, on something 
this important, to come out here and have to cure these absolutely 
colossal defects in this bill in the last few hours is really a hard 
way for me to visualize responsible legislation occurring.
  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 are giving you congressional 
authority. We are giving you the power of the purse to make decisions 
to increase or decrease. You do whatever you want. We want you to do 
it, because we have proven that we cannot.
  Mr. President, the other thing this bill does not do, it does not go 
after the real problems with our own process--the real problems the 
Senator from Arizona has pointed out, earmarked funds. We could have a 
point of order against that. We could have a point of order against an 
appropriation that comes back from the conference that was not even in 
the House bill or the Senate bill. We could have a point of order on 
that. But none of that is in here.
  We are basically saying, ``We cannot take care of our problems, so we 
are going to give the President a huge additional authority.''
  Well, the result of that is, believe me, within a year, everybody 
will realize what we have done and then we will move away from 
committee reports and we will have statements by managers. And then 
there will not be anything for the President to veto, and we will start 
the process all over again, and we add to the disillusionment of the 
American people. They will finally ask: ``Can't you guys do anything 
right? We thought we were getting rid of spending, but we are not.''
  That is what is going to happen if this goes into law. If this goes 
into law--and the President says he is going to sign whatever we send 
down there. That ought to frighten a few people. That ought to make us 
think.
  It is a great pleasure to be able to vote for darn near anything, 
knowing the President will veto it and you can make your speeches and 
it is not going to go into law and you do not have to suffer the 
consequences and the country does not. It is another thing entirely 
when the President says he is going to sign it. He is going to sign 
what we send down there on this. And I suppose any President would 
because, 
[[Page S4415]]  at least on paper, if it is abided by in good faith, we 
are going to give him the largest new hunk of Presidential power that 
we have given any President in many, many, many years.
  And then, what we will do, because there are loopholes here, we will 
take it away by moving the pork out of the reports and moving it into 
speeches on the floor or statements on the floor, and we will be right 
back where we are with disillusionment.
  Mr. President, I yield the floor.
  Mr. COATS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. McCAIN. Can I ask the Senator from Indiana a question? How many 
years has he been on the Senate Armed Services Committee?
  Mr. COATS. Six years.
  Mr. McCAIN. Has he ever seen a reprogramming request?
  Mr. COATS. I have not.
  Mr. McCAIN. According to the distinguished ranking leader, who served 
for many years as the chairman, that sometimes entails billions of 
dollars; is that correct?
  Mr. COATS. It appears that it does. In fact there is----
  Mr. McCAIN. Although we never have seen them. So if you were the 
chairman of a committee and ranking member and you were the only one 
who made a decision on reprogramming, you would be very concerned if 
something like this--billions of dollars in transfers of funds--was 
under just your almost direct supervision, would you not?
  Mr. COATS. I think the whole purpose of this exercise----
  Mr. McCAIN. By the way, I am sorry I did not have a chance to ask the 
Senator from Georgia, has there ever been a reprogramming request from 
the Pentagon that says, ``We can't spend this money, so we would like 
to give it back to the taxpayers''?
  Mr. COATS. Mr. President, I ask unanimous consent that I yield to the 
Senator from Arizona so he may ask questions of the Senator from 
Georgia and he may respond without having to go through this convoluted 
procedure. In fact, I yield the floor so the Senator from Arizona can 
take the floor to ask questions.
  Mr. McCAIN. I appreciate the indulgence of the Senator from Georgia, 
who has obviously for many years been the person who decided whether 
billions would be transferred from one account to the other without 
consultation certainly with these two Senators.
  Mr. NUNN. Will the----
  Mr. McCAIN. Let me finish; I will ask the question. Has the former 
chairman ever, the distinguished ranking minority of the Senate Armed 
Services Committee, ever seen a reprogramming request that said, ``We 
can't spend this money. We'd like to give it back to the taxpayers''?
  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. McCAIN. By the chairman and ranking member.
  Mr. NUNN. And staff----
  Mr. McCAIN. Neither the Senator from Indiana nor I were ever 
consulted on any of these reprogramming requests, him 6 years and me 8 
years as members of the committee.
  Mr. NUNN. Will the Senator yield for me to respond?
  Mr. McCAIN. Yes.
  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. McCAIN. It certainly is alarming that that kind of responsibility 
would be placed on staff who are not elected by anybody.
  Mr. NUNN. This is----
  Mr. McCAIN. And the kind of a system where it is up to one or two 
members, the chairman and the ranking member, whether they want to 
notify them or not. I have never seen any formal procedure or rule in 
the committee that says that. In fact, in other committees, it is 
commonplace that a phone call be sufficient to approve a reprogramming.
  Mr. NUNN. That is not the way we do it.
  Mr. McCAIN. If the Senator will consider answering the question, if 
he has ever seen a reprogramming request from the Pentagon that said, 
``We would like to not spend this money and send it back to the 
taxpayers who sent us the money.''
  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. McCAIN. I am sorry the Senator does not choose to answer my 
question. My question is, if I may restate the question because, 
obviously, he did not understand it or does not choose to answer it: 
Did the Pentagon ever request a reprogramming and say, ``We can't spend 
this money in the Pentagon. We want it to go back to the taxpayers''? 
That is my question.
  If the Senator does not choose to answer that, that is fine. But I 
hope I made myself clear as to what my question is.
  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. McCAIN. I regret the Senator from Georgia will not answer the 
question. He is entitled not to answer the question. I will repeat it 
one more time, but it is obvious--I will not waste the time of the 
Senate, because he is not going to answer the question. I also want to 
say----
  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. McCAIN. Speaking of comprehension, I say again, has the Senator 
from Georgia ever heard of a reprogramming request where the Pentagon 
said, ``We can't spend this money. We'd like to give it back to the 
taxpayers''?
  Mr. NUNN. The answer is no, because the Department of Defense has 
been underfunded.
  Mr. McCAIN. Thank you for answering that question. I also regret the 
fact that the Senator from Georgia alleges that neither the Senator 
from Indiana nor I understand what we are doing here. The Senator from 
Indiana and I, for 8 years, have been involved in this issue. We know 
it very well. It has been before the Senate many times, including 1985.
  I did not accuse the Senator from Georgia of not understanding an 
issue when we had different positions. I did not accuse the Senator 
from Georgia of 
[[Page S4416]]  not understanding the situation in the Persian Gulf 
when he opposed our military involvement there.
  The question is not whether we understand it, it is whether we have a 
legitimate difference of opinion here, and that is what it is all 
about.
  I think that the Senator from South Dakota raised some legitimate 
concerns. The Senator from West Virginia did. But to allege that the 
Senator from Indiana and I do not understand what we are doing, I think 
does not elevate the debate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, some of the logic and reasoning of those 
who are opposing the line-item veto measure offered by the Senator from 
Arizona and the Senator from Indiana is curious. On the one hand, they 
say that the bill is flawed and that if Republicans would simply reach 
out and attempt to correct what they perceive to be the flaws, we will 
have a better bill.
  They come to the floor and say, we need a line-item veto, we need to 
have a process in place whereby the executive branch has the option or 
the ability to check the excess spending habits of Congress that design 
spending or tax breaks that do not serve a broad purpose, and that they 
support that effort, but that some of the provisions of the bill, which 
the Senator from Arizona and the Senator from Indiana have offered, 
need to be modified.
  When the points they make are legitimate points, because we never 
claimed that our bill was perfect, as no one really claims their bill 
is perfect--that is why we have an amendment process, that is why we 
have a debate process--and when a Senator from the other side who 
happens to want to support it but simply wants to strengthen the bill 
points out a particular provision that is not designed or drafted as 
accurately as they think it should be suggests that and we agree with 
them that it addresses a problem in a more accurate way, then they turn 
around and say, ``See, that is proof that the bill is flawed.''
  Well, what are we to do? On the one hand, they criticize us because 
the bill, they say, is flawed and needs to be improved. On the other 
hand, when we say, ``OK, we'll accept that improvement, that's a 
legitimate improvement,'' they say, ``See, there's proof that it is 
flawed; therefore, we can't vote for that.'' That is circular reasoning 
and circular logic that this Senator finds hard to understand.
  One of the points that the Senator from Georgia has made is that as 
the bill is currently constructed and is currently presented, policy 
decisions would be subject to a Presidential veto and, therefore, it 
would require a two-thirds override. But that issue has been debated 
and discussed at length. An amendment has been offered by the Senator 
from Michigan, Senator Levin, to clarify that that will not happen. It 
has been cosponsored by a Republican Senator, the Senator from Alaska, 
Senator Murkowski. It has been accepted by the managers of the bill on 
both sides.
 It has been accepted by Republicans, and it is designed to clarify a 
provision in the original language that there is some ambiguity on, or 
at least some are concerned about some ambiguity. It was never the 
intent of the separate enrollment legislation to separate legislative 
language, to have legislative language vetoed by the President. Those 
were the dollars that are attached to it. That was debated at length. 
The Levin-Murkowski amendment, which is going to be accepted on both 
sides, clarifies any question in that regard. Yet, we find ourselves 
being criticized for a legislation which we have agreed to improve and 
accept the amendment of the very Senators who have raised the question 
of criticism.

  So I do not understand how our opponents on this issue want us to 
proceed. Do they want us to work with them or not? Do they want us to 
improve the bill or not? Do they want us to clarify ambiguities or not? 
If they do--and it appears that most do--then others should not come to 
the floor and say, see, that points out that the bill is flawed. The 
Murkowski-Levin amendment protects all legislative language from being 
separately enrolled and vetoed. The policy language is protected. That 
is the intent and that is the result of the amendment which has been 
agreed to and will be accepted as soon as, procedurally, we can get to 
that point.
  The Senator from Georgia also points out that if we go with the 
separate enrollment process, it will require an inflexibility in terms 
of various agencies being able to reprogram funds and, therefore, it 
will hideously confuse the legislative process. All it will do is 
change the way in which funds are able to be reprogrammed. Instead of 
the current practice of a phone call or a letter to a committee 
chairman and/or the ranking member, instead of a process which involves 
two, and at most four Senators out of 100, we will have a process which 
will involve all 100 Senators.
  We spend a great deal of time crafting an authorization for the use 
of funds, and we spend a great deal of time appropriating funds for 
that authorization. We spend a great deal of time debating those 
decisions on this Senate floor. Clearly, situations and circumstances 
change. So that it is appropriate for agencies to come forward and say 
that circumstances have changed, spending was greater in this area than 
we anticipated 6 months ago when this was negotiated, or spending is 
less in that area, and we would like to shift some funds from one area 
to the other. But what will have to take place now is that that request 
will have to be made available to all 100 Senators. I think that is 
appropriate.
  If the reprogramming request was always made on an objective basis, 
always made for legitimate purposes, I think there might be some 
validity to the arguments presented here this morning. But I think we 
all know that they are not always made that way, that little side deals 
are concocted and, yes, phone calls are made; but phone calls are made 
after hours, and special requests are made from certain Members to 
other Members for--Heaven forbid--political purposes, and not 
necessarily for legitimate new expenditures or shifted expenditures, 
but made for political purposes.
  Mr. McCAIN. Will the Senator yield?
  Mr. COATS. I yield to the Senator from Arizona.
  Mr. McCAIN. I ask my friend, is not the issue here programming and 
not reprogramming? The fact is that this may be a straw man. We are 
talking about whether we are going to eliminate the waste, and if we 
want to use the word ``pork-barrel'' spending and put some fiscal 
discipline in the process. Is that not really what we are talking about 
here? And the reprogramming issue is something that could be solved 
through simple changes in the rules or even in how we do business.
  I agree with the Senator from Indiana that there are abuses in the 
reprogramming process. That is not really the fundamental issue, and I 
do not think we should be spun off into that relatively unimportant 
side issue as compared with the larger argument here. And the reason 
why I think both you and I are somewhat agitated is, for somebody to 
say that this is a joke, that this is not thought through, that we do 
not know what we are doing--I have never accused any opponent on this 
floor of not being serious about an issue, nor have I said that a 
proposal of theirs was a joke, nor did I accuse them of not thinking 
through a particular amendment when they had it on the floor.
  I give them credit for having done their homework and doing what they 
think is for the good of their State. I think it demeans the debate for 
anyone, either on this side of the issue or that side of the issue, to 
say somebody has not thought through an issue, and to say somebody is 
not serious about it, and to say that what we have been working on for 
6 or 8 years is a joke. I think it is wrong and it does not do anything 
for the debate. I would be glad to and have continued to, since last 
Thursday--and many years before--debate this issue on its merits, 
rather than demeaning the motivation or the knowledge or the experience 
or the talent of those who support it, as I have not those who are 
opposed to it are.
  I ask the Senator from Indiana if he agrees that that might be a good 
idea for us to elevate this debate back to where it has been, frankly, 
up until just a short time ago.
   [[Page S4417]] Mr. COATS. I thank the Senator from Arizona for his 
comments. For Members to suggest that this is some surprise that is 
being sprung on Members of Congress, I simply ask, where have they been 
for the last decade? This issue has been debated, the merits of this 
issue have been debated at length on the floor. The Senator from 
Arizona and the Senator from Indiana have offered time after time 
various proposals to deal with the fundamental underlying issue.
  As the Senator from Arizona has said, the fundamental underlying 
issue is the ability of Congress, under current law and current 
procedures, to spend the taxpayers' dollars either in appropriated 
expenditures or in tax benefits, in a way that serves no national 
purpose, in a way that is not made available to Members to debate and 
discuss and to cast their yeas or nays on that particular item. It is 
an egregious practice that has cost the Treasury and the taxpayers tens 
of billions, if not hundreds of billions of dollars. It is, as former 
President Harry Truman said, ``legislative blackmail.''
  We all know how the process works, so we can argue some of the fine 
details about the current practice and what a wonderful practice it is, 
and we can even talk about reprogramming. But this Congress would 
easily adapt to and accept the requests of various agencies, if they 
were legitimate requests. There is nothing to prevent committees from 
routinely reporting out reprogramming bills en bloc by voice vote at 
the end of a markup and bringing it to the Senate. There is nothing to 
prevent routine reprogramming requests from being placed on the 
calendar and passing by voice vote.
  But if a reprogramming request is controversial, if a Member of the 
Senate or a Member of the House wants to say, ``Wait a minute, what do 
you mean you are shifting that money from this account to that account? 
What do you mean there is a problem with spending on the C-17,'' maybe 
we ought to look into that. Why is there a problem? Do we want to 
routinely, on the advice of four Senators, simply say, well, that is 
OK; this program needs more money; let us shift it from this account to 
another account? Should Members of the Senate have the right to say, 
``May I ask some questions about that? Can we debate that on the floor? 
Can we have some light shed on the reasons this reprogramming is 
requested?'' That is all we are seeking to accomplish with this 
procedure.
  Again, this whole issue comes down to status quo versus change. Is 
there a better way to do business? Or do we want to do business the old 
way? Well, if business done the old way had been satisfactory, if it 
had not been done in a way which demeans the credibility of individual 
Senators and demeans the credibility of this institution, we ought to 
stay with it. Unfortunately, it has. It is an egregious practice that 
has been abused by Members of the Senate and abused by Members of the 
House. And, as I said before, we are not here to point fingers. We have 
all taken advantage of this process.
  It is not to our credit that we have done so. It is a time-honored--I 
now call a ``time dishonored''--practice of trying to slip some goodies 
in for the folks back home, or for one individual, or a tax break for 
one person, or one special interest.
  Members have spoken eloquently about that practice. We read about it 
in the news, hear about it on the news. It happens all the time. It is 
wrong. It ought to stop. We are trying to provide a tool and basis to 
allow it to stop.
  For goodness sake, the sky is not going to fall on Federal spending 
if we make it a little harder to reprogram something, if, instead of 
just a letter that comes over or a phone call between an agency and a 
couple Members of Congress, if we say it will be a little bit tougher 
to make that decision, Congress is going to have to look at it a little 
bit longer, Members are going to have the right to raise a few 
questions and say, ``Is this a legitimate transfer?"
  I think it is unfortunate that the C-17--or maybe it is fortunate--
the C-17 is a program that has been in serious trouble from the 
beginning. I am not saying we should not have it. I support it. I think 
we all have the right to raise questions about whether or not money 
shifted from one account to bail out a problem with the C-17 is a 
legitimate shift of money.
  There are ways in which Congress can deal with routine, legitimate 
reprogramming requests without tying this place in knots. For goodness 
sakes, we are legislators. There are legislators here who know more 
about how to expedite and loophole things--they have forgotten more--
than this Senator can possibly learn.
  My concern is not that this process is going to hamstring the 
process. My concern is that people in back rooms right now are trying 
to find end runs around what we are trying to do.
  Let Members at least do something. Let Members at least make it 
tougher to spend the taxpayers' dollars. Let Members give the public a 
better opportunity to look at the way we spend. Let Members at least 
put our ``yes'' or ``no'' on record so that the taxpayers and our 
constituents can hold us accountable. Let Members end this practice of 
saying, ``I could not figure out what was in the bill because it was 
2,000 pages long and that stuff was buried or slipped in in 
conference.'' Let Members make it tougher to spend money, because we 
have been irresponsible in the way we have spent money around here.
  Mr. President, I see there are other speakers on the floor. Let me 
inquire of the time allocation.
  The PRESIDING OFFICER (Mr. Inhofe). The Senator from Indiana has 
36\1/2\ minutes remaining; the minority leader has 30\1/2\ minutes 
remaining.
  Mr. COATS. Mr. President, I yield the floor.
  Mr. DASCHLE. Mr. President, I will use my leader time to make 
comments on the Democratic substitute and reserve the balance of the 
time allotted to the substitute to the distinguished ranking member, 
the manager of our bill on our side, the Senator from Nebraska.
  Mr. President, the Senator from Georgia raised a number of very 
helpful points. He makes a powerful case for the substitute that 
Democrats have proposed. The Senator from Indiana has understandably 
responded as best he could to many of these questions. The fact remains 
that there are serious concerns about the proposal, as well-intended as 
it might be, that the Republicans have offered.
  The Senator from Georgia did a real service, I think, in pointing out 
so well what the Governmental Affairs Committee and the Budget 
Committee have said about these proposals. Republicans in the Senate 
have expressed in writing fundamental concerns about what the proposal 
now put forth by Senator McCain and Senator Coats.
  Senator Nunn has clearly recognized what others have recognized--that 
this proposal is flawed. As everyone probably now appreciates, it has a 
sunset of the year 2000. I predict this morning that this bill will not 
last until the year 2000, if it were to pass into law. I make that 
prediction. I will predict we will be back here at some point before 
the year 2000 to vote on a bill very similar, if not identical, to the 
one that we are now proposing, the so-called Domenici-Exon bill.
  I say so in large measure because I think many people recognize that 
in spite of the fact that the other side has come a long way on a 
number of concerns that we have expressed over the course of this 
debate, very serious difficulty problems remain. First, there are 
loopholes in the amendment,--there is no requirement that a conference 
report contain a line-item level of detail. We can get around the line 
item almost entirely by putting the details in floor statements or 
letters to agency heads. We do not have to put it in detail. That is 
one loophole.
  The alternative to that problem is to create so many separate bills, 
representing so many thousands of line items, that it will make the 
operation of every agency excessively rigid. If each item becomes 
separate law, the rigidity of that process becomes so cumbersome people 
will say it just is not going to work and the whole system will break 
down.
  A third problem is that the President can actually increase spending 
under the Dole substitute by vetoing line items that actually represent 
rescissions or general reductions. I know that the distinguished 
Senator from Michigan, Senator Levin, is hoping to address that concern 
later on. Perhaps we can work something out.
   [[Page S4418]] Mr. President, these are very serious concerns. I 
hope that, as we have with many of the other concerns raised throughout 
the course of the last several days, we can address those prior to the 
time we vote on final passage, assuming the substitute is not passed. I 
am hopeful it will be passed. I will address my reasons for that hope 
in just a moment.
  Let me also address some of the concerns that have, in our view, been 
addressed at least in part. Our conclusion was that the original tax 
legislation in the McCain bill that was originally proposed did not go 
far enough. The other side has come a long way in meeting some of our 
concerns in adopting a broad provision allowing the President to veto 
special-interest tax breaks. I read a colloquy into the floor last 
night between the Senator from Indiana and the Senator from New Jersey 
[Mr. Bradley] about the intention of the Senator from Indiana to 
broaden the scope to include the issues that were raised on many 
occasions on this floor by the Senator from New Jersey.
  Our amendment is clear and more forceful in that regard. We will talk 
about that. The fact is that at least the Republicans have begun to 
accept the realization that we do not have a true, broad scope in our 
line-item authority unless we have tax breaks on the table as well.
  In addition, an amendment by the ranking member of the Budget 
Committee has been adopted that directs all savings from the line-item 
veto to deficit reduction. A similar provision was in the Domenici-Exon 
bill but left out of the Dole substitute. Now, it is back in. We are 
pleased with that. Without this amendment, savings from the line-item 
veto could be used to pay for other Government spending. One pork-
barrel project could be cut to pay for another. That will not happen 
now as a result of the legislation offered by the Senator from 
Nebraska. This was a truth-in-advertising amendment. If we promise 
deficit reduction, we have to deliver it. It ensures that savings from 
vetoes of entitlements and tax breaks go to reducing the deficit as 
well. So that, too, was an improvement.
  Then, of course, I am pleased that the amendment by the Senator from 
Wisconsin was adopted to create a budget point of order against any 
nonemergency spending included in an emergency supplemental 
propositions bill. This will ensure that supplementals are truly used 
for emergencies and are not vehicles for extraneous projects, as we 
have seen in our recent defense supplemental.
  There are improvements in the legislation since Monday. We can be 
grateful for that. The real improvement, the real opportunity to make 
substantive progress is to go back to where we started, to go back to 
what the real experts on this issue have proposed for many, many years. 
Senator Domenici, the chairman of the Budget Committee, and Senator 
Exon, the ranking member, have worked on this issue, as has Senator 
Coats, for a long time. Senator Domenici and Senator Exon have looked 
at all the alternatives and concluded some time ago that the most 
practical approach, the most logical way with which to address this 
issue is to suggest a line-item rescission.
  Forty-three States, including South Dakota, already have a line-item 
veto. It is time for the Federal Government to adopt one as well.
  That bill not only had practicality, and it was most likely to be 
upheld constitutionally, but it also included the broadest base of a 
Democratic and Republican consensus--broad bipartisan consensus that 
this was the approach that could actually work.
  I have supported a line-item veto. I supported this concept. I 
cosponsored it, as did the majority leader. Many others who have 
cosponsored this legislation this morning or this afternoon will now 
have an opportunity to vote on a bill that they cosponsored. They 
clearly saw the wisdom in using this approach or they would not have 
cosponsored it.
  The President has been very helpful in advocating a line-item veto, 
and has been helpful in moving this process forward.
  When the chairman and the ranking member proposed S. 14, obviously 
they felt, and they had good reason to feel, that based upon broad 
bipartisan consensus, based upon constitutionality, based upon 
practicality, that we really had a bill that we have the confidence 
could be passed. In fact, every single Republican who voted supported 
this legislation in a bill that was offered last year--by a vote of 342 
to 69. That was the vote. Mr. President, 169 Republican Members of the 
House supported a bill nearly identical to the substitute that we are 
offering right now. So we have every expectation that this bill has 
enjoyed support on a broad, bipartisan basis in the past and there 
ought to be no reason why we could not ensure that the same level of 
bipartisan support could be found again as we vote later on this 
afternoon.
  That is really what we have all said we want. We want a line-item 
veto. We want one that is practical. We would like one to see broad 
bipartisan support when it passes. This substitute offers all of that 
and more. Basically, there is no secret, no mystery to how this works. 
I talked about this a little bit last night, but let me make sure 
everybody understands how simple the process is. That is really one of 
the advantages to our approach, it is so simple. It gives the President 
the authority to force Congress to vote on spending and tax provisions 
that he considers wasteful. That is all it does. And it sets a 
timeframe within which that must happen.
  We all know the situation now. We all recognize that we can ignore 
line items as they are rescinded now. There is no requirement that 
Congress needs to respond. But our amendment takes care of that. Our 
amendment says, within a designated period of time, 20 days, the 
President notify Congress after passage of a spending or a tax bill of 
the things he wants to see cut. That is all he has--20 days. Then 2 
days later a bill with the President's proposal has to be introduced 
and within 10 days after that, the Congress has to vote. That is it.
  In 1 month's time it is all over; 20 days the President has to notify 
Congress. Two days later a bill is introduced. And 10 days later it is 
over. During that 10-day period during which Congress takes it up, we 
have 10 hours to deal with this issue and be done with it.
  Mr. President, it is very clear. Our legislation is as simple as 
simple can be. It is constitutional. It is a process that would work 
exceedingly well. We know it will work here.
  I believe our amendment has at least four advantages over the pending 
Republican substitute. Clearly it is more workable; clearly it is more 
constitutional; clearly it protects majority rule; and, finally, it 
leaves no question that tax breaks are on the table. It ensures that 
tax breaks will be subject to review just like any other form of 
spending.
  There is no question about the simplicity argument. The 
Appropriations Committee has estimated that 13 appropriations bills 
enacted in fiscal year 1995, sent down now for 13 signatures, will 
require 10,000 separate minibills under the Dole amendment. So we are 
going to go from 13 bills to 10,000 bills in just the appropriations 
process alone. That is what we are talking about. Coming on the heels 
of the Paperwork Reduction Act, this legislation goes in exactly the 
opposite direction. That is, the Republican substitute belies all of 
our public outcry about paperwork and the concerns we have raised time 
and again about how we want to reduce paperwork, reduce the level of 
redtape, whether it is in passing bills or the effect the bills have on 
people afterward.
  A good example, of course, is the one I have raised before. This is a 
17-page appropriations bill, the Energy and Water Appropriations Act of 
last year. It is a bill that has 17 pages. That is all it has, 17 pages 
of line by line appropriations. This is a simple little document that 
for 200 years we have sent down to the President for signature and that 
is it. He signs it, he vetoes it, it is over.
  Mr. President, this is 1,746 pages. This is what we are going to 
change it to if the Dole substitute passes. We are going to go from 
that 17-page bill to this. And the whole story is that when the 
President gets it, page by page, one after another, he has to get his 
pen out. He will probably have to get hundreds of pens out. But he is 
going to have to sign every one of these.
  Of course the distinguished President pro tempore, our dear friend, 
Senator Strom Thurmond, will have to sign 
[[Page S4419]]  this. The Speaker of the House will have to sign it as 
well. It takes three signatures, and this is what we are going to be 
signing: one page after another--1,746 pages. Do we really want that? 
Is that really paperwork reduction? Is that simplicity? Is that the 
kind of practical kind of legislating we all espouse? I do not think 
so. I really do not think we want to go to 1,746 separate signatures 
every time we pass a simple appropriations bill.
  We have a choice of passing a small bill or a large stack of paper. 
That is our choice. And that is just one bill.
  We have also, of course, indicated our concern about the 
constitutionality of the Dole substitute. The last time this issue came 
up in committee, the Rules Committee in 1985 voted out a similar 
proposal unfavorably by a unanimous vote. The separate enrollment 
proposal was considered then, and voted out unfavorably, with the 
recommendation that it should not pass, by a unanimous vote, under a 
Republican Rules Committee chaired by a Republican. The 
constitutionality was raised again and again. The view then was what we 
were proposing here was not only impractical but unconstitutional.
  As I said, we are going to address that issue of constitutionality 
with the expedited judicial review and I am hopeful that at some point 
in the not too distant future the courts will determine for us the 
constitutional viability of this approach. As others, especially the 
distinguished Senator from West Virginia, have indicated, it is going 
to take more than legislative clarification for us to resolve the 
constitutionality questions. I am hopeful the concerns raised by the 
junior Senator from Michigan in his proposed amendment will address 
some of these concerns as well.
  But the fact is that, in spite of as much legislative clarification 
as we can make, we are still rolling the dice when it comes to 
constitutionality. No one can say unequivocally that what we are now 
proposing will pass constitutional muster; that we have overcome all of 
the constitutional hurdles that have been raised over and over again in 
spite of the changes we have made. As I predicted, this bill will not 
survive until it sunsets. We will not have to wait until the year 2000 
to review this again because whether it is the courts or whether it is 
the Congress, somebody is going to come back and say: We made a 
mistake. It may take that. But ultimately we are going to come back 
here and address it and I am sure at some point that will happen. And 
certainly the constitutionality question is one of the biggest reasons 
why I think it could happen, sooner or later.
  Mr. President, the third issue has to do with majority rule. Our 
substitute protects majority rule. Our substitute ensures a central 
tenent of democracy will be here even after this legislation passes. 
Our amendment requires a majority of Congress to approve cuts that are 
proposed by the President, and that majority rule has been something we 
have supported for 200 years. Under the Dole alternative, the President 
wins, if he gets the support of just one more than a third of either 
House of Congress. Either House of Congress can uphold a Presidential 
decision. If that does not create policymaking potential, if that does 
not shift the balance of power towards the White House, I do not know 
what does. In my 16 years in Congress, I have never seen a greater 
opportunity for the President to become a legislator than this will 
provide him in the future.
  So I am very hopeful that, as we consider the question of 
Presidential power, the balance between the legislative and the 
executive branches, that we recognize the magnitude of the opportunity 
the President will have to set policy for the first time as a result of 
his ability to line item any one of thousands of specific provisions 
that may ultimately not only affect spending but affect policy as well.
  The fourth issue, as I said, affects tax break language. I indicated 
that the constitutionality question is unclear. The tax language is 
even more unclear. The tax language, in spite of the best efforts 
through colloquies and through changes in the legislation itself to 
make the tax language clear, is still ambiguous. We still are not sure 
what ``similarly situated'' is. I hope that we are not creating a 
provision that would allow us to pass special tax breaks for very small 
groups of people because they are ``similarly situated.''
  I know no one here would support a tax break that only went to 
Members of Congress or to members of our staff. But under the language, 
that is a possibility. Under the language, ``similarly situated'' could 
actually mean that we are allowing tax breaks that would affect a group 
as small as the Members of this body or our staffs to not be subject to 
Presidential review.
  Through the colloquy and assurances given to us by others, that is 
becoming less of a threat, I hope. I think we can now be somewhat 
confident that indeed it is the view of our colleagues on the 
Republican side that they want broad language here, that they 
anticipate having the ability or giving the opportunity to the 
President to review items that are broad in their scope. But it is a 
roll of the dice. We are not sure what they mean. The language is 
vague. The language in my view is convoluted. We can do better than 
that. The way we do it better than that is to pass the Democratic 
substitute.
  Our language is very clear and very direct. It puts special interest 
tax breaks on the table, period. It is over. We can be very clear, if 
the Democratic substitute passes, that every special interest tax 
provision is going to be subject to a line-item veto. Every 
appropriations bill will be subject to line-item veto. There is no 
question there. So we will not have to roll the dice when it comes to 
the interpretation of tax language or constitutionality on any of 
those.
  So, Mr. President, I do not think there is any question, I do not 
think there is any doubt, that the Democratic substitute is the 
superior alternative. I do not think Senator Domenici and Senator Dole 
would have sponsored this legislation had they not had confidence that 
this is a very workable, simple, practical, constitutional solution. 
They would not have put their names on a bill if they did not feel that 
good about it. It is workable. It is constitutional. It projects 
majority rule. It clearly puts tax breaks on the table. It has solved 
the problem that we have raised now for days on this side of the aisle. 
It clarifies our situation while protecting our rights.
  So it is that simple. We have an opportunity to vote on something 
that has history, to vote on something that has been carefully 
considered by two of our committees, the Governmental Affairs Committee 
and the Budget Committee. It has a history on both sides of the aisle, 
with our most esteemed leadership on both sides of the aisle. So 
without any doubt, with real expertise, our leaders on this issue have 
come forth and produced a document that I feel enthusiastic about, that 
I know will work, that I know will found to be constitutional.
  So I hope that as we consider our vote, and our colleagues will come 
back to their original positions on this issue, come back to their 
original interpretation that indeed this does work well, and support 
the Democratic substitute.
  I yield the floor.
  Mr. CONRAD addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. COATS. Mr. President, may I ask the clerk how much time remains?
  The PRESIDING OFFICER. The Senator from Indiana has 36\1/2\ minutes, 
and the Senator from Nebraska has 19\1/2\ minutes.
  Mr. COATS. Mr. President, I yield 5 minutes to the Senator from 
Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Thank you, Mr. President. I appreciate the Senator from 
Indiana yielding.
  To review the bidding here on this substitute, naturally I support 
the Dole-McCain-Coats line-item veto because I think it represents a 
better approach, the approach that the American people understand.
  In the first place, in civics class in the eighth grade, we all 
learned that a veto requires a two-thirds override. That is what veto 
is all about. That is what this provision has, unlike the version 
offered by the distinguished minority leader, which would only require 
a 50-percent override. That is not what we think of when we think of a 
veto. So that is the first important distinction.
  Second, with respect to tax breaks, it has never been the concept, in 
lining 
[[Page S4420]]  out pork-barrel spending through the line-item veto, 
that we would add tax breaks to the line-item veto legislation. But in 
order to accommodate some of our friends on the other side, we did say 
that if there is an omnibus tax bill, and somebody decides to slip in a 
tax break for their friend back home, the President could strike that 
out just as he would an item of spending, of pork-barrel spending, 
because a tax break for a very limited group or individual would be 
similar to pork-barrel spending.
  So that is included in the Republican version of the line-item veto.
  But what we do not think is appropriate is to put more than necessary 
roadblocks in the way of reducing taxes for all Americans, as the 
Democratic approach would do. If we are going to give Americans a $500 
child tax credit, or if we are going to provide a capital gains tax 
relief, or reduce the marginal rates, we think that is a matter that we 
ought to be promoting and not putting roadblocks in the way. The truth 
is that in most of these major tax changes, it is a regular bill that 
comes out of the House and Senate. It is subject to Presidential veto, 
anyway. So the President can veto it. It would require a two-thirds 
override by the Members of the House and Senate.
  So really, this argument, I think is a straw man. On most tax 
legislation, there will be the two-thirds override, anyway. On that 
which does not require that, we should not be throwing up more 
roadblocks in the way of tax breaks for the American people except for 
those that represent special interests which are taken care of.
  In some respects, it seems to me that the Democrats are not willing 
to take yes for an answer. They wanted the issue of the tax breaks 
included. We did it. They wanted the so-called ``lock box'' so that any 
savings will be applied to deficit reduction. We did that. They want to 
ensure that the President could not veto rescissions. We are going to 
be doing that.
  In other words, most of the primary concerns that were raised about 
the Republican version of the line-item veto have been agreed to. We 
are taking care of those. Let us take yes for an answer. We are willing 
to make this a bipartisan and better bill.
  Of the issues remaining, some are I think matters of legitimate 
dispute. The issue of reprogramming that the Senator from Georgia 
mentioned I think represents a potential problem. It may be somewhat 
cumbersome. We will have to see whether Members of the House and the 
Senate are willing to deal with each other in a matter of comity and in 
a matter of expedition in getting these rescissions through. But there 
is nothing wrong with having all Members of this body consider them as 
opposed to just a few on the committee. So I think that is something we 
will have to see how it works. But it should not be a big problem.
  There is the possibility that committees will not provide the 
specificity that is called for in the legislation. What this argument 
assumes is that Members of the House and Senate, in effect, will cheat; 
that we will decide to get around the line-item veto by not putting in 
the specific line items, thus for the President to veto if he does not 
like them.
  It is possible that we could try to conjure up ways of getting around 
this. That is what happened with the balanced budget proposals. That is 
what happened with Gramm-Rudman, and with other kinds of legislation.
  I suspect, however, that good faith will prevail and that the 
majority, which in fact favors the line-item veto and favors it 
working, will ensure that as this legislation does work over the next 5 
years, it will be handled in such a way and will operate in such a way 
that the President will be given the ability to line out specific items 
as is the intention under the legislation.
  Of course, with respect to the argument that there is a difference 
between the majority position here of a two-thirds override and the 
minority view that there should only be a 50 percent override, that 
there is a great deal of power being given to the President, that is a 
legitimate argument. Reasonable people can differ about this. That is 
why the sunset provision is in the legislation. This legislation does 
not automatically continue forever. After 5 years, it is over, and it 
will not be reinstituted unless we decide it was a good idea and we 
pass it again.
  That is where this issue can be evaluated. And if Presidents have 
abused their authority, I am sure you will not see the Senate passing 
this kind of legislation again. But if Presidents have done what they 
should, if they have acted responsibly, then I suspect we will be 
reinstituting this legislation. That is what sunset is all about. We 
will have an opportunity to look at it.
  So the bottom line, Mr. President, is really whether we want to 
continue to conduct business as usual or not. The American people 
obviously do not want us to do that. They want us to change the way 
Congress conducts its business and the business that it conducts. The 
line-item veto is a significant improvement in the way the Congress 
conducts its business.
  Mr. CONRAD addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I ask the Senator from Nebraska to yield 
me 5 minutes.
  Mr. EXON. I yield 5 minutes to the Senator from North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I would ask the Senator from Indiana if he 
could answer some questions that I have.
  Mr. COATS. The Senator from Indiana will be happy to try, depending 
on the complexity of the questions.
  Mr. CONRAD. Well, the thrust of my questions goes to the issue of 
whether or not, with the Dole substitute, the President would be able 
to veto any existing entitlement spending.
  Mr. COATS. The answer to that is no.
  Mr. CONRAD. The answer to that is no?
  Mr. COATS. No. It only applies to new spending.
  Mr. CONRAD. Well, I am interested in that response because I really 
question whether it is right. I have here the Senate committee report 
on last year's VA/HUD appropriations bill. Included in this bill was 
budget authority and outlays for veterans' pensions and compensation. 
This indicates that the Senate bill contains $17.6 billion for 
veterans' compensation and pensions. This is mandatory spending which 
nonetheless gets included in the VA/HUD spending totals every year. My 
specific question would be, would the spending authority for veterans' 
pensions and compensation be enrolled separately and subject to 
Presidential veto under the Dole substitute separate enrollment bill?
  Mr. COATS. The answer to that--if the Senator will yield, Mr. 
President, the answer to that is no, unless it is new spending or a 
change in the benefit, it would not be subject to the line-item veto.
  Mr. CONRAD. Well, the difficulty I have with that answer is, I say to 
my colleague, these are appropriated entitlements. These are 
entitlements that are in appropriations bills, and the Dole substitute 
provides for the separate enrollment of all appropriated measures, does 
it not?
  Mr. COATS. It does provide for the separate enrollment of all 
appropriated measures. But the application of the bill, application of 
the veto, the power given to the President only goes to the new 
spending or expansion of benefits available under the entitlement 
program.
  Mr. CONRAD. So the answer as I hear it is that, even though these 
appropriated entitlement accounts are in appropriations bills, 
specifically included in appropriations, all existing entitlement 
spending would not be subject to Presidential veto?
  Mr. COATS. The mandatory spending must go out under the law as it is 
currently written--mandatory spending. Only new spending is subject to 
the line-item veto.
  Mr. CONRAD. Well, let me go further if I can. For example, then, in 
last year's agriculture appropriations bill there was $29 billion 
provided for the Food Stamp Program. Would this amount be enrolled 
separately and could the President veto it?
  Mr. COATS. I am sorry; would the Senator restate that question?
  Mr. CONRAD. There was in last year's agriculture appropriations bill 
$29 billion provided for the Food Stamp Program, an entitlement 
program, but it was an appropriated entitlement. 
[[Page S4421]]  Would this amount be enrolled separately and could the 
President veto it?
  Mr. COATS. The amount appropriated must go out under the existing 
law. The only way in which the President could veto a provision is if 
the underlying law were changed to increase the amount of spending as 
the result of an expanded or new benefit. So additional spending to 
meet the mandatory requirement under the law would not qualify for a 
line-item veto. But if there were additional spending as the result of 
a change in the underlying law which increased spending as a result of 
that change, that increase is subject to the line-item veto.
  Mr. CONRAD. So the Senator is asserting that only the increase in 
these appropriated entitlements could be subject to Presidential veto?
  Mr. COATS. I am sorry; again I was speaking to staff.
  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mr. CONRAD. I ask the Senator from Nebraska if I might have 2 
additional minutes.
  Mr. EXON. I grant 2 additional minutes, and then I would also like to 
follow up on and try to give my perspective of the very legitimate 
questions that are being asked.
  Two more minutes to the Senator from North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. I would then ask the Senator from Indiana, is the Senator 
from Indiana asserting that only the increase in appropriated 
entitlements would be subject to Presidential veto?
  Mr. COATS. The entitlement could be separately enrolled and subject 
to a line-item veto, but the funds that were obligated to be spent 
under the law would have to be spent.
  Mr. CONRAD. Well, that sounds to me like a contradictory answer. How 
could it be that the funds could be spent if the President can veto the 
item?
  Mr. COATS. Because it is direct spending which comes directly from 
the Treasury, it is a protected expenditure under the law.
  Mr. CONRAD. Well, I have great reservations about that answer. I 
would ask the Senator from Indiana, are appropriated entitlements 
included in the definition of ``item'' under the terms of the Dole 
substitute?
  Mr. COATS. Any allocation of money is an item, so the answer to that 
is yes.
  Mr. CONRAD. So then that suggests to me they would be available for 
Presidential veto under the terms of the Dole amendment.
  Mr. COATS. The Senator from Indiana would answer as he has answered 
before, that is, that the mandatory spending, the amount of dollars 
expended to fulfill the requirements of the law under an entitlement--
existing requirement of the law under an entitlement--would be spent by 
the Treasury in accordance with the law. The separate enrollment 
language relative to entitlements applies, in terms of spending, in 
terms of dollars that are subject to line-item veto, applies only to 
new spending under a change in the law which would change the benefit.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. COATS. And if that change in the benefit would require increased 
spending.
  Mr. CONRAD. I have run out of time. I have other questions I would 
like to pursue. But I just say to my colleague and friend, I think we 
have a real legal problem with the definitions.
  Mr. EXON. How much time do we have remaining on this side?
  The PRESIDING OFFICER. Twelve minutes and fifty seconds.
  Mr. EXON. Let me see if I can begin to clear up some of the very 
legitimate questions that have been asked by the Senator from North 
Dakota and others. I believe, with all good intentions, there has been 
some confusion here. And that is the problem that occurs when we have 
something that comes up on Monday and, boom, a cloture motion is filed 
against it, then the we find the bill's language locked in concrete, 
chiseled in stone.
  Certainly, we have made some improvements on some problems in the 
Dole substitute. And some of the amendments that have been addressed 
here are likely to be accepted and to improve things.
  I want to go to the heart of the matter that has been brought up by 
the Senator from North Dakota. I think the problem is that there has 
been a misinterpretation or a misunderstanding on the bill itself.
  I refer to the Dole substitute bill, page 5, lines 1 through 6. ``The 
term `Item' means--(A) with respect to an appropriations measure''. And 
down below on line (B), ``with respect to an authorization measure.''
  Now, many of the questions that the Senator from North Dakota phrased 
and were answered by our colleague from Indiana mixed back and forth 
the difference between appropriations and authorizations.
  I simply believe that--and I am not for a moment indicating that the 
Senator from Indiana is trying to mislead anyone at all--I just think 
there is a very legitimate difference of opinion. I suspect, when this 
is looked at in retrospect, most of the legal scholars will agree with 
the thrust being made by the Senator from North Dakota, which I think 
has not been fully appreciated.
  If I can, let me dwell on that a little further.
  The Dole substitute would require all appropriations items to be 
enrolled separately. Now, remember, that is enrolled separately. Among 
the items that it would require to be separately enrolled are 
appropriations for programs that many consider entitlements. Congress 
funds these entitlements through appropriations acts.
  With respect to these appropriated entitlements, the President will 
be able to veto not only new entitlements, but also the funding for our 
existing entitlement commitments. And I think we should make that 
abundantly clear and have an understanding of that. If we want to do 
that, fine.
  Mr. CONRAD. Will the Senator yield for a question?
  Mr. EXON. Certainly.
  Mr. CONRAD. Would not included in these categories be such things as 
guaranteed student loans, higher education facilities loans?
  Mr. EXON. Absolutely, absolutely, absolutely. And I have seen your 
list. It is right down the line.
  Mr. CONRAD. Medicaid, health care trust funds, Federal payments to 
railroad retirement accounts.
  The President of the United States would be able to veto every one of 
these programs, every agriculture program, including rural electric and 
telephone loans, conservation, temporary emergency food assistance 
programs, Federal crop insurance corporation, all payments to veterans.
  Would not all these be included?
  Mr. EXON. Absolutely.
  Mr. CONRAD. And yet we cannot veto the capital gains tax cut? The 
President cannot veto the capital gains tax cut?
  Mr. EXON. He cannot do it.
  Mr. CONRAD. I just say, in conclusion, it seems to me it does not 
make much sense.
  Mr. EXON. I say to my friend from North Dakota, again, I am not sure 
that that is the intent of the Dole substitute, but that is what the 
Dole substitute does.
  Mr. COATS. Will the Senator yield?
  Mr. EXON. I am glad to yield on your time.
  Mr. COATS. First of all, it would not make sense for the President to 
do that. Theoretically, he could under the bill. But it would not have 
the effect of changing expenditures under those entitlements because 
those entitlements are contractual obligations entered into by the 
United States and they must be paid.
  First of all, I do not know why a President would want to do that, 
but particularly he would not want to do that because he knows it would 
have no legal effect. Those are entitlements that have to be paid under 
a contractual obligation. And while they would be separately enrolled 
and theoretically subject to a Presidential veto, such veto could not 
have legal effect because it is a contractual obligation which the 
Treasury must pay.
  It would only apply, as it is stated, to new expenditures under 
entitlements or where the benefits package has been changed to expand 
the entitlement.
  Those who suggested this argued, I believe rightfully so--and in fact 
many Members on the Democratic side, or those opposing this effort--
that one of the original problems was that it was too narrowly drafted; 
it only applies to appropriated expenditures; it did not apply to 
targeted tax benefits and it 
[[Page S4422]]  did not apply to entitlements, particularly the new 
entitlements.
  So the habit that Congress has been in, even though an entitlement 
program is running amok with spending, we cannot begin to pay for it 
without incurring substantial additional debt. We keep expanding the 
reach of the entitlement programs and the benefits promised under the 
entitlement programs. We think those should be subject to a 
Presidential review and, if necessary, veto of that item, and Congress 
having a greater hurdle to cross in terms of passing that with a two-
thirds veto.
  Additionally, I trust that President Clinton and all the other 
candidates seeking that position would never seek to veto these items.
  Mr. EXON. Mr. President, I thank my friend from Indiana. We are 
talking about fine legal points here that, unfortunately, may have to 
be decided by the courts at some time.
  But let me give you some examples about annual appropriations bills 
and the enrollment process that has to do with that.
  As the Senator from North Dakota has said, the President, under this 
bill, could veto the Commodity Credit Corporation fund, the Food Stamp 
Program, the Child Nutrition Program, the Guaranteed Student Loan 
Program, Federal unemployment benefits, Medicaid, Federal payments to 
railroad retirement, and a number of other programs under which 
individuals have legal rights to obtain benefits.
  With regard to these programs, the separate enrollment procedure--now 
we are going back to that dog in the manger again--the separate 
enrollment procedure would allow the President to veto the funding for 
our existing commitments.
  So the President could veto the funding, let us say, for Medicaid. I 
do not think he probably would, either, but it is a case in point, and 
only one. But what would the beneficiaries then do? Well, they, of 
course, would go to court and get an order getting the Government to 
pay their benefits. This money would then flow from the claims and 
judgments act. As a result, we would save no money whatsoever and 
indeed, probably spend much more on legal expenses.
  All that I think it points out is how poorly drawn this proposition 
is. It should be given much more consideration. Rather than rushing the 
Dole substitute through as a solution to all of our problems we should 
go to a simplified, direct procedure such as the Daschle amendment, 
which is S. 14. Both S. 4, and the enhanced rescission bill that the 
House of Representatives has already passed, are better drawn and 
preferable to the Dole substitute we are debating here.
  How much time do I have remaining, Mr. President?
  The PRESIDING OFFICER. The Senator from Nebraska has 6\1/2\ minutes 
remaining.
  Mr. EXON. I yield to the Senator from West Virginia 3 minutes.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the distinguished manager of the 
bill, Mr. Exon.
  I take the floor at this time merely to express my support for the 
substitute that has been offered by Mr. Daschle. The Daschle measure 
provides that any rescissions that the President may recommend to the 
Congress will receive a vote by the Congress. The President's 
rescissions may be stricken but, in being stricken, the rescissions 
will be given a vote.
  Under the current law, when the President sends up rescissions, the 
Congress may, by not acting, force the President to proceed with the 
obligations of funds, or the Congress may act. The Congress may accept 
some of the President's recommendations, the Congress may substitute 
its own rescissions, or it may do nothing, in which case, as I say, the 
President's recommendations will amount to nothing. And over the years, 
Congress has rescinded, as the record will show, more in terms of 
dollars than the total rescissions that have been submitted by the 
several Presidents in that period of time.
  So the Congress has actually rescinded more moneys than have been 
requested to be rescinded by the Presidents. But under the Daschle 
substitute, a President may be assured that he will get a vote, and 
there is a very well-honed, expedited procedure set forth in the 
substitute. If at the end of the day, the conference committee is 
unable to meet an agreement--that is the final step--then any Member of 
either body may call up the President's original rescissions and offer 
them, and the President will be given a vote up or down.
  It seems to me that is fair. The Daschle substitute does not result 
in any shift of power from the legislative branch to the executive. It 
is clear cut. It gives the President the opportunity to get a vote.
  Mr. President, I yield myself 1 minute out of the 2 hours that have 
been yielded to me by special order.
  The President is assured a vote, and it seems to me that is fair. 
That is fair to the President. It gives the President an opportunity, 
in the face of changing circumstances, to suggest certain rescissions, 
which perhaps the Congress will agree to.
  So I am 100 percent behind the substitute by Mr. Daschle, and I ask 
unanimous consent that my name may be added as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, while I have the floor, where in the pecking 
order is my amendment?
  The PRESIDING OFFICER. The Senator is advised it will come up after 
we adopt the Daschle amendment.
  Please restate the question.
  Mr. BYRD. Where in the regular order is the amendment which I have 
had made in order for calling up today?
  The PRESIDING OFFICER. The Senator is advised that will be the next 
amendment following the disposition of the Daschle amendment.
  Mr. BYRD. I thank the Chair. Mr. President, I ask unanimous consent 
that that amendment that I am qualified under the agreement to offer 
may be called up at such time as I wish to call it up. I do not wish it 
to appear in the regular order.
  The PRESIDING OFFICER. Is there objection to the unanimous-consent 
request?
  Mr. COATS. Reserving the right to object, Mr. President, I wonder if 
I can inquire of the Senator, I want to just make sure I understand 
what the Senator from West Virginia has requested.
  I thought I heard the Chair to say that under the regular procedure, 
the next order of business following disposition of the Daschle 
amendment would be the amendment of the Senator from West Virginia.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. COATS. And is the request of the Senator from West Virginia that 
that amendment be subject to being called up in a different order at 
the Senator's request?
  Mr. BYRD. Yes; I am not prepared to call it up next, and I merely ask 
that I be allowed to call it up when I am ready to call it up.
  Mr. COATS. Mr. President, I would have no objection to that within 
the constraints of the overall agreement.
  Mr. BYRD. It certainly would be within the constraints of the overall 
agreement.
  Mr. COATS. Can I inquire of the Senator from West Virginia, will he 
be prepared to call up that amendment today?
  Mr. BYRD. Well, I may or may not be, but I can assure the Senator 
that within the constraints of the overall agreement, that amendment 
will have to be called up before the substitute by Mr. Dole is voted 
on.
  Mr. COATS. Mr. President, I certainly understand that. I guess my 
concern is that the majority leader has indicated that it is his 
intent, and I think it was the agreed-upon intent of the managers of 
the bill as well as the minority leader, that we conclude all action on 
the line-item veto and bring it to final passage today.
  Mr. BYRD. I do not think that was the agreement. It was my 
understanding it would be concluded this week. I do not think there was 
any assurance that action would be finalized on the line-item veto 
today.
  Mr. COATS. Mr. President, the statement of the Senator from West 
Virginia is correct.
  Mr. BYRD. I will just try to----
  Mr. COATS. The original decision did carry through until Friday. 
Given the progress that we have made and the short list of amendments 
that was left, 
[[Page S4423]]  I guess it was the thinking that it could be concluded 
today, and, obviously, many Members hope that will be the case, but it 
is not determined and there is no particular agreement says that it has 
to be.
  Mr. BYRD. That is right. I have no intention of trying to lay the 
matter over until next week. If I had that intention, I would not have 
agreed to the agreement. I have no intention of that.
  Mr. COATS. Mr. President, this Senator has no doubt that had the 
Senator from West Virginia wanted to carry this over into next week or 
even beyond, he certainly has the ability to do that. I take him at his 
word and withdraw my reservation.
  Mr. BYRD. I thank the Chair.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Did the Chair put the question?
  The PRESIDING OFFICER. The unanimous-consent request has been agreed 
to.
  Mr. BYRD. I thank the Chair, and I thank all Senators.
  The PRESIDING OFFICER. Who yields time?
  Mr. COATS. Mr. President, I inquire as to the time remaining.
  The PRESIDING OFFICER. The Senator from Indiana has 27\1/2\ minutes 
left; the Senator from Nebraska has 3\1/2\ minutes left.
  Mr. COATS. Mr. President, earlier the minority leader, Senator 
Daschle, whose amendment is currently pending, once again made the 
point that the complexity of the separate enrollment process is a 
reason to vote against the Dole amendment, because it would take a 
fairly simple, several-page piece of legislation that would be sent to 
the President and translate it into a stack of individually enrolled 
items, any one of which or several of which the President could veto.
  The strength, I will suggest, of the separately enrolled procedure is 
the very fact that each particular item is separately enrolled into a 
separate bill. And the purpose of that is so that the Congress, the 
President, and the American public knows just exactly what is contained 
in this thin little booklet as to how their money is going to be spent.
  It is not a matter of convenience for Congress. It will be somewhat 
less convenient to go to separate enrollment, although we have 
demonstrated that the enrolling clerk now possesses the technology 
through computerization to process separate enrollment in a very 
expeditious way. So it is not the nightmare that it might once have 
been. It is not the nightmare monstrosity that has been described.
  I wonder what the American people would say if they were polled on 
the question of whether, to determine how their tax dollars are spent, 
they wanted a booklet of about 8 or 10 or 12 pages which talked in very 
broad categories,
 or whether they would like the ability to see how each particular item 
is spent, and they could pull that out and say, ``Aha.'' See, the 
question is not whether or not the rescission process suggested by the 
minority leader is more convenient; the question is not even whether or 
not it spends less or more money; the question is, How is that money 
spent? The question that the American taxpayer is raising is: How is my 
money being spent? They care a lot more about the details of the 
specific expenditure than they do the overall total, although I do not 
mean to suggest the overall total is not important.

  So, if a rescission is brought to the floor and the claim is made 
that this rescission saves as much money as what the President 
requested, it does not answer the question of how is that money spent. 
And is it spent for a legitimate purpose? And so we annually run into 
the question of the expenditures for the Lawrence Welk Home--the 
studies that most Americans feel are inappropriate uses of their tax 
dollars, the special little projects and spending that goes to benefit 
maybe a particular Member of Congress and enhance his or her reelection 
but really does nothing for the individuals that the majority in 
Congress represent.
  We annually have to deal with how the money is spent. So it is not 
just a question of how much; it is how much is being spent and is that 
in the taxpayers' interest? And is there accountability to the Member 
who has proposed such an expenditure?
  Mr. President, last November, anger against this institution burned 
white hot. With their votes, the American people decisively 
demonstrated their deep frustration with the status quo. Just weeks 
ago, I suggest that the Senate fueled that anger and betrayed their 
trust by failing to pass a balanced budget amendment, demonstrating 
that we are an institution more concerned with preserving our power 
than with protecting our Nation's posterity.
  That is really the issue that is before us today. Are we going to 
preserve the status quo? Are we going to preserve the power of 
spending, so that we can continue to spend the way that we have spent 
the taxpayers' dollars in the past? Or are we going to change the 
procedure so that we can be held more accountable to the American 
taxpayer for how we spend their dollars? That is the question that is 
before us under the minority leader substitute. Will this institution 
decide to protect our powers and preserve the status quo? Or are we 
willing to take bold steps to end business as usual?
  The Wall Street Journal editorialized, in 1993, expedited rescission, 
which is the minority leader's alternative proposal before us that we 
will vote on shortly, an alternative to the tough measure that the 
President has requested, that Senator McCain and I have brought 
forward. ``Expedited rescission,'' the Wall Street Journal said, ``is 
to the line-item veto what chicory-flavored water is to Colombian 
coffee. It may look the same, but one taste tells the difference. A 
true line-item veto,'' the editorial said, ``would mean that the 
President will receive a spending bill from the Congress and would have 
the right to strike out items he considered unnecessary spending. 
Congress could restore the spending but only by a two-thirds vote of 
both the House and the Senate. The push to replace the line-item veto 
with a sham substitute is typical of how Congress is dealing with 
reform in this session. It is faking it.''
  The substitute that is offered by the minority leader simply does 
nothing to change the way in which we spend people's money. It does not 
alter the balance in favor of savings. The same simple majority that 
voted to spend the money in the first place is all that is required to 
continue the spending. Procedure in the minority leader's bill says 
that Members on this floor can take the President's rescission which, 
yes, does now have to be brought to a vote under expedited rescission, 
but with just a simple majority can strike any rescission that the 
President sends up. So the same majority that passed the bill in the 
first place can take the President's rescission and strike it.
  Although the title of the minority leader's bill is the Legislative 
Line-Item Veto Act, this is false advertising. There is no veto 
contemplated anywhere in the bill, none whatsoever. The President is 
given the chance to veto spending, and Congress is not forced to muster 
the two-thirds to override the veto.
  In 1992, former President Reagan said, ``There is talk that the 
congressional leadership may offer the new President expedited 
rescission authority. This will not do the job,'' he said. ``Although 
it would permit the President to strike budget-busting expenditures, 
they could easily be reinstated by a simple majority vote of the 
Congress. A true line-item veto,'' President Reagan said, ``must 
require a two-thirds vote to override. Not only does the substitute 
fail to give the President veto power over spending accounts, it does 
little to address the failures of the Impoundment and Control Act.''
  Since 1974, Congress' record on acting on Presidential impoundments 
has been embarrassing. The minority leader said as much. By simple 
inaction, we have ignored tens of billions of dollars in Presidential 
requests for rescission or impoundment authority. It has been the will 
of Congress not to act. It has been the will of Congress to fail to 
act. And Members of the minority leader's party have as much as said 
so. They have come down here and said, ``We have to stop the current 
practice.'' The problem is, their bill will not stop the current 
practice. All the substitute does is expedite a vote. It does nothing 
to change the presumption in favor of savings. It takes no step toward 
restoring the impoundment powers which the President exercised prior to 
1974. And 
[[Page S4424]]  since 1974, we have seen rescission after rescission 
after rescission of the President rejected by this Congress.
  The separate enrollment legislation before us, on the other hand, 
would restore authority to the President. It would allow him to veto 
spending and require two-thirds of both Houses to override it. The 
substitute offered by the minority retains the current procedures, with 
the one exception that Congress could no longer bury the impoundments, 
but they must vote.
  Quite frankly, Mr. President, their idea is too little too late. 
Nothing but the threat of a true line-item veto has even prodded their 
opposing our efforts into a vote on expedited rescission. Where were 
they when Senator McCain and I were on the floor year after year after 
year offering enhanced rescission, offering some way to deal with the 
problem that they all admit exists? A handful of Democrats--you can 
count them on one hand--were supporting our efforts. Now it is only the 
legitimate, real threat of a true line-item veto that brings them to 
the floor saying, ``We are for line-item veto, we are just not for your 
line-item veto. Let us do it our way.'' Well, their way basically 
continues the practice that brought us to this place in the first 
place.
  They have never brought up, since my time in Congress and in the 
Senate--or Senator McCain's time in Congress and the Senate--a 
freestanding bill. The majority leader, Senator Mitchell, never brought 
up a freestanding bill to deal with this problem. Expedited rescission 
does nothing to restore power to the Executive which Congress grabbed 
in 1974. Congress, which chose to spend the money in the first place, 
retains complete control under expedited rescission.
  The only argument for expedited rescission is that it might shame the 
Congress with a public vote. But the time for shame is over. With a 
$4.8 trillion debt, with our children facing a lifetime tax rate that 
is unconscionable, shame is simply not enough. We are already shamed. 
We need more than a sense of shame; we need to give the Executive power 
to challenge our spending habits. We need a true line-item veto. I urge 
my colleagues to reject the amendment offered by the minority leader 
and vote for a true line-item veto.
  Mr. President, may I inquire how much time remains?
  The PRESIDING OFFICER. The Senator from Indiana has 13\1/2\ minutes 
and the Senator from Nebraska has 3\1/2\ minutes.
  Mr. COATS. Mr. President, I yield the floor.
  Mr. McCAIN. Mr. President, I yield myself 4 minutes.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I would like to thank the junior Senator 
from Arizona for a very detailed exposition of our position on this 
pending amendment.
  Have no doubt, this is probably the crucial amendment of this debate 
because we are back, frankly, where we were at the beginning of this 
year, when a line-item veto was going to become a reality, very 
frankly, because of the results of the November 8 election.
  As the Senator from Indiana pointed out, he and I, for the last 8 
years, have attempted time after time to bring the line-item veto up 
for debate and amendment. If there was a better idea on that side as to 
how to do what the distinguished Democratic leader has said, and that 
is, that we all want a line-item veto, it is rather amazing to me that 
we were never able to get a line-item veto to the floor of this Senate 
for consideration. Each time, it was blocked on a parliamentary tactic 
called a budget point of order, which prohibited Members from bringing 
up the amendment.
  With all due respect to my friend from South Dakota, I wish that he 
had taken this attitude some years ago. I believe that we would have 
saved the American people billions and tens of billions of dollars in 
waste and pork-barrel spending.
  We really are, Mr. President, getting down to the crucial aspect of 
this entire issue, as the Senator from Indiana said, whether a 
legislative line-item veto will mean the definition that is written in 
the Constitution of what a veto is, a two-thirds vote by both Houses to 
override the President's veto, or whether it will simply be a majority 
vote in either House.
  Mr. President, the argument that the majority vote in either House 
will do the job flies in the face of the experience that I have had for 
many years now, as I have come down here and tried to eliminate 
clearly, clearly, wasteful and unnecessary spending that is devoted to 
the interests of a few, rather than the interests of the American 
people.
  I will provide for the Record at some point the many times I have 
come here and lost amendments to try to remove these incredibly 
unacceptable appropriations, many times in the most egregious manner, 
stuffed in in conference between the two bodies, never being brought up 
in either House.
  Last year, in the VA/HUD conference report, there was a couple 
hundred million dollars stuffed in at the very end, none of which we 
had ever had any opportunity to scrutinize or look at.
  Mr. President, that practice will stop. That practice will stop. Just 
by bringing it to the attention of the Senate and by seeking a majority 
vote to overturn it, it is clear that my efforts and others, the 
Senator from Indiana and others, have been unsuccessful. It took a 
majority vote of both in order to put it in; it seems to me that a 
majority vote of one House would clearly keep it in.
  We really are talking about what a line-item veto really is, whether 
we are going to make it--as the President of the United States has 
stated--a strong line-item veto which he supports. I am a little 
disappointed that my friends on the other side of the aisle do not 
support the President of the United States on their own party's 
position.
  I would also like to say, Mr. President, that the debate we have been 
involved in on this issue--especially the thoughtful comments by the 
Senator from South Dakota and the very thoughtful and indepth 
questioning on the part of the Senator from West Virginia--I believe, 
has made a record here that will help the people in the future if we 
pass this legislation--I believe we will--as to the exact meaning of 
this legislation, what it entails, and what is circumscribed by it.
  I think it has been a very healthy debate. I look forward to 
obviously concluding action on this bill in a reasonable time, but at 
the same time I think that perhaps the entire body and maybe the Nation 
have been illuminated and informed by this very significant debate.
  I want to say, again, I respect the views of the Senator from West 
Virginia. I know that they are deeply held beliefs. I respect the views 
of the Senator from South Dakota. I know they are deeply held. We have 
a fundamental difference of opinion here as to whether the executive 
branch should have power restored to it. This, in my view, was taken 
away in 1974.
  This is really, fundamentally, what this is all about. I believe that 
the November 8 election clearly showed that the American people are 
sick and tired of business as usual in the Congress. If we pass this 
legislation, especially after having failed to pass the balanced budget 
amendment, I think that we will at least restore some confidence in the 
American people, recognizing that it is no panacea. The only real 
panacea, as even the Senator from Georgia said, is we have to 
discipline ourselves. I do not see how in the past we have been able to 
discipline ourselves without the necessary tools to do so.
  Mr. President, I would also like to talk about the fact that there 
are ways to get around this. Mr. President, there are ways to get 
around every law we pass. There is no better example of that than the 
War Powers Act. This body passed the War Powers Act and then repassed 
it over the veto of the President. We routinely ignore it.
  I have no doubt, if the Congress of the United States wants to ignore 
the line-item veto, they can somehow find ways to get around it. What 
kind of message is that we would send to the American people?
  The intention of the legislation is clear. The provisions of the 
legislation are clear. No, I cannot guarantee the American people that 
we will comply. But I suggest that if we do not comply with laws that 
we pass, as we have not with the War Powers Act, we do it at 
[[Page S4425]]  great risk not only to the institution, but to the 
entire system and fundamentals of democracy, which is the expectation 
of the people that sent their representatives to Washington that we 
would comply with the laws that we pass.
  Mr. President, I want to thank my friend from Indiana. I want to 
thank the other participants in this debate, and I look forward to 
continuing it after we finish this vote. I do not think there should be 
any doubt in the minds of my colleagues that this is really the crucial 
vote of this debate.
  Mr. President, I might suggest to the Senator from Nebraska we might 
move to a vote. I think we planned around noontime, anyway.
  Mr. EXON. May I inquire how much time is left on each side?
  The PRESIDING OFFICER. The minority side has 3\1/2\ minutes; the 
majority side has 6 minutes.
  Mr. EXON. I will use at least 3 minutes, and then maybe we can move 
on.
  Mr. McCAIN. Mr. President, I yield the floor.
  Mr. EXON. Mr. President, Let me sum up, if I might, in the remaining 
time. I will simply say, Mr. President, that although I did not support 
S. 4 in its original form--which was very much akin to what came over 
from the House of Representatives--I would be far more satisfied with 
S. 4 in its original form than with what has been put together in a 
hasty fashion, as demonstrated by the lengthy debate and many 
amendments that have been accepted with regard to the Dole substitute.
  I will simply say that I suspect that there are few times in the 
history of the Congress of the United States when the Congress of the 
United States is about to give, in rather shabby fashion, give away the 
prerogative to the President of the United States.
  Maybe if this passes, if the Dole amendment finally passes, we could 
clean it up in some legitimate way in the conference between the House 
and Senate.
  I simply say I cannot understand how any true conservative could want 
to give away, to the extent that the Dole substitute as originally 
proposed would give away the authority of the powers of the purse, to 
the President of the United States, whoever that President is.
  Let me sum up some of the advantages of the substitute offered by 
Senator Daschle, which is the original Domenici-Exon bill. Our 
substitute allows the President to veto part of an appropriation, 
giving the President added flexibility. Theirs does not. Our substitute 
allows the President to veto pork that is caused by colloquies on the 
floor and other mechanisms, including measures put in the conference 
report but not forwarded into the language in the statutes. Theirs does 
not. Our substitute has a clear, broad definition of tax loopholes that 
plainly covers all tax loopholes. The Dole substitute would allow the 
President to veto the existing obligation of appropriated entitlements, 
leading to legal challenges. The Dole substitute raises constitutional 
concerns that do not exist with regard to our substitute. And our 
substitute provides an orderly procedure. No 10,000 bills, no new 
burdens on the President or the Congress or the Members of the Congress 
who have to sign those bills, in contrast to the Dole substitute which 
would make a hash of the legislative process.
  In closing--and I ask for an additional 1 minute if necessary----
  The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so 
ordered.
  The Senator has 30 seconds.
  Mr. EXON. In closing, let me say that there are so many things that 
have not been considered. In a short period of time, we have come up 
with so many shortcomings. One of the most important, I think, was 
demonstrated by Senator Nunn when he talked about the action of the 
Senate not long ago with regard to the issue in Somalia. Here was a 
situation where we felt that Somalia should be put behind us. We put in 
an appropriation and we said that appropriation could be used, but the 
troops had to be removed by a specific date--let us say April 1, I do 
not remember what the date was. Under the Dole substitute, the 
President could have simply kept the money, vetoed out the April 1 
date, and all of the outreach and control that legitimately is found in 
the legislative body would go out the window. I do not think that is 
what they intended, but that is what happens when you put together 
legislation in the fashion that this was put together.
  I hope we approve the Daschle substitute.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I would just point out to my colleague 
from Nebraska, the pending Levin-Murkowski amendment will make 
adjustments to take care of the problems which have been highlighted 
time after time here. That is why we have bills for consideration. That 
is why we go through an amending process, to improve legislation. If we 
did not do that, then clearly a bill would be deemed perfect and we 
would not even have to pass it through the floor of the Senate.
  The fact is, though, this legislation was not hastily put together. 
It has been considered in its various aspects for many, many years 
dating back to 1867, I believe it was, when a Member of Congress from 
West Virginia proposed a similar separate enrolling legislation.
  We would be glad to consider other amendments which would further 
improve this legislation, but we are going to get down to, in this 
vote, whether it is a two-thirds majority to override a veto of the 
President by both Houses or not. That is really the fundamental 
question that is being asked when we consider the Daschle amendment.
  I might remind my colleagues, that amendment was overwhelmingly 
rejected by the other body in the form of the Stenholm amendment.
  Mr. President, I find no further need for time, I say to my friend 
from Nebraska.
  I yield to the distinguished majority leader.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. DOLE. Mr. President, I thank both my colleague from Arizona and 
my colleague from Indiana. I have been watching at home on C-SPAN, 
while they have been here in the evening, the remarkable work they have 
been doing. I appreciate it very much. No one on this side has worked 
harder and longer than the Senator from Arizona and the Senator from 
Indiana on what I think now is within reach. That is the good news.
  The good news is, while we may disagree on how to achieve it, I think 
it appears we are about ready to give the authority that should be 
provided. I guess the disagreement is really what constitutes a line-
item veto. Our proposal would require certain items in appropriation, 
authorization, or tax bills to be enrolled as a separate act, clearly 
allowing the President to veto these items. And these vetoed measures 
are then available for consideration by Congress as any other vetoed 
measure is today. We can choose to override or not.
  In the case of the Daschle proposal, the distinguished Democrat 
leader, there are fast-track procedures for consideration of the 
President's proposals to rescind, but unlike our proposal, a simple 
majority can defeat the President's efforts. Is the Daschle proposal 
better than current law? Probably yes, on the margin, as it does 
require us to at least consider the rescission. But it also only takes 
a majority to defeat. In the case of our proposal, the President's 
action stands unless two-thirds of us overturn that exact decision up 
or down, yes or no. No confusion. I believe this is a much stronger 
test.
  Separate enrollment is not simple. I acknowledge that. But I believe 
we should give the President, be it this President or any other 
President, the opportunity to use this authority. If it is abused, if 
the executive branch takes the opportunity to subvert our intentions, 
we can remove this new authority as we have granted it. Of course, 
there is a sunset of the year 2000, so we have the time between now and 
then to see how the process works.
  Is our substitute perfect? Probably not. But I believe it is much 
stronger and moves us much further in the right direction. I hope we 
may defeat the Daschle proposal. Then I am assuming, according to my 
conversations with the Democratic leader, we will conclude action on 
this bill today. That is my understanding and the understanding of the 
Democratic leader, and I 
[[Page S4426]]  would like to conclude action on it by mid-afternoon so 
we can move to the self-employed tax measure and complete action on 
that tomorrow. Then, on Monday, move to the modified moratorium on 
regulations.
  Mr. LEAHY. Mr. President, I commend the Democratic leader for his 
substitute line-item veto amendment. It strikes the worst features of 
Senator McCain's version of a line-item veto and the majority leader's 
separate enrollment version. Instead, it adds the best features of 
Senator Domenici's and Senator Exon's original version of a line-item 
veto.
  The Daschle amendment restores majority rule to the line-item veto 
process. Under this amendment, the President would have 20 days after 
signing an appropriations bill or a revenue bill to send Congress a 
draft bill cancelling any line item. Congress then would have 10 days 
to vote on the rescissions bill.
  If Congress passes the bill by a simple majority and it is signed by 
the President, all savings must go to reducing the deficit.
  This procedure honors the intent of our Founders by embracing the 
fundamental principle of majority rule.
  By contrast, the McCain bill and the Dole substitute would undermine 
this fundamental principle by imposing a three-fifths supermajority 
vote in both houses to overturn a line-item veto.
  Our Founders rejected such supermajority voting requirements on 
matters within Congress' purview.
  James Madison condemned supermajority requirements in Federalist 
Paper No. 58. Madison warned that:

       In all cases where justice or the general good might 
     require new laws to be passed, or active measures to be 
     pursued, the fundamental principle of free government would 
     be reversed. It would be no longer the majority that would 
     rule: the power would be transferred to the minority.

  Unfortunately, the McCain bill and the Dole substitute would do 
exactly what Madison warned against--it would transfer power to a 
minority in either the House or Senate.
  Moreover, supermajority requirements hurt small States, like Vermont, 
by upping the ante to take on the President.
  No matter how worthy a project, it will be difficult for States with 
only a few Members to overcome a line-item veto.
  Under Senator McCain's proposal and Senator Dole's substitute, it 
would require Members from small States to convince two-thirds of 
Members in each House to override the President's veto for the sake of 
a project in another Member's district.
  With Vermont having only one Representative in the House, why would 
other Members risk the President's wrath to help us with a project 
vetoed by the President?
  The Daschle amendment keeps the power of the purse with Congress--
where it belongs.
  As the ranking member of the Foreign Operations Subcommittee of the 
Appropriations Committee, I am frequently called upon to travel abroad. 
When I visit emerging democracies, one of the universal praises I hear 
about our system of checks and balances is the power to spend residing 
in the legislative branch, not the executive.
  Many officials from new democracies believe that a legislature's 
power over the purse is the best weapon to fight the tyranny of a 
dictatorship.
  The McCain line-item veto and the Dole substitute hand over the 
spending purse strings to the President.
  The President would have no burden of persuasion while a Member would 
have the Herculean task of convincing two-thirds of his or her 
colleagues in both Houses to care about the vetoed project. It is truly 
a task for Hercules to override a veto. Just look at the record--of the 
2,513 Presidential vetoes in our history, Congress has been able to 
override only 104 times.
  The McCain and Dole supermajority veto procedures would fundamentally 
change the balance of powers between the two branches and result in a 
massive shift of power to the executive branch from the legislative 
branch.
  The Daschle amendment, on the other hand, maintains the 
constitutional balance between the executive and legislative branches.
  For a Presidential rescission to become effective, both Houses of 
Congress must approve it within 10 days. The burden is on the President 
to convince a simple majority in both the House and Senate to agree to 
his line-item veto. The President is guaranteed a vote, and Congress is 
forced to consider the rescission.
  If the President cannot convince a majority of us that a targeted 
project is unnecessary and frivolous, then his veto should fail.
  Like Senator Domenici's original version, this substitute line-item 
veto will sunset at the end of the 1998 fiscal year. I strongly support 
a sunset provision since any line-item veto legislation is like walking 
on Mars--it has never been done before.
  Let us try it out for a few years and see what happens.
  Senator Daschle has improved the original Domenici-Exon bill. The 
Daschle substitute protects Social Security--America's true contract 
with its senior citizens. The Daschle amendment exempts the 
administrative expenses of Social Security from a line-item veto.
  But the most significant feature of the Daschle amendment is that it 
closes a multi-billion-dollar loophole in the McCain bill and Dole 
substitute.
  The McCain bill ignores tax break loopholes. And the Dole substitute 
has such a convoluted definition of tax breaks that no one knows which 
tax loopholes the President may strike.
  The Daschle substitute fixes these flaws by giving the President 
clear authority to target for repeal all wasteful tax benefits in 
revenue bills.
  I find it ironic that the proponents of the McCain bill and now the 
Dole substitute--who claim that their line-item veto is the only 
version that will effectively cut pork-barrel programs--are afraid to 
give the President the ability to cut pork-barrel tax breaks too. Why 
should the President be given the power to veto spending for school 
lunches and not for tax deductions claimed by businessmen for three-
martini lunches?
  Whether pork-barrel spending is in a program or in a tax break, it is 
still wasteful. To paraphrase Gertrude Stein: A pork barrel is a pork 
barrel is a pork barrel.
  Over the years, big business and other special interests have lobbied 
hard for tax subsidies for specific industries. And, unfortunately, 
they have been successful on occassion.
  These wasteful special interest tax subsidies do not increase 
economic growth. To the contrary, wasteful special interest tax 
subsidies only add to our deficit, which puts a drag on our whole 
economy.
  Like an old-fashioned pork sausage, it is amazing what is in our 
Internal Revenue Code. Let me give you an example of the corporate pork 
in our tax laws today.
  Our tax laws allow U.S. firms to delay paying taxes on income earned 
by their foreign subsidiaries until the profit is transferred to the 
United States. Many U.S. multi-national corporations naturally drag 
their feet when transferring profits back to their corporate 
headquarters to take advantage of this special tax break.
  But the millions of small business owners--who make up over 95 
percent of businesses in my home State of Vermont--do not have the 
luxury of paying their taxes later by parking profits in a foreign 
subsidiary. The bipartisan Joint Committee on Taxation estimates that 
the U.S. Treasury will lose close to $6 billion from this tax loophole 
over the next 5 years.
  The Progressive Policy Institute, a middle-of-the-road think tank, 
along with the liberal Center On Budget And Policy Priorities and the 
conservative Cato Institute, recently identified 31 tax subsidies that 
will cost U.S. taxpayers almost $102 billion over the next 5 years. A 
few of these subsidies have merit, but many more are just plain 
wasteful.
  Robert Shapiro, the author of the report, concluded that ``tax 
subsidies, like their counterparts on the spending side, reduce 
economic efficiency.* * *'' Budget experts on the right, center and 
left all agree that pork-barrel tax loopholes are just as wasteful as 
pork-barrel programs.
  Not only does the Daschle amendment vastly improve the McCain bill 
[[Page S4427]]  and Dole substitute, but it also would clear up a murky 
area in the line-item veto bill that recently passed the House. In the 
House passed version, H.R. 2, the President has authority to veto 
targeted tax benefits, which are defined as providing a Federal tax 
deduction, credit or concession to 100 or fewer beneficiaries.
  Is this definition of targeted tax benefits a practical joke by our 
House colleagues? I can think of only a handful of tax breaks that fit 
into this very narrow definition.
  In fact,the nonpartisan Congressional Budget Office agreed that 
defining targeted tax breaks in such a limiting manner would produce 
laughable savings.
  The CBO, in typical understatement, said that repealing a tax break 
that benfits fewer than 100 people is unlikely to generate large 
savings.
  This extremely limited definition would protect almost all wasteful 
tax loopholes and invite tax evasion.
  Any accountant or lawyer worth his or her high-priced fee will be 
able to find more than 100 clients who can benefit from a tax loophole. 
If more than 100 taxpayers can figure out a way to shelter their income 
in a tax loophole, the President would not be able to touch it.
  The bigger the loophole in terms of the number of people who can take 
advantage of it, the safer it is from being cut.
  The Daschle amendment gives the President real authority to go after 
wasteful tax breaks. Under the Daschle substitute, every wasteful tax 
break would get the same Presidential scrutiny as every wasteful 
program.
  I believe the Daschle amendment embraces the best parts of various 
versions of a line-item veto. It honors majority rule.
  It keeps the power of the purse with Congress while still giving the 
President new authority to target wasteful spending. It protects Social 
Security. And it gives the President authority to target all future tax 
loopholes for repeal.
  The Daschle line-item veto substitute is a reasonable and 
comprehensive measure. I urge my colleagues to adopt it.
  Mr. PRYOR. Mr. President, I rise today to speak for a moment on 
behalf of the line-item veto proposal that the minority leader has 
offered. I support this reasonable alternative to the so-called 
separate enrollment line-item veto legislation. Just one of a number of 
problems with the separate enrollment measure is that it makes funds 
for operating the Social Security Administration vulnerable to the 
President's line-item veto authority.
  It is clear that the public expects us to protect the integrity of 
the Social Security System for current beneficiaries and for the 
millions of current workers and employers worried about the future of 
Social Security. The majority leader's separate enrollment proposal 
would not protect Social Security. A provision, however, in the 
Democratic substitute would exempt moneys used to administer the Social 
Security program from the President's line-item veto power.
  This provision is almost identical to an amendment that I 
successfully offered to one of the line-item veto bills during our 
recent Governmental Affairs Committee markup. This amendment was 
unanimously accepted. The Democratic proposal simply states that,

       The term ``budget item'' means an amount, in whole or in 
     part, of budget authority provided in an appropriation Act 
     except to fund direct spending programs and the 
     administrative expenses of Social Security.

  Under the separate enrollment proposal new direct spending for Social 
Security would be subject to the line-item veto. But my primary concern 
is about the annual appropriation that is used to administer the Social 
Security program. These funds, for the most part, come from the Social 
Security trust funds, are reviewed annually, and are appropriated by 
the Appropriations Committees of the Congress. The President, armed 
with line-item veto authority, could eliminate, or by leveraging a 
veto, limit these administrative funds.
  As it currently stands, the Social Security Administration's 
operating budget is over $5 billion. The greatest portion of these 
funds come from the Social Security trust funds and are used to 
administer the Social Security retirement and disability programs. 
Operating expenses for these two programs represent only 0.9 percent of 
total program costs, but are the key to effective distribution of 
Social Security payments and efficient operation of the Social Security 
system. If we don't have sufficient operating funds to properly fulfill 
the mission of the Social Security Administration, we fail to honor our 
commitment to protect Social Security.
  One of the many functions carried out by the Social Security 
Administration is to make sure that beneficiary checks are correctly 
calculated and promptly mailed out. This is vital to the 42.6 million 
recipients of Social Security who deserve to get their benefits on time 
and also to receive the right benefit amount. In my State alone, 
according to the Social Security Administration, 489,330 Arkansans 
receive Social Security benefits. This is 20 percent of the Arkansas 
population. I can only imagine the outcry and confusion if these 
citizens were to not receive their benefits on time due to a 
President's line-item veto of Social Security.
  Administative funds also ensure that citizens who apply for benefits 
under the disability program are reviewed for eligibility and that 
benefit denials can be appealed. But perhaps even more importantly, 
these operating funds are also used to conduct continuing disability 
reviews. These reviews are conducted to determine if individuals 
continue to be eligible for disability benefits, and, if not, to 
terminate them from the rolls.
  Just yesterday the Subcommittee on Social Security of the Senate 
Finance Committee held a hearing on the growth in the Social Security 
disability program. This growth stems, in part, from the lack of 
resources the Social Security Administration currently has to conduct 
these important reviews. The resources provided for the Social Security 
Administration are important to
 ensure that benefits only go to those individuals who are truly 
eligible.

  In fact, the General Accounting Office has estimated that 
administrative budget cuts at Social Security have resulted in 
significant reductions in disability reviews and that the failure to 
conduct these reviews will cost the trust funds $1.4 billion over 5 
years.
  Proper administrative funding also means that we can combat 
fraudulent Social Security claims. Social Security is not immune to 
fraud and abuse. Without proper funding, it is possible that there 
could be an increase in fraudulent claims filed by citizens that will 
try to cheat the system.
  Mr. President, before the committee mark-up of the line-item veto 
legislation my amendment was endorsed by the American Association of 
Retired Persons. I have a letter from the AARP which makes several 
important points that I would like to emphasize today. They point out, 
and I quote, that ``Social Security is a self-financed program and does 
not contribute one penny to the deficit.'' They also state ``since 
Social Security takes in more revenue than is needed to pay benefits, 
Congress deliberately took it off budget in order to shield it from 
unwarranted reductions.'' I ask that the full text of this letter be 
printed in the Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. PRYOR. Mr. President, by exempting Social Security administrative 
funds as incorporated in the Democratic amendment, we can honestly tell 
the American people that their Social Security checks are secure and 
that administrative functions and services will not be interrupted, 
reduced, or eliminated.

                                Exhibit

                                           American Association of


                                        Retired Persons, AARP,

                                    Washington, DC, March 2, 1995.
     Hon. David H. Pryor,
     U.S. Senate,
     Washington, DC.
       Dear Senator Pryor: The American Association of Retired 
     Persons (AARP) supports your amendment to S. 4, the 
     ``Legislative Line Item Veto Act of 1995,'' that would ensure 
     that Social Security is exempt from the line item veto. 
     Although AARP believes a limited line item veto or other 
     mechanism that allows for appropriate Congressional review 
     may be warranted to help control unjustified tax breaks or 
     spending programs, 
     [[Page S4428]]  we strongly believe that the administrative 
     expenses of the Social Security Administration (SSA) should 
     be excluded for the following reasons:
       Social Security is a self-financed program that does not 
     contribute one penny to the deficit. In fact, since Social 
     Security takes in more revenue than is needed to pay 
     benefits, Congress deliberately took it off budget in order 
     to shield it from unwarranted reductions.
       SSA's administrative expenses are financed from the Social 
     Security trust funds. These trust funds are financed by the 
     payroll tax contributions workers and their employers make.
       SSA's administrative costs are already less than 2 percent. 
     Further cuts could harm the agency's ability to meet its 
     obligations.
       Cutting SSA's administrative costs does not always lead to 
     savings. Past underfunding had forced the agency to reduce 
     the number of Continuing Disability Reviews (CDR) it 
     conducts. The General Accounting Office (GAO) estimates that 
     SSA's failure to conduct CDRs will cost the trust funds about 
     $1.4 billion over 5 years.
       AARP appreciates your commitment to the welfare of older 
     Americans and the protection of Social Security. If we can be 
     of further assistance, please do not hesitate to call me, or 
     have your staff call Evelyn Morton of our Federal Affairs 
     Department at (202) 434-3760.
           Sincerely,

                                                  John Rother,

                                                         Director,
                           Legislation and Public Policy Division.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I move to table the Daschle amendment and 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  Mr. EXON. Mr. President, before we call for that, could we maybe make 
an agreement here on what we have left, I ask my friend?
  Mr. McCAIN. I will be glad to.
  Mr. EXON. According to my list, we have the amendment left by Senator 
Byrd, which we talked about a few moments ago. He reserves the right to 
call that up sometime today or tomorrow.
  We have the amendment offered by----
  Mr. McCAIN. May I interrupt my friend for a minute?
  Mr. EXON. Is that right?
  Mr. McCAIN. It is the understanding on this side of the aisle, 
articulated by the majority leader, the agreement between the majority 
leader and Democratic leader was that we could conclude this bill 
today. So we may have to discuss that.
  Mr. EXON. I would certainly say, at least one of the principles in 
this--I understood there was a goal to conclude this today. But I 
believe Senator Byrd is absolutely correct that when he did not object 
earlier, the gentlemen's agreement was we would finish it this week. So 
I would say, despite any agreement that might have been entered into by 
the majority leader and minority leader, that did not receive unanimous 
consent and therefore would not be binding. Is that right?
  Mr. McCAIN. I will yield to the majority leader on that one.
  Mr. DOLE. It may not be binding, but this is an understanding the two 
leaders had. We will just leave it at that.
   Mr. EXON. I think Senator Byrd could adequately defend himself on 
that.
  Mr. DOLE. I am certain he could.
  Mr. EXON. I will not do so. Suffice it to say the Byrd amendment 
then, whenever it is called up, is one remaining.
  The Levin and Murkowski, two amendments, have now been combined into 
one, so we have that one left in addition to Byrd.
  Mr. McCAIN. It is my understanding also--I think it is my 
understanding that is acceptable to both sides. Is that your 
understanding?
  Mr. EXON. That is correct. So that should be easily taken care of.
  Then we have the Hatch judiciary amendment that has not yet been 
disposed of and will likely require a vote. Is that the Senator's 
understanding?
  Mr. McCAIN. Yes, it is.
  Mr. DOLE. If it is pursued.
  Mr. EXON. And as far as I know, that is all I have on my list. Does 
the Senator have anything else?
  Mr. McCAIN. Yes, I would say to my colleague from Nebraska, the 
Abraham amendment, which I also believe would be accepted by both 
sides.
  Mr. EXON. I missed that. I think that is agreed to also. We are 
pretty close.
  Mr. McCAIN. Could I then say to my friend from Nebraska, without 
taking much more time of the body, obviously we could finish this today 
with great ease, perhaps by mid-afternoon. So I hope the Senator from 
West Virginia might appreciate that and help us move forward. But, as 
my colleague said, that is an issue that the Senator from West Virginia 
would want to discuss.
  Does that complete our colloquy?
  The PRESIDING OFFICER. The Chair rules there was a sufficient second.
  The yeas and nays were ordered.


               Vote On Motion To Table Amendment No. 348

  The PRESIDING OFFICER. Under the previous order, the question occurs 
on the motion to table amendment No. 348, offered by the minority 
leader, Mr. Daschle.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 62, nays 38, as follows:
                      [Rollcall Vote No. 112 Leg.]

                                YEAS--62

     Abraham
     Ashcroft
     Bennett
     Bond
     Bradley
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Feinstein
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kennedy
     Kerry
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Robb
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--38

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Ford
     Glenn
     Harkin
     Inouye
     Jeffords
     Johnston
     Kerrey
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Rockefeller
     Sarbanes
     Simon
     Wellstone
  So the motion to lay on the table the amendment (No. 348) was agreed 
to.
  Mr. EXON. Mr. President, I move to reconsider the vote.
  Mr. COATS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. ABRAHAM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.


      Amendment No. 401, As Further Modified to Amendment No. 347

  Mr. ABRAHAM. Mr. President, I call up my amendment No. 401, and I 
have a further modification of my amendment, which I send to the desk.
  The PRESIDING OFFICER. Is there objection to the modification of 
amendment No. 401 by Senator Abraham? Without objection, the amendment 
is so modified.
  The amendment (No. 401), as further modified, is as follows:

       On page 3, line 17, strike everything after word 
     ``measure'' through the word ``generally'' on page 4, line 14 
     and insert the following in its place: ``first passes both 
     Houses of Congress in the same form, the Secretary of the 
     Senate (in the case of a measure originating in the Senate) 
     or the Clerk of the House of Representatives (in the case of 
     a measure originating in the House of Representatives) shall 
     disaggregate the items as referenced in Sec. 5(4) and assign 
     each item a new bill number. Henceforth each item shall be 
     treated as a separate bill to be considered under the 
     following subsections. The remainder of the bill not so 
     disaggregated shall constitute a separate bill and shall be 
     considered with the other disaggregated bills pursuant to 
     subsection (b).
       (2) A bill that is required to be disaggregated into 
     separate bills pursuant to subsection (a)--
       (A) shall be disaggregated without substantive revision, 
     and
       (B) shall bear the designation of the measure of which it 
     was an item prior to such disaggregation, together with such 
     other designation as may be necessary to distinguish such 
     measure from other measures disaggregated pursuant to 
     paragraph (1) with respect to the same measure.
       (b) The new bills resulting from the disaggregation 
     described in paragraph 1 of subsection (a) shall be 
     immediately placed on the appropriate calendar in the House 
     of origination, and upon passage, placed on the appropriate 
     calendar in the other House. They shall be the next order of 
     business in 
     [[Page S4429]]  each House and they shall be considered and 
     voted on en bloc and shall not be subject to amendment. A 
     motion to proceed to the bills shall be nondebatable. Debate 
     in the House of Representatives or the Senate on the bills 
     shall be limited to not more than 1 hour, which shall be 
     divided equally between the majority leader and the minority 
     leader. A motion further to limit debate is not debatable. A 
     motion to recommit the bills is not in order, and it is not 
     in order to move to reconsider the vote by which the bills 
     are agreed to or disagreed to.

  Mr. ABRAHAM. Mr. President, the purpose of the modification is to 
address technical concerns which were raised by the distinguished 
Senator from West Virginia and others.
  These concerns pertain to whether parts of a bill that do not 
constitute an item under the definition set out in the substitute would 
have to be disaggregated. The effect of this modification is to make 
clear that only new direct spending or new targeted tax benefits must 
be disaggregated.
  Mr. President, I thank the distinguished Senator from West Virginia 
for raising questions that led to this clarification. And I wish to 
thank my colleagues from Indiana and Arizona for their willingness to 
work with me on this matter.
  Mr. President, I yield the floor
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. EXON. Mr. President, I call for regular order with regard to the 
Levin amendment No. 406.
  Mr. President, I remind my colleagues that this amendment addresses 
the enrollment restrictions and limitations.
  I notice the presence of the Senator from New Mexico, Senator 
Bingaman, on the floor. I know that he wishes to address this 
amendment. I also note that the sponsor of the amendment, Senator 
Levin, is here, and I believe Senator Murkowski, who is a cosponsor, 
was here a moment ago.
  I yield the floor.
  The PRESIDING OFFICER. The pending question is the Abraham amendment, 
which is amendment No. 401.
  Mr. EXON. I request that be temporarily laid aside.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCAIN. Reserving the right to object.
  Does the Senator from Nebraska intend to take up the Abraham 
amendment?
  Mr. EXON. The Abraham amendment is being temporarily laid aside at 
the request of myself on behalf of Senator Byrd, who wishes to address 
it before it is voted on. I suspect that we will have a chance to voice 
vote that, but there has been a request on this side to address it 
before we proceed.
  Mr. McCAIN. I thank the Senator.
  I do not object.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 406 to Amendment No. 347

  The PRESIDING OFFICER. The pending question is now on amendment No. 
406, offered by the Senator from Michigan.
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I just had a few questions to ask to try 
to understand amendment No. 406. I was hoping to address those 
questions to one or any of the sponsors. I note the Senator from 
Michigan is here. He has previously indicated he would be glad to try 
to respond to these questions.
  So let me just state those questions and then, if the Senator from 
Michigan or anyone else would want to respond, I would appreciate it.
  Let me first just put this in some context, because I am trying to 
understand the bill that is pending and also understand it in light of 
this amendment.
  As I understand the bill that is pending, it essentially tries to 
focus in on items of appropriation and provides that an item of 
appropriation has to be separately enrolled and sent to the President 
in separate form so that the President has the discretion to either 
sign or veto that item of appropriation.
  I recognize that it is both items of appropriation, and then it is 
direct spending and one other matter which is covered.
  But I guess my concern is this: When we get back to the finding of 
what an item of appropriation is, what does the term ``item'' mean? We 
say that it means any numbered section, any unnumbered paragraph, any 
allocation or suballocation of an appropriation.
  And then the amendment that we are now discussing tries to write in 
an exception to that and say, as to items of appropriation, that an 
item:

       Shall not include a provision which does not appropriate 
     funds, direct the President to expend funds for any specific 
     project, or to create an express or implied obligation to 
     expend funds and--
       (i) rescinds or cancels existing budget authority;
       (ii) only limits conditions, or otherwise restricts the 
     President's authority to spend otherwise appropriated funds; 
     or;
       (iii) conditions on an item of appropriation not involving 
     a positive allocation of funds by explicitly prohibiting the 
     use of any funds.

  That is complicated to me, Mr. President. I may be the only Member of 
the Senate who has difficulty understanding that, but, I have to tell 
you, I have some difficulty.
  Let me just ask a couple of questions.
  First of all, what happens to all of these that we are talking about 
here, all the items which are not included in the definition of items? 
For example, what happens to the limits, conditions, or other 
restrictions on the President's authority to spend otherwise obligated 
funds?
  If those are not to be enrolled as separate items and sent to the 
President for his signature, what does happen to them? Is there 
anybody--the Senator from Michigan or anyone else--who would like to 
respond to that question?
  Mr. LEVIN. Let me first back up and then attempt to answer the 
Senator's question.
  The problem that this amendment addresses is that there are many 
items under the definition in the bill which are not spending items, 
which are not items where Congress is adding on funds, where we are not 
appropriating money, but where we are restricting or rescinding or 
limiting, where we are saying, ``None of the funds appropriated in this 
bill may be spent to keep troops'' in a certain country after a certain 
date, or where we are saying, ``No more than,'' a certain amount of 
dollars, ``can be spent on travel,'' or we are saying, ``None of the 
money that has been appropriated here can be spent on first-class 
travel,'' or where we are saying, ``Not to exceed,'' a certain amount, 
``could be spent on consultants.''
  Where Congress in an appropriations bill, which we do all the time, 
is restricting the use of funds by the executive branch or limiting the 
use of funds by the executive branch, if those restrictions and limits 
are items, then to give the President that special veto power, if he 
uses it, will not save the Treasury any money but will give the 
President more flexibility exactly the opposite way than we intend.
  So we will have failed in restricting the use of funds and we will 
not have benefited the Treasury one dollar. That is the problem that is 
sought to be addressed by this amendment.
  So in order to avoid at least some of that, as much as we can, as 
much as we were able to get cleared and support on, what we are saying 
is, in the cases enumerated here, those are not to be treated as 
separate items. That is the background of it.
  The Senator then says, ``Well, how will they be treated?'' I have a 
twofold answer. One is that they will be attached to the item to which 
they relate.
  For instance, if you say, ``Here is $10 million, HUD, but no more 
than $1 million may be spent for'' a particular purpose, the ``but not 
more than $1 million for'' a particular purpose, would then, my 
intention is, be attached to the larger item. It would not be an 
allocation or a suballocation in the words of the bill. It would be 
connected to the larger item that otherwise it would be separated from.
  Now, if for some reason you cannot do that--and there may be 
circumstances that you cannot do that--then, as I understand the bill, 
there will be a place where all the items that are not separated out 
and separately enrolled will be packaged together. I do not know what 
that paragraph would be called, but there will necessarily be such a 
paragraph, and these items would then be part of that paragraph.
   [[Page S4430]] Let me say to my friend from New Mexico, I have a lot 
of problems with this bill and with the separate enrollment. I think we 
are going to find very soon that this is not going to work very well 
for lots of reasons. And I think one of them is going to be the 
enrollment process itself and the fact that then, after they are 
separately enrolled under the Abraham amendment, they would come back 
to us, they are unamendable, up or down, so forth, and we are going to 
be sending the President a thousand bills to sign instead of one. I do 
not know how the President can even veto an appropriations bill under 
this approach. If he wants to veto the whole appropriations bill, there 
is no bill to veto. He would have to veto 1,000 bills.
  Mr. McCAIN. Will the Senator yield for a question?
  Mr. LEVIN. Yes.
  Mr. McCAIN. Back on the question that the Senator from New Mexico 
asked, can I ask him for a practical example and how this amendment 
would address it, if that would be agreeable?
  Mr. LEVIN. I will be happy to accept that, but I want to be sure 
first that I have done the best job I can in addressing the Senator's 
question.
  I happen to agree with, I think, the thrust of the questions, that we 
are going to have a huge amount of practical problems, in any event, I 
believe, with the separate enrollment process. What my amendment may do 
is create an additional--could be--an additional practical problem so 
that there will be 51 practical problems instead of 50. But what it is 
aimed at is a very critical substantive point, and that is the power of 
the purse of the U.S. Congress.
  We have used the power of the purse throughout history to be sure 
that the President did not exceed certain limits that the Congress has 
set. We do it all the time. We say, ``No later than'' a certain date. 
``None of the funds in this bill may be used to keep troops in Somalia 
after'' a certain date. That is an absolutely essential congressional 
power, and we should not give that up.
  We are giving up some power in this bill in order to gain some money 
for the Treasury, in order to limit spending which Congress asks. So 
there is a tradeoff. Are we willing to give the Executive additional 
power in order to reduce the additional spending which Congress 
sometimes puts in appropriations bills? But in these cases in this 
amendment, there is no additional spending. This is limits on spending. 
This is where we rescind spending. This is where we restrict spending, 
and in those cases, it hopefully is not our intention to be giving 
power to the President to override our policy where there is no gain to 
the Treasury.
  So my answer is twofold: One, that the intent of this amendment is 
that the restriction be connected to the appropriation item it refers 
to, and where that is impossible, that it would then be packaged with 
any other parts of that bill before it became subbills and pieces of 
bills, and so forth.
  I tried to answer the question, and I now yield to the Senator.
  Mr. McCAIN. I do not want to take the time of the Senator from New 
Mexico. A couple of practical examples have been raised. For example, I 
ask the Senator from Michigan, suppose that the appropriations bill 
said $10 million for aid to El Salvador but no funds for any military 
training.
  Mr. MURKOWSKI. I wonder if the Senator from Arizona will allow me to 
answer that question as a cosponsor of this amendment. I have a 
specific example that will hopefully enlighten and address that 
question.
  On a defense appropriations bill, say we have a provision that 
provides funding for the Department of Defense for military personnel, 
$75 billion, provided that none of the funds appropriated will be 
available to deploy United States Armed Forces to participate in the 
implementation of a peace settlement in Bosnia unless previously 
authorized by Congress.
  Under the Dole substitute, the President basically gets two bills. 
The first would be a bill to appropriate $75 billion for military 
personnel. The second would bar United States troops in Bosnia 
peacekeeping. The President can sign bill 1 and veto bill 2. He, thus, 
will be able to receive the $75 billion without restriction and can 
send troops to Bosnia without congressional approval.
  Under the amendment of the Senator from Michigan and myself, the 
President gets one bill. Since the restriction in the appropriations 
bill completely bars the use of any funds in Bosnia peacekeeping, the 
President gets only one bill which contains the appropriation of $75 
billion and the Bosnia restriction.
  So that is the intent and an example specifically. The President must 
either sign the bill and accept the Bosnia restriction, or he must veto 
the bill and not have the $75 billion available.
  Mr. BINGAMAN. Mr. President, can I just ask a follow-up question?
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, where in the amendment or the bill does 
it say what the Senator from Alaska just described? As I see it, the 
condition that none of the funds in this bill can be spent to support 
activities in Bosnia, or whatever the condition would be, might just as 
easily be separately enrolled, along with a lot of other conditions.
  I do not see why you could not have, as a result of this process, in 
the defense area, for example, 2,000 bills go to the President. Each 
one of those would be bills that qualified under the definition in here 
for ``item.''
  Then you could have another bill go to the President which 
incorporated all of the various conditions that Congress has put on the 
President in the expenditure, and one of them would say you cannot do 
anything more to enforce the Endangered Species Act. We adopted that 
last Thursday. Another would say you cannot spend more on the B-2. 
Another would say you cannot go into Bosnia. We can add those together 
and put them into a bill--I think that is permitted under this--and 
send it to the President and the President could veto it. He gets his 
money and he does not get any restrictions. What is wrong with that? 
Does it say that cannot be done?
  Mr. MURKOWSKI. It is in the amendment as offered by the Senator from 
Michigan and myself, specifically stating that ``conditions on an item 
of appropriation not involving a positive allocation of funds by 
explicitly prohibiting the use of any funds.'' That is the amendment.
  Mr. BINGAMAN. But, Mr. President, the condition that we are talking 
about has to be enrolled someplace, if it is going to become law. It 
has to be sent to the President if it is going to become law, and he 
has to sign it if it is going to become law. I am just asking, is there 
anything in this amendment or this bill which keeps us, the Congress--
or the appropriators, more specifically, because they are the ones who 
determine this--from just saying, OK, we are going to take all of these 
restrictions and we are going to package them together and send them up 
there and call them a bill, just like we call each item a bill? That 
would be a natural thing to do if we want to get it to the President 
for signature.
  Mr. LEVIN. If the Senator will yield, is he saying that right now we 
could do that, and this amendment does not prevent that same thing from 
happening?
  Mr. BINGAMAN. Yes, we could do that now. This amendment, as I read 
it, and this bill, as I read it, calls for the separate enrollment of 
the specific dollar allocations or appropriations, so that the 
President can cross out the allocations or appropriations. There are a 
lot of conditions we stick into appropriations bills which are not tied 
to a specific allocation or appropriation. When we adopted, last 
Thursday, the prohibition against doing anything more to enforce the 
Endangered Species Act--or whatever the precise language of the 
Hutchison amendment was--why would that not be a separate item?
  Mr. LEVIN. This amendment does not cure that problem.
  Mr. BINGAMAN. So you are saying that there are conditions which would 
be enrolled separately from the appropriation itself and which would go 
to the President, and he could either defer to the Congress and say 
they do not want me to do anything more on the Endangered Species Act, 
therefore, I will sign their bill; or he could say, I am going to veto 
that part and use the money that they have appropriated as I see fit?
  Mr. LEVIN. Well, the amendment addresses those situations where there 
is 
[[Page S4431]]  a limitation, a condition, or a restriction on the 
President's authority to spend otherwise appropriated funds. If there 
is no appropriated fund in that bill, then it could not be attached to 
that. You would not be addressing the problem the Senator raises. But 
that exists right now. That is a problem that exists right now. This 
amendment does not solve, at all, all of the problems with this bill, 
or all of the circumstances under which we now legislate. What this 
does is what I have described.
  If we say to the President, here is $100 billion for the United 
States Army, and none of these funds may be used to have any of these 
soldiers in Somalia after a certain date, this would require, under 
this amendment, that the restriction on the funds in that bill be 
connected to it, or else we are giving the President power without any 
benefit to the Treasury. If you allow him to veto the restriction, he 
then has the $100 billion unrestricted, the Treasury has not gained a 
penny, and we have lost our policy.
  The Congress will have ceded to the President that power of the 
purse, with no financial benefit whatsoever. And I happen to have great 
problems with the Dole substitute. There are all kinds of problems, I 
believe, with the separate enrollment which this amendment does not 
solve, including, I believe, the one the Senator from New Mexico has 
come up with. If we are going to have separate enrollments, which I 
oppose--I think they are unconstitutional, unwise, and everything 
else--at least we should not be giving up the power of the purse, where 
there is no benefit to the Treasury, where it is a restriction on 
spending.
  I have used the example--and I will use it again--where we give an 
agency money and say: This is for your general operations, but you may 
not spend more than $10 million on consultants. I do not think there is 
any intent--there should not be in this amendment, and I will make sure 
there is no intent--to let the President separately veto the 
restriction on the use of consultants and then have all the money 
without such restriction.
  (Ms. SNOWE assumed the Chair.)
  Mr. BINGAMAN. Madam President, let me once again go at this and see 
if I am clear. I am concerned about this. Under the existing 
procedure--and it has lots of flaws, and I am as critical of it as many 
in this body are--we send the President a bill and it has money 
appropriated and it has conditions attached, and those are all 
together; the President either takes it or leaves it and, clearly, 
there are major deficiencies with that system.
  What I am concerned about with this amendment and this new bill that 
we are talking about here is that we are requiring that the dollar 
figures be separately presented as bills. And it would seem logical to 
me that if those are all items that are separately presented, any 
conditions we want to attach to the expenditure might be a separate 
bill, as well, might be presented as a separate bill, and we might put 
them all together. I do not know what we would call it, but that might 
be the result. The President would have the choice of vetoing each and 
every appropriation, and then he would be presented with sort of a 
catch-all remainder kind of a bill which has all these conditions in 
it. And there would be a great incentive on the part of the President 
to say, ``I will sign everything but the conditions. I do not like 
Congress telling me what to do. They do not know anything about Bosnia 
up in Congress.''
  Mr. McCAIN. If the Senator will yield, I do not believe Congress 
would be so foolish as to enroll it that way because it would leave it 
as a target. The Congress would enroll the restricting language along 
with the money, so that the President had no choice. I cannot imagine 
that the Congress, if they wanted restrictions enforced, would have one 
line item with the money and some in a different paragraph--although 
the language of the Senator from Michigan also provides for that, as 
well.
  So this bill provides for the fencing language, and the amendment 
provides for the fencing language that affects that appropriation to go 
together and be inseparable.
  Mr. LEVIN. Madam President, if I may ask the Senator from New Mexico 
a question. In my colloquy, which is going to be made a part of the 
Record, with the Senator from Alaska, we make it clear that where you 
cannot connect a restriction to an appropriation, it would be put in 
the kind of package that the Senator from New Mexico describes. There 
is no other way to do it. But why should we, because there is no 
alternative but to do it that way. Where there is no appropriation to 
connect the restriction, why should we give up the congressional power 
to restrict, limit, and rescind the use of funds, where there is no 
benefit to the Treasury, just because it is impossible to add all 
restrictions to an appropriation? To connect all of the limits to an 
appropriation does not mean we should not try where there is an 
appropriation in the bill to do so?
  Mr. BINGAMAN. Well, Madam President, let me try to put this in into 
specifics here, and see if I understand it. As I understand it, what 
the Senator from Illinois and the Senator from Arizona are saying is 
that if we put a general restriction on a bill which cannot be tied to 
a specific appropriation, then that could be, or should be, separately 
enrolled as another bill, along, perhaps, with other restrictions.
  Mr. LEVIN. Madam President, the restrictions which are not tied to 
specific appropriations would necessarily have to go in somewhere.
  Mr. BINGAMAN. So they would go into another bill, which the President 
could either sign or veto, so that any condition that is not tied to a 
specific appropriation would be there for the President to sign or veto 
as he saw fit.
  Mr. LEVIN. The Senator is correct.
  Mr. BINGAMAN. And there would be some incentive.
  Mr. LEVIN. The Senator is correct.
  Mr. BINGAMAN. Let me ask the Senator from Michigan another question: 
Taking the example that the Senator from Arizona was referring to, 
suppose in the defense appropriation bill we were to say, ``Of the 
funds appropriated in this bill, not more than $100 million can be 
spent by the Department of Defense to go into Bosnia unless and until 
the President certifies to the Congress''--whatever. That would be the 
provision.
  Now, the Senator is saying that would be separately enrolled if we 
had that kind of a reference to a specific amount of money, which was 
the top amount that could be spent out of a much larger appropriation?
  Is that a separate item which would then be enrolled?
  Mr. McCAIN. Madam President, if I might say, the conditions that 
would be tied to any specific amount of money are inseparable.
  Mr. LEVIN. Inseparable.
  Mr. BINGAMAN. Madam President, my question, though, the money 
reference in the example I just gave is not a reference that 
appropriates money.
  We have a bill that says we will give the Department of Defense $250 
billion; that is the appropriations language. Then we put in a 
provision that says not more than $100 million of the funds 
appropriated in this bill can be spent for activities in Bosnia.
  Is that a separate item?
  Mr. McCAIN. That is correct, but if it has restricted language 
associated with it, then that language is associated with it, also.
  Wherever there is a line where money is mentioned, that is a separate 
item.
  Mr. BINGAMAN. That, to my mind, would be a restriction. That would be 
a limit or condition or otherwise restrict the President's authority to 
spend, because it would say, ``You cannot spend more than $100 
million.''
  Mr. LEVIN. Of money appropriated herein.
  Mr. BINGAMAN. To do anything--of money appropriated herein--to do 
anything in Bosnia, and we are saying that is something that would not 
be submitted to the President as a separate bill.
  Mr. LEVIN. That is correct.
  Would the Senator want it to be?
  Mr. BINGAMAN. I do not know. I am trying to understand what the 
President is ultimately going to be presented with.
  Mr. LEVIN. I have a lot of problems with this bill, as the Senator 
knows, for exactly that same reason. It is our effort here to tie the 
restriction to the appropriation.
  Mr. BINGAMAN. Madam President, if that is the case that we are trying 
to tie the restriction to the appropriation so as to keep the President 
from 
[[Page S4432]] vetoing the legislation separately, what is meant by the 
phrase ``otherwise appropriated funds''?
  It says here, ``only limits, conditions, or otherwise restricts the 
President's authority to spend otherwise appropriated funds.'' Does 
that mean I can put a restriction in the defense bill which relates to 
funds appropriated in the energy and water appropriations bill? Is that 
what that means?
  Why do we intend to exempt from this separate enrollment process 
limits, conditions, and restrictions on the President's authority to 
spend otherwise appropriated funds? Why is that? I do not understand.
  Mr. LEVIN. The provision that the Senator is referring to is not a 
provision which appropriates funds. If it were, it would have to be 
separately enrolled.
  Mr. BINGAMAN. So the point is not to require that the limits and 
conditions and restrictions on the President's authority apply to funds 
appropriated in other bills; it is rather to require that the limits, 
conditions, and restrictions on the President's authority instead apply 
to funds that are in a separately enrolled portion of the bill. Is that 
what it is?
  Mr. LEVIN. If they are already together, then there is no need for 
this paragraph. This paragraph only says that we will not separately 
enroll the restriction where we can link it to an appropriation. If we 
cannot link it to an appropriation, if it is in another bill, it will 
then have to either be separately enrolled or packaged as a separate 
enrollment.
  There is no cure for that problem under the current law. That is a 
problem which exists in our current law, that we restrict in one 
appropriation bill the President's authority to spend money in another 
appropriation bill. This does not solve that problem. It does not 
worsen the problem.
  In other words, this does not do a lot of the things that I think the 
Senator would like to see done. It does not do a lot of the things I 
would like to see done. What it does do is make sure that where there 
is a restriction on an appropriation in a bill, that we do not separate 
the restriction from the appropriation, because then again we would be 
giving up a power over the purse for no advantage to the Treasury.
  Where we can do that, we should do that.
  Mr. BINGAMAN. Madam President, let me go at this slightly 
differently. And I am not trying to delay my colleagues here. I do have 
legitimate questions that I wanted to ask.
  If I could get one other example for the Senator from Michigan to 
respond to. Considering this option, ``Of the $1 billion appropriated 
for research and development, not more than $100 million shall be spent 
on'' a specific project. Is that an earmark? I guess that is the 
question. Even though it does not mandate that $100 million be spent, 
it is a strong signal by the Congress that we intend that $100 million 
be available and spent. Is that an earmark which we are trying to 
eliminate by this legislation?
  Mr. LEVIN. The language of the amendment is that if it does not 
create an expressed or implied obligation to spend the $100 million, 
then the answer would be ``no.''
  Now, in my judgment, the way that was read, the answer would be 
``no.''
  Mr. BINGAMAN. So the view of the Senator from Michigan is that that 
kind of a proviso does not constitute an implied obligation to expend 
those funds?
  Mr. LEVIN. That is right.
  Mr. BINGAMAN. Let me ask, on the third subsection of this where it 
talks about--again, we are trying to define items and saying that items 
do not include conditions--language which ``conditions on an item of 
appropriation not involving a positive allocation of funds.''
  Madam President, my concern is that I thought all items of 
appropriation were, by definition, positive allocations of funds. That 
is what I thought an appropriation was. It was an allocation of funds 
for a purpose.
  Here we are saying that we are not going to include in the definition 
of item language which ``conditions on an item of appropriation not 
involving a positive allocation of funds. * * *'' I do not understand 
that language. It sounds to me entirely contradictory. I am obviously 
missing something.
  Mr. MURKOWSKI. If I may respond, it is the implied purpose that no 
money can be spent. It says ``not involving a positive allocation of 
funds and explicitly prohibiting the use of any funds.''
 Does that answer the question?

  Mr. BINGAMAN. Madam President, I guess I still have a concern in 
talking about language that ``conditions * * * an item of appropriation 
not involving a positive allocation of funds.'' I did not know there 
were any items of appropriation that did not involve positive 
allocations of funds. I thought----
  Mr. MURKOWSKI. If I may respond, my example given on the Department 
of Defense of $75 billion provided that none of the funds appropriated 
be available to deploy Armed Forces to participate in implementation. 
None of the funds.
  Mr. McCAIN. May I add to that? It refers to any ``conditions on an 
item.'' Not to the item, I say to the Senator from New Mexico; any 
``conditions on an item of appropriation not involving a positive 
allocation of funds.''
  There are many conditions that are placed that do not have anything 
to do with allocation of funds. We are talking about the condition, not 
the item, in the amendment.
  Mr. BINGAMAN. All right. Let me ask one other question here, Madam 
President, just to try to get a clear notion. The language of the 
amendment talks about language which ``rescinds or cancels existing 
budget authority.'' I guess I have two questions on that.
  What do we mean by ``existing'' and what do we mean by ``budget 
authority''? Are we talking about just this current fiscal year's 
rescissions? And, if so, is it appropriate to just limit or just 
exclude from the definition of ``item'' rescissions of budget 
authority? Or should we also be excluding from the definition of 
``items'' rescissions of appropriations, as well?
  Mr. LEVIN. First of all, to answer question No. 1, it is not limited 
to the current year. Second, appropriations, as I understand it, are a 
budget authority. The words ``budget authority'' include 
appropriations, I am informed by the technical experts here on our 
staff. It surely is intended to include appropriations.
  Mr. BINGAMAN. So it would not be limited just to the current fiscal 
year; is that correct, Madam President?
  Mr. LEVIN. That is correct.
  Mr. BINGAMAN. And therefore a 5-year budget resolution is what would 
be the determining factor, is that right, in whether or not a 
rescission would be exempt from the definition of ``item'' for purposes 
of this section?
  Mr. LEVIN. It would cover the rescission of existing budget authority 
for whatever year that it has been adopted.
  Mr. BINGAMAN. OK.
  Madam President, I have delayed the Senate long enough. Let me just 
conclude by making a general statement.
  I think what we are faced with, with this amendment--and I think it 
is a conscientious effort by the Senator from Michigan and the Senator 
from Alaska to come up with some way of sorting out a separation of the 
appropriating process from the policymaking process. That is what they 
are trying to do here, as I understand it. They are trying to preserve 
to the Congress the ability to make policy while granting to the 
President dramatic new powers with regard to the actual appropriating 
of funds or the prevention of funds from being appropriated. That is 
what I understand is going on.
  I think it is very, very difficult to sort those things out. I think 
it is very difficult to grant to the President one power and reserve to 
the Congress the accompanying power--which is what this amendment is 
trying to do. I think it may go a short distance in getting us to that, 
but I think the grant of authority, if the bill which is pending before 
us is adopted, as I gather it is going to be--the grant of authority is 
broad and the President, I think, would find that he has very broad 
authority to countermand policy decisions by the Congress through the 
use of this new veto power that we would be granting in this 
legislation.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first let me say I agree with my friend 
from New Mexico. This is an effort here to 
[[Page S4433]]  not give to the President, to avoid giving to the 
President, power which does not lead to a reduction in spending. The 
purpose of the line-item veto is to try to give the President 
additional authority over spending where the Congress adds spending. 
But where the Congress is restricting spending, limiting spending, 
rescinding spending, conditioning spending for policy purposes that we 
believe are good and valid, we surely do not want to give the President 
the veto authority over those restrictions, limitations, conditions, 
and rescissions.
  The Senator from New Mexico is exactly right. That is the purpose of 
this amendment.
  I do not support the underlying substitute to which this amendment 
will hopefully be attached. I think we are going to create an absolute 
nightmare for the legislative process, for the executive branch, in 
splintering up an appropriations bill into all kinds of shards and 
little pieces. But it appears clear that is what the Senate is about to 
do. I do not support that approach.
  But if we are going to do that, for heaven's sake, let us not go 
beyond the purpose of a line-item veto, which is to give the President, 
presumably, the authority to veto additional spending. Let us not give 
the President the authority to wipe out our restrictions on spending. 
Let us not give the President that additional authority to wipe out our 
conditions on spending, our rescissions of spending. There is no reason 
to do that.
  While this only cures one of the problems, in my book, with the 
underlying substitute--and there are plenty of others that give me 
cause to oppose the underlying substitute--I think we surely ought to 
do this much, and do what we can to avoid unintended consequences.
  I believe the sponsors of the underlying substitute support this 
because it is not their intention to give the President authority to 
wipe out our restrictions on spending and our rescissions of spending. 
Since that is not, I hope, their intent, we can do the best we can to 
correct the bill in this regard. But without this amendment, the bill 
would give the President a separate piece of a bill, of an 
appropriations bill, and that piece would have just the limitation or 
just the restriction or just the condition, allowing the President to 
separately veto that and then to be able to spend all of the money 
without restriction.
  So I think the Senator from New Mexico pointed out what the purpose 
of the amendment is and is accurate in saying it does not solve a 
number of additional problems. I would agree with him. But it does 
solve some of the problems. I hope it will be adopted.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I would like to thank Senator Bingaman 
for bringing these issues to the attention of this body as we are 
considering it. I think there will be significant questions. As the 
Senator from New Mexico pointed out, this is a very significant and 
fundamental change in the way that business is done. So these examples, 
and the questions that are in the Record, I think, will be helpful when 
we proceed--I put that perhaps a little too optimistically--when we 
proceed to implement the line-item veto. I thank the Senator from New 
Mexico.
  I would like to point out that, as I said earlier, we have proved to 
anyone's satisfaction here that the Congress can ignore or violate any 
law that it passes. The most outstanding example, of course, is the War 
Powers Act. The Congress of the United States, over the veto of the 
President of the United States, passed the War Powers Act. We routinely 
ignore that legislation--routinely; perhaps one of the most fundamental 
principles of the separation of powers as embodied in our Constitution.
  So I am fully aware that if the Congress wants to violate this law 
when we pass it, they can. They can find loopholes. They can find ways 
around it. But this language in the Levin-Murkowski amendment I think 
makes it very clear that the President of the United States cannot and 
should not be able to veto an item of condition or money--moneys that 
the Congress appropriated under those conditions, and be able to 
separate the two. I think this amendment is very clear in that 
direction.
  Senator Levin very thoughtfully points out other problems he has with 
the bill. I think many of those problems are legitimate. I had a long 
exchange yesterday with Senator Byrd, who raised some legitimate 
concerns.
  But I believe there are two ways to look at this legislation. One is 
to go at what the intent is, what the language is, what I think is very 
clear and has been interpreted on this floor as to what it is. Or we 
can go at it and say we will find some loopholes here and we will 
appropriate $50 billion--$234 billion for defense, period; or maybe 
even break it up into the Army, Navy, Marine Corps, and Air Force.
  We can also better shape legislation so the intent of legislation is 
clear, so it is very easy to enroll and, frankly, Madam President, with 
some of the extraneous matter taken out of it which I believe will make 
these bills much smaller than they are today,
 because I do not think we get away with some of the items that are now 
put in which some of us only discover weeks or months after the passage 
of the legislation. Items that are put in in conference between the two 
bodies, no Members except those members of the conference, a small 
number of people, ever see until we are presented with that 
legislation, and we only have two choices: yes or no, up or down on 
that bill. That is not what the participation of Members of the body in 
shaping legislation is all about, in my view.

  So I again want to thank the Senator from Michigan. I think it is 
particularly interesting that the Senator from Michigan opposes this 
bill, yet he is willing to spend an enormous amount of time and energy 
in trying to make this bill better.
  My sincere appreciation goes to the Senator from Michigan for his 
attempts and for what I think he and the Senator from Alaska have done. 
Frankly, that is what the amending process on the floor of the Senate 
is all about: to make legislation better. The Senator from Michigan saw 
a potential serious problem. I believe that his amendment addresses the 
vast majority of it.
  Madam President, I yield.
  Mr. LEVIN. Madam President, let me thank my friend from Arizona, 
first of all, for his comments and for his support. I want to thank 
Senator Murkowski because he also noted a very significant problem with 
this approach. We worked out this common solution to it.
  I thank Senator Exon for his cosponsorship and support.
  Madam President, I also thank the Senator from New Mexico. He raises 
some very important questions which will help create a record which, 
hopefully, will in turn help to implement this legislation, if it is 
ever passed.
  I yield the floor.
  Mr. MURKOWSKI. Madam President, I have worked with the distinguished 
senior Senator from Michigan, Senator Levin, in developing some 
examples of the implications of amendment No. 406. I think these 
examples provide our colleagues with a clearer picture of the 
limitations that will be imposed on enrolling line items.
  Mr. LEVIN. I appreciate the help of my colleague from Alaska in 
developing these examples and I believe they reflect our intent in 
drafting this amendment.
  Example I: Absolute funding prohibition as part of an appropriation; 
a Defense appropriations bill contains a provision that provides:
  Funding for the Department of Defense: For military personnel $75 
billion: Provided that none of the funds appropriated be available to 
deploy United States Armed Forces to participate in the implementation 
of a peace settlement in Bosnia unless previously authorized by 
Congress. Under the pending substitute, the President would be 
presented with two bills:
  Bill 1 appropriates $75 billion for military personnel.
  Bill 2 bars United States troops in Bosnia peacekeeping.
  The President can sign bill 1 and veto bill 2. He thus will be able 
to receive the $75 billion without restriction and could send troops to 
Bosnia without congressional approval.
  Under our amendment, the President receives one bill:
  Since the restriction in the appropriations bill completely bars the 
use of any funds in Bosnia peacekeeping, 
[[Page S4434]]  the President would receive only one bill which 
contains the appropriation of $75 billion along with the Bosnia 
restriction. The President must either sign the bill and accept the 
Bosnia restriction or he must veto the bill and not have the $75 
billion available.
  Example II: Funding Prohibition as a Free Standing Provision; other 
limits and conditions on appropriations are frequently placed at the 
end of an appropriations bill. For example, in last year's Commerce, 
Justice appropriations bill, provisions were included prohibiting the 
expenditure of funds for specific purposes including: publicity and 
propaganda purposes not authorized by the Congress; expenditures for 
consulting services that are not a matter of public record; the 
purchase of certain equipment outside the United States; and the 
implementation of certain EEOC harassment guidelines based on religion.
  Similarly, last year's Defense appropriations bill contained 
provisions prohibiting the expenditure of any funds for specific 
purposes, including: To build a specific radar system; to establish or 
support a specific type of maintenance support activity for the B-2 
bomber; or to carry out specified research projects involving the use 
of animals.
  Other examples of limits and conditions on appropriation that are 
free standing sections within an appropriations bill include last 
week's Defense supplemental bill passed by the Senate. Section 108 
contains a requirement that none of the funds appropriated by the act 
may be made available for operations in Haiti more than 60 days after 
the date of enactment, unless the President complies with specified 
reporting requirements.
  Under the substitute, as originally drafted, each of these 
limitations would be placed in a separate bill, and could be vetoed by 
the President. For example, the President could sign the supplemental 
appropriation bill providing the money for operations in Haiti and veto 
the limitation.
  Under our amendment, the general limitations in a bill would not be 
items, and would be enrolled together in a single bill. Thus the 
limitation on funds for Haiti would not be a separate item. Because it 
pertains to multiple appropriations, it would be enrolled with the 
general limitations described above.
  Example III: Limitation and conditions; a VA-HUD bill appropriates 
$350 million for research and development activities including 
procurement of laboratory equipment and supplies and repair and 
renovation of facilities. A proviso in that bill states that no more 
than $55 million of these funds shall be available for procurement of 
laboratory equipment. The proviso does not mandate that money be spent 
on laboratory equipment. Nor should it be considered as creating an 
express or implied obligation to expand funds. It only provides that if 
the administration chooses to spend money on such equipment, it can 
expend no more than $55 million.
  The President would receive only one bill containing the $350 million 
appropriation along with the restriction limiting the amount of money 
that can be expended for procurement of laboratory equipment.
  Similarly, a provision stating that ``not to exceed $8,000'' of an 
overall appropriation may be expended for official reception and 
representation expenses would be enrolled with the appropriation that 
is so limited, and not as a separate bill.
  Example IV: Implicit obligation to spend; the same legislation as in 
example II appropriates $350 million for procurement of laboratory 
equipment, supplies, repair and renovation of facilities contains a 
proviso that three research facilities be constructed in a particular 
State at a cost of no more than $30 million. Such a condition would not 
be covered under our amendment. That's because the proviso requires the 
construction of such facilities and therefore implicitly obligates the 
expenditure of funds.
  The President would receive two bills. One would contain the $350 
million appropriation for laboratory equipment, supplies, repair and 
renovation of facilities. The second bill would contain the provision 
specifying that three research facilities be constructed in a 
particular State at a cost of no more than $30 million. The President 
could sign or veto the first bill and could sign or veto the second 
bill.
  Mr. EXON. Madam President, I thank my friend and colleague from 
Michigan. I think this is a very, very good amendment. It certainly 
does not cover all of the concerns I have in this area, but a 
considerable number of those concerns.
  I am very pleased to be a cosponsor of the amendment, and once again 
I appreciate my colleague's attention to the details. I think the 
amendment makes the proposition, although I still have some concerns, 
much more palatable. I thank him for offering the amendment. I believe 
we are ready to act on it.
  I yield the floor.
  Mr. McCAIN. Madam President, I was admonished yesterday by the 
distinguished Senator from West Virginia that it is not appropriate to 
say I move the amendment. I do not say that. But I note that there is 
no further debate at this time as far as I can tell.
  The PRESIDING OFFICER. If there is no further debate, the question is 
on agreeing to the amendment.
  The amendment (No. 406) to No. 347 was agreed to.
  Mr. McCAIN. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. EXON. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. McCAIN. Madam President, I say to my colleague and friend from 
Nebraska that it is my understanding, now that this amendment has been 
taken care of, that Senator Hatch is now ready to propose an amendment. 
I believe that he may decide to withdraw that amendment.
  Then remaining, as far as I can ascertain, will be the Abraham 
amendment which I believe Senator Byrd wanted discussed, and then 
finally the Byrd amendment itself.
  So perhaps we could notify the Senator from West Virginia that his 
involvement on the two remaining amendments will be what remains after 
Senator Hatch finishes.
  Mr. EXON. We will certainly tell the Senator from West Virginia what 
is taking place so that he will be fully advised. My conversations with 
him indicated that he may want to make some comments with regard to the 
amendment that is going to be discussed by our colleague from Utah.
  Also, the Senator from Arizona is correct. I believe very likely we 
could agree to the Abraham amendment that Senator Byrd wanted to talk 
on. I do not know what his position is. But he wants to talk on it. 
After we dispose in some fashion of the Hatch amendment, the only 
thing, as the Senator from Arizona said, that I know of is the Abraham 
amendment that Senator Byrd wishes to address, and the Byrd amendment 
itself. I think that indicates that we have moved in great fashion by 
working together in moving this. We are much further along than most of 
us thought we would be on Tuesday last.
  Mr. McCAIN. I thank my friend from Nebraska for his totally 
cooperative spirit in this effort. Perhaps Senator Byrd would want 
Senator Abraham on the floor when he discusses his amendment. So 
perhaps we can coordinate that.
  Mr. EXON. Senator Abraham told me about one-half hour ago that he, by 
necessity, had to leave the Hill and would be back in about an hour, 
which I thought would be around 2 o'clock or something like that. He 
asked me to tell Senator Byrd that he was sorry that he had to leave. 
So we will pass along the information to Senator Byrd on the fact that 
Senator Abraham will be back around 2, and whether or not he wants to 
come up and talk about the next business, the amendment by the Senator 
from Utah, and we will see that all parties are properly advised.
  I yield the floor.
  Mr. McCAIN. Madam President, I note the presence of the distinguished 
chairman of the Judiciary Committee on the floor.
  I yield the floor.
  Mr. HATCH addressed the chair.
  The PRESIDING OFFICER. The Senator from Utah.


                 Amendment No. 407 to Amendment No. 347

  Mr. HATCH. Madam President, I call up amendment No. 407.
   [[Page S4435]] The PRESIDING OFFICER. That amendment is the pending 
question at this time.
  Mr. HATCH. I thank the Chair.
  Madam President, my amendment to the Dole substitute version of S. 4 
excludes items of appropriation for the judicial branch from enrollment 
as separate measures prior to presentment to the President. It provides 
instead that items of appropriation for the judicial branch shall be 
enrolled together in a single measure. This amendment would help ensure 
the independence of the judiciary from the executive branch, and would 
not detract from what this bill seeks to accomplish.
  The amendment is designed to protect the judicial branch from 
attempts by the President to influence or punish the judiciary--or 
otherwise undermine its independence as a co-equal branch of 
Government--through exercising the line-item veto power with respect to 
particular judicial appropriations. While I would hope that no 
President would think to exercise the line-item veto in such a manner, 
it remains a very real threat that we can easily safeguard against at 
this stage through adopting this amendment.
  The amendment I propose would do that by excluding items of 
appropriation for the judicial branch from enrollment as separate 
measures for presentment to the President. The exception would cover 
all salaries and expenses related to the operation and administration 
of the Federal courts. The exception would not extend to courthouse 
construction, which does not appear in the judiciary's budget and which 
would remain subject to the line-item veto. Under my amendment, if any 
of the covered items appeared in an appropriations measure, those items 
would be enrolled together into a single measure.
  The amendment is carefully crafted to avoid creating a loophole 
through which other expenses could be shielded from the line-item veto. 
A budgetary item would only qualify for the exception from separate 
enrollment if it is for one of the functions of the judiciary as those 
are listed or described in the current appropriations act. Thus, 
Congress could not seek to hide an item from the line-item veto by 
slipping it into the judiciary's budget.
  I believe that the judiciary needs this protection. In the absence of 
this exception, the judicial branch would be particularly vulnerable to 
the President's whim. In one form or another, the executive branch is 
the largest litigator in the Federal courts. Federal courts frequently 
weigh in on the legality of executive branch action. It is not 
difficult to appreciate how the judicial branch would be vulnerable to 
the line-item veto because of that. Perhaps more important, the 
judiciary would be relatively powerless to defend itself compared with 
the legislature. Although a President could conceivably use the line-
item veto to target particular functions of the legislative branch, 
Congress would have a keen interest in defending itself against such a 
veto if it believed the veto unwise, and would have at its disposal the 
direct means through which to override a Presidential veto. The 
judicial branch, however, cannot defend itself.
  John Adams stated that ``The judicial power ought to be distinct from 
both the legislative and executive, and independent upon both, so that 
it may be a check upon both.'' Just as the judiciary is separate from 
the executive and legislative powers in our constitutional system, so 
its independence should be safeguarded through the budgetary process on 
which it depends.
  Current law already protects the judiciary's budget from Presidential 
action, in large part to insulate the judiciary from political 
manipulation through the budget process. By statute [31 U.S.C. 
Sec. 1105(b)], the Judicial branch's budget is accorded protection from 
Presidential alteration. When the President transmits a proposed 
Federal budget to Congress, the President must forward the judicial 
branch's proposed budget to Congress unchanged. That process has been 
in operation since 1939. It was adopted in part because of unilateral 
action taken by the executive branch in the 1930's to cut the 
judiciary's funding. The Chairman of the Judicial Conference, Chief 
Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth 
Circuit, testified before the Senate Governmental Affairs Committee, 
that in the 1930's executive branch action forced the firing of court 
staff and cut in half the salaries of judges' secretaries. That kind of 
action to influence our Federal judges cannot be tolerated, and it 
should not be allowed to creep back into the system.
  Under the present system, that does not mean that the judiciary is 
immune from budget cuts. The judiciary must independently justify its 
budget to Congress, and must operate within the budget appropriated for 
it. It would continue to do so under the amendment I propose. In 
addition, Congress would
 continue to be as free to legislate the judiciary's budget under my 
amendment as it is today. The President would also remain free to veto 
the Judiciary's entire budget. To subject the judiciary's budget to 
separate enrollment, however, risks undermining the current approach--
and the balance of power between the executive and judicial branches--
and risks exposing the judiciary to targeted, politically motivated 
retaliation. The President should not be permitted to veto specific 
appropriations for the judiciary where those appropriations have been 
carefully shielded from Presidential alteration in the first place.

  Moreover, an exception for the judiciary would have virtually no 
impact on the Federal budget. The entire budget for the judiciary is 
two-tenths of 1 percent of the entire Federal budget. While the 
judiciary could be devastated by the line-item veto if portions of its 
budget were subject to separate enrollment, subjecting it to the line-
item veto could not possibly have any significant impact in terms of 
budget reduction.
  Normally, I would say subject every line item covered by the bill to 
Presidential veto. But I believe that an exception for the judicial 
branch is uniquely warranted on principle. The judiciary is a separate 
and co-equal branch of Government that does not have the institutional 
power to look after itself under separate enrollment. The Congress can 
safeguard itself through the use of the veto override process. The 
judiciary, however, possesses no similar safeguard.
  To be sure, Congress would have the authority to override a veto of 
any item in the judiciary's budget. I feel very strongly, however, that 
the judiciary should not be placed in the position of depending on that 
action. That is too slender a reed on which to rest the independence of 
the judiciary. This amendment will better ensure the judiciary's 
independence and protect it as a co-equal branch of Government.
  Mr. President, my amendment does not alter the basic operation of the 
underlying legislation. Nor would its adoption be a precedent 
justifying other exceptions: no other entity or part of our system of 
Government funded by Congress stands on the same footing as the Federal 
Judiciary, a co-equal branch of the central Government.
  I hope my colleagues will join me in acknowledging the status of the 
judiciary as a branch of Government co-equal in status to the Congress 
and the President, and will support this amendment.
  Let me give my colleagues a hypothetical which illustrates my 
concern. It involves private property rights.
  The U.S. Court of Appeals for the Federal Circuit is a separate line 
item, currently at $13 million. Among other matters, this court 
currently handles all appeals in property rights cases under the 
takings clause of the fifth amendment. Suppose this court hands down a 
string of cases favoring property owners, and against the Federal 
Government. Suppose further that this angers the President. Without my 
amendment, he could veto the $13 million line item--with the exception 
of the salaries of the judges, which the constitution protects, return 
it to Congress, and object that the item should be reduced to $10 
million, citing, not the private property rights cases, but some 
ostensible good Government, cost-saving reason. Now, Congress can 
either override the veto or pass a new bill giving this court only $10 
million, hampering its ability to function. Or worse yet, the President 
could veto it all and just take the whole $13 million.
  What is likely to happen? Most Americans, and probably most Members 
of Congress, have never heard of this court. No one is going to get 
worked up about this unknown court and $3 million. The judges of the 
court 
[[Page S4436]]  are hamstrung from speaking frankly and accusing the 
President of undermining them because he dislikes their opinions--that 
gets them too involved in the political process.
  We do not want judges moving back and forth in accordance with every 
blink or whimsy of the President of the United States or the Congress 
also. We want judges judging things on the merits, the way they should 
be judging matters.
  Moreover, if enough congressional members of the President's party 
share his disapproval of how this court has ruled on these matters, a 
two thirds override will not happen. Congress will be forced to cut the 
court's budget and the independence of the judiciary has been 
undermined.
  If all of the judicial branch's appropriations are in one bill, 
however, including the Supreme Court, the other courts of appeal, the 
district courts, and so on, the President couldn't get away with this. 
We all know what the Supreme Court and the other courts do. If the 
President wanted to tamper with the Court of Appeals for the Federal 
Circuit, he would have to veto the Supreme Court's funding and the 
funding of all of the other Federal courts. This would alarm people. I 
doubt very much that a President would veto a $2.7 billion bill for the 
sake of knocking out $3 million for this obscure court. If he does so, 
I think Congress would override it so the Supreme Court, for example, 
is able to function.
  I make this argument only in defense of a coequal branch of 
Government which has no direct means of protecting itself. I am not 
being critical of the line-item veto in other contexts, and I will 
support it.
  I understand that Senator Byrd would like to speak on this amendment, 
so I will yield the floor at this time before making any further 
motions on it.
  Mr. BYRD addressed the chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. It is my understanding that the distinguished Senator from 
Wyoming [Mr. Simpson] wanted to speak as if in morning business for 10 
minutes. Would it be agreeable----
  Mr. HATCH. That is certainly agreeable with me.
  Mr. BYRD. With the Senator from Utah? If Mr. Simpson would like to 
come down now, I would like to ask some questions of the distinguished 
Senator from Utah but I do not want to be in a position of keeping Mr. 
Simpson waiting. If it does not inconvenience the distinguished Senator 
from Utah, I would be happy to wait until the Senator from Wyoming 
makes his statement.
  Mr. HATCH. That will be fine. I need to go to another meeting for a 
few minutes anyway. And I will come right back as soon as I am through.
  Mr. BYRD. All right.
  Could we get the yeas and nays on the Senator's amendment now?
  Mr. HATCH. I would prefer to wait, holding out on the yeas and nays 
for just a short period.
  Mr. BYRD. Very well.
  Mr. HATCH. If the Senator desires them, we will get them.
  Mr. BYRD. Very well.
  Madam President, the distinguished Senator from Utah has to be off 
the floor for a few minutes to attend a press conference. I would 
prefer that he be here. I do have a few things to say about this 
amendment and I have some questions to ask. So I would prefer to 
suggest the absence of a quorum and give the Senator an opportunity to 
attend the press conference.
  In the meantime, if the distinguished Senator from Wyoming [Mr. 
Simpson] could be contacted, he perhaps could make his statement before 
further discussion on this amendment.
  So, unless the distinguished Senator from Arizona or any other 
Senator wishes to speak, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ROTH. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Mr. President, I rise in support of the Hatch-Roth 
amendment. This amendment would exempt portions of the budget used to 
support the Federal judiciary from the line-item veto by directing that 
the entire appropriation for the judicial branch be enrolled in a 
single bill.
  From the outset, I want to make it clear that I support the idea of 
the line-item veto. I believe that it is important to give the 
President the authority to selectively eliminate expenditures of 
taxpayer funds which are not in the public interest. I believe the 
legislation we are considering will do that, and that this legislation 
is a big step toward fiscal responsibility.
  But when it comes to the funding of the Federal judiciary, we are 
dealing with very sensitive constitutional issues. An independent 
Federal judiciary was so important to the Founders that the 
Constitution itself not only gives Federal judges lifetime tenure, it 
specifically prohibits any reduction of salary during a Federal judge's 
term of office.
  Our amendment would exempt the Federal judiciary from the line-item 
veto. Unless this amendment is adopted, the vast majority of the 
judiciary's appropriations would be subject to a line-item veto by the 
President. Only the salaries of article II and bankruptcy judges and 
retirement-related programs would be excluded.
  If the Founders were concerned enough about the independence of the 
Federal judiciary to prohibit reductions in salary during a judge's 
tenure, we ought now to be extremely cautious about giving the 
executive branch the power to exert pressure on the judicial branch by 
the withholding funds for necessary judicial staff salaries, equipment 
or communications, for example. Of course, I am not asserting that this 
President, or any President, would use the line-item veto authority 
granted by this bill to exert such improper pressure, but the fact is 
that the power to do so would exist under this bill. We should keep in 
mind that the Executive branch always has more lawsuits pending in the 
Federal courts than any other litigant.
  Since 1939 the Budget and Accounting Act has provided that requests 
for appropriations for the judicial branch shall be submitted to the 
President and transmitted by him to Congress ``without change'' [31 USC 
1105 (b)]. This legislation was adopted because of the inevitable 
conflicts that arose in having the Department of Justice cut funds 
requested by the judiciary before the judicial budget was submitted to 
Congress. That legislation is still in effect. It seems anomalous to 
prohibit the executive branch from changing the judiciary's budget 
prior to submission to Congress, but then to give the President 
unilateral authority to revise an enacted budget.
  Does this mean that if our amendment is adopted the Judiciary gets a 
free ride to spend as much as it likes? Of course not. The judicial 
budget would still be subject to congressional approval and 
Presidential veto, just as it is now. Moreover, it should be noted that 
the judiciary's budget does not include funding for courthouse 
construction. Budget requests and appropriations for building 
construction are within the province of the executive branch and the 
Congress, and are not affected by our amendment since the judiciary has 
no role in the funding of such construction.
  For all these reasons, this amendment makes a great deal of sense. It 
is the prudent and responsible thing to do, and I urge its adoption.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Abraham). Without objection, it is so 
ordered.
  Mr. BYRD. Mr. President, the amendment by Mr. Hatch reads as follows:

       On page 3, line 21, after ``separately'' insert ``except 
     for items of appropriation provided for the judicial branch, 
     which shall be enrolled together in a single measure. For 
     purposes of this paragraph, the terms `items of appropriation 
     provided for the judicial branch' means only those functions 
     and expenditures that are currently included in the 
     appropriations accounts of the judiciary, as those accounts 
     are listed and described in the Department of Commerce, 
     Justice, and State, the Judiciary, and Related Appropriations 
     Act.''

  [[Page S4437]] May I ask the very distinguished chairman of the 
Judiciary Committee, the author of this amendment, why are we seeking 
to exempt the judiciary from the four corners of the measure that has 
been introduced by Mr. Dole as a substitute for S. 4?
  Why do we seek to exempt the judiciary from the reaches, from the 
requirements of the substitute? Why should the judiciary be exempted? I 
know these are questions that not many Senators are very likely to come 
to the floor and ask, but I think they should be asked. I would like to 
have the distinguished Senator's response to that question.
  Mr. HATCH. I think it is a good question. Of course, keep in mind 
that the judiciary is one of the three separated powers in our 
Constitution. The executive branch of Government has plenty of power 
under this amendment to veto the line items. The legislative branch has 
the power to send the appropriations bills and other bills to the 
executive branch in and of its own; if items are vetoed, the 
legislative branch can defend itself by, of course, overriding that 
veto. The judicial branch, however, has no power under the line-item 
veto in comparison with the other two.
  Without a judicial branch exception to separate enrollment, the 
judiciary is more vulnerable than the other two co-equal branches of 
Government.
  Under the line-item veto, the judiciary could be highly vulnerable to 
targeted budget cuts if its budget were subject to separate enrollment. 
Congress, as I have said, can protect itself from such use of the line-
item veto through the legislative process in overriding a Presidential 
veto. The judiciary, however, does not have the means to protect 
itself.
  In order to preserve the judiciary's place as a coequal branch of 
Government, the appropriations items in the judiciary's budget should 
be excluded from separate enrollment and should instead be enrolled as 
a separate measure.
  Let me just say this. The exception that we are asking for--and I am 
a supporter of the line-item veto measure before this body--the 
exception I am asking for would cover all salaries and expenses related 
to the operation and administration of the Federal courts. It would not 
extend to courthouse construction, which does not appear in the 
judiciary's budget, and which would remain subject to the line-item 
veto.
  Under my amendment, if any of the covered items appeared in an 
appropriations measure, those items would be enrolled together into a 
single measure.
  We feel we have carefully crafted the amendment to avoid creating 
loopholes through which other expenses could be shielded from the line-
item veto. A budgetary item would only qualify for exemption from 
separate enrollment if it is for one of the functions of the judiciary 
as those are listed and described in the current appropriations act.
  Thus, Congress could not seek to hide an item from a line-item veto 
by slipping it into the judiciary's budget. We feel this is an 
appropriate thing to do since the judicial branch of Government is a 
co-equal, separate branch of Government and is supposed to be kept out 
of politics.
  If, for instance, we allow line-item vetoes on salaries and the 
administration of the courts, then it seems to me almost impossible to 
keep the judges out of politics. That is not the direction we want to 
go.
 And, frankly, I think this an appropriate amendment under those 
circumstances.

  Mr. BYRD. Well, Mr. President, I certainly respect the views of the 
distinguished Senator in this area, as well as in all other areas. I 
have had a long and cordial association with the distinguished Senator 
from Utah that extends over a period of many years. I sat on the 
Judiciary Committee at one time with the Senator, and he is a very 
distinguished chairman of that committee.
  But here we are, we are purporting to send to the President 
legislation that will allow the President to veto any one, or more, of 
the hundreds, perhaps even thousands of minibills--or ``billettes,'' as 
I prefer to call them--which will flood the President's desk as a 
result of the requirements of this substitute by Mr. Dole.
  It seems to me that all of the branches of Government should be 
governed equally in the enrollment of ``billettes,'' thus giving the 
President an opportunity, if he thinks there should be reduced 
expenditures in any of the accounts, with respect to any of the items, 
allocations, suballocation sections or paragraphs. It seems to me that 
the taxpayers would expect to be fully protected with reference to all 
three branches of Government and not just two, not just the executive 
branch and the legislative branch.
  For all practical purposes, I would imagine that the President, in 
line-iteming the ``billettes,'' will probably not be very severe with 
respect to items that are in the executive branch. If the judicial 
branch is to be exempted, then it further seems to me that the 
legislative branch is the one branch of the three that is going to feel 
the fall of the scimitar, the fall of the ax. It is going to be the 
object of the wet veto pen of a President.
  So while I realize that most Senators, maybe all except one, will 
vote for this amendment--I start out by presuming that I will be the 
only Senator that will vote against it. I presume all of the other 
Senators will vote for it. But that does not trouble me in the least. I 
have been in that situation before. I cannot believe that justice is 
being done in relation to this hurriedly written substitute, which was 
apparently cut and pasted together over the spread of a few hours, 
brought in here, laid down on Monday of this week, and upon which 
immediately was trained the cloture-motion gun. I cannot believe that 
justice is really being done with this piece of legislation on such 
short notice and under such limitations of the time.
  I agree with the Senator and recognize what he says with respect to 
the independence of the judiciary. I fully agree with the need for the 
judiciary to be independent. I do not quarrel with that at all. The 
constitutional Framers thought likewise, and rightly and wisely. There 
is nothing we can do with regard to the salaries of judges. Under the 
Constitution, they cannot be reduced. And I call attention to history 
in this regard, which is anathema, apparently, to a good many Members 
of the legislative branch. I am not just restricting my statement to 
this House. But history is something that, if we read it all, it must 
be a revisionist history. It cannot be the history that I studied. It 
cannot be Muzzey's history, because that history is not politically 
correct. Muzzey. The very first sentence of Muzzey says: ``America is 
the child of Europe,'' or something to that effect. Of course, that is 
politically incorrect today to say that. But inasmuch as you cannot 
teach an old dog new tricks, I still believe in Muzzey.
  I studied Muzzey by the old kerosene lamp back in the hills of West 
Virginia, Mercer County. I memorized my history lessons at night by the 
light of that old kerosene lamp. So I remember that the Founding 
Fathers decided that the judiciary should be independent, and they were 
preeminently correct in that they had studied history also, and they, I 
am sure, noted that in the English Bill of Rights--which started, may I 
say to the distinguished Senator from Alabama [Mr. Heflin], the English 
Declaration of Rights became the English Bill of Rights in 1689. In 
that English Declaration of Rights, there were certain provisions to 
which William III of Orange and Mary II had to agree before Parliament 
would make them joint sovereigns. Can you imagine that? Can you imagine 
Parliament saying to these two eminent personages, ``You will have to 
agree to this Declaration of Rights before we, the Members of 
Parliament, will enthrone you. Before we will put that crown on your 
heads, you will have to agree with these provisions, one of which is 
that judges shall enjoy life tenure. They cannot be derobed or 
defrocked or lose their capacity as judges just by the whim and fancy 
of the king. They are there on their good behavior.'' So William and 
Mary agreed to the provisions that were laid out in that Declaration of 
Rights.
  Another provision in the Declaration of Rights was that the Members 
of Parliament had the right of speech, right to free speech. They could 
not be questioned in any other place. We have the same provisions in 
our own Constitution to protect us, the Members of the U.S. Senate. We 
can say whatever we want on this floor. I can criticize the 
[[Page S4438]]  President of the United States, and there is not a 
thing he can do about what I say. There is not a thing anybody else can 
do about it. I have the right of freedom of speech right here on this 
floor, and I have no compunction with criticizing, in a constructive 
way, a king, a shah, a prince, or a President.
 Those are rights that were won for Englishmen, by Englishmen over a 
period of centuries.

  That is one of the things I am concerned about in the so-called line-
item veto. This is not a line-item veto. One of the things that 
concerned me about the line-item veto is the fact that a President 
might be able to cower a Member of the Congress, and cause that Member 
to be inhibited from voicing criticism of the President for fear that a 
project or program affecting the Member's State or the Member's 
district--talking about a Member of the other body--would be 
jeopardized if that Member were to speak critically of the President.
  So to that extent, it is not a measurable extent, but to that extent, 
a Member may be to some extent inhibited from exercising his freedom of 
speech. So these are just a few of the things that I call attention to 
that have been derived from the English Bill of Rights, the English 
constitution.
  The English constitution is an unwritten constitution except that it 
is composed of various documents, the Magna Carta, the Petition of 
Right, Declaration of Rights, other important documents, statutes, 
court cases, customs, traditions, and so on. All these things go up to 
make the English constitution, the British constitution.
  I am sure such a law would not be constitutional, but I would like to 
see a law that would place a requirement on every Member of the Senate 
and the House of Representatives to study American history and to study 
the history of England. Why? Because not only was England the mother 
country of our early forebears for the most part--Benjamin Franklin's 
father was an immigrant from England; Robert Morris, the financier of 
the Revolution was from England; and James Wilson, one of the delegates 
of the Convention on the Constitution from Pennsylvania, was born in 
Scotland.
  What I am saying is that every Member of this body ought to have a 
greater appreciation of the American Constitution. He should note the 
phrases and the clauses that are in the American Constitution that have 
their roots deeply embedded in the soil of the English constitution. 
Many of those rights were gained by Englishmen after centuries of 
struggle. Many of them were won at the top of the sword.
  So I will save any filibuster on this matter until later, if I am 
forced to. If I should be forced to have to filibuster, I think most 
Members recognize by now that I would not have to carry a bundle of 
notes to the floor. As long as my poor old feet that have been carrying 
me around now for more than 77 years are able to stand on this soft 
landing, but I recognize and fully support the independence of the 
judiciary.
  I hope that the author of the amendment has not grown tired already 
of what is just the beginning of what I want to say, and asks about 
this amendment.
  Mr. President, I was going to ask the distinguished Senator what is 
meant by the words ``currently included.'' I will read the sentence 
again: ``For purposes of this paragraph, the term items of 
appropriations provided for the judicial branch, means only those 
functions and expenditures that are currently included in the 
appropriations accounts and the Judiciary. . .''
  ``Currently included,'' only those that are currently included in the 
appropriations accounts of the judiciary as those accounts are listed 
and described in the Department of Commerce, Justice, and State, the 
judiciary and related agencies of the appropriations act.
  I promise the distinguished Senator I will repress my appetite for 
launching into the vast realms of history during the remainder of my 
discussion of this amendment. What is meant by those words ``For 
purposes of this paragraph, the term items of appropriations provide 
for the judicial branch means only those functions and expenditures 
that are currently included in the appropriations accounts of the 
judiciary.''
  Mr. HATCH. Mr. President, my distinguished colleague is as 
knowledgeable as anybody on the history of this body with respect to 
appropriations.
  Of course, he is currently the ranking member of that committee and 
he has chaired that committee. He knows what we are trying to do with 
that language. We are trying to define the exemption so that this will 
not become a loophole through which Congress could avoid a Presidential 
veto.
  As I have explained, we believe that the judiciary, which is a truly 
separated power and a co-equal branch of Government, has no real power 
unless it starts to politicize itself. I think that is what would 
happen if this amendment is not adopted and the line-item veto passes. 
If we do not give some protection here, we will politicize the 
judiciary.
  I think we need to have this protection. What this amendment does is 
take the vulnerable judicial branch, which is a small percentage of the 
budget, and exclude it from separate enrollment. We exclude it in 
accordance with the language in this amendment, with reference to 
appropriations for the judiciary as listed and described in the 
Department of Commerce, Justice, State, and Judiciary and related 
agencies Appropriations Act of 1995.
  We define it in that way so that we limit it so that there are no 
loopholes. We think it is a crucial matter. It is critical to do this 
because it is such a small part of the budget yet so easily politically 
manipulable. I do not want the courts manipulated, not by the 
Presidents, not by the Congress, not by anybody.
  Mr. BYRD. But the Senator has not answered my question. What do the 
words ``currently included in the appropriations accounts'' mean? What 
about new functions?
  Mr. HATCH. They would not be covered.
  Mr. BYRD. New functions would not be covered.
  Mr. HATCH. Just the ones currently covered. We want to have a 
definition in time, so if we are going to add features, they would not 
be covered. They could be enrolled as a separate item.
  Mr. BYRD. Let us take a look at what those current items are, what we 
are talking about.
  Mr. HATCH. Maybe I could--will the Senator yield?
  Mr. BYRD. Yes. I would like to point out an error that appears to me 
immediately.
  Mr. HATCH. OK.
  Mr. BYRD. Which again--which again is indicative of the hurry in 
which this substitute was put together.
  The Senator's amendment refers to Public Law 104-317. It refers to 
the Department of Commerce, Justice, and State, the Judiciary and 
Related Agencies Appropriations Act.
  Mr. HATCH. I agree with the Senator. It ought to be 103.
  Mr. BYRD. It has the wrong citation here.
  Mr. HATCH. It ought to be 103-317.
  Mr. BYRD. Error. Instead of Public Law 104-317, it is 103-317.
  That is a minor error. But just think of the thousands of errors that 
will be committed in the name of the enrolling clerk of the originating 
body once this monstrosity becomes law. That is just a small error. 
That can be cured easily by unanimous consent.
  Mr. HATCH. Will the Senator yield?
  Mr. BYRD. Yes.
  Mr. HATCH. That is a technical error. I think that can be easily 
remedied.
  But let me just say this----
  Mr. BYRD. Would the Senator like right now by unanimous consent to 
cure that error?
  Mr. HATCH. Yes. I ask unanimous consent it be cured at this time and 
it be modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 407), as modified, is as follows:

       On page 3, line 21, after ``separately'' insert ``, except 
     for items of appropriation provided for the judicial branch, 
     which shall be enrolled together in a single measure. For 
     purposes of this paragraph, the term `items of appropriation 
     provided for the judicial branch' means only those functions 
     and expenditures that are currently included in the 
     appropriations accounts of the judiciary, as those accounts 
     are listed and described in the Department of Commerce, 
     Justice and State, the Judiciary, and Related Agencies 
     Appropriations Act, 1995 (Public Law 103-317)''.

  Mr. HATCH. Mr. President, if I could, with the forbearance of my 
colleague 
[[Page S4439]]  from West Virginia--he asked the question what really 
is covered here. Let me just cover it briefly.
  The judiciary's budget is broken up into a number of sections and 
subsections. In the Judiciary Appropriations Act for 1995, the current 
act that is being referenced in the amendment--those accounts are, 1995 
amounts, as follows:
  First, Supreme Court of the United States. The 1995 appropriation is 
$27 million, which is almost a minuscule amount when you look at the 
total Federal budget of the United States.
  Second, Court of Appeals for the Federal Circuit. Their appropriation 
is $13 million.
  Third, the U.S. Court of International Trade's appropriation is $12 
million.
  Fourth, the courts of appeals, the district courts, and the other 
judicial services. This account covers the salaries and expenses of all 
Federal district courts, courts of appeals, and bankruptcy judges. This 
account also includes subaccounts for defender services, fees of jurors 
and commissioners, and court security. Salaries and expenses equals 
$2.340 billion; fees of jurors and commissioners equals $59 million; 
court security equals $97 million; defender services equals $250 
million.
  Fifth, the Administrative Office of the U.S. Courts' appropriation is 
$48 million.
  Sixth, the Federal Judicial Center's appropriation is $19 million.
  Seventh, the judicial retirement funds are $28 million.
  Eighth, the U.S. Sentencing Commission's appropriation is $9 million.
  This amendment only involves the judiciary's total 1995 budget, which 
is $2.9 billion. That is two-tenths of 1 percent of the Federal budget.
  I would like my colleagues to note the salaries and retirement 
expenses for article III Federal judges are constitutionally mandated 
expenses.
  The question might be, why should the exception be linked to today's 
judicial expenditures? What if there are technological changes or 
substantial changes in the organization of the courts? Could that not 
mean in the future some central judicial functions would be left out?
  If I interpret the question of the distinguished Senator from West 
Virginia, it is along those lines. I would respond this way: The 
judicial expenses included today are broad enough that they should 
cover most technological advances that might have an impact on the 
courts and court support services. As for any fundamental 
organizational changes in the courts, I agree that certain changes 
might in fact be so fundamental that they would be left out. If that is 
the case, however, the definition of the excepted judicial expenses for 
purposes of separate enrollment could be amended by statute to 
accommodate any fundamental changes.
  I do not foresee that as being likely, however, since most changes in 
court organization and operation would involve the types of services 
that are currently embodied in the appropriations process.
  Again, I commend the distinguished Senator from West Virginia and the 
distinguished Senator from Oregon and other members of the 
Appropriations Committee for handling these matters as well as they 
have.
  Mr. BYRD. Mr. President, I thank the distinguished Senator.
  What about these items that are in the Department of Commerce, 
Justice and State, Judiciary and Related Agencies, 1995 Appropriations, 
and 1994 Supplemental Appropriations? What about such items as these:

       $2,340,127,000 (including the purchase of firearms and 
     ammunition); of which not to exceed $14,454,000 shall remain 
     available until expended for space alteration projects; of 
     which not to exceed $11 million shall remain available until 
     expended for furniture and furnishings related to new space 
     alterations and construction projects; and of which $500,000 
     is to remain available until expended for acquisition of 
     books, periodicals, and newspapers, and all other legal 
     reference materials, including subscriptions.

  Mr. President, we are talking about chicken feed here, I realize 
that. But we are also talking about taxpayers' money. We are going to 
send to the President thousands of little billettes every year, any one 
of which he may line-item out. He can veto it. Any one of the 
legislative branch's items he can strike.
  Under the amendment of the distinguished Senator, as far as the 
judicial branch is concerned, everything is to be in one package. That 
package is not to be broken down. The enrolling clerk can go out and 
take a walk. He gets a rest. When he comes to that item he will not 
have to worry about breaking those out and enrolling those several 
little billettes.
  But to the taxpayer, $11 million is $11 million. The President might 
feel he ought to save some money and the judicial branch should not be 
exempt. Money is tight. We have a $5 trillion debt. The interest on the 
debt is running over $200 billion a year. The President may feel--and 
perhaps with good reason--that some of those items ought to be 
questioned. He may feel they ought to be reduced. There is $11 million 
that

       . . . shall remain available until expended for furniture 
     and furnishings related to new space alterations and 
     construction projects;
      and of which $500,000 is to remain available until . . . all 
     other legal reference materials, including subscriptions.

  I realize that the judges have to continue to read books, 
periodicals, and newspapers, and there may need to be some space 
alterations, and so on. But the President may feel that this is too 
much money.
  Why should he not have the same authority and rights to scrutinize 
the budget for the judicial branch and question those items, and even 
strike them out? He could strike them out. If Congress does not want to 
override the veto, or if it cannot, it could pass a new bill. Instead 
of providing $11 million, it might provide half of that.
  So the Senator's amendment, it seems to me, would let the judiciary 
go scot-free with no questions asked. The judicial branch is to be a 
preferential branch. The fact is that it is to be an independent 
branch. There is no reason why it should be a preferential branch when 
it comes to the line-item veto. It is a preferential branch under the 
Constitution by virtue of the fact that the salaries, title III judges' 
salaries, cannot be cut.
  How many Senators are aware of that? How many Senators are aware that 
when judges retire, they retire at full salary? How many Senators are 
aware that judges do not pay one thin dime into their retirement--not 
10 cents, not one copper penny, not one Indian head penny do the judges 
pay into their retirement. When they retire, they get full pay.
  President Nixon talked once upon a time about nominating me to the 
Supreme Court of the United States. I was flattered by his 
consideration. That may be one reason why President Nixon is my 
favorite Republican President during my lifetime. But I decided that 
was not the place for me. But, gee whiz. I would not have to pay 
anything into the retirement. I could retire at full pay. I would not 
have to run in any election. I would not have to worry about those 30-
second ads, would not have to raise any money for elections, would not 
have to purchase the services of consultants, and would not have to 
undergo the negative ads. I sometimes wonder if I did not make a 
mistake. No, I did not make a mistake. I like the legislative arena. I 
do not like to be quite that independent. I do not want to be quite 
that independent.
  That is not said in derogation of the judges. We have to have them. 
They have to be independent. But we are talking about a matter here 
that goes to the heart of the legislative power of the purse. We are 
going to some extent to shift the power over the purse from the 
legislative branch, where it has been reposed for 206 years, since the 
beginning of this Republic, we are going to expand the powers of the 
President and, of course, we do not operate in a vacuum when we expand 
the power of the President. In this sense, we are going to lessen the 
powers of the legislative branch.
  Looking further, under ``defender services.''

       . . . provided that not to exceed $19.8 million shall be 
     available for Death Penalty Resource Centers.

  I do not know. Who am I to say that every President, Republican or 
Democrat, is going to be in favor of Death Penalty Resource Centers? 
Does that have anything to do with the independence of judges? Does 
that have anything to do with the independence of judges? Death Penalty 
Resource Centers? Suppose the President wants to whack that $19.8 
million. That is not 
[[Page S4440]]  going to interfere with the independence of the judges, 
is it?
  Let the Record show that there is no answer, no response.
  Let us go down to the Administrative Office of the United States 
Courts. There we find advertising and rent in the District of Columbia 
and elsewhere, $47.5 million, of which not to exceed $7,500 is 
authorized for ``official reception and representation expenses.''
  What is that? What is meant by ``official reception and 
representation expenses''? Does that mean we can spend money on 
throwing a party, treating people to a few cocktails?
  I cannot believe that if the President wanted to cut that item, that 
he would be impairing the independence of judges. What about those 
people up there in the hills of West Virginia, who help to pay the 
taxes? I believe they would say, ``Well, we are going to have this so-
called line-item veto; why should we exempt moneys for official 
receptions and representation expenses in the judiciary, or in the 
legislative account, or in the executive branch? Why should that be 
exempted?''
  Then there is the Federal Judicial Center. I see under ``General 
Provisions, the Judiciary,'' section 304:

       Notwithstanding any other provisions of law, the salaries 
     and expenses and appropriations for district courts, courts 
     of appeals, and other judicial services shall be available 
     for official reception and representation expenses.

  Here is another of the same item, ``Official reception and 
representation expenses'' of the Judicial Conference of the United 
States, provided that such available funds shall not exceed $10,000.
  Well, $10,000 is $10,000, whether it is in the judicial branch or 
whether it is in the legislative branch; $10,000. You cannot brush that 
aside with a wink and a nod. That is $10,000. That is more than some 
people earn in a year in this country. Yet, under the amendment offered 
by the distinguished Senator from Utah, the President cannot touch 
that. The President cannot touch that item because it is in the 
judicial branch.
  Why should we give this kind of preferential treatment to the 
judicial branch in a line-item veto bill? For one thing, it is not a 
line-item veto. But we will be truly approving exempting one of the 
three branches of Government. That has nothing to do with the 
independence of judges.
  I have as much respect for the members of the judicial branch of the 
Government as anybody else does here. I have some very, very good 
friends. As a matter of fact, Mr. Nixon appointed one of my very best 
friends to be a Federal district judge. That is another reason I liked 
Mr. Nixon. He was a Republican President who nominated a Democratic 
judge, and he has been a good judge, an excellent judge. He is now on 
the circuit court of appeals. I have other friends.
  I am not out to whack the judges. But I want to see justice done. 
Justice--that is what the judicial system is all about; rendering of 
justice. So why not do justice to the taxpayers in making subject to 
the wet veto pen, the wet and ready veto pen of the President of the 
United States, when we send all of this multitude of little orphan 
billettes down to President of the United States?
  I suppose my questions are being viewed as rhetorical questions, 
because I hear no answers.
  Let me ask the distinguished Senator from Utah a question that cannot 
be viewed as a rhetorical question.
  In section 303 of Public Law 103-317 there is a provision that reads 
as follows:

       Not to exceed 5 percent of any appropriation made available 
     for the current fiscal year for the Judiciary in this Act may 
     be transferred between such appropriations, but no such 
     appropriation, except as otherwise specifically provided, 
     shall be increased by more than 10 percent by any such 
     transfers.

  What will happen to that provision in section 303? Does this mean 
that the judiciary would be the only branch that would still have the 
benefit of reprogramming authority? As Senator Nunn stated this morning 
and on yesterday and as I stated a few days ago our concerns with 
respect to reprogramming and how there can no longer be reprogramming 
done, if the substitute amendment becomes law, there cannot be any more 
reprogramming. If agencies get stuck with the need to reprogram moneys, 
they will just have to come back to the Congress and there will have to 
be a new law passed.
  But now what about this provision here that gives the judiciary the 
authority to transfer--not to exceed 5 percent of any appropriation 
made available for the current fiscal year for the judiciary in this 
act may be transferred between such appropriations?
  Mr. McCAIN. Will the distinguished Senator from West Virginia yield?
  Mr. BYRD. I was just going to say, as I see it, as I understand the 
amendment by Mr. Hatch--then I will yield-- as I understand the 
amendment by Mr. Hatch, the judiciary is going to be exempt from the 
claws and clutches and jaws and teeth of this substitute. And if it is 
thus exempt, are we to understand that the judiciary would be able to 
continue to reprogram, it would be able to continue to make transfers 
between appropriations? Am I correct?
  Mr. HATCH. If the future appropriations bills have section similar to 
section 303 in them, it would work the same way as it will in fiscal 
year 1995.
  Mr. McCAIN. Will the distinguished Senator yield for just one 
question?
  Mr. BYRD. Yes. I promised to yield.
  Mr. McCAIN. I have had several requests from my colleagues who are 
interested in what the legislative schedule is going to be. Does the 
Senator by chance have an estimate as to how much longer he is going to 
be with the Senator from Utah on this issue? I am not trying to in any 
way curtail the Senator's in-depth discussion, but I would just 
wondered if he had any estimate on it?
  Mr. BYRD. I do not have any estimate on the time. I certainly do not 
intend to take all afternoon on this one item. I am just curious as to 
the amendment.
  Mr. McCAIN. I thank the Senator.
  Mr. BYRD. I assure the Senator I will not be long.
  Mr. McCAIN. I thank the Senator.
  Mr. BYRD. As a matter of fact, I have already asked enough questions 
to indicate that we cannot expect full justice, we cannot expect equal 
treatment under the law among the various branches of the Government if 
the amendment by Mr. Hatch is agreed to here.
  Let's see now. Where was I? Back on section 303.
  So what we are saying then, if I may ask the distinguished Senator 
from Utah, with respect to the Department of Defense, with respect to 
the Department of Justice, with respect to the FBI, with respect to any 
of these other departments, while they will not be allowed to transfer 
moneys from one account to another, while they will not be allowed to 
reprogram, they will no longer be allowed to come to the Congress, to 
the chairmen of the Appropriations and Armed Services Committees and 
the ranking members and ask permission to reprogram certain moneys, the 
Justice Department can go on its merry way and continue--the judiciary, 
not the Department of Justice. I am sorry about the Department of 
Justice. It will not be able to do that. The crime fighting 
departments, the FBI, and so on, will not be able to transfer between 
appropriations that are made available. Yet, the judiciary can go on 
its merry way--the judiciary, not the Justice Department, the judiciary 
will be able to continue to transfer between appropriations.
  Mr. HATCH. As long as future bills have this provision in them, that 
is true. We have the right as a Congress to not give them that power. 
In other words, the full judiciary, a little over $2 billion--two-
tenths of 1 percent of the total Federal budget --will be subject to 
congressional review every year. If Congress decides, as it did in this 
particular instance, in Public Law 103-317, to have a section 303, then 
it can. But if Congress decides not to have a section 303, Congress has 
the power to stop the judiciary from having that right that is defined 
in section 303.
  Mr. BYRD. Do I hear the distinguished Senator saying that 
notwithstanding the passage of the Dole substitute, notwithstanding it 
is agreed to in conference, if it is, notwithstanding that the 
conference reports go down to the President untrammeled, unchanged, 
unblemished, and unstained, that Congress can come along next year 
without the Senator's amendment--could Congress then next year write 
into the appropriations act, the 
[[Page S4441]]  act making appropriations for the judiciary, could 
Congress write into that act next year section 303 that not to exceed 5 
percent of any appropriations made available may be transferred--
notwithstanding that the Dole substitute becomes the law of the land, 
can Congress thwart that act next year by writing into the 
appropriations for the judiciary this language that allows the 
judiciary to transfer moneys?
  Mr. HATCH. It is my understanding Congress can do whatever it wants 
to. All the rest of the provisions would be subject to the line-item 
veto except for the judiciary's budget as we have defined it.
  Mr. BYRD. Then if Congress can do that in the case of the judiciary, 
next year under the influence of Senator Nunn and Senator Stevens, 
Senator Inouye, Senators who are most knowledgeable with respect to 
defense appropriations and needs of the country, Congress can come 
along next year and write into the appropriations for the Department of 
Defense language that will allow the Department of Defense to continue 
to reprogram as in the past?
  Mr. HATCH. Not as in the past. If the President has the veto, the 
President has a right to veto or not to veto. Congress can do pretty 
well what it wants to.
  Mr. BYRD. So the President could veto?
  Mr. HATCH. The President could veto.
  Mr. BYRD. Could the President veto a congressional approval of 
transfer of authority?
  Mr. HATCH. As in section 303?
  Mr. BYRD. Yes.
  Mr. HATCH. The President could veto that by vetoing the complete 
judicial appropriations bill. He would have to veto the whole bill.
  Mr. BYRD. He would have to veto the whole bill?
  Mr. HATCH. He could not line item that one.
  Mr. BYRD. He could not?
  Mr. HATCH. Not under my amendment.
  Mr. BYRD. He could not line item that one item out?
  Mr. HATCH. That is right. If the Congress chooses to put it in there, 
then, under my amendment as I have crafted it, if Congress chooses to 
do that, then the President could not line item it out. The only way he 
could get it out would be to veto the whole bill.
  Mr. BYRD. Could he do the same with respect to the defense 
appropriations bill?
  Mr. HATCH. He could line item out any provision.
  Mr. BYRD. He could line item any provision out of that one?
  Mr. HATCH. Right.
  Mr. BYRD. But he could not line item any provision out of 
appropriations for the judiciary?
  Mr. HATCH. That is correct.
  But if he line items the defense appropriations bill, Congress is 
here to protect defense appropriations.
  Mr. BYRD. Yes.
  (Mr. GREGG assumed the chair.)
  Mr. HATCH. If he line items a provision, a small, obscure provision 
in the judiciary, a coequal branch of Government that has no real 
ability to defend itself, Congress may not feel the need to do so. And 
if that is so, the judiciary could suffer some crippling line-item 
vetoes if we get a President who acts officiously, or who is mad at the 
judiciary for one reason or another, or who wants to give them a rough 
time. There would not be the same lack of vulnerability that, say, the 
Defense Department would have.
  Mr. BYRD. I am not sure the Senator and I are talking on the same 
wave length. I think he is talking with respect to his amendment, if 
his amendment is agreed to. But I am asking a question notwithstanding 
his amendment.
  Mr. HATCH. If my amendment is not agreed to, then the President would 
have the right to line item any aspect of the judiciary as well.
  Mr. BYRD. Yes.
  Mr. HATCH. Which I think would be very detrimental to the judicial 
system of this country.
  Mr. BYRD. Congress is responsible for the appropriations for the 
judiciary, as well.
  Mr. HATCH. If the Senator would yield, as much as I respect the 
Department of Defense, it is not a co-equal branch of Government. The 
judiciary is. We are trying to keep the judiciary less political than 
the other two branches. That is the reason I would like to have this 
protection. It is a very small part of the appropriations process.
  And if a President feels strongly about some aspect of the judiciary, 
the President can veto the whole judiciary bill. But at that point I 
think Congress will come back and defend the judicial system.
  Mr. BYRD. Why does the Senator not include in his amendment the 
Justice Department? Why does he not include the law enforcement arm? 
Why does he not include the FBI? Why does he just single out the 
judicial branch?
  Mr. HATCH. If the Senator will let me answer, I believe the reason we 
have not done that is because we believe that the executive branch of 
Government is very capable of defending itself.
  Those branches are not the judicial branch, which is supposed to be 
the least political branch of Government. I believe we ought to keep 
the judiciary as separate, as distinct, and as apolitical as we 
possibly can.
  Mr. BYRD. Well, I respect the Senator's viewpoint. I share with him 
the belief in the need for complete independence on the part of judges. 
But I cannot understand how, in protecting that independence, we need 
to protect items such as furniture, recreation, moneys for travel, 
limousine service. Such items are subject to the veto pen of the 
President when it comes to the legislative branch and when it comes to 
the executive branch, so he is going to look twice or three times 
before he vetoes something that pertains to the White House or certain 
other areas of the legislative branch.
  The legislative branch appropriations is less than the appropriation 
for the judiciary, is it not?
  Mr. HATCH. I think that is correct.
  Mr. BYRD. I believe the Senator said the appropriation for the 
judiciary is $2.9 billion?
  Mr. HATCH. Yes, $2.9 billion.
  Mr. BYRD. And he spoke of that as a rather small amount, not exactly 
trivial, but a small amount. Yet, for the legislative branch, I am 
advised, the total is $2.3 billion.
  Mr. HATCH. Will the Senator yield on that point?
  Mr. BYRD. Yes.
  Mr. HATCH. Well, I do not think anybody in his or her right mind 
believes that the legislative branch would not fight with all of its 
power to sustain its own branch of Government. But who fights for the 
judiciary if the judiciary branch has been treated unfairly by the 
President for some political reason? I am hopeful that no President 
would be that way, but we have all seen some pretty petty things in 
this town.
  I just want to make sure that this very small, coequal branch of 
Government--which is small but is important as the least political 
branch of Government--is kept that way.
  Mr. BYRD. Mr. President, I cannot think of any Senator who has 
merited the Purple Heart for standing up for the legislative branch in 
recent years. As a matter of fact, it has been pretty much open season 
on the legislative branch around here. We enjoy self-flagellation, 
nicking our skins, cutting our throats.
  I thank the distinguished Senator for his patience and his responses. 
He is sincere, he is conscientious, and he believes in what he is 
saying and what he is doing.
  I happen to be one who believes that we should not give the judicial 
branch this kind of preferential recognition in a bill of this kind. We 
are talking about a so-called line-item veto in which the items in the 
legislative appropriations bill would be subjected to the scrutiny of 
the Chief Executive.
  There is no reason that is contained within the four corners of the 
legislation, no reason, there is nothing in there that will keep the 
President from lining out items in the legislative appropriation. He 
will have that right. He can line them out. True, Congress may, if it 
ever returns to its senses, develop the courage to override one of 
those vetoes by the President. But it has been pretty much bereft of 
reason in late years and I doubt that it would have the collective guts 
to muster two-thirds vote.
  [[Page S4442]] I think that the judicial branch should undergo the 
same scrutiny as any other branch.
  Mr. BROWN. Will the distinguished Senator from West Virginia yield 
for a question?
  Mr. BYRD. Yes; I am about ready to yield the floor, but I am glad to 
yield.
  Mr. BROWN. I do not mean to interrupt the distinguished Senator. My 
hope was to take 2 or 3 minutes to explain the new NATO Participation 
Act. I was wondering if there would be a point that the Senator might 
yield for me to do that. I do not wish to interrupt his flow of 
thoughts on this subject matter.
  Mr. BYRD. Mr. President, I will not detain the Senator.
  I did want to make one other point,
   and that is that the amendment by Mr. Hatch not only puts the 
judiciary in a preferential position, it also provides the loophole 
against the requirement that every appropriation account be divided 
into separate bills, including items in the accompanying report.

  Let us take courthouses, for example. Ordinarily, I believe, they are 
included in the Treasury-Postal bill. They are included in the 
Treasury-Postal appropriations bill, and under the so-called line-item 
veto legislation that the Senate will be voting on, that bill will be 
subjected to the scrutiny and possible vetoing by the President of 
certain line items which could include courthouses. There is nothing to 
protect them.
  But it seems to me that if the amendment by the distinguished Senator 
from Utah is agreed to, which will protect the judicial branch against 
vetoes of items, it would not take long around here for ingenious minds 
to decide that if so-and-so wants a courthouse to put it into the 
judiciary appropriation, put it in there, because it will be scot-free, 
there could be no tampering with that, there could be no vetoing of 
items there.
  So then that will open up a loophole whereby Senators may get 
courthouses in their States under the loophole. I would be surprised if 
that is beyond the reach of the ingenious brains of Members of this 
body.
  But this legislation opens up a loophole there. I bet we will start 
seeing Federal courthouses with earmarks showing up under the judiciary 
if this exemption is allowed to create such a loophole.
  So the judiciary then would be the only part of Government allowed to 
retain reprogramming authority.
  The Senator has been very patient, if he wishes to respond; if not, I 
will yield the floor.
  Mr. HATCH. May I suggest the absence of a quorum for a minute?
  Mr. BYRD. I will yield for that purpose, yes.
  Mr. HATCH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent that I be allowed 
to proceed as in morning business for 5 minutes concerning the NATO 
Participation Act Amendments of 1995.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. I thank the Chair.
  (The remarks of Mr. Brown and Mr. Simon pertaining to the 
introduction of S. 602 are located in today's Record under ``Statements 
on Introduced Bills and Joint Resolutions.'')
  Mr. HATCH. Mr. President, I am very serious about this amendment. I 
think it is a correct amendment and a good amendment. I would like to 
go forward with a vote on it.
  I have to say that a number of my colleagues have requested that I 
withdraw the amendment. I ask my dear friend from West Virginia if he 
would have any objection to my withdrawing the amendment at this time?
  Mr. BYRD. Mr. President, I think this would be the first time in my 
going on 37 years in the U.S. Senate that I would object to withdrawing 
an amendment. I do not like to object to a Senator otherwise having the 
right to withdraw an amendment.
  In this case, I will object to withdrawing the amendment, and I will 
insist on a yea and nay vote on the amendment. It is not that I think I 
have any chance of carrying the amendment. It is not that at all. I do 
not know whether I will get another vote besides my own. But I think 
the U.S. Senate ought to be ready and willing to have a showdown as to 
whether or not we believe there is a special branch of Government that 
is above and beyond the other two and as to whether or not the 
appropriations for that branch ought to be exempt from the scrutiny and 
the possible veto by a President of certain items in an appropriation 
bill which the President may, with every justification, feel ought to 
be vetoed.
  And so I do object to withdrawing the amendment. I apologize to the 
Senator.
  Mr. HATCH. I think the Senator has every right to do so.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. I believe the Senator has every right to do so. I am 
disappointed that he has.
  Mr. HEFLIN. Mr. President, I have joined my colleague Senator Hatch 
of Utah in proposing an amendment to exempt items of appropriations 
provided for the judicial branch from enrollment in separate bills for 
presentment to the President.
  The doctrine of separation of powers recognizes the importance of 
protecting the judicial branch of government against improper 
interference from the legislative or executive branch. This doctrine is 
recognized in article III of the Constitution which protects salaries 
of article III judges.
  Similarly the Budget and Accounting Act provides that requests for 
appropriations for the judicial branch shall be submitted to the 
president and transmitted by him to Congress without change. Thus it 
would be inconsistent to prohibit the President from changing the 
budget of the judicial branch prior to submission to the Congress, but 
then by the line-item veto legislation to give the President the 
authority to change the judiciary's appropriation line-by-line.
  A little history may help explain the basis for our bipartisan 
amendment. Congress created the Administrative Office of the U.S. 
Courts in 1939 which now has the responsibility for budget submissions 
through the President and on to the Congress. Prior to that time budget 
submissions were provided by the Department of Justice, which is an 
executive branch agency. During the 1930's, according to testimony 
given to the Senate Governmental Affairs Committee by Chief Judge 
Gilbert Merritt, chairman of the executive committee of the Judicial 
Conference of the United States, the Justice Department often rejected 
the judicial branch's requests for funds, denied requests for new 
judges, cut travel funds, and denied other requests for appropriate 
staff support.
  Congress reacted to this situation by creating the Administrative 
Office of the U.S. Courts and by directing it to submit the budget of 
the judiciary without change by the executive branch. Congress acted to 
protect the independence of the judicial branch, and I believe this 
protection should continue.
  The protection should continue because often the executive branch of 
government is a litigant, both as plaintiff and defendant, in lawsuits 
in the Federal courts. Subtle or otherwise, the judiciary should be 
insulated from undue presssure from the executive branch.
  Further, and most importantly, we are not giving the judicial branch 
a blank check for any appropriation it wants. The judiciary's budget 
will continue to be subjected to full congressional review and 
scrutiny. The judicial branch will still have to appear before the 
Appropriations Committee and defend its budget request, and we in 
Congress can amend or change that request as we deem necessary.
  I believe that failure to exempt the judicial branch from the 
provisions of the pending line-item veto legislation will do violence 
to the separation of powers that was established by our Founding 
Fathers who wrote the Constitution.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas, the majority leader, 
is recognized.
  Mr. DOLE. Mr. President, I happen to believe that we are going to 
have a 
[[Page S4443]]  line-item veto that will apply to everyone. I listened 
to the arguments of the Senator from West Virginia. I agreed with him 
before he made his statement. I have already had a call from a friend 
of mine who is a Federal judge who said, ``Leave us out.'' Why not 
leave somebody else out? This is serious business, in my view, and if 
we are serious, everything has to be on the table from A to Z, with the 
exception of Social Security. Therefore, I am constrained to move to 
table the amendment of my colleague from Utah, my good friend--or 
former good friend--and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. BYRD. Before we vote on the motion, would the majority leader 
allow me to say I had no idea the majority leader was going to support 
my position on this. If I had known that, I would not have said that in 
all likelihood mine would be the only vote against the amendment. I do 
appreciate it.
  Mr. DOLE. I hope we have a majority----
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table.
  Mr. BYRD. Mr. President, I do not want the Senator to be broken off 
in the middle of a sentence.
  Mr. DOLE. If my colleague will yield, I think it is pretty hard to 
make an argument that we ought to exempt the judiciary. I know we have 
separation of powers, but we are all spending the taxpayers' money.
  Mr. BYRD. Exactly.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 85, nays 15, as follows:
                      [Rollcall Vote No. 113 Leg.]

                                YEAS--85

     Akaka
     Ashcroft
     Baucus
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Packwood
     Pell
     Pressler
     Reid
     Robb
     Rockefeller
     Santorum
     Sarbanes
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Stevens
     Thomas
     Thurmond
     Warner

                                NAYS--15

     Abraham
     Bennett
     Biden
     Bumpers
     Feingold
     Hatch
     Hatfield
     Heflin
     Helms
     Kennedy
     Pryor
     Roth
     Specter
     Thompson
     Wellstone
  So the motion to lay on the table the amendment (No. 407), as 
modified, was agreed to.
  Mr. COATS. Mr. President, I move to reconsider the vote by which the 
motion was agreed to.
  Mr. MOYNIHAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. MOYNIHAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. MOYNIHAN. Mr. President, for the second time in less than 1 
month, the Senate is confronted with a proposal to alter our 
constitutional system in the name of fiscal responsibility. On March 2, 
the Senate declined to adopt a balanced budget amendment to the 
Constitution. Today, we are considering a proposal which, although not 
drafted as an amendment to the Constitution, nonetheless has important 
and far-reaching constitutional implications.
  The separate enrollment bill would have Congress surrender 
fundamental constitutional prerogatives to the Executive. I hope the 
Senate will recognize the constitutional and practical defects of this 
proposal, and I hope we will again have the wisdom to say no.
  Just as importantly, I would hope the Senate would consider the 
practical consequences of this radical proposal. I would have the 
temerity to suggest that the White House pay heed as well.
  In 1986, on the occasion of the bicentennial of the U.S. 
Constitution, I had the honor to deliver a lecture at the Smithsonian 
Institution entitled, ```The New Science of Politics' and the Old Art 
of Governing.'' I take the liberty of repeating the opening passages.

       Anyone who has studied American government or taken some 
     part in its affairs will often have asked: ``How goes the 
     science of the thing?''
       As we approach the bicentennial of the Constitution, which 
     is not to say our Independence, but our form of government, 
     leafing through ``The Federalist Papers,'' pondering the 
     unexampled endurance of the Constitutional arrangements put 
     in place in those years, we are reminded of the role the 
     ``new science of politics,'' as the founders liked to call 
     it, played in devising those arrangements.
       It appears to me that the significance of this bicentennial 
     is predicated on the extent to which the perception is 
     widened that the government of the United States was not 
     fashioned out of ``self-evident truths,'' but rather was the 
     work of scholar-statesmen who had studied hard, learned much, 
     and believed they had come upon some principles--
     uniformities--in human behavior which made possible the 
     reintroduction of republican government nearly two millennia 
     after Caesar had ended the experiment.
       We may doubt that the bicentennial discussion will attain 
     to anything like the level of discourse two centuries ago. We 
     are short on Madisons and Hamiltons and Jays. But it is 
     possible to hope that we may acquire a more general 
     understanding of what it was those men were discoursing 
     about. Else all will be lost to fireworks and faith healing.
       The argument was whether government could be founded on 
     scientific principles; those who said it could be, won.
       At the risk of reproach from persons more learned than I, 
     let me state in summary the intellectual dilemma of that 
     time. The victors in the Revolution could agree that no one 
     wanted another monarchy in line with the long melancholy 
     succession since Caesar. Yet given what Madison termed ``the 
     fugitive and turbulent existence of * * * ancient 
     republics,'' who could dare to suggest that a modern republic 
     could hope for anything better?
       Madison could. And why? Because study had produced new 
     knowledge, which could now be put to use. To cite Martin 
     Diamond:
       ``This great new claim rested upon a new and aggressively 
     more `realistic' idea of human nature. Ancient and medieval 
     thought and practice were said to have failed disastrously by 
     clinging to illusions regarding how men ought to be. Instead, 
     the new science would take man as he actually is, would 
     accept as primary in his nature the self-interestedness and 
     passion displayed by all men everywhere and, precisely on 
     that basis, would work out decent political solutions.''
       This was a declaration of intellectual independence equal 
     in audacity to anything done in 1776. Until then, with but a 
     few exceptions, the whole of political thought turned on ways 
     to inculcate virtue in a small class that would govern. But, 
     wrote Madison, ``if men were angels, no government would be 
     necessary.'' Alas, we would have to work with the material at 
     hand. Not pretty, but something far more important: 
     predictable. Thus, men could be relied upon to be selfish; 
     nay, rapacious. Very well: ``Ambition must be made to 
     counteract ambition.'' Whereupon we derive the central 
     principle of the Constitution, the various devices which in 
     Madison's formulation, offset ``by opposite and rival 
     interests, the defect of better motives.''

  The lecture thereupon considered the development of what seemed to me 
to be the ``defining failure of the Reagan era * * * that of political 
economy.'' Specifically, the accumulation in a brief span of a huge 
national debt, much at variance with any peacetime period in our then 
two-century experience. That debt has continued to grow, largely the 
result of compound interest, and is the presumed motivating factor 
behind the legislation before us now. Even as it was the concern that 
led to the proposed balanced budget amendment to the Constitution, 
which we dealt with recently.
  In point of fact, that era is behind us. In 1993, the Congress 
enacted the Omnibus Budget Reconciliation Act which provided for 
deficit reduction over a 5-year period of some $500 billion--the 
largest deficit reduction measure in the half-century since the deficit 
was reduced following the end of World War II. Such was the size of the 
program cuts and--yes--tax increases provided in the 1993 legislation 
that interest 
[[Page S4444]]  rates fell sharply--the so-called deficit premium 
dropping off dramatically. The result was lower debt service and a 
cumulative deficit reduction of near to $600 billion.
  Citizens who might wonder at this will recall how many individuals, 
their neighbors, themselves perhaps, refinanced their mortgages 
following the 1993 legislation and the sharp drop in interest rates. 
That affected our costs as well--our costs, their costs, the costs of 
Government.
  In consequence of this, Mr. President, we have in fact returned to a 
primary surplus in this year's budget. A primary surplus or primary 
deficit is defined as the difference between revenues and outlays for 
purposes other than debt service.
  I pointed this out on February 8 in the course of the debate on the 
balanced budget, to wit: Spending on Government programs is less than 
taxes for the first time since the 1960's.
  May I repeat that. Spending on Government programs is less than taxes 
for the first time since the 1960's.
  Not a bad performance. But how did it come about?
  Given the critical issue that confronts us, I will be candid with the 
Senate. More, perhaps, than is usual; more, perhaps, than is prudent.
  In 1993, I was chairman of the Senate Finance Committee. The task of 
raising taxes by a quarter of a trillion dollars, and the lion's share 
of an equal amount in spending cuts, thus fell to our committees and to 
its chairman.
  How did we do it? We did it the way the Framers of the American 
Constitution envisioned. We made accommodations that made up for the 
defect of better motives.
  Item. Gasoline and diesel fuel taxes were raised 4.3 cents per 
gallon. Offset. Airlines were given a 2-year exemption from the 
increased tax. We also took away the tax benefits previously accorded 
exporters of raw timber.
  Item. The business meal tax deduction was reduced from 80 percent to 
50 percent. Offset. Restaurant owners were given a tax credit for the 
FICA tax they are required to pay on their employees' tips.
  I could go on at some length. But there must be a point where 
prudence intervenes. I simply make a point known to every experienced 
legislator in the Congress. Compromise and trade-offs are the key.
  And now I make the further point. If these exchanges cannot be sealed 
in legislation--all or nothing--the accommodations will be vastly more 
difficult, if not indeed impossible to reach.
  The chairman will say to a Senator: ``If you will go along with this 
provision not much to your liking, we will be able to get you another 
provision that will in some measure make up for what you legitimately 
consider a loss.''
  But what if the other Senator knows that his or her provision will 
end up as a separate item of legislation which could very well be 
vetoed?
  Answer. There would be no deal.
  Which is to say, no deficit reduction. Even as we have shown that we 
are capable of deficit reduction, and only have to keep at it for 
another 5 years or so to erase the legacy of the 1980's.
  Those are the practical considerations. But now to the constitutional 
ones, which are scarcely impractical.
  The Framers were well aware of the importance of the power of the 
purse, and accordingly made the conscious decision to vest this power 
in the branch of government closest to the people: Congress. In 
Federalist No. 58, James Madison wrote:

       This power over the purse may, in fact, be regarded as the 
     most complete and effectual 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.
  According to Madison's notes of the Constitutional Convention of 
1787, Roger Sherman of Connecticut said that:

       In making laws regard should be had to the sense of the 
     people who are bound by them and it is more probable that a 
     single man should mistake or betray this sense than the 
     legislature.

  Thus, article I, section 9 of our Constitution plainly states:

       No money shall be drawn from the Treasury but in 
     consequence of appropriations made by law.

  In a brilliant article on the power of the purse in the Georgia Law 
Review in 1986, Judge Abner J. Mikva, then of the U.S. Court of Appeals 
for the District of Columbia Circuit, now counsel to President Clinton, 
wrote

       . . . if we wish to live in a pluralistic and free society, 
     we will strive to ensure that Congress retains exclusive 
     control of the nation's purse. Only in that event will the 
     delicate balance of our constitutional structure be 
     preserved.

  I do hope Judge Mikva has not forgotten his paper.
  The line-item veto legislation before us would disturb--profoundly 
disturb--that delicate balance. It would have us deviate from the 
explicit procedures for passage and enactment, or veto, of legislation, 
set forth in detail in article I, section 7, which states:

       Every Bill which shall have passed the House of 
     Representatives and the Senate, shall, before it becomes a 
     Law, be presented to the President of the United States; If 
     he approve he shall sign it, but if not he shall return it, 
     with his Objections to that House in which it shall have 
     originated, who shall enter the Objections at large on their 
     Journal, and proceed to reconsider it. If after such 
     Reconsideration two thirds of that House shall agree to pass 
     the Bill, it shall be sent, together with the Objections, to 
     the other House, by which it shall likewise be reconsidered, 
     and if approved by two thirds of that House, it shall become 
     a Law.

  The Supreme Court has referred to this part of article I, section 7 
as ``a single, finely wrought and exhaustively considered procedure.'' 
There is nothing ambiguous about it, nor is there any uncertainty about 
why the Framers vested the power of the purse in Congress.
  Why, then, are we now giving serious consideration to measures that 
would radically alter our constitutional procedures?
  The line-item veto is not a new idea. President Ulysses S. Grant 
first proposed it in 1873. In 1876, Representative Charles James 
Faulkner of West Virginia introduced an amendment to the Constitution 
to provide for a line-item veto. Some 150 line-item veto bills have 
been introduced in the interim, but Congress has never seen fit to 
adopt any of them.
  Today we are told that circumstances, including the failure of the 
balanced budget amendment, have given the line-item veto a new urgency. 
It is argued that we need this because congressional spending and the 
national debt are out of control--precisely the same rationale offered 
by proponents of the balanced budget amendment. And mistaken for the 
same reasons.
  We ought to be asking ourselves how and when these deficits were 
created, and whether they are permanent features of our governmental 
operations, or merely temporary. After a month of debate on the 
balanced budget amendment, I would hope the Senate knows the answers to 
these questions.
  The point has been made over and over again on this floor by the 
Senator from New York, and by the distinguished Senators from West 
Virginia and Maryland, our revered Senator Robert C. Byrd and Senator 
Paul Sarbanes. Insofar as the national debt is a problem in our fiscal 
affairs, it is a problem that was created--in some measure 
intentionally--during the 1980's, the single decade of the 1980's. I do 
not wish to belabor this point. The facts have been well documented by 
David Stockman, President Reagan's Budget Director, by the journalist 
and historian Haynes Johnson, and others. It ought to be considered 
well-settled by now. The debt accumulated during the
 Reagan era was an historical anomaly. Again, were it not for the 
interest on the deficits created during those years, the Federal budget 
would be in balance today. If we recognize this, we will realize there 
is no need for the legislation before us.

  Even if there were a need for a line-item veto, the separate 
enrollment legislation is surely unconstitutional. It would require the 
enrolling clerks to dismantle bills passed by the House and Senate 
before the bills are presented to the President, as provided by the 
Constitution. You do not need to be a constitutional scholar, or even a 
lawyer, to recognize that this procedure would violate the 
Constitution.
  The presentment clause in article I, section 7 requires ``every Bill 
which shall have passed the House of Representatives and the Senate'' 
to ``be presented to the President'' before it becomes a law. Under 
this provision of 
[[Page S4445]]  the Constitution, the bill presented to the President 
must be the same bill passed by Congress--not a series of smaller bills 
created by the enrolling clerks, or ``billettes,'' as they have been 
called by our learned colleague from West Virginia. The separate 
enrollment proposal would delegate to the House and Senate enrolling 
clerks a legislative function explicitly assigned to Congress by 
article I: deciding what bills say.
  The Association of the Bar of the City of New York recently produced 
an exhaustive analysis of the constitutionality of the line-item veto. 
The association's report was written by David P. Felsher and edited by 
Daniel J. Capra, who is chairman of the association's committee on 
Federal legislation. The report finds that under either ``enhanced 
rescission'' or ``separate enrollment,'' the President would in effect 
be authorized to restructure legislation after its passage by Congress. 
This is unconstitutional because it is the province of Congress and 
Congress alone, to determine the contents of bills; the sole power of 
the President under the article I, section 7 is to sign or veto 
legislation. According to the association's analysis, ``it is 
irrelevant whether the itemization needed to implement the line-item 
veto is effectuated by the President or the enrollment clerk in 
Congress.''
  I might add that this opinion is shared by other prominent 
constitutional scholars, including Prof. Michael J. Gerhardt of Cornell 
Law School, who has written me to say that the ``separate enrollment'' 
legislation is unconstitutional because it

       . . . effectively enables the President to make affirmative 
     budgetary choices that the Framers definitely did not want 
     him to make.

  These scholars have concluded that ``separate enrollment'' is 
unconstitutional because the Supreme Court has been scrupulous in 
requiring strict adherence to the legislative procedures set forth in 
Article I. In INS versus Chadha in 1983, the Court struck down a 
statutory provision that permitted one House of Congress to exercise a 
``legislative veto.'' Chief Justice Burger wrote that the requirements 
of article I, and I quote:

       . . . were intended to erect enduring checks on each Branch 
     and to protect the people from the improvident exercise of 
     power by mandating certain prescribed steps. To preserve 
     those checks, and maintain the separation of powers, the 
     carefully defined limits on the power of each Branch must not 
     be eroded.

  And there I end the passage from Chief Justice Burger. Three years 
later, in Bowsher versus Synar, the Court invalidated the provision in 
the Gramm-Rudman-Hollings deficit control law giving the Comptroller 
General of the United States authority to execute spending reductions 
under the act. The Court held that this violated the separation of 
powers because it vested an executive branch function in a legislative 
branch official. ``Underlying both
 decisions,'' according to a Congressional Research Service analysis, 
``was the premise * * * that `the powers delegated to the three 
branches are functionally identifiable,' distinct, and definable.'' I 
should add that a second en bloc vote on the itemized mini-bills would 
not cure the constitutional defects of this proposal. I refer of course 
to an amendment offered to this legislation yesterday. A second en bloc 
vote on the itemized mini-bills would not cure the constitutional 
defect of this proposal. We vote on one bill at a time in the U.S. 
Senate. Professor Gerhardt of Cornell has said that a separate vote 
would have to be taken on each of those bills in order to satisfy 
Article I.

  If we wish to enact legislation in which we passed a bill for each 
item of the kind now put together in an appropriations bill, that would 
be perfectly constitutional. It would require us to pass perhaps 10,000 
bills a year, which we could do, but it would be constitutional. What 
you cannot do is pass 10,000 bills with one vote.
  Clearly, the great weight of authority indicates that ``separate 
enrollment'' is unconstitutional. Yet even if it is not, it is still a 
bad idea. Its proponents argue that 43 Governors have used this power 
to great effect in the States. This argument demands closer scrutiny.
  Recall that a similar claim was made during our debate on the 
balanced budget amendment: that balanced budget requirements have 
enforced fiscal discipline in the States. But word eventually got out 
that this was not quite true: States also have capital budgets which 
are not required to be balanced which are, by definition, financed by 
debt, even as they return benefits over time. Claims about the 
effectiveness of the line-item veto in the States may be equally 
misleading.
  The late, beloved Prof. Aaron Wildavsky of the University of 
California at Berkeley wrote in 1985, with characteristic insight, that 
much of the ``savings'' attributed to use of the line-item veto in the 
States may be illusory. He cited the experience of Pennsylvania, where 
one study found that spending bills were deliberately inflated in order 
to compensate for expected item vetoes, or simply to serve political 
ends. Thus it does not necessarily follow that X million dollars are 
``saved'' merely because a Governor line-item vetoes that amount. They 
were not meant to be enacted in the first place.
  Dr. Louis Fisher of the Congressional Research Service and Prof. Neal 
Devins of the Marshall-Wythe School of Law at William and Mary concur 
in Wildavsky's assessment, writing that ``[g]ubernatorial reductions 
may merely cancel spending that the legislature added because the 
governor possessed item veto authority.'' Fisher and Devins conclude 
that `` * * * the availability of an item veto allows legislators to 
shift more of the responsibility for the fiscal process to the 
Executive,'' instead of keeping it in the Congress where it belongs and 
where, in 1993, we showed we could exercise such responsibility. If I 
may say, Mr. President, without meaning in any way to be partisan, 
every vote for the 1993 $600 billion deficit reduction measure came 
from this side of the aisle.
  The distinguished chairman of the Appropriations Committee, Senator 
Hatfield, testified along the same lines before the Judiciary Committee 
in 1984 of his experience with the line-item veto when he was Governor 
of Oregon:

       We also know that the legislators in States which have the 
     line-item veto routinely ``pad'' their budgets, and that was 
     my experience, with projects which they
      expect, or even want their Governors to veto. It is a 
     wonderful way for a Democrat-controlled legislature, that 
     I had, to put a Republican Governor on the spot: Let him 
     be the one to line-item these issues that were either 
     politically popular, or very emotional.

  There is no reason to think these problems would be avoided at the 
Federal level if we adopt the line-item veto. If the state experience 
is any indication, the line-item veto might even create more difficulty 
in the Federal budget process. This has been our science of politics, 
this has been our experience of politics.
  The substitute amendment before us will not impose discipline on 
Congress. Nor will it erase the national debt. It is very likely 
unconstitutional. It will undoubtedly be litigated, and the courts will 
have to decide.
  I have great confidence that they will decide the measure before us 
is unconstitutional and the entire exercise will have been for nothing.
  I hope the Senate will say no to separate enrollment. I hope the 
Senate will decline this invitation to relinquish important 
constitutional prerogatives to the executive branch. It was why the 
American Government came into being, Mr. President, in response to what 
we saw as the abuses in fiscal matters of the executive branch in Great 
Britain.
  Mr. President, I ask unanimous consent that the letter from Prof. 
Michael J. Gerhardt of Cornell Law School and the report of the 
Association of the Bar of the City of New York, of which Daniel J. 
Capra is chair, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                           Cornell Law School,

                                                   March 20, 1995.
     Hon. Daniel Patrick Moynihan,
     U.S. Senate, Washington, DC
       Dear Senator Moynihan: I greatly appreciate the chance to 
     express my opinion on the constitutionality of a proposed 
     scheme directing the clerk of the House in which an 
     appropriation bill or joint resolution originates to 
     disassemble the measure and enroll each item as a separate 
     bill or joint resolution, which is then presented to the 
     President for approval or disapproval. As I explain 
     [[Page S4446]]  below, I consider this proposal to be 
     unconstitutional because it (1) violates Article I by 
     allowing the President to sign or veto a measure in a form 
     never actually by both houses of the Congress; (2) involves 
     an illegitimate attempt by the Congress to redefine 
     statutorily the constitutional term ``Bill''; (3) contravenes 
     both Supreme Court authority severely restricting 
     congressional discretion to delegate a core legislative or 
     lawmaking function and longstanding congressional 
     understanding of the prerequisites for a legitimate bill; and 
     (4) radically alters the fundamental balance of power between 
     the Congress and the President on budgetary matters.
       At the outset, I find that merely describing the proposal's 
     intended operation demonstrates its basic constitutional 
     shortcomings. Suppose that an appropriation bill containing 
     200 separate appropriation items, which was considered and 
     passed by both Houses as a single, whole bill, would be 
     translated at the enrollment stage into 200 separate bills 
     for presentment and veto purposes. Yet, none of those 200 
     bills would have ever been separately considered, voted on, 
     or passed by the two Houses of Congress. The problem is that 
     Congress cannot pass or enact 200 separate appropriation 
     bills without subjecting each of those 200 bills to the full 
     deliberative processes of the two Houses. The enrollment 
     procedure is simply not a part of the carefully designed 
     procedures for lawmaking set forth in Article I.
       More specifically, the proposal violates the plain language 
     of the presentment clauses of Article I. According to the 
     latter, a bill or resolution that is to be presented to the 
     President can become a law only if it has ``passed the House 
     of Representatives and the Senate.''\1\ The purposes of this 
     requirement were to circumscribe Congress's lawmaking powers 
     and to define the scope of the President's veto authority. It 
     tortures the English language, however, to maintain that, in 
     the hypothetical above, both the House of Representatives and 
     the Senate actually passed 200 separate bills. A fragmented 
     bill that is never subjected for consideration and approval 
     by both Houses of Congress is not a bill or resolution within 
     the plain and original meaning of the presentment clauses.
     Footnotes at end of article.
---------------------------------------------------------------------------
       Moreover, the framers deliberately restricted the 
     President's role in the lawmaking process to a qualified 
     negative rather than to have him exercise an affirmative 
     power to redraft or reconfigure a bill. Because the President 
     is able under the proposal to pick and choose which budgetary 
     items he would like to see enacted, the proposal allows him 
     to sign various items into law in forms or configurations 
     never actually approved as such by both houses of Congress. 
     This kind of lawmaking by the President clearly violates 
     Article I, section 1, which grants ``[a]ll legislative 
     powers'' to Congress, and Article I, section 7, which gives 
     Congress the discretion to package bills as it sees fit.
       The proposal effectively enables the President to make 
     affirmative budgetary choices that the framers definitely did 
     not want him to make. The framers deliberately chose to place 
     the power of the purse outside of the executive because they 
     feared the consequences of centralizing the powers of the 
     purse and the sword. As James Madison wrote in the Federalist 
     No. 58, ``This power of the purse may, in fact, be regarded 
     as the most complete and effectual weapon with which any 
     constitution can arm the immediate representatives of the 
     people.''\2\ Every Congress (until perhaps this most recent 
     one)--as well as all of the early presidents, for that 
     matter--have shared the understanding that only Congress has 
     the authority to decide how to package legislation, that this 
     authority is a crucial component of checks and balances, and 
     that the President's veto authority is strictly a qualified 
     negative power that enables him to strike down but not to 
     reconfigure whatever the majorities of both Houses have sent 
     to him as a bill.
       Another major constitutional deficiency with the proposal 
     is that the enrollment process--the phase in which the 
     proposal allows for the fragmentation of a bill to occur--is 
     not mentioned in the Constitution as a step in the bicameral 
     development of a bill or resolution to be presented to the 
     President. Nor it is considered an aspect of the ``step-by-
     step, deliberate and deliberative process'' by which the two 
     Houses consider and pass a legitimate bill or resolution.\3\ 
     Enrollment is supposed to be merely the meticulous 
     preparation of ``the final form of the bill, as it was agreed 
     to by both Houses, for presentation to the
      President.''\4\ Yet, when an enrolling clerk disassembles a 
     unitary appropriations bill passed by both Houses and 
     rewrites it into many separate bills, the clerk is not 
     enrolling what was in fact ``agreed to by both Houses.'' 
     Rather, the clerk is dividing the bill into 200 separate 
     bills--a task that can only be performed by both Houses, 
     acting in the customary bicameral manner.
       In addition, Congress's delegation of its authority to 
     enact each item of a bill into separate bills is 
     illegitimate. The basic decision whether to adopt and then 
     present one or many bills to the President is a legislative 
     choice that is, according to the Supreme Court, the ``kind of 
     decision that can be implemented only in accordance with the 
     procedures set out in Article I.''\5\ Congress cannot 
     delegate to an enrolling clerk the core legislative function 
     of deciding how many appropriation bills will be presented to 
     the President or the form each of those bills should take.
       The seminal case on this point is INS v. Chadha,\6\ whose 
     reasoning is directly applicable to the proposal under 
     consideration. Chadha held that Congress cannot delegate to a 
     single house any kind of legislative function that must be 
     performed by both Houses, such as the enactment of a bill or 
     resolution that changes the status quo or affects the 
     interests of those outside the legislature. Because an 
     appropriation obviously affects existing relationships, it is 
     the kind of legislative judgment both as to form and 
     substance that Congress cannot delegate to an enrollment 
     clerk. The proposal deals with an integral part of the 
     deliberative bicameral process. As the Court explained, 
     ``[t]he President's participation in the legislative process 
     was to protect the Executive branch from Congress and to 
     protect the whole people from improvident laws. The division 
     of the Congress into two distinctive bodies assures that the 
     legislative power would be exercised only after opportunity 
     for full study and debate in separate settings. The 
     President's unilateral veto power, in turn, was limited by 
     the power of two-thirds of both Houses of Congress to 
     overrule a veto thereby precluding final arbitrary action of 
     one person. It emerges clearly that the prescription for 
     legislation in article I represents the framers' decision 
     that the legislative power of the federal government be 
     exercised in accord with a single, finely wrought and 
     exhaustively considered, procedure.''\7\
       Undoubtedly, the proposal would also significantly alter 
     the balance of power between the President and Congress. The 
     proposal would expand presidential involvement in the 
     legislative process beyond what the framers intended. Such 
     aggrandizement would be at the expense of Congress, which 
     would lose its basic authority to present appropriation bills 
     to the President in the precise configuration or compromises 
     produced by the deliberative processes of the two Houses. The 
     proposal would demote Congress, which the Constitution makes 
     the master of the purse, to the role of giving fiscal advice 
     that the President would be effectively free to disregard. 
     The framers granted the President no such special veto power 
     over appropriation bills, despite their awareness that the 
     insistence of colonial assemblies that their spending bills 
     could not be amended once they had passed the lower house had 
     greatly enhanced the growth of legislative power.\8\
       The proponents of separate enrollment argue, however, that 
     the parsing and reformulating of bills by an enrolling clerk 
     involves ministerial rather than legislative tasks. The 
     problem with this contention is that Congress simply does not 
     have the constitutional authority to redefine the necessary 
     ingredients for legislative action for its own convenience. 
     No case makes this point more clearly than Chadha, in which 
     the Supreme Court declared that any action deemed legislative 
     must be undertaken ``only in accordance with the procedures 
     set forth in article I.''\9\ Unless both houses of Congress 
     have enacted each item in an appropriations bill as separate 
     bills, it would be unconstitutional for a clerk of either 
     House to do so and to submit his handiwork as a ``Bill'' to 
     the President for approval or disapproval.
       In summary, the explicit prescription for lawmaking set 
     forth in detail in Article I, whereby Congress is allowed to 
     present to the President only those bills that have been 
     subjected to the full deliberative process of both Houses, 
     cannot be amended by legislation, as this proposal tries to 
     do. Nor can Congress, by statute, redefine the constitutional 
     term ``Bill'' to include each and every item in a duly 
     enacted unitary bill. This conclusion is supported by the 
     plain and original meaning of Article I, longstanding 
     congressional understanding, and clearly applicable Supreme 
     Court authority.
       It has been a privilege for me to share my opinions about 
     this proposed law with you. If you have any other questions 
     or if you need any further analysis, please do not hesitate 
     to let me know.
           Very truly yours,
                                              MIchael J. Gerhardt,
     Visiting Professor.
                                                                    ____

                               footnotes

     \1\U.S. Const. art. I, section 7, clause 2.
     \2\The Federalist No. 58 at 300 (J. Madison) (M. Beloff ed. 
     1987).
     \3\INS v. Chadha, 462 U.S. 919, 959 (1983).
     \4\C. Zinn, How Our Laws Are Made, H. Doc. No. 509, 94th 
     Cong., 2d Sess. 44 (1976).
     \5\Chadha, 462 U.S. at 954.
     \6\462 U.S. 919 (1983).
     \7\Id. at 951.
     \8\See Note, Is a Presidential Item Veto Constitutional? 96 
     Yale L.J. 838, 841-44 (1987).
     \9\Chadha, 462 U.S. at 954.

                                        The Association of the Bar


                                      of the City of New York,

                                  New York, NY, February 24, 1995.
     Re Line-item Veto Legislation.
     Hon. Daniel P. Moynihan,
     U.S. Senate,
     Washington, DC.
       Dear Senator Moynihan: I am the Chair of the Committee on 
     Federal Legislation of the Association of the Bar of the City 
     of New York. Our Committee, after exhaustive research, has 
     reached the conclusion that legislation providing for a line-
     item veto is prohibited by at least three provisions of the 
[[Page S4447]]  Constitution. We hope that you will consider the 
unconstitutionality of line-item veto legislation in your upcoming 
deliberations in the Senate.
           Very truly yours,

                                              Daniel J. Capra,

                                                 Professor of Law,
     Fordham Law School.
                                                                    ____


                     Revisiting the Line-Item Veto

(By the Committee on Federal Legislation Association of the Bar of the 
                           City of New York)


                              INTRODUCTION

       During the last two decades every President and Congress 
     has attempted to reform the federal budgeting process. The 
     104th Congress and President Clinton are no exception. One 
     perennial proposal has been to provide the President with a 
     line item veto. This Committee last reported on a legislative 
     line item veto eight years ago.\1\ Without coming to any 
     conclusion at that time, this committee did believe that 
     there existed substantial practical, and possibly 
     constitutional, impediments to the implementation of a line 
     item veto. This Committee has revisited the issue because the 
     proposed legislation, H.R. 2, differs in some respects from 
     the line item veto previously analyzed by this Committee and 
     because the changed political environment may allow the line 
     item veto to finally pass; indeed, as of this writing, the 
     line-item veto has been passed by the House of 
     Representatives and is pending in the Senate.
     Footnotes at end of article.
       We conclude that a line-item veto may not be implemented by 
     statute. Rather, the Constitution must be amended, because a 
     Presidential line item veto would fundamentally alter the 
     legislative and veto process currently written into the 
     Constitution and would unduly limit the power of Congress to 
     enact legislation.


                         item vetoes generally

       The line item veto, or more precisely designated, the item 
     veto, is a device that would, if enacted, enable the 
     President to veto particular items in a bill without having 
     to veto the entire bill. In theory, an item veto would enable 
     the President to accept bills without having to accept 
     expensive riders. Such riders are typically attached though 
     the process of ``log-rolling.'' Proponents believe that an 
     item veto would significantly reduce Congressional spending 
     while simultaneously allowing the President to sign otherwise 
     desirable bills.\2\
       For over one hundred years, Congress has considered and 
     consistently rejected attempts to provide the President with 
     a line item veto. These repeated rejections have been based 
     on the belief that the item veto would gravely undermine the 
     fiscal authority of Congress and would greatly augment the 
     ability of the President to impose his political agenda on 
     the nation.\3\
       There is legitimate concern that if an item veto were 
     implemented, the results might be the opposite of what was 
     intended. Professors Crain and Miller indicate that a line-
     item veto would lead to an increase in undisciplined federal 
     spending:
       ``With the item veto at its disposal, the executive branch 
     assumes more responsibility for eliminating wasteful spending 
     programs. This invites legislative irresponsibility because 
     legislators will tend to rely on the executive branch to cut 
     out wasteful provisions with the item veto. By discouraging 
     legislative discipline, critics argue that the item veto 
     actually could discourage fiscal efficiency.\4\
       Even if the line-item veto would improve fiscal efficiency, 
     any improvement could come at the expense of disturbing a 
     healthy tension between the Legislative and Executive 
     branches. There is a real danger that the item veto might be 
     used to promote Executive branch interests unrelated to the 
     budgetary process. A President could use the item veto to 
     punish those who oppose him (by singling out an opponent's 
     project for a veto), or he might use the veto as a ``club'' 
     to promote partisan causes generally.
       Each member of Congress represents and is answerable to a 
     local constituency, while the President has a national 
     constituency. This difference in representative basis results 
     in a different cost-benefit analysis for legislation and 
     ultimately different policy choices. The President therefore 
     considers the interests of a larger and more diverse group 
     than an individual member of Congress when taking positions 
     on budgetary matters. Congress, like any legislature, is an 
     institution that is conducive to vote trading and log-rolling 
     activities. To be enacted into law, any proposed legislation 
     requires that a majority coalition be formed. Consequently, 
     members of Congress often engage in cooperative legislative 
     activities in order to further their individual agendas. As a 
     result of this ``horse trading,'' aggregate spending levels 
     tend to be greater than they would be otherwise.\5\ The line-
     item veto would undoubtedly alter this process.
       Advocates of the item veto often justify their positions by 
     claiming: (1) the favorable experience of 43 states that 
     provide their governors with an item veto; (2) the inability 
     of Congress to curb its own spending excesses; and (3) modern 
     congressional techniques (e.g. riders and eleventh hour 
     omnibus
      appropriations bills) that create ``veto-proof'' 
     legislation--i.e., a bill which, if vetoed in its 
     entirety, could effectively shut down the federal 
     government.\6\
       In contrast, opponents of the item veto argue: that the 
     state analogy is inapplicable (or at the very least, of 
     limited applicability) to the federal situation; that the 
     federal packaging of appropriations bills is not amenable to 
     the effective use of an item veto; that the vast majority of 
     federal expenditures are mandatory and would be immune from 
     the item veto; and that an item veto would substantially 
     alter the Separation of Powers Doctrine written into the 
     Constitution.\7\
       At least 43 states have enacted line item vetoes in an 
     effort to give their governors some control over spending. 
     This has enabled some states, at least on the face of it, to 
     save significant sums of money.\8\ To date, none of those 43 
     states has acted to repeal those provisions. Despite these 
     positive indicators, the state experience is not dispositive 
     of whether a line-item veto is workable on the federal level. 
     First, state constitutions differ significantly from each 
     other and from the Federal Constitution. As two commentators 
     have stated, ``[t]here is a much greater state bias against 
     legislatures than exists at the national level.''\9\ Second, 
     state budgetary institutions and procedures vary in key 
     respects from each other and from those in the Federal 
     government.\10\ Third, appropriations bills in the states are 
     structured to facilitate item vetoes by governors. In 
     contrast, Congressional appropriations bills contain 
     relatively few items, rendering the utility of the line item 
     veto (for anything other than political coercion of 
     individual legislators) more suspect.\11\ Fourth, legislators 
     in states which have an item veto have been known to 
     ``routinely `pad' their budgets,'' resulting in savings that 
     are illusory.\12\ Fifth, the item veto functions more as a 
     partisan political tool, increasing tensions between 
     governors and state legislatures, than as an effective means 
     for reducing expenditures. In fact, the experience in at 
     least one state suggests that ``the President may use the 
     item veto to control a Congress dominated by [the] opposing 
     political party.''\13\ Sixth, because judicial 
     interpretation, at the state level, has yet to delineate the 
     scope of the item veto powers possessed by the various 
     governors, caution is necessary before an item veto is 
     adopted at the Federal level.\14\ Seventh, the item veto 
     could accelerate the use of budgetary legerdemain, i.e., 
     accounting tricks such as moving items off budget or 
     privatizing various programs.
       The argument that an item veto would help Congress curb its 
     spending excesses is, we believe, overstated.\15\ Currently, 
     only 39 percent of the Federal budget may be classified as 
     ``discretionary spending'' and subject to the Congressional 
     appropriations process. This figure is expected to decline 
     even further. By the year 2003 interest and mandatory 
     spending will account for more than 72 percent of the Federal 
     budget, thus leaving only 28 percent for discretionary 
     spending.\16\ On the other hand, in order to be reelected, 
     members of Congress will often log-roll legislation they 
     desire into the budget in order to get their pet projects 
     approved. Their decisions to increase spending will often be 
     camouflaged by the creation of automatic spending increases 
     in various entitlement programs.\17\
       Despite the suggestion that the advent of omnibus 
     legislation makes the President's use of his (or her) veto 
     too costly, it appears that when a President has been willing 
     to use the veto power, that President has gained tremendous 
     negotiating leverage over Congress. For example, when 
     President Reagan vetoed two omnibus measures in 1982, parts 
     of the Federal government were shut down. Consequently, 
     Congress was forced to revise those bills to comply with his 
     wishes.\18\
       As a result, in later years, President Reagan merely had to 
     threaten to use his veto in order to win important 
     concessions from Congress. Because President Reagan was 
     willing to and did use his veto power, the ``all or nothing'' 
     stakes of omnibus legislation actually increased rather than 
     decreased his power relative to Congress with respect to the 
     content of legislation.


                constitutionality of the line-item veto

       We expressed concerns above that the line-item veto was an 
     unnecessary measure that might in fact be counterproductive 
     in obtaining fiscal efficiency, and that it might be unfairly 
     used by the President to punish particular members of 
     Congress. Yet even if the line-item veto made sense as a 
     policy matter, it should not be adopted, because it violates 
     several provisions of the Constitution. What follows is a 
     discussion of the Constitutional provisions which are in 
     conflict with the line-item veto.


                            veto procedures

       Article 1, Section 7, clause 2 of the Constitution sets 
     forth, in considerable detail, the procedure for exercising 
     and overriding the President's veto of legislation. The 
     procedures set forth in H.R. 2 do not conform with these 
     constitutional requirements.
       Section 7 of Article I of the Constitution provides, in 
     pertinent part, that:
       ``Every Bill which shall have passed the House of 
     Representatives and the Senate, shall, before it becomes a 
     law, be presented to the President of the United States: If 
     he approve he shall sign it, but if not he shall return it, 
     with his Objections to that House in which it shall have 
     originated, who shall enter the Objections at large on their 
     Journal, and proceed to reconsider it. If after such 
     Reconsideration two thirds of that House shall agree to pass 
     the Bill, it shall be sent, together with the Objections, to 
     the 
     [[Page S4448]]  other House, by which it shall likewise be 
     reconsidered, and if approved by two thirds of that House, it 
     shall become law. . . .''
       Under the proposed line-item veto, a different ``bill'' 
     would be enacted than was presented to the President. 
     Furthermore, subsection 5(a) of H.R. 2 provides that 
     ``[w]henever the President rescinds any budget authority . . 
     . or vetoes any provision as provided in this Act, the 
     President shall transmit to both Houses of Congress a special 
     message . . .'' Subsection 5(b) requires that each special 
     message be transmitted to both Houses on the same day.
       Thus H.R. 2 appears to directly contradict section 7 in 
     several ways. First, and most importantly, Section 7 
     contemplates that the Bill be either approved or disapproved 
     in its entirety by the President. Under the Constitution, 
     when the President approves a bill, he signs ``it.'' When he 
     disapproves of a bill he is not permitted to rewrite it--that 
     may only be done by Congress through the legislative process. 
     The Constitution does not permit the President to rewrite the 
     bill except to the extent that Congress incorporates his 
     Objections into a new or amended bill. Rather, in connection 
     with a non-approved bill, the Constitution directs the 
     President to return the bill in its entirety, together with 
     his objections to the House that originated the bill. At that 
     point that House, and not both Houses, shall enter the 
     President's objections into its Journal. The Constitution 
     then instructs that House, and not both Houses, to reconsider 
     the bill. Under the Constitution, it is only after that House 
     has reconsidered it, and only if two thirds of its members 
     agree to pass the bill, that it shall be sent, along with the 
     President's objections, to the other House, where it shall be 
     reconsidered. It is only after reconsideration of the Bill by
      the second House, and only if approved by two thirds of the 
     members of that second House, that a non-approved bill can 
     become law.
       In sum, Article I, Section 7 prohibits partial vetoes. The 
     literal language of the second clause of this section 
     strongly suggests that bills are to be approved, disapproved 
     and reconsidered in toto and not in part. This is apparent 
     from the repeated use of the terms ``it or its''--12 times, 
     ``the bill''--2 times, and ``reconsider or 
     reconsideration''--3 times, and from the context in which 
     those terms are used. Both ``it'' and ``the Bill'' refer to 
     ``Every Bill which shall have passed the House of 
     Representatives and the Senate.'' They do not refer to any 
     modified or amended version of the bill and do not refer to 
     portions of any bills passed by both Houses. Consequently, 
     pursuant to Section 7, a non-approved bill is returned to 
     Congress for reconsideration. The President does not return a 
     modified version. He is instructed to return the bill passed 
     by the House and the Senate along with his Objections 
     thereto. It is the bicamerally passed bill that is 
     reconsidered. Various forms of the word ``reconsider'' are 
     used not once but three times to refer to ``it'' or ``the 
     bill'' in connection with the return to Congress of a non-
     approved bill. Furthermore, the framers and ratifiers did not 
     choose various forms of the words amend, change, alter, 
     modify, or some similar word. Instead they chose to provide 
     that Congress could ``reconsider'' a non-approved bill, in 
     order to give Congress a chance to approve the bill as it was 
     originally passed, to modify it or to pass a completely new 
     bill.
       The veto provision is one of the most detailed and 
     precisely worded provisions in the entire Constitution. This 
     suggests that the procedures outlined therein should be 
     carefully followed and not artfully evaded.\19\
       Considering America's history, it is remarkable that the 
     Constitutional Convention of 1787 included any kind of veto 
     power for the President. Before the American Revolution, 
     legislative acts of the colonies were subject to two vetoes. 
     Both the Governor of the colony and the King of England could 
     veto legislation. Both vetoes were absolute and not subject 
     to override by the legislatures. It is not surprising that 
     the colonists resented these veto powers.\20\ In fact, the 
     first two grievances listed in the Declaration of 
     Independence deal with this issue. They are: that ``He 
     [George III] has refused his assent to laws . . . He has 
     forbidden his Governors to pass. . . .'' It is thus clear 
     that, during and immediately after the American Revolution, 
     there was a strong disposition against any Executive veto 
     power.\21\ We believe that a strict construction of the 
     detailed veto provisions in the Constitution is consistent 
     with the intent of the Framers to provide a relatively 
     limited, rather than generous, veto power.


                 bicameral and presentment requirements

       One of the most troubling aspects of any item veto bill is 
     that an item veto would augment the President's veto power by 
     permitting him to veto appropriation bills that were never 
     considered by the House or the Senate in such fragmented 
     form. Executive veto power over part of a Bill is, in this 
     respect, inconsistent with the bicameral and presentment 
     requirements of the Constitution. As the Supreme Court 
     pointed out in I.N.S. v. Chadha,\22\ legislative actions 
     require approval of both Houses, in a bicameral fashion, and 
     presentment to the President. There is no language in the 
     presentment clause, or anywhere else in the Constitution, 
     that permits the President to approve or veto a bill other 
     than in the form in which it passed both Houses and
      was presented to him. As Professor Gressman puts it: ``The 
     Presentment Clauses state that the bill which is to be 
     presented to the President, the bill he may veto or 
     approve, is the bill `which shall have passed the House of 
     Representatives and the Senate.'''\23\
       Under Chadha, when a legislative power is exercised--such 
     as in the case of a one House veto--the legislative act is 
     subject to the explicit provisions of the presentment 
     clauses, Article 1, section 7, clause 2 and 3, and the 
     bicameral requirement of Article 1, section 1 and Article I, 
     section 7, clause 2. With a line-item veto, the President 
     clearly would be exercising legislative power insofar as he 
     performs the legislative act of determining the final content 
     of an appropriations bill and does not merely accept or 
     reject the bill as a unit. It is irrelevant whether the 
     itemization needed to implement the line item veto is 
     effectuated by the President or the enrollment clerk in 
     Congress. The effect is the same. A line item veto will 
     permit the President to restructure legislation after its 
     passage. If the President were to exercise an item veto, the 
     bill that would be enacted into law would not have been voted 
     upon and passed by the two Houses of Congress. One bill would 
     be passed by the two Houses of Congress and presented to the 
     President and a second bill would end up being enacted into 
     law without passage by both Houses of Congress and 
     presentment to the President. As the Supreme Court explained 
     in Chadha, a law enacted pursuant to this process would be 
     unconstitutional because it failed to pass both House of 
     Congress and was not presented to the President after such 
     passage.
       It is true that H.R. 2 subsection 3(a) permits an item veto 
     to be overridden by way of a rescission/receipts disapproval 
     bill. However, while a rescission/receipts disapproval bill 
     can restore the legislation to what it was before the 
     exercise of the line item veto, a problem is created because 
     it is the President who actually changed the law and not both 
     Houses of Congress with the approval of the President.
       Moreover, as a practical matter, the legislative option of 
     promulgating a rescission/receipts disapproval bill is made 
     difficult by the provisions of H.R. 2. Such a bill must 
     reinstate all of the items vetoed. Thus, if the President 
     vetoes several items from a single bill, the practical 
     reality is that a rescission/receipts disapproval bill is 
     unlikely to be forthcoming from Congress. And even if such a 
     bill is passed, the President can veto that bill, and a two-
     thirds vote in each House of Congress is required to overcome 
     that veto. Furthermore, under H.R. 2, unless Congress 
     overrides the President's veto of a rescission/receipts 
     disapproval bill within the time specified in the statute, 
     the rescission of discretionary budget authority or the veto 
     of a targeted tax benefit becomes effective. Thus, the veto 
     of the rescission/receipts disapproval does not trigger a 
     reconsideration of a law passed by Congress and vetoed by the 
     President, but rather triggers the automatic implementation 
     of a law presented by the President to Congress unless 
     Congress enacts another law. This stands the 
     Constitutionally-mandated legislative process on its head.


                            the rules clause

       The Rules Clause of Article I of the Constitution provides 
     that ``Each House may determine the Rules of its Proceedings. 
     . . .''\24\ We believe that a line-item veto is inconsistent 
     with the Rules Clause. Under a line-item veto, the form, 
     content and subject matter of bills will be determined by 
     someone other than the members of the House and Senate.
       Moreover, Subsection 5 of H.R. 2, which deals with 
     ``Consideration in the Senate'' and ``Points of Order,'' 
     appears to explicitly violate the Rules Clause by controlling 
     Congress' internal rules and procedures. For example, 
     Subsection 5(d) of this bill attempts to limit debate on 
     rescission/receipts disapproval bills, debatable motions and 
     appeals in connection therewith. it also provides that a 
     motion to further limit
      debate is not debatable and a motion to recommit is not in 
     order.\25\ Such a provision imposes an obvious limitation 
     on the rulemaking authority of each House of Congress.
       It is true that, to the extent item-veto legislation 
     imposes limitations on Congressional rule-making, it is a 
     self-inflicted wound. Congress, if it passes the line-item 
     veto, will have constricted its own rulemaking authority. Yet 
     the Rules Clause does not permit such a self-inflicted 
     limitation on Congressional authority. It has been settled 
     law for more than a century that:
       ``The power to make rules is not one which once exercised 
     is exhausted. It is a continuous power, always subject to be 
     exercised by the house, and within the limitations suggested, 
     absolute and beyond the challenge of any other body or 
     tribunal.\26\''
       Thus each House has the power and authority to set its own 
     rules regarding a variety of internal matters. The problem 
     with passing legislation that restricts the rulemaking power 
     of either House is that the legislation is passed by both 
     Houses and can only be abrogated through subsequent 
     legislation by both Houses. This is inconsistent with the 
     Rules Clause, which provides that each House has the 
     authority to determine ``its'' own proceedings. Legislation 
     affecting the internal rulemaking power of either House 
     results in one House of Congress ceding control over its 
     internal rules to the other House. The power granted in the 
     Rules Clause was granted to each House of Congress in order 
     to make the legislative powers of each House more effective. 
     That power may not be channelled or regulated by a statute 
     passed by both Houses and signed by 
     [[Page S4449]]  the President. As one commentator has stated, 
     the Rulemaking power ``granted in the Constitution is above 
     all law, and cannot be taken away or impaired by any 
     law.''\27\


                       The Appropriations Clause

       In addition to all the constitutional concerns addressed 
     above, an appropriations bill that is modified by an item 
     veto is probably unconstitutional on another ground as well: 
     the ``approved'' appropriations would not be approved ``by 
     law'' as required section 9 of Article I of the Constitution. 
     That section provides that: ``No Money shall be drawn from 
     the Treasury, but in Consequence of Appropriations made by 
     Law.'' The problem created by a line-item veto is that the 
     resulting appropriations would not be made by law, but rather 
     would be made by the President with the tacit approval of 
     Congress.


               The Power of the Purse Belongs to Congress

       Providing an item veto to the President could fundamentally 
     alter the balance of power between Congress and the 
     President. Commentators have stated:
       ``the adoption of what might appear to be a relatively 
     modest reform proposal could result in a radical 
     redistribution of constitutional power * * * At stake are the 
     power relationships between the executive and legislative 
     branches, the exercise of Congress' historic power over the 
     purse, and the relative abilities of each branch to establish 
     budgetary priorities.''\28\
       The Constitution places the ``power of the purse'' in the 
     hands of Congress and outside the grasp of the President 
     because of the fear of combining the power of the purse with 
     the power of the sword.\29\ Section 9 of Article I of the 
     Constitution provides that ``No money shall be drawn from the 
     Treasury but in consequence of appropriations made by law.'' 
     James Madison wrote
      that `` [t]his power of the purse may, in fact, be regarded 
     as the most complete and effectual weapon with which any 
     constitution can arm the immediate representatives of the 
     people.''\30\
       Roger Sherman said at the Constitutional convention that 
     ``[i]n making laws regard should be had to the sense of the 
     people who are bound by them and it is more probable that a 
     single man should mistake or betray this sense than the 
     legislature.'' These words apply in the area of fiscal 
     decisions where the decisions regarding taxation and spending 
     depend on the government having taken into account the 
     diverse interests of its citizens. No institution is better 
     suited, able or willing to accommodate these diverse 
     interests than Congress. Based upon this view, the Framers 
     chose to give supremacy in budgetary power to Congress. In 
     fact, only the House--the chamber closest to the elctroate--
     was given the right to initiate revenue bills. Clearly, the 
     Framers believed that decisions affecting the pocketbooks of 
     the citizens should be made by the governmental institution 
     that is closest to them.\31\
       All this does not mean that the President is prohibited 
     from taking an active role in Congress' appropriations 
     decisions. For example Article II provides that the President 
     may recommend to Congress measures that he deems ``necessary 
     and expedient.'' And of course the President possesses a 
     qualified veto over all legislation, including appropriations 
     measures.
       Nevertheless, with respect to the budget, under the 
     Constitution, the President's role is subordinate to that of 
     Congress. Despite the President's recommendation and veto 
     powers, it is Congress that must make the final decisions 
     regarding funding levels and the expenditure of appropriated 
     funds. It is Congress that must decide the extent to which 
     the President's views and proposals are accepted. Budgetary 
     ``reform'' that increases the President's power at the 
     expense of Congress would alter this scheme and therefore 
     should be disfavored.
       In considering whether Congress may cede any of the Power 
     of the Purse to the Executive, Chief Justice Taft states 
     that:
       ``it is a breach of the National fundamental law if 
     Congress gives up its legislative power and transfers it to 
     the President. . . This is not to say that the three branches 
     are not coordinate parts of one government and that each in 
     the field of its duties may not invoke the action of the two 
     other branches in so far as the action invoked shall not be 
     an assumption of the constitutional field of action of 
     another branch.''\32\
       It could be argued that a line-item veto does not in fact 
     cede legislative power over the purse to the President, given 
     the fact that the President already has the power to veto 
     appropriations legislation in its entirety. The fact is, 
     however, that the ability to veto specific items in a larger 
     bill will definitely increase Executive control of the budget 
     process, at the expense of legislative prerogative; indeed, 
     that is the very reason that supporters are pushing for a 
     line-item veto.
       The legislative process is a complex, politically-driven 
     process; one item often gets passed in ``trade'' for another 
     as part of a general piece of legislation. This kind of 
     ``horse-trading'' or ``log-rolling'' was clearly not unknown 
     to the Founders of the Constitution. To the contrary, 
     legislative bargaining is essential to the Constitutionally-
     mandated process and to Congressional control over the 
     purse.\33\
       The line-item veto would upset this carefully-calibrated 
     legislative process by allowing the Executive to pluck out a 
     piece of the Congressionally-passed puzzle and reject it. The 
     line-item veto is therefore qualitatively different from the 
     veto power enacted in the Constitution. It represents an 
     aggressive extension of the veto power, and therefore 
     contradicts the qualified use of the veto power that was 
     envisioned by the Framers.
                               conclusion

       Because the line-item veto conflicts with the veto 
     provisions of the Constitution, with the Rules Clause, with 
     the bicameral and presentment clauses, and with the supremacy 
     of Congress over fiscal matters, we conclude that the line-
     item veto may only be enacted through Constitutional 
     amendment.


                  the committee on federal legislation

       Daniel J. Capra, Chair.*
       Marianne Fogarty, Secretary.
       Andrea J. Berger, Stacey E. Blaustein, Richard A. 
     Briffault, Louis A. Craco, Jr., Lawrence P. Eagel, David P. 
     Felsher,** Leon Friedman, Mark L. Goldstein, Helen Gredd, 
     Peter C. Hein, Madelynn S. Heintz, Michael E. Herz, Beth 
     Jacob, Maria Bainor Keane, Nicole A. LaBarbera, Sylvia A. 
     Law, Stephen M. Lazare, Thomas J. Lilly, Jr.
       Lewis J. Liman, Robert S. Marsel, Jill Moskowitz, William 
     M. Pinzler, Victor Rivera, Kathleen M. Scanlon, Susan 
     Stabile, Debra M. Torres, Maya D. Wiley, Shawna Yen.
     *Editor of this Report.
     **Author of this Report.

     \1\Committee on Federal Legislation of the Association of the 
     Bar of the City of New York, The line-Item Veto, 41 The 
     Record 367 (1986).
     \2\See Maxwell L. Stearns, The Public Choice Case Against the 
     Item Veto, 49 Washington & Lee L. Rev. 385, 386 (1992); 
     Eugene Gressman, Is the Item Veto Constitutional?, 64 N.C.L. 
     Rev. 819 (1986).
     \3\See Louis Fisher & Neal Devins, How Successfully Can the 
     States' Item Veto be Transferred to the President?, 75 
     Georgetown L.J. 159, 162 (1986).
     \4\Mark Crain & Jim Miller, Budget Process and Spending 
     Growth, 31 William & Mary L. Rev. 1021, 1031-32 (1990).
     \5\See Paul R. Q. Wolfson, Is a Presidential Item Veto 
     Constitutional, 96 Yale L.J. 838, 851-52 (1987).
     \6\See Stearns, supra, at 387.
     \7\Id. at 387-88.
     \8\See Neal Devins, Budget Reform and the Balance of Powers, 
     31 William & Mary L. Rev. 993, 1005 (1990).
     \9\Fisher & Devins, supra, at 162.
     \10\Crain & Miller, supra, at 1033.
     \11\Devins, supra, at 1005-06, quoting the 1984 testimony of 
     Senator Mark Hatfield, Governor of Oregon from 1978-1986.
     \12\Devins, supra, at 1005 n.67 and accompanying text.
     \13\Devins, supra, at 1005.
     \14\Fisher & Devins, supra, at 182.
     \15\See, Anthony R. Petrilla, Note, The Role of the Line Item 
     Veto in the Federal Balance of Power, 31 Harvard J. Legis. 
     469, 471 (1994).
     \16\Letter dated August 4, 1994 from United States Senators 
     J. Robert Kerrey (D.-Neb.) and John C. Danforth (R.-Mo.) to 
     members of the Bipartisan Commission on Entitlement and Tax 
     Reform containing ``Draft Findings.''
     \17\Petrilla, supra, at 470.
     \18\Devins, supra, at 1016.
     \19\Two other possible constitutional problems for H.R. 2 may 
     arise under Article 1, Section 7. First, H.R. 2 subsection 
     3(b) sets a specific time period in which Congress is 
     permitted to override the President's non-approval. However, 
     the Constitution sets no time limit for reconsideration of a 
     non-approved bill. Second, according to Section 7 of Article 
     1, the President's special message (his objection) would 
     appear to belong in the Congressional Record and not the 
     Federal Register as provided in H.R. 2.
     \20\See Alan J. Dixon, The Case for the Line-Item Veto, 1 
     Notre Dame J. L. Ethics & Pub. Pol'y 211, 218 (1985).
     \21\For example, when the Constitution was ratified, no 
     state, except for Massachusetts, gave its Governor any kind 
     of veto.
     \22\462 U.S. 919 (1983).
     \23\Eugene Gressman, Is the Item Veto Constitutional?, 64 N. 
     C. L. Rev. 189 (1986).
     \24\U.S. Const., art. 1, sec. 5, cl. 2.
     \25\Similarly, Subsection 5(e) indicates that it shall not be 
     in order for either the Senate or the House of 
     Representatives to consider:
     (1) any rescission/receipts disapproval bill that relates to 
     any matter other than the rescission of budget authority or 
     veto . . . transmitted by the President.
     (2) any amendment to a rescission/receipts disapproval bill.
     \26\Wolfson, supra, at 853 quoting United States v. Ballin, 
     144 U.S. 1,5 (1892).
     \27\Wolfson, supra, at 856. See also. Gressman, supra, at 
     821.
     \28\Fisher & Devins, supra, at 162.
     \29\Mikva, Congress: The Purse, the Purpose and the Power, 21 
     Ga. L. Rev. 1,2-3 (1986) (the decision of the Framers to 
     grant Congress the Power of the Purse reflected their belief 
     that a proper governmental system would have the legislature 
     at its core.) See also The Federalist, No. 30, at 188 (A. 
     Hamilton) (J. Cooke ed. 1961) (``Money is, with propriety, 
     considered as the vital principle of the body politic, as 
     that which sustains its life and motion, and enables it to 
     perform its most important functions.''
     \30\The Federalist Papers, No. 58.
     \31\See Mikva, supra, at 4.
     \32\J.W. Hampton, Jr. & Co., v. United States, 276 U.S. 394, 
     405-06 (1928) quoted in Congressional Research Service, The 
     Constitution of the United States of America: Analysis and 
     Interpretation 64 (1972) (S. Rep. 92-82, 92d Cong., 2d Sess. 
     (1972)).
     \33\Stearns, supra, at 397, 399; Wolfson, supra, at 851-52.
  Mr. COATS. Mr. President, it is always enlightening listening to the 
Senator from New York. He always presents a thoroughly researched and 
thoroughly examined and well-articulated argument for his positions. 
And I enjoy his presentations immensely.
  As the Senator from New York knows, there is a difference of opinion 
on the constitutionality of separate enrollment. Distinguished 
constitutional scholars have come to opposite conclusions, one of which 
is Laurence Tribe, a constitutional scholar frequently quoted by 
members of both parties, but particularly by members of the party of 
the Senator from New York. 
[[Page S4450]]  The American Law Institute and Congressional Research 
Service have given indication that they believe the separate enrollment 
procedure is constitutional, and Senator Biden, currently a Member of 
this body and ranking member of Judiciary, has argued articulately for 
the constitutionality of such procedure.
  So, clearly, there are opinions on both sides of this issue. 
Ultimately, of course, the court will make that determination. We have 
adopted expedited procedures, traditional procedures of which that 
determination can be made. This Senator hopes and trusts that the 
opinions of Mr. Tribe and Senator Biden, the American Law Institute, 
and others, will prevail and be persuasive with the courts. But we will 
find out in due course what that is.
  I thank the Senator from New York for his contributions, which are 
always valuable contributions and thought-provoking contributions.
  Mr. MOYNIHAN. If the Senator will yield for a question, I am sure the 
Senator would agree that when the Court decides, we will abide by the 
decision. That is the great fact of the American Government.
  Mr. COATS. There is no dispute on that point.
  Mr. BYRD. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from Indiana has the floor.
  Mr. COATS. I would like to yield the floor if the Senator from West 
Virginia seeks the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from New 
York for his very scholarly statement today. I am only sorry that more 
Senators are not on the floor to have heard what the Senator had to 
say. We know what the Constitution says, and the Constitution says 
``every bill which shall have passed.'' Constitutional scholars may 
differ, but I think that we have to retreat to the Constitution itself, 
first of all, to attempt to construe and interpret that document and 
read the plain language of the Constitution itself.
  We have, as Senators, a responsibility to make some judgment 
ourselves as to the constitutionality of a measure before we pass on 
it. In the final analysis, it will be the courts that will decide. But 
we cannot pass that cup to others. We have to make that judgment here.
  I read the letter by Professor Tribe. It was written 2 years ago, I 
believe, to Senator Bill Bradley, if I am not mistaken. I have great 
respect for Professor Tribe. But I must say, I was disappointed in 
reading that letter. I was disappointed that such an eminent scholar of 
the Constitution would take that view of this measure. I say that with 
apologies to Professor Tribe. He is a constitutional scholar and I am 
not. But I was astonished that he took that view and indicated that in 
his judgment that would pass the constitutional test.
  I thank the Senator from New York for his statement here today, in 
which he pointed to the acknowledged Father of the Constitution, James 
Madison, who in Federalist Papers No. 58 said, ``This power over the 
purse may, in fact, be regarded as the most complete and effectual 
weapon with which any Constitution can arm the immediate 
representatives of the people * * *'' Is that not what he said?
  Mr. MOYNIHAN. Yes.
  Mr. BYRD. This power over the purse. What escapes my comprehension is 
how we, as Senators, can so lightly pass that cup; how we can so 
lightly vote to transfer some of that power over the purse to the 
Executive. Whether he be a Democrat or a Republican, I have never 
wavered in my opposition to the line-item veto.
  Mr. MOYNIHAN. Will the distinguished and revered Senator yield for a 
question?
  Mr. BYRD. I am delighted to.
  Mr. MOYNIHAN. Would he happen to know that in the 1988 text of 
``American Constitutional Law,'' which Professor Tribe wrote, he stated 
that separate enrollment was probably unconstitutional?
  Mr. BYRD. Was probably?
  Mr. MOYNIHAN. Probably unconstitutional. I think he was right then.
  Mr. BYRD. Well, that statement is in stark contrast to the letter 
which I believe he wrote to Senator Biden.
  The Senator from New York, who has

       A heart as stout as the Irish oak
       And as pure as the Lakes of Killarney

has taken the right stand in my judgment. He took the right stand on 
the ``unbalanced budget amendment,'' commonly referred to as the 
balanced budget amendment. And he has unwaveringly defended the 
position that that document which has come to bear the aura of 
immortality should not be demeaned and debased and, as a matter of 
fact, defaced by such an amendment.
  He takes the right stand today. He is a man of obstinate veracity. I 
appreciate the fact that he has taken the time here today to make this 
statement. I wish all Senators heard it. I hope they will read it. I 
heard part of it. It will be my intention to read Senator Moynihan's 
statement, and I will keep it. I thank the distinguished Senator for 
his service.
  Mr. MOYNIHAN. I thank the Senator.
  Mr. BYRD. Mr. President, I believe the distinguished Senator from 
Michigan wanted to modify his amendment. Has he modified it?
  Mr. ABRAHAM. Mr. President, I have modified it.
  Mr. BYRD. Mr. President, let me compliment the Senator on having 
improved the language of the amendment. I certainly have no objection 
to adopting the amendment on voice vote.
  It is an improvement. He has contributed a very worthwhile service. I 
just wanted to compliment him and say that even though his action 
constitutes an improvement, this piece of legislation is beyond the 
stage of improving in such a way that it will not impair the power of 
the purse which, under the Constitution, has been lodged in the 
legislative branch.
  If the Senator wishes to have a voice vote on his amendment, I yield 
for that purpose.


      Amendment No. 401, as Further Modified to Amendment No. 347

  Mr. ABRAHAM. Mr. President, I would call up amendment No. 401.
  The PRESIDING OFFICER. That is the pending amendment.
  Mr. ABRAHAM. Mr. President, I thank the Senator from West Virginia 
for the comments he made yesterday and the questions which he raised 
with respect to this amendment. I appreciate his help on that.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  So the amendment (No. 401) was agreed to.


                 Amendment No. 350 to Amendment No. 347

(Purpose: To prohibit the use of savings achieved through lowering the 
discretionary spending caps to offset revenue decreases subject to pay-
                        as-you-go requirements)

  Mr. BYRD. Mr. President, I have an amendment at the desk which has 
been qualified for a call up. I shall call it up at this point.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The bill clerk read as follows:

       Amendment numbered 350:
       At the appropriate place insert the following:

     SEC.  . USE OF THE REDUCTIONS IN DISCRETIONARY SPENDING CAPS.

       (A) Congressional Budget Act.--
       (1) Budget resolutions and legislation.--Section 301 of the 
     Congressional Budget Act of 1974 is amended by adding at the 
     end the following:
       ``(j) Use of Reductions in Discretionary Spending Caps.--It 
     shall not be in order in the Senate or House of 
     Representatives to consider any concurrent resolution on the 
     budget, bill, joint resolution, amendment, motion, or 
     conference report that decreases the discretionary spending 
     limits unless the concurrent resolution on the budget, bill, 
     joint resolution, amendment, motion, or conference report 
     provides that such decrease may only be used for deficit 
     reduction and may not be used to offset all or part of an 
     increase in direct spending or decrease in receipts under 
     section 252 of the Balanced Budget and Emergency Deficit 
     Control Act of 1974.''.
       (2) Sixty vote point of order.--Subsections (c) and (d) of 
     section 904 of the Congressional Budget Act of 1974 are 
     amended by inserting ``301(j),'' after ``301(i).''.
       (b) Gramm-Rudman.--Section 252 of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 is amended by adding at 
     the end the following:
       ``(f) Use of Reductions in Discretionary Spending Caps.--A 
     decrease in the discretionary spending limits may only be 
     used for deficit reduction and may not be used to offset all 
     or part of an increase in direct spending or decrease in 
     receipts under this section.''.

  The PRESIDING OFFICER (Mr. Grams). The Senator from West Virginia.
  [[Page S4451]] Mr. BYRD. Mr. President, I thank the Chair. I thank 
the able clerk for reading the amendment in its entirety.
  Mr. President, I am one Senator who believes that it would be 
foolhardy to enact tax cut legislation this year. Instead, I believe 
that we should concentrate all of our efforts and our resources toward 
reducing the deficit. I am aware that President Clinton has called for 
a middle-class tax cut and I am sorry that he did so. I am aware that 
the so-called Contract With America pledges a much larger tax cut than 
that which has been called for by President Clinton.
  The so-called Contract With America pledges a much larger tax cut, 
would be mostly for America's wealthiest taxpayers. I am opposed to 
both of those proposals because I believe that deficit reduction ought 
to be our first priority at this time.
  I think the President was on the right track when he worked with the 
Democratic leadership in the 103d Congress to enact a budget deficit 
reduction package that amounted to somewhere between $400 and $500 
billion over a period of 5 years. He was on the right track. He should 
have stayed on that track.
  According to the Center on Budget and Policy Priorities, the tax bill 
passed by the House Ways and Means Committee would reduce revenues by 
nearly $180 billion over the next 5 years. That, I believe, is bad 
fiscal policy.
  Here we are, we are debating today, and we have been debating since 
Monday, a piece of legislation that purports to do something about the 
budget deficit. It purports to do something about the budget deficits. 
``Oh, we have to do something to get these deficits under control. We 
have to do something about our horrendous budget deficits. We have to 
put the tools in the hands of the President of the United States. We 
have to give him the line-item veto.''
  President Reagan often said, ``Give me the line-item veto. When I was 
Governor of California I had the line-item veto. Give me the line-item 
veto. I will take on the challenge. I will make the cuts.''
  And I hear--it is only hearsay, or ``read-say,'' I hear and I read 
that the so-called Contract With America--if I ever refer to that as a 
``Contract With America'' I hope the Official Reporters will make a 
correction in my transcript, to put the words ``so-called'' as 
antecedents to the words ``Contract With America.''
  The so-called Contract With America, I understand--I hear and I 
read--that one of the planks in that so-called contract is a line-item 
veto. So the so-called Contract With America purports that a line-item 
veto should be placed in the hands of the Chief Executive. We have all 
these fine new Senators who have come in here, 11 of them, 11 new 
Senators, all Republican Senators. I get the impression that these, not 
only new Senators but several of the Senators who have been around here 
long enough to know better, consider that as a conservative position. I 
know there are some real conservatives on that side of the aisle, but I 
am at a loss to understand how a true conservative can advocate giving 
to the President a line-item veto and can advocate a balanced budget 
amendment to the Constitution.
  I have been around here now 36 years in this body, going on my 37th 
year. I have known a lot of conservatives, conservative Senators, 
conservative Republicans. I cannot imagine the conservative Republican 
Senators who were in this body when I came here 36 years ago advocating 
a line-item veto, advocating a balanced budget amendment to the 
Constitution. I cannot believe that Norris Cotton, George Aiken, or 
Everett Dirksen, or Bob Taft, I cannot believe that Senators of that 
day would not roll over in their tombs today if they heard what I have 
been hearing. Conservative Senators--this is the great conservative 
cause. ``Stand up for the conservative cause. Put in the President's 
hand a line-item veto. Power of the purse vested in the legislative 
branch? Why, article I, section 9 of the Constitution--I don't believe 
a word of it. I don't believe that the Framers of the Constitution knew 
what they were doing when they wrote into the Constitution section 9 of 
article I, which says, `No money shall be drawn from the Treasury, but 
in Consequence of Appropriations made by Law.' And, of course, the 
first article, the first sentence in the Constitution tells us who 
makes the laws. `All legislative Powers herein granted shall be vested 
in the Congress of the United States, which shall consist of a Senate 
and House of Representatives.'''
  And here we are, we are being told that the conservatives--this is 
supposed to be this great new revolution here being carried on by the 
conservatives, being brought to the floor of both Houses, this new 
revolution--the conservatives are out to advocate that the 
constitutional framers were not as wise as we had been heretofore 
taught they were, and that the President of the United States should 
have part of the power over the purse; we should place in his hands the 
line-item veto.
  I wish that Henry Clay were still in the Senate. I wish that Henry 
Clay were still in the Senate.
  It is kind of old fashioned around here, I know, to go back and read 
the old dusty records of the Congresses of yesteryears. But I hold in 
my hand here some pages from the Congressional Globe containing 
sketches of the debates and proceedings of the Second Session of the 
27th Congress, volume 11, Blair and Rives, editors, City of Washington, 
printed at the Globe office for the editors in 1842, exactly 153 years 
ago. And the date, to be very exact, was January 24, 1842.
  Let us see what old Henry Clay said. I do not use that word as a word 
of disrespect. I am getting along in years myself and I expect I am 
older today than Henry Clay was--I know by a long shot--than he was 
when he spoke in the Senate. Let us see what Henry Clay had to say.
  He was not talking about the line-item veto. He was talking about the 
veto, the veto, which we all know is in the Constitution. Here is what 
Mr. Clay said. I will not read his whole speech. I had thought, if I 
were forced to stand on my feet and take a good bit of the Senate's 
time I just might read the whole speech of Henry Clay, but I will not 
do that. Just a little of it will give you the flavor. Here is what he 
said in part.

       After speaking of the veto power generally, and more 
     particularly of its exercise by a late President of the 
     United States, the speech proceeded to say. . . .

  You see, this is the reporter of the Congressional Globe who is 
writing in the third person, so he is saying this is what Mr. Clay had 
to say. The Official Reporter today will not refer to the Senators as 
in the third person.
  ``After speaking of the veto power generally and more particularly of 
its exercise by a late President of the United States, the speech 
proceeded to say''--now this is Henry Clay. This is not Robert C. Byrd. 
This is Henry Clay.

       The first and in my opinion the most important object which 
     should engage the serious attention of a new administration 
     is that of circumscribing the executive power and throwing 
     around it such limitations and safeguards as will render it 
     no longer dangerous to the public liberties.

  Hear me: Henry Clay. We do not hear talk in the Senate about public 
liberties anymore. We do not talk about the liberties, the people's 
liberties anymore. We only talk about what is good for the next 
election. What party is going to prevail in the next election. Who is 
going to get the upper hand in the next election. There is no time and 
no place here to talk about the people's liberties.

       With the view, therefore, to the fundamental character of 
     the government itself, and especially of the executive 
     branch, it seems to me . . .

  This is Henry Clay of Kentucky.

       . . . to me that either by amendments of the Constitution, 
     when they are necessary, or by remedial legislation when the 
     object falls within the scope of the powers of Congress, 
     there should be, first, a provision to render a person 
     ineligible to the office of the President of the United 
     States after a service of one term.

  Not ``three strikes and you are out.'' One term, then you are out.

       Second, that the veto power . . .

  Listen to this.

       Second, that the veto power should be more precisely 
     defined and be subjected to further limitations and 
     qualifications.

  He is not talking about broadening the veto power. He is not saying 
that we should give the Chief Executive a line-item veto. Clay thinks 
that the framers went too far in giving the 
[[Page S4452]]  President the veto and requiring that, if a veto is 
overridden, it be overridden by two-thirds vote.

       It was his purpose . . .

  This is the reporter again talking in the third person.

       It was his purpose--

  Meaning Clay's purpose.

     to go but very briefly into the history and origin of the 
     veto power. It was known to all to have originated in the 
     institution of the tribunitian power in ancient Rome;

  Well, sweet speak of rhetoric. Here is a man 153 years ago who is 
talking about the tribunitian power in ancient Rome. I have been 
talking about that also.
  Senators could learn a little more about the tribunitian power in 
ancient Rome.
  Henry Clay said.

       . . . that it was seized upon and perverted to purposes of 
     ambition when the empire was established under Augustus; and 
     that it had not been finally abolished until the reign of 
     Constantine. There could be no doubt that it had been 
     introduced from the practice under the empire into the 
     monarchies of Europe, in most of which, in some form or other 
     some modification or other, it was now to be found. But, 
     although it existed in the national codes, the power had not, 
     in the case of Great Britain, been exercised for a century 
     and a half past; and, if he was correctly informed on the 
     subject, it had, in the French monarchy, never been exercised 
     at all. During the memorable period of the French Revolution, 
     when a new Constitution was under consideration, this subject 
     of the veto power has been largely discussed, and had 
     agitated the whole country. Everyone must recollect how it 
     had been turned against the unfortunate Louis XIV.

  Well, that is an error. The official reporters made an error in the 
Congressional Globe when they referred to Louis XIV. Clay was talking 
about Louis XVI. He was not talking about Louis XIV. He was talking 
about Louis XVI. It is easy to see how a mistake can be made. Instead 
of XVI the official reporter wrote XIV. But be that as it may.

       . . . Louis XVI, who had been held up to the ridicule by 
     the populace, under the title of ``Monsieur Veto'', as his 
     wife, the Queen, had been called ``Madame Veto'' . . .

  So it had to be Louis XVI.

       . . . although, after much difficulty, the power had 
     finally found a place in the constitution, not a solitary 
     instance had occurred of its actual exercise. Under the 
     colonial state of this country, the power was transplanted 
     from the experience which had been had of it in Europe, to 
     the laws relating to the colonies, and that in a double form, 
     for there was a veto of the Colonial Governor and also a veto 
     of the Crown.

  Clay went on to say that:

       No doubt the idea of engrafting this power upon our own 
     Constitution was adopted by the Convention from having always 
     found it as a power recognized in European Governments, just 
     as it had been derived by them from the practice and history 
     of Rome. At all events, the power was inserted as one 
     feature, not only in the general Constitution of the Federal 
     Government, but also in the Constitutions of a portion of the 
     States.

  I will not tire Senators with reading from the Congressional Globe 
and reading from the words of one of the all-time great Senators. His 
picture is out here in the anteroom where we meet with constituents; 
Henry Clay.

       Anyone at all acquainted with the contemporaneous history 
     of the Constitution must know that one great and radical 
     error which possessed the minds of the wise men who drew up 
     that instrument was an apprehension that the executive 
     department of the then proposed government would be too 
     feeble to contend successfully in a struggle with the power 
     of the legislature. Hence, it was found that various 
     expedients had been proposed in the convention with the 
     avowed purpose of strengthening the executive arm.

  And the Federalist Papers so state that one reason why the President, 
why the Executive was given the veto, was to protect himself and his 
office from the incursions by the legislative branch.

       All these propositions had their origin in the one 
     prevailing idea: that of the weakness of the Executive and 
     its incompetence to defend itself against the encroachments 
     of legislative domination and dictation.
       It was an axiom in all three governments that the three 
     great departments--legislative, executive and judicial--
     should ever be kept separate and distinct, and a government 
     was the most perfect when most in conformity with this 
     fundamental principle. But it was said that the framers of 
     our Constitution had nevertheless been induced to place the 
     veto upon the list of executive powers by two considerations. 
     The first was a desire to protect the executive against the 
     powers of the legislative branch, and the other was a prudent 
     wish to guard the country against the injurious effects of 
     crude and hasty legislation. But where was the necessity? 
     Clay asked. Where was the necessity to protect the executive 
     against the legislative department? Were not both bound by 
     the solemn oath to support the Constitution? The judiciary 
     had no veto. If the argument was a sound one, why was not the 
     same protection extended to the judiciary also?

  Ah, Clay speaks of the solemn oath to which we swear with our hands 
on God's gospel and our other hand raised to Almighty God. We do not 
pay much attention to our oaths anymore. But Clay evidently felt 
differently about it.
  Some of the pages are gone from my faxed copy of the Congressional 
Globe. But I will continue reading excerpts from the same speech by 
Clay
 on the abolition of the veto power in the Senate January 24, 1842.

       Clay had hitherto viewed the veto power simply in its 
     numerical weight, in the aggregate votes of the two Houses; 
     but there was another and far more important point of view in 
     which it ought to be considered. He contended, that 
     practically, and in effect, the veto, armed with such a 
     qualification as now accompanied it in the Constitution, was 
     neither more nor less than an absolute power. It was 
     virtually an unqualified negative on the legislation of 
     Congress.

  That was Henry Clay.

       In such circumstances, when all the personal influence, the 
     official patronage, and the reasoning which accompanied the 
     veto, were added to the substantial weight of the veto 
     itself, every man acquainted with human nature would be ready 
     to admit, that if nothing could set it aside but a vote of 
     two-thirds in both Houses, it might as well have been made 
     absolute at once.

  And there have been only 104 vetoes in the history of this Republic 
that have been overridden--104 in 206 years. So it is virtually an 
absolute veto. Think of what it will mean. I daresay, once this 
legislation becomes law, if it ever does become law, which God avert--I 
wish it would not be done with my help--I daresay there will not be any 
vetoes of items, any vetoes of these little orphan ``billettes.'' I 
daresay that there will not be any vetoes overridden because not one of 
those little orphan ``billettes'' will have the pressure and the power 
that may be brought to bear on a matter of national significance.
  Little West Virginia in the House of Representatives has three votes. 
There are many other States likewise that are represented by few in 
numbers in the other body. And as I have already said, let something be 
of interest--take the Northeast region here because there are a cluster 
of States up there, very important States. Most of them were States 
before the Constitution existed. They had a part to play in writing 
that Constitution and a part to play in the revolution, the 
Revolutionary War. But if there is something in an appropriation bill 
that is of major significance to those few little States but not of 
importance to the rest of the Union, it would be very, very difficult 
for those few States to muster the votes necessary to override a 
Presidential veto of some of the little orphan ``billettes'' that will 
parade across the President's desk once this piece of legislation is 
enacted.

       Mr. Clay contended, that really and in practice this veto 
     power drew after it the power of initiating laws, and in its 
     effect must ultimately amount to conferring on the executive 
     the entire legislative power of the Government.

  You wait until he gets this. Clay in his dreams probably would never 
have conceived of such a massive transfer of power of the purse that we 
are about to enact here. He was talking about the veto that is in the 
Constitution, which has been in there for 206 years, which was 
thoroughly discussed at the Convention, thoroughly discussed in the 
ratifying conventions of the States. He could not have dreamed of this 
kind of veto that we are about to hand to the President.

       With the power to initiate and the power to consummate 
     legislation, to give vitality and vigor to every law, or to 
     strike it dead--

  Or to strike it dead.

     at his pleasure, the President must ultimately become the 
     ruler of the nation.

  And he will also become the ruler of the Members of the House and 
Senate. Bow down to this new Caesar, bow down to this power. I wish 
there were a Henry Clay in this body today.

       Mr. Clay warned the nation, that if this veto power was not 
     arrested, if it were not either abolished or at least limited 
     and circumscribed, in process of time, and that before 
     another such period had elapsed as had intervened since the 
     Revolution, the whole legislation of this country could 
     become to 
     [[Page S4453]]  be prepared at the White House, or in one or 
     other of the Executive departments, and would come down to 
     Congress in the shape of bills for them to register, and pass 
     through the forms of legislation, just as had once been done 
     in the ancient courts of France.

  There was the voice of prophecy.

       There, there, was the security, [Clay said] and not in this 
     miserable despotic veto power of the President of the United 
     States.

  That is what he thought of the veto power, ``the miserable despotic 
veto power of the President of the United States.''

       You might take a mechanic from the avenue and make him 
     President, and he would instantly be surrounded with the 
     power and influence of his office. . .
       The unpretending name, President of the United States, was 
     no security against the extent or the abuse of power. . . 
     Whether he were called emperor, dictator, king, liberator, 
     protector, sultan, or President, of the United States was of 
     no consequence at all. Look at his power; that was what we 
     had to guard against. The most tremendous power known to 
     antiquity was the shortest in duration.

  That was the power of the dictator. Under the Republic, a dictator 
was chosen for a maximum of 6 months or until such time as the crisis 
for which the dictator was chosen had run its course, whichever was the 
lessor. Cincinnatus was chosen dictator because there was a Roman 
general whose army was surrounded by the tribes of the east. 
Cincinnatus heeded the call, took off his toga, took on the cloak of 
the dictator, defeated the enemy in 16 days, gave up the dictatorship, 
and went back to plowing with his oxen on his little 3-acre farm beside 
the Tiber.
  But what power he had. He had all the power, omnipotent power, over 
every man, woman, boy, and girl in Rome while he was dictator. He could 
execute without trial; all power. So the dictatorship of Rome continued 
but for a brief period. Yet, while it lasted, the whole state was in 
his hands. He did whatever he pleased, whether it was life, liberty, or 
property.
  I will close with this last extract of the speech of Clay on January 
24, 1842.
  ``Before the power should be utterly abolished, he''--meaning Clay--
``deemed it prudent, that an experiment should be made in a modified 
form; and instead of requiring a majority of two-thirds of both Houses 
to supersede the veto of the President, he thought it sufficient to 
require the concurrence of a majority of the whole number of members 
elected to each House of Congress.''
  So that was Henry Clay, one of the great trio of all time, one of the 
Members of the Senate when it was in its golden age.
  What would he say today? What would he say today of this hydra-headed 
dragon? We are about to sow the dragon's teeth and the country will 
reap the whirlwind.
  Where are the true conservatives of today? You are looking at one. I 
am a conservative when it comes to preserving the constitutional 
system, the Constitution of the United States. I am not above many. I 
have voted for five amendments, as I have said. But never would I 
vote--I would be shot before a firing squad before I would vote--to 
destroy the structure of this Constitution.
  Talk about our children and grandchildren. We shed crocodile tears 
about children and grandchildren when it comes to reducing the budget 
deficit. Well, then, let us start helping our children by taking a 
forthright stand against the tax cut.
  If we want to really help our children and grandchildren, let us take 
a stand against a tax cut.
  It would put us in the hole by another $180 billion in this year's 5-
year budget resolution before we even start to work on a plan to reduce 
the deficit. To make matters worse, these revenue losses would 
skyrocket over the subsequent 5 years to $450 billion, making total 
revenue losses over the next 10 years equal $630 billion. Ultimately, 
when all of the provisions of the House Ways and Means Committee bill 
are phased in--now. this is the so-called contract with America--the 
revenue losses every year would be more than $110 billion.
  Who would get the lion's share of the benefits of these tax cuts? 
Again, according to the latest analysis by the Center on Budget and 
Policy priorities, these large revenue losses, which would total $630 
billion over the next 10 years, are largely attributable to provisions 
that heavily benefit upper-income households and large corporations.
  In fact, according to a Treasury Department analysis, less than 16 
percent of the benefits of the fully phased-in tax provisions as passed 
by the House Ways and Means Committee would go to the 60 percent of all 
families with incomes below $50,000. The top 1 percent of families with 
incomes of $350,000 or more a year would receive 20 percent of the tax 
benefits, while more than half of the tax goodies would go to the top 
12 percent of families--those with incomes over $100,000 per year.
  Of the major provisions in the House Ways and Means Committee bill, 
the changes in IRA's capital gains taxation, and the taxation of Social 
Security income are heavily tilted in favor of high-income people.
  Past analyses indicate that about 95 percent of the benefits from the 
current IRA proposal would go to the top fifth of the population.
  According to an analysis by the Treasury Department, over half the 
benefits from the House Ways and Means Committee's capital gains 
provisions would go to the wealthiest 3 percent of families who have 
incomes over $200,000, while three-fourths of the benefits would go to 
the top 12 percent of families who have incomes over $100,000 a year; 
and the House Ways and Means Committee's reduction in the proportion of 
Social Security benefits that are subject to taxation would give a tax 
break to the top 13 percent of Social Security beneficiaries.
  Similarly, the changes proposed by the House Ways and Means Committee 
in rates of depreciation and the repeal of the corporate Alternative 
Minimum Tax would substantially reduce taxes paid by the Nation's 
largest corporations.
  All of these new tax breaks, Mr. President, will have to be paid for. 
Over the next 5 years alone, we would have to find $180 billion in 
spending cuts; $630 billion over the next 10 years; and, every year 
thereafter, $110 billion per year in cuts in order to bankroll these 
subsidies for the well off people in this country. That level of cuts 
would have to be made if we were to enact the House Ways
 and Means Committee tax bill. Having made these cuts, we will just be 
breaking even. We will not have reduced the deficit at all. We have 
heard all this crying out here on the Senate Floor over the cruel 
effects of budget deficits on our children and grandchildren. Yet, when 
it comes right down to it, the grandchildren do not vote so we will 
just wait a little longer to get serious about the deficit. Meanwhile 
we can dole out a little more tax pork for the privileged few.

  It is silly; utter folly. They talk, on the one hand, about reducing 
these deficits so that we can finally get down to paying something on 
the principal of the debt, stop having to pay interest on that debt, 
reduce the deficits, take defense off the table--do not touch defense--
even increase defense, and, at the same time, balance the budget and, 
lo and behold, enact a tax cut. Enact a tax cut--what a joke.
  I like to vote for tax cuts. That is easy. That does not take any 
courage.
  Where are these cuts to come from? The Ways and Means Committee will 
not tell us the specifics; but, according to a Washington Post article 
of March 17, 1995, the House Budget Committee has approved the ``broad 
outlines of $190 billion in spending cuts over the next 5 years ``--for 
what?--'' to finance a massive GOP tax cut. Nearly half the reductions 
would come from Welfare and Medicare and the rest from hundreds of 
other government programs and foreign aid.'' So, we cut programs for 
the poor,
 we cut programs for the sick, we cut programs for the elderly. For 
what? So that another Rolls Royce can appear in the driveway of some 
fat cat. Well, that ought to get your blood pressure up. I have no 
problem with the idea of slicing foreign aid, but the savings ought to 
go toward reducing the deficit.

  That same Washington Post article also lists what are called 
``suggestions in the House Budget Committee's proposal to cut 
discretionary spending by $100 billion over 5 years.''
  I ask unanimous consent to print this article in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:
        [[Page S4454]] [From the Washington Post, Mar. 17, 1995]

  House Panel Plans Big Spending Cuts--$190 Billion Would Offset Tax 
                                 Breaks

                    (By Eric Pianin and Dan Morgan)

       The House Budget Committee yesterday approved by the broad 
     outlines of $190 billion in spending cuts over the next five 
     years to finance a massive GOP tax cut. Nearly half the 
     reductions would come from welfare and Medicare and the rest 
     from hundreds of other government programs and foreign aid.
       Budget Committee Chairman John R. Kasich (R-Ohio) boasted 
     that his plan would assure that Republicans fully pay for a 
     tax package providing three times as much relief as one 
     proposed by President Clinton and begin to put the government 
     on ``the glide path'' to a balanced budget.
       Republicans issued the proposals hours before the House 
     passed a separate bill that would pare $17.1 billion from the 
     current budget. Republicans had pledged that all the long-
     term savings from that package would go for deficit reduction 
     and not to help pay for their tax cut. But early yesterday, 
     Kasich acknowledged that the promise had been nothing more 
     than a ``game'' to attract conservative Democratic support 
     for the bill, provoking a storm on the floor of the House.
       The House approved the spending-cut package, 227 to 200, 
     despite widspread defections by fiscally conservative 
     Democrats who claimed they had been duped. The uproar further 
     soured Republican-Democratic relations and distracted from 
     the COP leadership's message that they were paying for tax 
     relief with ``real'' spendng cuts.
       ``They lied in order to pass a bill they couldn't pass 
     otherwise,'' Minority Leader Richard A. Gephardt (D-Mo.) 
     said.
       Yesterday's contentious, sometimes confusing budget drama 
     underscored the House Republicans' challenge in juggling a 
     number of converging fiscal initiatives--proposing a huge tax 
     cut just as they are promising a balanced budget--with time 
     running out on their 100-day ``Contract With America'' 
     timetable.
       The $17.1 billion spending-cut package initially was 
     devised by Republicans to offset the cost of disaster relief 
     for California and to make a down payment on the cost of the 
     tax package, although later they promised to use most of it 
     for deficit reduction. Separately, Kasich and his staff 
     prepared the plan for $190 billion of spending cuts to 
     finance the bulk of the tax cuts, along with a 10-page list 
     of ``illustrative Republican spending cuts'' to show where 
     most of those savings could be found. The five-year plan 
     would take effect in 1996.
       In the coming weeks, Kasich must also complete work on yet 
     another initiative, a seven-year plan for balancing the 
     budget. All told, GOP leaders must come up with as much as 
     $1.2 trillion of cuts and savings to eliminate the deficit 
     and pay for the tax cuts by 2002, as they have pledged to do.
       Meanwhile, about 100 moderate and fiscally conservative 
     Republicans have joined in a mini-revolt aimed at forcing the 
     leadership to peel back the cost of the proposed $500-per-
     child tax credit--the most expensive piece of the GOP tax 
     plan--and target the benefits more narrowly to middle-class 
     families.
       The Republicans have signed a letter circulated by freshman 
     Rep. Greg Ganske (Iowa) and House Agriculture Committee 
     Chairman Pat Roberts (Kan.) asking Speaker Newt Gingrich (R-
     Ga.) to assure a floor vote on cutting the maximum income of 
     eligible families from $200,000 a year to $95,000 according 
     to several signers.
       ``We took a little bit silly passing tax cuts when we don't 
     have any money,'' said Rep. Ray LaHood (R-Ill.), who declined 
     to sign the Contract With America because he opposes its tax 
     cuts.
       Yesterday, Sens. Dan Coats (R-Ind.) and Rod Grams (R-Minn.) 
     introduced a $500-per-child tax credit proposal that is 
     similar to the version approved by the House Ways and Means 
     Committee earlier this week and provides benefits to families 
     making up to $200,000 a year.
       While the drive for a major tax cut continues to enjoy 
     widespread support among House Republicans, Democrats and 
     Senate Republicans are wary of devoting precious resources to 
     a tax cut when polls indicate that voters are more concerned 
     about deficit reduction and many economists say a tax cut is 
     a bad idea.
       But House GOP leaders refuse to back down on their campaign 
     pledge to slash taxes for families and businesses, and 
     yesterday Kasich unveiled his blueprint for financing the 
     package.
       About $100 billion of the proposed savings would be 
     achieved by extending and lowering legally mandated limits on 
     discretionary spending over the next five years and leaving 
     it up to the appropriate House committees to determine where 
     the specific cuts would be made.
  Suggestions in the House Budget Committee's proposal to cut 
discretionary spending by $100 billion over five years:
                   Budget committee's five-year plan

                        [In billions of dollars]

  Reduce funding for ineffective training and employment programs...9.3
  Eliminate Low Income Home Energy Assistance Program...............7.2
  Reduce federal agency overhead....................................5.0
  Reduce violent crime trust fund...................................5.0
  Terminate support for the International Development Association...2.8
  Cut funding to Agency for International Development...............2.7
  Repeal the Davis-Bacon Act (sets wages for federal contracts in 
    construction industry)..........................................2.6
  Cut National Institutes of Health funding by 5 percent............2.5
  Reduce energy supply research and development.....................2.3
  Reduce mass transit operating subsidies, capital grants...........2.3
  Eliminate programs in National Telecommunications and Information 
    Administration..................................................2.2
  Phase out Amtrak operating subsidies..............................1.6
  Phase out funding of Legal Services Corp..........................1.6
  Reform management of NASA's human space flight programs...........1.5
  Terminate funding for the National Endowments for the Arts and 
    Humanities......................................................1.4
  Place five-year moratorium on construction, acquisition of federal 
    buildings.......................................................1.3
  Restructure National Oceanic and Atmospheric Administration.......1.2
  Eliminate the Economic Development Administration.................1.2
  Eliminate the U.S. Travel and Tourism Administration and trade 
    promotion.......................................................1.1
  Privatize the Corporation for Public Broadcasting.................1.0
  Reduce programs in vocational and adult education.................0.9
  Reduce assistance to Eastern Europe, former Soviet Union..........0.8
  Eliminate wasteful rehabilitation of severely distressed public 
    housing.........................................................0.8
  Cut contributions to international peacekeeping...................0.8
  Reduce funding for Goals 2000 and School in Work programs.........0.7
  Reduce funding for construction of Agriculture, Interior facilities 
    and trails......................................................0.7
  Reduce domestic volunteer programs................................0.7
  Reduce Energy Department's fossil energy research and development.0.7
  Apply cost-benefit test to Superfund projects.....................0.5
  Reduce General Accounting Office funding by 15 percent............0.3
  Cut number of political appointees................................0.2
  Reduce Peace Corps funding........................................0.2
  Replace dollar bills with dollar coins............................0.1
  Eliminate Small Business Administration's tree planting program (in 
    millions of dollars).............................................75
  Terminate State justice Institute (in millions of dollars).........54
  Other programs (in billions of dollars)..........................37.0
                                                               ________

      Total.......................................................100.4
  Mr. BYRD. Mr. President, in other words, the House Budget Committee 
has proposed a list of suggested discretionary spending cuts, totaling 
$100 billion over the next 5 years, which would be used, not for 
deficit reduction, but to pay for more than half of the 5-year cost of 
the tax breaks proposed by the House Ways and Means Committee.
  Mr. President, the use of cuts in discretionary spending to pay for 
tax cuts is not permitted under the provisions of the Budget 
Enforcement Act. Rather, that act sets annual discretionary spending 
limits which, if they are exceeded, will cause across-the-board 
sequesters sufficient to ensure that total discretionary spending stays 
within the caps. Similarly, pay-as-you-go procedures in section 252 of 
the Budget Enforcement Act control mandatory spending and taxes. This 
is good policy because domestic discretionary spending, in large 
measure, goes to benefit the Nation in general. It should not be 
allowed to be ravaged in order to pay for tax favors--tax favors--for 
the well-to-do.
  What the House Republicans are actually proposing will require a 
change in the Budget Enforcement Act to follow reductions in 
discretionary spending limitations to be used to pay for tax cuts for 
the wealthy. That is bad policy. That is not just some obscure Budget 
Act process change. That is bad policy, and it ought not be sanctioned.
  I note among the suggestions here, one, reduce violent crime trust 
fund, $5 billion. It was my proposal that we have a crime trust fund, 
and I think I found $21 billion or $22 billion or $23 billion to put in 
that trust fund when we passed the crime bill--$30 billion. So here 
they are going to whittle out $5 billion from the trust fund.
  Reduce funding for ineffective training and employment programs. 
Well, it says ``ineffective.'' Whether or not they are ineffective we 
will know.
  Eliminate Low Income Home Energy Assistance Program; cut National 
Institutes of Health funding by 5 percent; 
[[Page S4455]]  reduce energy supply research and development; reduce 
mass transit operating subsidies; phase out Amtrak operating subsidies; 
phase out funding of Legal Services Corporation, and so on and so on
 and so on.

  Reduce programs in vocational and adult education; cut contributions 
to international peacekeeping; reduce funds for Goals 2000 and school-
in-work programs; reduce funding for construction of agriculture/
interior facilities and trails.
  Mr. President, we saw what happened in 1981 under President Reagan's 
policies. He blew into town preaching deficit reduction and promising 
to balance the Federal budget while, at the same time, proposing to 
increase defense spending and to cut taxes. Congress gave him what he 
asked for, and I gave him what he asked for.
  The people of West Virginia said, ``He is a new boy on the block, 
help him, give him a chance.'' So I did. I voted to give him what he 
asked for. We passed his massive tax cuts in 1981, and I have been 
kicking myself ever since.
  We passed his massive tax cuts in 1981, which cut revenues by $2.1 
trillion over the following 10 years. We provided huge increases in 
defense spending as well, and I went along with that. I voted for 
everything he asked for. I wanted to give him a chance. That is what my 
constituents told me to do. Supply-side economics, we were told, would 
kick in as a result of the tax cuts, and we would actually see more 
revenues coming into the Treasury than would have come in without the 
tax cuts. We were going to ``grow our way'' out of our deficit problem. 
But, it did not happen. Instead, we saw a string of budget deficits 
which were by far the largest in the history or the Nation. Those 
deficits of President Reagan's 8 years were only exceeded by President 
Bush's deficits, which stand as the largest in history. It should be 
clear that supply-side economics is a failed theory, and David Stockman 
knew it and said it in writing. It was bogus baloney. It was a flop and 
it was highly detrimental to this Nation.
  It is why we are in this debate right today. It is why we are in the 
pickle that we are in right today, because out of that colossal mistake 
that we made came the largest budget deficits, a quadrupling of the 
national debt and the pressure for a line-item veto and for 
constitutional amendments to balance the budget. That is why we are in 
this pickle. They brought us to this. We would not be debating a line-
item veto here today if we had not gotten caught up in that trap, that 
quadrupling the debt.
  We are now being asked by the Republican leadership in the House to 
go down that same road again.
  It is really quite unbelievable, but that is what the proponents of 
the huge tax cut believe. Talk about disregarding history. Talk about a 
flat learning curve. We have not learned anything from recent history. 
Some have not picked up a thing from the nightmare of the 1980's. This 
so-called Contract With America calls for massive tax cuts, increases 
in defense spending, and a balanced Federal budget by the year 2002. 
Even if defense spending is not increased, the House Ways and Means 
Committee's tax cuts will cost $630 billion over the 10 years. That 
cost will have to be paid for, along with over $1 trillion in 
additional spending cuts, in order to balance the Federal Budget by the 
year 2002.
  Well, I made that mistake in 1981. But this is one Senator who is not 
prepared to make the same mistake again. I do not intend to vote for 
any tax cuts this year--not President Clinton's and not the House Ways 
and Means Committee's proposal.
  We say we are for deficit reduction, and I am for deficit reduction. 
I am for cutting spending where we can do so in a fair and equitable 
manner and at the same time deal with our investment deficit in this 
country. We have not only a trade deficit, not only a fiscal deficit, 
but we also have an investment deficit, an infrastructure deficit.
  I am opposed to enacting spending cuts to pay for tax giveaways. Any 
savings we can make should go toward reducing our deficit not lining 
somebody's pockets.
  My amendment provides that it shall not be in order in the Senate or 
House of Representatives to consider

       Any concurrent resolution on the budget, bill, joint 
     resolution, amendment, motion, or conference report that 
     decreases the discretionary spending limits unless the 
     concurrent resolution on the budget, bill, joint resolution, 
     amendment, motion, or conference report provides that such 
     decrease may only be used for deficit reduction and may not 
     be used to offset all or part of an increase in direct 
     spending or decrease in tax receipts under section 252 of the 
     Balanced Budget and Emergency Deficit Control Act of 1974.

  My amendment also creates a requirement that a waiver would require 
an affirmative vote of three-fifths of Senators duly chosen and sworn, 
as would an appeal of the ruling of the chair.
  I urge Senators to support the amendment. If the rhetoric about 
balancing the budget which has been flowing fast and thick in this 
Congress since we convened is to be believed, we need to take this 
important step.
  Any private citizen paying attention will know that these huge 
deficits will never be reduced if we are subsidizing wealthy tax payers 
with back-loaded tax cuts at the same time we are trying to reduce the 
deficit.
  How ironic that we are voting before this day is over, voting to 
shift the control of the purse, vested in the hands of the people's 
representatives in Congress, voting to shift that power to an 
executive, in the name of reducing deficits, in the name of balancing 
the budget on the one hand and, on the other, let flow from our lips 
the utter folly of advocating a tax cut. For what reason? To get votes.
  Let us not stretch our already fragile credibility to the breaking 
point by continuing to pretend that these obviously incompatible 
goals--massive tax breaks and reduced deficits--can ever by reconciled 
in the real world.


          amendment No. 350, as modified to amendment No. 347

  Mr. President, on page 2, line 10, I modify my amendment and I ask 
unanimous consent to modify it by striking ``1974'' and inserting 
``1985.''
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 350), as modified, is as follows:

       At the appropriate place insert the following:

     SEC.  . USE OF THE REDUCTIONS IN DISCRETIONARY SPENDING CAPS.

       (a) Congressional Budget Act.--
       (1) Budget resolutions and legislation.--Section 301 of the 
     Congressional Budget Act of 1974 is amended by adding at the 
     end the following:
       ``(j) Use of Reductions in Discretionary Spending Caps.--It 
     shall not be in order in the Senate or House of 
     Representatives to consider any concurrent resolution on the 
     budget, bill, joint resolution, amendment, motion, or 
     conference report that decreases the discretionary spending 
     limits unless the concurrent resolution on the budget, bill, 
     joint resolution, amendment, motion, or conference report 
     provides that such decrease may only be used for deficit 
     reduction and may not be used to offset all or part of an 
     increase in direct spending or decrease in receipts under 
     section 252 of the Balanced Budget and Emergency Deficit 
     Control Act of 1985.''.
       (2) Sixty vote point of order.--Subsections (c) and (d) of 
     section 904 of the Congressional Budget Act of 1974 are 
     amended by inserting ``301(j),'' after ``301(i)''.
       (b) Gramm-Rudman.--Section 252 of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 is amended by adding at 
     the end the following:
       ``(f) Use of Reductions in Discretionary Spending Caps.--A 
     decrease in the discretionary spending limits may only be 
     used for deficit reduction and may not be used to offset all 
     or part of an increase in direct spending or decrease in 
     receipts under this section.''.

  Mr. BYRD. Mr. President, I yield the floor.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. EXON. Mr. President, I have been listening with keen interest to 
the excellent remarks made by my great friend and colleague from West 
Virginia. I want to compliment him, once again, for being able to seize 
the key elements that tell the truth as it is. I am rising now 
principally to support the amendment that has been offered by the 
senior Senator from West Virginia and to address what he had to say 
about the history of the lack of fiscal management. I think it points 
out just how important the amendment he is offering tonight and why it 
belongs on the important piece of legislation before us.
  This amendment would strengthen and reinforce the pay-as-you-go 
requirements in the current budget law. 
[[Page S4456]]  And certainly, Mr. President, I think it deserves our 
support. If only we had something like this during those other times 
when we went down that rosy scenario road that the Senator from West 
Virginia outlined.
  I would like to take a few moments to discuss the logic of supporting 
the current law, which fits right in with the amendment offered by the 
Senator from West Virginia.
  Mr. President, the current law requires the Government to account for 
annual appropriations spending separately from permanent changes in 
taxes and entitlements. It is unwise for the Government to use savings 
promised by budget process changes to pay for tax cuts or entitlement 
expansions, which, by their very nature, are permanent and require no 
additional congressional action. They, theoretically, are there 
forever.
  Under section 251 of the Balanced Budget and Emergency Deficit 
Control Act, annual caps on budget authority and outlays limit 
discretionary spending. Pay-as-you-go procedures in section 252 of the 
act control mandatory spending and taxes. The law setting forth these 
pay-as-you-go procedures does not, in any way, mention changes in the 
discretionary spending limits.
  The appropriations caps constrain the total amount of money that the 
Congress may appropriate. They do not, by themselves, spend money, nor 
can anyone know that they will save money until Congress has enacted 
every appropriations bill for the year in question. The Congressional 
Budget Office scores only actual appropriations, because they provide 
the actual authority to spend. Changes in the caps, on the other hand, 
do not yield immediate budgetary savings. If Congress reduces the caps, 
subsequent appropriations bills, later appropriations, after-the-fact 
appropriations are the ones that determine whether or not we live up to 
the goals that we have outlined.
  The amount saved would not be available. I emphasize that again, Mr. 
President. The amount saved would not be available to offset 
legislative changes in entitlements or taxes.
  The Congressional Budget Office thus believes that it cannot include 
cap reductions on the pay-as-you-go scorecard without a change in the 
law. Sound reasons for support of the structure of the law--that is 
important. That is sound reasoning. Congress appropriates spending, 
year by year, one year at a time.
  Entitlement spending and tax cuts, on the other hand, often go on and 
on and on forever unless Congress takes an affirmative action to trim 
them back. To rely on budget processes, changes that promise to 
constrain appropriations in future years to pay for tax cuts or 
entitlement expenses, is like buying an unaffordable new house based on 
the expectation that a person is going to get a substantial raise each 
and every year that follows. It might work. But then again, Mr. 
President, it might not. Most times, it has not worked. We should not 
base our Nation's fiscal policy on such promises and guesswork.
  Under the current law, rewards follow responsibility. The law holds 
appropriated spending responsible for breaches of the appropriation 
caps, and holds legislation under the jurisdiction of authorizing 
committees responsible for entitlement and tax law changes that do not 
pay for themselves. Allowing committees of the Congress other than the 
Appropriations Committee to get credit for reducing appropriation caps 
will encourage those committees to look to the appropriated spending 
rather than to themselves for deficit reduction.
  The law links deficit reduction burdens and benefits, and we should 
keep it that way.
  A few days ago, the House Budget Committee reported out a piece of 
legislation that would have allowed future reductions in appropriation 
caps to be counted to offset the tax cuts, those tax cuts that Senator 
Byrd outlined just a few moments ago.
  My concern is, what is to stop the House Budget Committee from 
including such a provision in the budget resolution that they may 
report next year? The amendment by the Senator from West Virginia would 
ensure--I repeat, Mr. President--the amendment offered by the Senator 
from West Virginia would ensure that they could not profit from such a 
provision that on its face is so phony.
  The amendment of the Senator from West Virginia would help to ensure 
that any savings achieved from lowering the appropriation caps would go 
to deficit reductions. We all know now and we all understand that that 
was the reason for the caps in the first instance, to try to bring 
sanity to the fiscal irresponsibility we have experienced for far too 
long. The appropriation caps under this bill would go to deficit 
reduction. I suggest that that is the way it should be.
  The amendment offered by the Senator from West Virginia simply would 
make it more difficult to alter the existing law. He would preserve the 
pay-as-you-go procedure that has served Congress so well over the past 
few years, and make sure they are effective in the future.
  Mr. President, I urge Senators to support the amendment offered by 
the Senator from West Virginia.
  I yield the floor.
  Mr. DOMENICI addressed the Chair.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I have just read the amendment from the 
distinguished Senator from West Virginia. I regret, Senator Exon, that 
I did not get to hear your entire argument.
  Mr. President, I do not think the Senate should adopt the Byrd 
amendment because I think it is redundant, and I do not think we need 
it. I would like to explain why.
  On the 28th day of February of this year, in response to an inquiry 
that I as chairman of the Budget Committee made to the Congressional 
Budget Office, in the last correspondence signed by Robert Reischauer 
as Director, in response to two questions, the second of which was: Can 
legislation that reduces the discretionary limits--that is, the caps--
be counted on the pay-as-you-go scoreboard?
  Now, essentially, this question is answered in a rather lengthy 
paragraph which I will read shortly. Essentially, it says ``No.''
  Now, what has happened is in the 1990 summit, followed by a 
reconciliation bill later on, the U.S. Congress distinguished 
appropriated accounts from taxes and entitlements and mandatory 
spending in two very fundamental ways.
  First, as to appropriated accounts, they were to be governed and 
controlled by a mechanism called caps. That means that literally, until 
1998, there is an actual dollar number already existing for all of the 
appropriated accounts including defense. So we add them all up, Senator 
Exon, and there is a literal dollar number. Later on, from time to 
time, we might change those caps. But they are, nonetheless, caps.
  What happens is that if we break those caps the budget is held 
harmless and returned to that level by a sequester, an automatic 
across-the-board cut of appropriated accounts.
  If we come in under those caps then that money does not go on any 
scorekeeping card nor is it counted as a reduction in the caps unless 
you do that, and until the year's end nothing happens to that money 
because it is still subject to appropriation under the caps.
  Now, that is one way of treating the combination of defense spending 
and appropriated domestic money. That is how it is treated.
  Now, the rest of Government--that is, entitlement and taxes--are 
treated differently. They are treated under language called pay-as-you-
go. Let me read what the Director of the OMB has to say about pay-go 
accounts.
  Here is where I think our good friend, Senator Byrd, got the idea 
that we needed to put a new law in place. Unless it is to tweak the 
House, because they went through an exercise of saying they were going 
to pay for taxes with appropriated accounts. CBO says they cannot do 
that.
  This is the CBO Director's response to that question. One, the Office 
of Management and Budget contends that current law allows a reduction 
in spending limits to offset increases in spending or losses of 
receipts on the pay-as-you-go scoreboard.
  The Congressional Budget Office disagrees. The current budget 
enforcement process reflects a clear decision by the lawmakers that 
discretionary 
[[Page S4457]] spending--a subject matter of Senator Byrd's amendment--
that discretionary spending would be subject to different budgetary 
control mechanisms than would be applied to mandatory spending and 
receipts or taxes.

       Under current law [law that is in effect tonight] 
     discretionary spending is limited by annual caps on budget 
     authority and outlays. If enacted, discretionary 
     appropriations for any year exceed either cap, an across-the-
     board sequestration of nonexempt appropriations would lower 
     discretionary spending to the level of the caps.

  I stated that a little while ago. Now it is being stated in the 
language of the CBO director, Dr. Robert Reischauer:

       Mandatory spending and revenues are controlled by pay-as-
     you-go procedures. Under PAYGO, OMB and CBO track all 
     mandatory spending and revenue legislation enacted since the 
     BEA. If at the end of a session of Congress such legislation 
     has, in total, increased the deficit for the current and 
     budget years, spending for nonexempt mandatory programs is 
     cut by the amount of the increase. Section 252 of the 
     Balanced Budget Act, which governs enforcement of the PAYGO 
     procedures, does not refer in any way to changes in the 
     discretionary spending limits.

  Which is what is worrying the distinguished Senator from West 
Virginia:

       The limits on discretionary spending included in the BEA 
     and OBRA-93 constrain the overall amount of money that the 
     Congress may appropriate in a given year. They do not by 
     themselves create new budget authority or outlays, and CBO 
     and OMB have not reflected the limits in their scorekeeping 
     systems. CBO scores only actual appropriations, because they 
     provide the authority to spend. Changes to the discretionary 
     spending limits thus do not yield immediate budgetary 
     savings. If the discretionary spending limits were reduced, 
     the savings would be achieved through subsequent 
     appropriations bills, but the amounts saved would not 
     automatically be available to offset legislative changes in 
     mandatory spending or receipts.

  That is the answer to the question and why we do not need the 
amendment. Let me repeat:

       If the discretionary spending limits were reduced, the 
     savings would be achieved through subsequent appropriations 
     bills, but the amounts saved would not automatically be 
     available to offset legislative changes in mandatory spending 
     or receipts. Therefore, CBO believes that reductions in the 
     discretionary spending limits cannot be included on the PAYGO 
     scorecard without a change in law.

  I hope this information has been satisfactory, he says to me, writing 
this letter.
  Mr. President, I have the greatest respect for the Senator from West 
Virginia. And I have great, great empathy and concurrence with the 
notion he is trying to achieve. The budget resolution produced by the 
Senator from New Mexico, coming out of our Senate committee, will 
follow this law. If we reduce the discretionary caps the money 
allegedly saved will not be available for the pay-as-you-go scoreboard, 
which is the only place it could have gone to make room for tax cuts. 
And it does not go there. It does not go there by law.
  So there is not any need to now say you cannot use savings by 
reducing the caps to offset taxes because that is the law. That is what 
the director of CBO says. That is what our Parliamentarian is going to 
say. I do not think there is any doubt about it. A point of order will 
lie, and we do not need to create it in a new piece of legislation 
because it already would lie if you attempted to offset in some way the 
savings that will come from reducing appropriations to pay for tax 
cuts.
  Incidentally, if there really was reason to do this it would be 
because the President of the United States--and that is stated in this 
letter, implicitly, at least--made a mistake. He found room in his 
budget to pay for his so-called middle-class tax cuts by cutting 
appropriated accounts--lowering the caps. As a matter of fact he made 
two mistakes.
  First is, he cannot do that. You need to get a waiver here. It should 
not be in a budget without a clear statement that I need a 60-vote 
waiver in the Senate because the law prohibits me from doing that. That 
is one mistake.
  The second mistake, he used phony numbers. First he increased the 
caps impropitiously, in a manner not prescribed by law. And then he 
reduced the caps to count some savings. And then he counted the savings 
to pay for the tax cuts. Every single step of that is either illegal or 
phony or a combination thereof.
  That is not going to happen in a budget resolution in the Senate 
because it will get caught right here on the floor. If I try to do it 
when I put that budget resolution up there for debate, Senator Byrd 
will get it. He will stand right up and say, ``You cannot do that.'' So 
let me suggest, he is not going to get a chance to do that because I am 
not going to do that. I will not bring a budget resolution to the floor 
of the U.S. Senate as chairman of a committee that flies smack in the 
face of this letter from the Congressional Budget Office that says that 
is not the law.
  So, if anybody needed any assurance that is not the way we are going 
to do it here, you got it right now, because we are not going to do it 
that way.
  Well, I should not say it. If 61 Senators want to vote that we do it 
that way, we will do it that way, the 61 votes are prescribed in this 
amendment also as a way to waive it. You do not need that either.
  So I regret coming down here. I think I made a case, however, and I 
do not think I harmed Senator Byrd's position at all because I think he 
makes the right point. But I do not think we need the amendment. 
Frankly, if there is anything else we have to do by way of amending the 
Budget Act we are going to have some more hearings. I have committed it 
to the Budget Committee. We will get onto some other changes in the 
Budget Impoundment Act. There are a lot people want to do. Besides, I 
am not at all sure--I say to my friends on the other side--how soon 
this line-item veto will get out of conference. There are some very big 
differences between this bill as it leaves the U.S. Senate and the bill 
that the U.S. House of Representatives passed. There are very, very big 
differences.
  As a matter of fact, I think we will have a budget resolution on the 
floor, I say to my friend, Senator Byrd, before that conference report 
will ever get back. So this amendment, if it is on there, is not going 
to help that situation. But I am here to say I am going to try to help 
because I do not have to give a speech as to why, why we should not use 
appropriated accounts, the Paygo accounts. We went through that. We 
spent weeks on end figuring this out. There is no intention whatsoever 
to use discretionary programs of this country to pay for tax cuts or 
entitlement increases, and I do not think that is the way it is going 
to be.
  And I do not think that is the way it is going to be.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. DOMENICI. Yes.
  Mr. BYRD. I have no doubt that the distinguished Senator from New 
Mexico means exactly what he says. He has no intention of doing that. 
That is not what the House is saying. The House wants to change the 
law. I do not want to see the law changed. I think we ought to have 
this amendment. This would also apply to any reductions in the 
discretionary spending limits which might occur pursuant to any budget 
resolution in the future.
  The Senator from New Mexico agrees that the summit agreement--we were 
both there--and resulting Budget Enforcement Act do not allow domestic 
spending cuts to be used for pay-go. This amendment will make it 
perfectly clear that any reductions in discretionary spending limits 
will be used for one purpose only, deficit reduction.
  Does the Senator from New Mexico agree that that should be the case?
  Mr. DOMENICI. Did I yield for a question? I thought I still had the 
floor.
  Mr. BYRD. The Senator does.
  Mr. DOMENICI. The reason I say that is that I am supposed to be 
somewhere in a minute. I want to get the floor back, and then I will 
yield very quickly.
  Let me just make this point. There have been some discussions on the 
floor of the Senate about the amendment that is going to pass, the 
line-item veto that is going to pass. There has been some discussion 
about how different it was in the original Domenici-Exon line-item 
veto. Let me just say there is one aspect to this line-item veto that 
the American people ought to understand, and that Senators ought to 
understand.
  First, I will premise it on the following. None of us really knows 
whether this will be a significant shift of power, whether Presidents 
now or in the future will use line-item veto to gain 
[[Page S4458]] some significant leverage that they should not have or a 
myriad of other concerns that are on the side of those who are 
reluctant to vote for this.
  But I might suggest there has been one exchange made in the Budget 
Committee and carried over here, and even made a little better. That is 
a sunset provision. This bill, as it leaves here in a compromise 
between the distinguished Senator from Arizona and the Senator from New 
Mexico, carries a 5-year sunset. That means that if we look at this 
maybe in 3 years and it is not working too well, or in 4 years, clearly 
when that 5th year comes, it is gone. If Presidents in the meantime 
choose to make it this big power shift, you see that this sunset means 
that we do not have to send them anything.
  But if we send them a new bill, there will not be any law on the 
books. So they will not have the veto pen out to make us do it their 
way. That is if we are going to pass another law to change it or modify 
it. I think everybody should know that. That is a bit of protection for 
the uncertainties that come with legislation of this type.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. DOMENICI. Yes.
  Mr. BYRD. I thank you for that. That is the only good provision in 
this package that we are about to vote on tonight; the only good 
provision. I fully support that provision.
  But I call attention to the distinguished Senator's statement in the 
``Report on the Legislative Line-Item Veto Act of 1995.'' Senator 
Domenici, according to this statement, ``The Additional Views of 
Senator Pete V. Domenici''--I do not know what the ``V.'' stands for; I 
want Pete to tell me what that is:

       I do not support S. 4 because I believe it will delegate 
     too much authority to the President over the control of the 
     budget . . .

  I do not believe he supported S. 4. I think that S. 14, which 
represented his views, is the bill that we ought to be passing. And 
that is the bill with some important additions that the distinguished 
minority leader introduced as a substitute. He included the additions 
on taxes as well, which was an improvement. I am sorry that the Senator 
objected to that. But I supported that measure when the distinguished 
Senator's committee reported it out.
  I thank the Senator. I am glad that there is that sunset provision:

       Boast not thyself of tomorrow, for thou knowest not what a 
     day may bring forth.

  I do not know whether I will be here 5 years from now. None of us 
know. Not any man or woman in this Chamber can foresee whether he in 
truth will be here when that 5 years rolls around. But that is within 
my present term, and although I intend to be running that period, 
planning that year for the next election, the next year, I cannot boast 
myself of tomorrow because I do not know what a day may bring forth.
  But I hope I am here when that sunset provision runs out because I 
want to do everything I can to see that this monstrosity does not have 
a future life, as much as I do believe in a future life.
  While I am on any feet, I want to compliment the distinguished 
Senator from Arizona. He has fought for this legislation over the 
years. I do not think this is the legislation he really wants. It is 
not the legislation that he agrees that he has expressed support for 
over the years, but he is about to achieve a victory of sorts.
  I compliment him on a job well done.
  I thank the distinguished Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I say to the Senator, the ``V.'' in my 
name is my mother's maiden name. Her father was named Pete--like me--
Vichi, V-i-c-h-i. She wanted so much to have as much of her father as 
she could. She gave me his first name, and she gave me his initial, and 
then my father insisted that I, nonetheless, have his name. So that is 
where it came from.
  Mr. President, I want to make one other comment. The legislation is 
different in another way. The sunset is brief. It is 1 year shorter 
than previously reported out of the committee. But there is another 
thing. I know this would never be enough to convince the distinguished 
Senator from West Virginia. But this does make it such that individual 
vetoes can be voted on separately in the U.S. Senate. They do not have 
to be packaged, as in the original McCain proposal or the original 
Domenici proposal.
  And, in a sense, for those who do not like the line-item veto, or are 
worried about it or frightened of it, that is thought to be a little 
better protection than if you have to vote, like the military BRAC 
Commission, take it or leave it. At least you can take one at a time. 
That is one other aspect of this that I thought we ought to put on 
record as being different and changing things a bit.
  I yield the floor.
  Thank you, Mr. President.
  Mr. EXON. Mr. President, before my good friend and colleague leaves 
the floor--I know he has another matter--I just wanted to make a few 
brief comments. First, that I have had a very close relationship with 
the chairman of the Budget Committee for a long, long time. Although we 
do not always agree, we have a good working relationship that is going 
to carry through in the future. I hope to try to solve the mammoth 
problems that are going to be pushed off on the Budget Committee, and 
to help where the decisions have to be made.
  I have listened to the statements he made in opposition to the 
amendment offered by the Senator from West Virginia. I listened very 
carefully to the quotes he made by the former CBO Director, Dr. 
Reischauer, who is no longer there. We have a new CBO Director now. I 
agree, I think, almost word for word, paragraph by paragraph, point by 
point, with everything the chairman of the Budget Committee said. Then 
why are we arguing? We are arguing because the chairman seems to feel 
that just because we have a policy that has existed in the past, that 
that is going to continue to be the policy in the future.
  Senator Byrd, I think, has no quarrel with what the Senator from New 
Mexico is saying. We have no quarrel with what Senator Domenici says he 
intends to do. Senator Byrd has a quarrel, and I have a quarrel, and I 
think you, Senator Domenici, have a quarrel with what is going on on 
the other side of the Hill.
  What we are trying to do--since this measure that is going to pass is 
going to be the law of the land--is to put into place, in law, once 
again now, provisions to tell the House of Representatives that we are 
not going to allow them to continue what they are doing, which is in 
violation of what Dr. Reischauer previously said.
  I think we all agree. I think what we are simply saying to my friend, 
the chairman of the Budget Committee, is if you agree with Dr. 
Reischauer, then you agree with Senator Byrd. The only disagreement you 
seem to have is that it is redundant and it is not necessary.
  I would simply say that I really think this amendment is obviously 
necessary, given what is going on in the House of Representatives today 
in that Budget Committee. And we have a new director over there of the 
Congressional Budget Office. What is to stop the Budget Committee from 
telling the Congressional Budget Office to do differently in the budget 
resolution than what Dr. Reischauer had indicated earlier, as was 
extensively and accurately quoted by the chairman of the Budget 
Committee.
  I would simply say that I believe we are talking by each other as we 
do often times here in this body. As near as I can tell, Senator 
Domenici, the chairman of the Budget Committee, Senator Byrd, myself, 
and many others all agree. And if the only reason not to adopt the Byrd 
amendment is because it is redundant, then this is the time when 
redundancy is vitally important because of what is going on in the 
House of Representatives. The House's recent actions are anything but 
redundant with regard to what we have done in the past.
  All Senator Byrd is trying to do with this amendment--and I am 
surprised that there is opposition on the other side--is to say, let us 
keep doing business the same way we have done it in the past. Some 
people say you do not have to say that because it is redundant.
  Well, just look at what is going on in the House of Representatives 
today. They are making cuts in vital programs for infants and children 
and mothers and senior citizens, and all the underprivileged of the 
Nation, for the purpose of putting in a tax cut that benefits primarily 
the wealthiest citizens of this Nation. They are only going to be able 
to do that over there 
[[Page S4459]] if they make some changes in the rules and regulations 
that we have followed in the past.
  What Senator Byrd is simply saying, I say to my colleagues on both 
sides of this aisle, is let us not fool ourselves again. Let us not go 
down that path that we did in the 1980's by charting new courses and 
going through rosy scenarios and inventing systems such as what--I have 
always called the laughable curve. I think it was really the Laffer 
curve, but I called it the laughable curve. The laughable curve in the 
1980's is back with us once again under a different name. It is rosy 
scenario. It is changing the rules.
  All that Senator Byrd's amendment tries to do, and I think the 
chairman of the Budget Committee agrees with it, if I heard him 
correctly--and he is a very honest and honorable man--is let us leave 
things the way they are. In this very important new piece of 
legislation that in some form is going to become the law of the land 
let us say once again that we are not going to be carried off course, 
and that we are going to be using the cuts that we make to reduce the 
deficit and not to irresponsibly, irrationaly, and unreasonably make 
tax cuts that even the Senate committees run by Republicans on this 
side of the Capitol, indicate do not make sense.
  The Byrd amendment makes sense. It is in keeping with what I think is 
the feeling of my chairman, Senator Domenici of the Budget Committee. I 
cannot see why we are arguing about something that we seem to all agree 
with. If the only argument not to accept the Byrd amendment is that it 
is redundant, then it is the type of redundancy, Mr. President, that we 
need.
  I yield the floor.
  Mr. President, I understand that the Democratic leader would like to 
speak on this amendment.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. DASCHLE. Thank you, Mr. President. Let me commend the 
distinguished Senator from Nebraska for his comments. I feel very 
strongly about this issue as well. And I commend the distinguished 
Senator from West Virginia for offering the amendment.
  It is appropriate that this is the last amendment. It is appropriate 
in part because the distinguished Senator from West Virginia has made 
it clear all along that there are some very fundamental concerns here, 
and one of the biggest concerns we have is the vagary of the 
legislation to begin with. There is a vagary on what the scope of tax 
legislation is. There is a vagary on its constitutionality. There is a 
vagary, frankly, on the balance of power, as the Senator from New 
Mexico just indicated. We are not sure what this is going to do. We are 
not sure just how much of a shift down to the White House this may 
represent. There is certainly a vagary with regard to the degree of 
practicality or of the prudence in taking a simple bill and making it 
1,500 or 2,000 pages. There is a lot of vagary here. But how ironic it 
would be if in the interest of deficit reduction, with all the other 
vagaries, we did not even know this was going to reduce the deficit, we 
had no idea whether or not ultimately we were going to accomplish what 
I thought brought us here in the first place, which is to reduce the 
deficit. That would be the ultimate irony.
  All the distinguished Senator from West Virginia is saying is let us 
be true to our goal. If we are going to do this, let us be absolutely 
certain there is no mistake about why we are doing it. Before we vote 
on final passage, regardless of what assurances we may be given by CBO, 
regardless of what budgetary guidelines normally we must follow--as the 
Senator from Nebraska has so appropriately said, we do not know what is 
coming over from the other side. We do not know how many times things 
may come over from the other side that will dictate a situation that 
could otherwise undermine the intent of this legislation.
  So let us be clear. This is our last opportunity to say with an 
exclamation point, ``Here is why we are doing it. This is why it is 
important.'' If we are going to line-item veto specific provisions in 
the bill, then it better be designated for one purpose and one purpose 
only. Regardless of the agenda in the Contract With America, regardless 
of what intentions the House may have, we now know that it is going to 
go to deficit reduction because of the Byrd amendment.
  So I think it is very appropriate that this is the last amendment 
because it ought to clarify with no equivocation why we have spent the 
last week debating line-item veto.
  We are not supporting a line-item veto because we want to offer an 
agenda for tax reform or tax cuts, for tax cuts that we may not want. 
That is not why we are doing this. We do not want to provide more 
opportunities to cut taxes and create even greater imbalance between 
the wealthy and the middle class in this country. That ought to be a 
fight for another day. What we are here for is to reduce the deficit. 
What we are here for is to be absolutely certain that if we have 
designated the President with new powers, we understand what those 
powers are for. It is to reduce the deficit and nothing else.
  So I hope that colleagues on both side of the aisle, regardless of 
whether they think we have said it loudly enough or clearly enough, can 
appreciate the concern for vagary once more in this legislation.
  The courts are going to determine whether or not this is 
constitutional. Ultimately, we will probably be able to determine what 
kind of a shift in the balance of power results. The courts will also 
determine, I suppose, what will happen with regard to the scope of tax 
legislation, but we ought to be the ones to determine for what the 
line-item veto is going to be used. And if we determine it, we have our 
opportunity with this amendment to say it is going to be used for 
deficit reduction and that is it.
  So, Mr. President, there is nothing more to say than that. The 
purpose of this amendment is very clear. Again, as so many amendments 
that we have offered have attempted to do, we are trying to improve 
this legislation in a way that allows us the confidence that, indeed, 
we are doing what we say we want to do.
  So I commend the distinguished Senator from West Virginia for the 
amendment. I am very hopeful that in an overwhelming bipartisan 
consensus we can adopt it before this bill is enacted into law. And 
with that I yield the floor.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I will be very brief in my remarks.
  I first want to rise in support of the Byrd amendment. As everyone 
here knows, the House Budget Committee last week proposed a change in 
the Budget Act that would permit reductions in discretionary spending 
to be used to offset lost revenues resulting from tax cuts, rather than 
to reduce the deficit. This is one of the most irresponsible proposals 
I have seen since coming to the U.S. Senate. Everyone in Congress 
speaks loudly and clearly about the need for spending cuts in order to 
reduce the deficit. However, one of the first things the new Republican 
majority in Congress has proposed is to, rather than reducing the 
deficit, cut spending on programs that help some of the neediest people 
in the country so that we can pay for tax cuts for some of the 
wealthiest people in America.
  I heard the distinguished Chairman of the Budget Committee, Senator 
Domenici, argue that the Byrd amendment would replicate current law. 
While that might be technically true, given the House Budget 
Committee's actions last week, the Senate needs to go on record in 
opposition to using spending cuts to pay for tax cuts. These cuts must, 
and should, be used to reduce the deficit. I urge my colleagues to 
support the Byrd amendment.
  I also would like to spend a few minutes discussing the Dole line-
item veto proposal that will be voted on tonight. I want to pay tribute 
to my esteemed colleague from West Virginia, Senator Byrd, who, in my 
opinion, is always on the side of the angels when it comes to assaults 
on the Constitution, always on the side of the angels in understanding 
what James Madison and John Jay and Alexander Hamilton meant when they 
talked about the separation of powers.
  The first time I ever heard that expression I was in the ninth grade. 
The concept of separation of powers was refined for me somewhat when I 
read the Federalist Papers for the first time when I was an 
undergraduate student at the University of Arkansas. Then I 
[[Page S4460]] went off to law school and studied a full course in 
constitutional law and almost a full course on the Federalist Papers. 
It is a tragedy that every high school student in this country does not 
have at least one semester on that sacred document called the U.S. 
Constitution.
  John Jay, Alexander Hamilton, and James Madison created the concept 
of the separation of powers as a method of protecting the public. They 
put it in the Constitution because it was an important idea that should 
not get swept away with a momentary trendy, popular idea. So here we 
are with a very momentary, popular, trendy idea that could very well be 
an unmitigated disaster for the country--the Dole line item veto 
proposal.
  I remember when I was Governor of Arkansas 250 magnificent prints of 
a mockingbird showed up to be signed by the Governors of the five 
States that had the mockingbird as their State bird. When these prints 
arrived I spent all night long signing my name 250 times on those 
prints. And of the 250, I got 50, Preston Smith in Texas got 50, the 
other three Governors got 50. They all spent all night long signing 
their names, too.
  We are going to see similar signing ceremonies if the Dole proposal 
ever becomes law. Poor President Clinton. He does not sleep very much 
as it is. I have known him for years. He gets by on less sleep than 
anybody I have ever known, but he cannot get by with the 2 hours a 
night that will be left if he is forced to sign all those billettes 
sent up by Congress.
  Mr. President, I would not be surprised if within 2 years from this 
moment, the Dole proposal will have been found to be such a disaster, 
so unworkable, there would be a clamor to repeal it.
  Mr. President, I went to Wake Forest 3 or 4 weeks ago to speak at a 
convocation of their law school. The subject of my speech was on the 
``Trivialization of the United States Constitution.'' While we are not 
dealing with a constitutional amendment today, we are dealing with an 
assault on the Constitution.
  I voted for Senator Hatch's amendment to try to retain some semblance 
of the constitutional balance or power. Can you imagine what FDR would 
have done when he called the Supreme Court those nine old men who kept 
striking down the laws that he was trying to get passed to get this 
country moving again--nine old men. He detested them. He wanted to pack 
the Court by putting six more members on the bench. At first, everybody 
thought that was pretty good idea. Just like at first everybody thinks 
the Dole proposal is a good idea. All of the sudden, the people of this 
country decided that was one thing they did not want FDR to have the 
authority to do.
  But can you imagine the President of the United States having a line-
item veto on the Supreme Court? The Constitution would prohibit him 
from cutting their salaries, but he could sure turn the lights out. He 
can cut the heat off. James Madison would just be whirling in his grave 
if he knew this debate was going on.
  We, as Members of Congress are not perfect. There is plenty of pork 
to go around. Anybody who beats his chest on the floor of this body and 
says, ``I'm above that'' is not being entirely truthful. All you would 
have to do is ask that Senator how he or she voted on the space 
station. That is the biggest piece of pork in the history of the world. 
How did they vote on the super collider, the second biggest piece of 
pork in the history of world? How did they vote on that $400 million 
wind tunnel the other day, the third biggest piece of pork? No, it is 
that little $1 million lab down in some poor rural state that is pork.
  So, Mr. President, as I say, we are not perfect.
  But we have been doing some things right. Over the last several years 
we have taken a number of concrete steps in an effort to deal with the 
deficit. If we are serious about the deficit, we need to agree to work 
in a bipartisan manner and say to the American people, ``Yes, we are 
going to get the deficit under control and we are not going to squander 
the opportunity to get the deficit under control by putting out a 
politically inspired tax cut to people who do not want it.''
  So we have a golden opportunity. And instead we are squandering it 
with another assault on the Constitution by shifting the power of the 
purse to the executive branch. We want the President to be king.
  The one thing the Founding Fathers in 1787 said in Philadelphia, ``We 
have had enough kings. We don't want any more kings. We are going to 
have a President.''
  And until this moment, they have succeeded magnificently. We have had 
42 Presidents and no kings. I wonder how much longer that is going to 
last.
  I yield the floor.
  Mr. BYRD. Mr. President, I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The yeas and nays were ordered.
  Mr. McCAIN. Mr. President, on behalf the chairman of the Budget 
Committee, I make a motion to table the Byrd amendment, and I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the Senator from Arizona to table the amendment of the Senator from 
West Virginia. The yeas and nays have been ordered. The clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm] and the 
Senator from North Carolina [Mr. Helms] are necessarily absent.
  I also announce that the Senator from Alaska [Mr. Stevens] is absent 
on official business.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 49, nays 48, as follows:
  The result was announced--yeas 49, nays 48, as follows:

                      [Rollcall Vote No. 114 Leg.]

                                YEAS--49

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Grams
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--48

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Wellstone

                             NOT VOTING--3

     Gramm
     Helms
     Stevens
  So the motion to lay on the table the amendment (No. 350), as 
modified, was agreed to.
  Mr. COVERDELL. Mr. President, I move to reconsider the vote.
  Mr. COATS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
                           Amendment No. 347

  Mr. DODD. Mr. President, I rise in opposition to the separate 
enrollment bill offered by Majority Leader Dole because I do not 
believe that it represents a true compromise. I cannot support 
legislation that requires a two-thirds vote of both Houses of Congress 
to disapprove a presidential item veto because I see it as an 
unwarranted tilting of the balance of power away from Congress--the 
branch of government that is closest to the people.
  I believe that separate enrollment legislation would be both 
unconstitutional and unduly burdensome. This bill requires the 
enrolling clerk to enroll each individual item in appropriations bills 
or legislation that includes new entitlement spending or a new targeted 
tax benefit. The definition of a targeted tax benefit is ambiguous, 
and 
[[Page S4461]] the application of new entitlement spending is unclear.
  What is clear is that this slice and dice approach could break up one 
bill into more than 2,000 separate pieces of legislation. As Senator 
Byrd noted, if separate enrollment requirements had been in place last 
year, it would have required the President to review 9,625 separate 
appropriations measures, instead of just 13 appropriations bills. 
Separate enrollment would surely be a boon to the Presidential pen 
manufacturers industry, but a logistical nightmare for everyone else.
  I have always been very concerned about line-item veto legislation. 
But, I could support a reasonable version this year because of the 
environment in which we now find ourselves.
  We recently completed a lengthy debate on the balanced budget 
amendment. That proposal failed--fortunately, in my view. But at least 
five other Constitutional amendments--on tax limitation, term limits, 
unfunded mandates, school prayer and flag burning--are waiting in the 
wings.
  The new Congressional leadership has expressed an unprecedented 
desire to enact the Republican agenda not only in statute, but into the 
permanent Constitution of the Nation.
  This is the context in which I am willing to support statutory 
changes that I might not otherwise have endorsed. In contrast to 
Constitutional amendments, we can easily change statutory language if 
we find that it has not met our expectations or has had unintended 
consequences.
  I support the substitute offered by Senator Daschle. I believe it is 
a reasonable line-item veto alternative. It requires both Houses of 
Congress to vote on a President's rescission list and sets up a fast-
track procedure to ensure that a vote occurs in a prompt and timely 
manner.
  My change of heart is not based on a belief that strengthened line-
item authority will be effective in curbing spending. It is based on a 
willingness to give a reasonable measure a try.
  Line-item veto legislation has always been trumpeted as a critical 
tool to reduce the deficit. Its supporters argue that any 
Constitutional concerns are eclipsed by the need to rein in a free-
spending Congress. They argue by anecdote that strengthened rescission 
authority is essential to impose fiscal discipline and eliminate 
egregious pork-barrel spending. There is, however, little evidence that 
line-item authority reduces spending in any significant way.
  Here is what the experts have to say. According to the Congressional 
Budget Office: ``* * * the potential for the item veto to decrease the 
deficit is uncertain.'' The General Accounting Office states: ``* * * 
rescissions cannot be expected to serve as a significant deficit 
reduction or spending limitation tool.''
  If one doubts the effect of rescissions on the Federal budget, we can 
look to the example of the States. Forty-three States grant their 
governors line-item veto authority. Studies have shown that less than 1 
percent of budgetary savings is typically achieved by these States 
through the item veto. The State of Wisconsin--which has one of the 
most generous item vetoes in the Nation--is a good case study. An 
analysis of 542 line-item vetoes in Wisconsin found that budget savings 
attributable to the Governor's use of item veto authority ranged from 
only .006 percent to 2.5 percent.
  Former President Ronald Reagan was one of the most vocal champions of 
a line-item veto. In fact, in honor of his persistent support, the 
House passed its line-item bill on his birthday. The fact is, however, 
that when the former President was Governor of California, he used his 
line-item authority to rescind an average of less than 2 percent of the 
State's budget.
  While its impact on spending levels is likely to be small, the Dole 
legislation raises important Constitutional separation of powers 
questions. Granting new rescission authority would shift the delicate 
balance of powers our founders established, and would inordinately 
increase Presidential power over spending priorities.
  The framers did not flip a coin to divvy up powers among our three 
branches of government. They were familiar with tyranny and were 
concerned about vesting too much power in the hands of any one person. 
They believed that the Nation's priorities should be determined by a 
large and highly accountable body of representatives. They wanted 
Congress to make public policy by deciding whether and how much money 
should be allocated. So they specifically granted the power of the 
purse to Congress--not to the President.
  In Federalist 58, James Madison wrote:

       This power over the purse may, in fact, be regarded as the 
     most complete and effectual 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.

  Strengthening the President's power over the purse could yield 
dangerous and unintended consequences. Expanded line-item authority 
could be used to arm-twist individual legislators into adhering to the 
president's political priorities. Legislators could be coerced into 
supporting policy positions out of fear for vital projects in their 
State or district.
  It is clear that granting greater line-item authority increases an 
executive's say over not just how much money will be spent but also 
over what will be spent. In the hands of a creative and aggressive 
chief executive, this power could be wielded to subvert the most basic 
decisions and policies of the legislature.
  The line-item veto can be taken to ridiculous extremes by strong 
chief executives. In Wisconsin, Governor Tommy Thompson has exercised 
his generous line-item authority on some 1500 occasions. Governor 
Thompson has been unafraid to wield his veto pen, and he has been 
imaginative in doing so. He has gone so far as to delete individual 
letters, words and lines from the budget to stand the legislature's 
intent on its head.
  The Governor's prolific and inventive use of the line-item veto 
attracted a great deal of attention in his State--so much so that 
Wisconsin citizens voted to amend the State constitution to bar the 
Governor's use of the so-called ``Vanna White Veto.'' It was so named 
because Governor Thompson used his veto to imitate the ``Wheel of 
Fortune'' star who came to fame by flipping letters.
  Here are just a few examples. In one instance, Governor Thompson was 
sent a bill establishing a 48-hour maximum detention for certain 
juvenile offenders. He creatively used his line-item veto authority to 
increase that limit to 10 days.
  In another instance, the Governor gutted a $650,000 clean energy 
rebate program by eliminating all the words except ``$50,000'' and 
``program'', thereby providing $50,000 for an unspecified program--
mystery pork, you might say. On two occasions, he used his line-item 
authority to raise taxes.
  On yet another occasion, Governor Thompson redirected $83 million of 
a $183 million property tax relief measure to the State's general fund 
for other purposes. As one member of the State assembly pointed out, 
such actions have resulted in the Governor literally vetoing budget 
items into existence.
  While Governor Thompson has been somewhat more inventive than his 
predecessors in exercising item veto authority, his intent has been the 
same as his fellow governors. A 12-year study of the State's item veto 
revealed that Wisconsin's Governors were likely to use the authority to 
pursue their own policies or political goals--but not to reduce 
spending.
  Wisconsin is not alone. The Congressional Budget Office recently 
concluded that ``although the item veto may affect State budgets, it is 
more likely to substitute the Governor's priorities for those of the 
legislature than it is to reduce spending.''
  While much has been made about the need to increase the President's 
rescission authority, all evidence suggests that current authority 
works quite well.
  In the 20-year history of the Congressional Budget and Impoundment 
Control Act of 1974, Congress has enacted more than $92 billion in 
rescissions, compared to $72 billion requested by six Presidents. This 
point bears repeating: Congress has rescinded $20 billion more in 
spending than requested by Presidents over the last two decades.
  Earlier this month, one likely Presidential candidate announced that 
he 
[[Page S4462]] would not seek his party's nomination. Explaining his 
decision, he declared that he wanted to focus on real economic issues, 
but that his party was more interested in gimmicks and procedural 
issues. That candidate was none other than Jack Kemp.
  I believe that the line-item veto is just one more procedural duck 
designed to serve as a substitute for the difficult and painful budget 
choices needed to balance the budget.
  In less than 2 weeks, the Senate Budget Committee is required by law 
to report a budget resolution. All evidence suggests that our 
colleagues on the other side of the aisle have no intention of meeting 
this statutory deadline. Apparently, when the Congressional Compliance 
Act was signed into law earlier this year requiring Congress to abide 
by all laws it imposes on everyone else, the new majority put in a 
hidden rider exempting Congress from obeying its own internal laws.
  The 104th Congress has now been in session for 12 weeks. At least 
two-thirds of the Senate's time has been occupied considering process 
changes that would make none of the difficult and painful decisions 
needed to put our fiscal house in order.
  Members of Congress have had ample opportunity to bemoan the economic 
illnesses our country faces and offer seemingly painless magic potions 
to cure them. Most of these proposed cures have been worse than the 
disease. And all have been lacking in the basic political leadership 
and courage that is necessary to solve our problems.
  At the end of the day--balanced budget amendment, or no balanced 
budget amendment, line-item veto or no line-item veto--we have to roll 
up our sleeves and get to work.
  I am willing to support a reasonable line-item veto proposal. I can 
support one that guarantees the President a majority vote. But I cannot 
support any line-item proposal that hands the President plus a small 
minority in either House of Congress the power to govern.
  I am not willing to undermine the delicate balance of powers created 
by our Founding Fathers in our zeal to respond to a contemporary 
economic problem.
  Mr. DASCHLE. Mr. President, there has been uncertainty expressed 
regarding some of the language contained in the Dole line-item veto 
substitute. It is important to clarify the language in order to give 
guidance to those who will be responsible for implementing it.
  The major area of uncertainty has surrounded the definition of 
targeted tax benefit under the Dole substitute and, in particular, the 
meaning of ``similarly situated taxpayers.'' I would like to enter into 
the Record a few comments to further clarify this issue.
  It has been suggested that ``similarly situated taxpayers'' may refer 
to taxpayers who are engaged in a particular activity. Democrats would 
not disagree with this as one interpretation of the language.
  As I did last night, I would like to take an example because I 
believe this helps focus the discussion. Speaking in generalities can 
only get us so far, and, as I said, it is important that we provide 
some specific guidance for those who will be implementing this 
language.
  Suppose that a proposal is raised to provide a tax credit for 
research expenses incurred by companies promoting conservative causes. 
I don't believe anyone would argue that this proposal should not be a 
subject to scrutiny under the line-item veto legislation. Everyone 
would agree that a tax benefit solely for companies that do research in 
an effort to promote a specific cause is a special interest tax break. 
And, as a special interest tax break, it ought to be subject to 
possible line-item veto.
  But, what if someone were to say, ``Compared to those taxpayers who 
promote conservative causes, there is no special treatment here.'' In 
other words, what if we define ``engaged in a particular activity'' as 
the identical activity for which the special tax break is given. 
Clearly, this leads to a ludicrous result, and clearly that is not what 
is intended.
  Again, common sense dictates that the particular activity to which 
the measure should be compared is business research or some broader 
activity. When this is the comparison group, then we obtain the right 
result--that is, that the provision is subject to potential line-item 
veto.
  Let me turn another point of clarification, relating to the 
application of the Dole substitute to direct spending measures. Again, 
it is important that we make these clarifications for those who will be 
charged with implementing this legislation.
  Nowhere in the language of the Dole substitute does it say that 
application of the line-item veto will be restricted to increases in 
direct spending. Both decreases in spending and increases in spending, 
therefore, potentially will be subject to the veto pen.
  The result is that the Dole language would treat direct spending 
differently from targeted tax benefits. A reduction in entitlement 
spending would be subject to potential line-item veto, whereas a tax 
increase clearly would not be subject to line-item veto.
  There are the points of clarification I wished to make at this time 
for the Record. It is my hope and intention that these will provide 
adequate guidance to those in both Chambers who will face the important 
task of interpreting and implementing the line-item veto legislation we 
enact.
  Mr. KEMPTHORNE. Mr. President, I rise today to offer my strong 
support for line-item veto legislation, and specifically the Dole 
substitute amendment before us today. I would like to thank the 
Majority Leader and my colleagues Senator McCain, and Senator Coats for 
their leadership and hard work in drafting a compromise bill that has 
gained wide support in the Senate. I believe the Dole amendment is good 
legislation. I hope that my colleagues on the other side of the aisle 
will join me in supporting this important piece of legislation granting 
line-item veto authority for the President.
   In light of our Nation's $4.8 trillion public debt, which is $18,500 
for every American, I believe enacting line-item veto legislation would 
be an important step to reduce Federal deficit spending. Obviously, 
line-item veto legislation by itself would not eliminate our yearly 
budget deficits, but it would create a critical link in our efforts to 
control and effectively reduce the enormous public debt. I am committed 
to getting our Nation's fiscal problems under control and I believe 
line-item veto legislation would help accomplish this difficult, yet 
attainable, goal.
  Whether the Senate approves enhanced rescission, expedited 
rescission, or separate enrollment, any of these approaches would 
strengthen the ability the President has to rescind Federal spending or 
targeted tax benefits.
  The central message I hear every day from Idahoans is to reduce 
Federal spending, balance the budget and lower the national debt. But 
above all they want Congress to eliminate pork-barrel spending. 
American taxpayers are tired of watching the Federal Government waste 
their hard earned tax dollars on unnecessary projects which are not of 
a national concern.
  Mr. President, I would like to share with you a sample of some of the 
comments I received from Idahoans during the 104th Congress in support 
of enacting line-item veto legislation:

       Recently the house passed a measure to allow the line-item 
     veto for the President. This is something I feel we 
     desperately need in order to eliminate much of the ``pork'' 
     that is added to large bills as they proceed through the 
     process. I realize that I may not understand all the 
     implications this power might lend to the executive branch 
     but I feel at least it is better than the uncontrolled 
     behavior that is now practiced by members of the 
     Congressional branch. If individual States need such pork, 
     let that State pay for it. I respectfully request that you 
     pass this measure--Joy C. Roberts, Eagle, Idaho

       I believe this measure would discourage the funding of 
     unnecessary programs and reduce government waste--Marc 
     Banner, Boise, Idaho

       Line item veto is mandatory to bring back responsible 
     government--Richard Lewis, Pocatello, Idaho

       This would help eliminate many partisan and/or 
     irresponsible clauses passing through on the shirt tails of 
     otherwise responsible legislat[ion]--Bill Trammel, Boise, 
     Idaho

  Under the Dole amendment, once an appropriation bill, authorizing 
bill, or any resolution providing direct spending or targeted tax 
benefits passes the Senate then each item in the bill or resolution 
will be enrolled as a separate bill or joint resolution. The respective 
committees will report the bills with great detail so that each item 
may be separately enrolled. With 
[[Page S4463]] the President's existing Constitution authority to veto 
bills, he will be able to review each item in detail and veto any 
provision separately enrolled.
  Opponents of line-item veto legislation believe Congress would 
unnecessarily grant the President too much power, therefore upsetting 
the legislative and executive branches' balance of power. Moreover, 
opponents fear the President will use this line-item veto power to 
coerce Members of Congress. There is concern the President would be 
inclined to target funding of particular interest to Members' States as 
pork-barrel spending and threaten to line-item veto it to gain support 
for an administration objective. I believe line-item veto legislation 
will hold the President more accountable to Federal spending programs. 
The President and Congress will be forced to work together on spending 
programs.
  Enacting line-item veto authority for the President is a top priority 
of the Republican leadership in the 104th Congress. Forty three States 
provide their Governors with some type of line-item veto legislation 
because it works. Idaho is one of these States.
  Last January, during President Clinton's State of the Union Address 
he urged Congress to send him line-item veto legislation for his 
approval. Various line-item veto bills have been introduced and voted 
on in previous Congresses, at times when we had a President who wanted 
line-item veto authority, but a Congress not willing to give him the 
power. Today, however, we have a President who wants a line-item veto 
authority, constituents who demand it, and a Congress willing to give 
him the power. It is time for the Senate to do the responsible thing 
and pass the line-item veto.
  Mr. ABRAHAM. Mr. President, I rise in support of the Dole substitute 
to the McCain-Coats Legislative Line-Item Veto Act of 1995.
  I do not feel it necessary to revisit, here, the stores of dubious 
spending programs, whether on cranberries, bees, helium, or whatever, 
that unfortunately find their way into legislation and our bloated 
Federal budget.
  I will, however, repeat what we all know, or at least should know: 
that we desperately need to regain control over our spending so that we 
can stop adding to our country's huge and exploding deficit. We must 
use every means at our disposal to eliminate unnecessary spending, 
including Presidential vetoes of particular spending programs that have 
been inserted into larger bills.
  Those who argue that this bill improperly hands excessive power to 
the President ignore the history of Congress' budgeting process or fail 
to come to grips with its effects on our spending habits.
  During the early years of our Republic Congress' appropriations 
comprised all of four or five pages. Back in the 1940's and 1950's, 
however, Congress developed the habit of putting riders, in reality 
spending programs irrelevant to the underlying legislation, on our 
bills. It was the funding for these riders that Presidents impounded, 
and it was in 1974, after Congress took away the President's 
impoundment power, that the legislature began earmarking all funding.
  At that point Congress began to pass appropriations bills, laws, and 
enabling legislation of hundreds of pages in length.
  The word ``omnibus'' no longer finds its way into legislation, but 
many of the so-called laws Congress passes actually are bundles of laws 
and appropriations put together for reasons of political convenience.
  During most of the 19th and part of the 20th century, Congress passed 
shorter, more precise, and concise laws that only aimed to accomplish 
particular goals--setting or better yet eliminating a particular 
tariff, paying an individual for a particular service, and so on. We 
also put fewer burdens on our people in the form of taxes and 
regulations.
  It is simply unrealistic to pretend that the legislation that 
generally comes out of Congress today represents unitary legislation.
  In some ways, perhaps, our society requires more complex 
legislation--to, for example, set forth a complete program that has a 
number of distinct but mutually dependent elements. But too many of us 
have come to use complex legislation as a form of cover under which we 
can hide pork for our constituents. This is wrong, and it should be 
stopped.
  The line-item veto essentially returns to the President a power he 
already has--that of reviewing legislation and vetoing it if he finds 
it improper. Discrete programs and appropriations still would be sent 
to the President as before, only now the President would be able to 
approve or disapprove of each of them, even when bundled together into 
a large, more disparate bill.
  The line-item veto would provide us with an important tool in 
combating hidden pork and yet maintain an appropriate balance of 
power--with a legislative process under which the President may review 
and even veto any piece of discrete congressional action, and under 
which we in Congress may, if two-thirds of us agree that we should, 
override that veto.
  Far from taking away our proper legislative function, this line-item 
veto ensures that we will scrutinize every piece of legislation, every 
program and spending proposal, to see to it that it is in the interest 
of the American people. We must restore discipline to our budgeting 
process and this regulation requires that we examine every proposal 
that affects the budget to make sure that it is both worth the cost and 
necessary.
  With a line-item veto in effect Congress no longer will reach 
compromises by giving everyone the spending programs they want because 
a third party, the President, will hold an effective veto power over 
each element of that compromise. Instead of being forced to choose 
between accepting a good program that has been stuffed with pork or 
vetoing the entire bill, the President now will be able to slice away 
the pork, leaving the program itself intact.
  In this way the President, once again, can serve as a check on 
overspending by Congress, without taking away our constitutional right 
and duty to consider and enact legislation in the interest of the 
American people.
  I yield the floor.
  Mr. CHAFEE. Mr. President, in September, the Congress will vote to 
increase the U.S. Government's borrowing authority to over $5 
trillion--a regrettable but necessary step to keep our Government 
afloat. The tragic truth is, uncontrolled Federal spending has 
effectively saddled every man, woman and child in this country with 
$18,000 worth of debt. And, deficits continue to pile up at a rate of 
more than $200 billion per year with no end in sight.
  In short, Congress' appetite for spending more than the Treasury 
takes in, has created a deficit situation that is snowballing out of 
control. Today, the interest charge alone on our national debt consumes 
15 percent of our annual Federal budget. In my view, the deficit crisis 
is our most significant, and distressing national problem. Absent swift 
action, our children will inherit a legacy of debt that will reduce 
their standard of living, and eclipse the American dream.
  While the line item veto on its own will not substantially reduce 
these deficits, it is an important check on special interest spending 
that today finds its way into dozens of bills signed into law each 
year. The substitute amendment we are debating today, which has been 
sponsored by the distinguished Majority Leader, Senator Dole, would 
give the President badly needed authority to veto special interest 
spending provisions and tax expenditures buried in important 
legislation, without having to veto the overall measure.
  In effect, rather than receiving a single bill, the President would 
receive a series of mini-bills contained within an overall bill. He 
could then surgically remove or veto narrow special interest 
provisions, and sign the remainder into law. The Dole substitute would 
require that all new direct spending provisions, appropriations 
measures and targeted tax expenditures contained within each bill be 
enrolled as separate items to give the President this surgical, or 
line-item veto authority. The Congress could override vetoes with which 
it disagreed by a two-thirds vote of both houses.
  The Dole amendment would give the President the authority to excise 
pork barrel projects and tax breaks intended to benefit narrow 
constituencies. Importantly, it would also enable the 
[[Page S4464]] President to veto new direct spending programs which 
programs operate without the need for annual appropriations.
  During my tenure as Governor of Rhode Island from 1962 to 1968, there 
were many occasions when I wished I'd had a line-item veto. The 
situation I faced then was identical to the problem the President 
confronts today at the national level. Narrow special interest 
provisions, which could not survive on their own merits, are inserted 
into critical legislation, leaving the President with a Hobson's 
choice: Veto urgently needed legislation, or swallow the offending 
provisions to advance the greater good. The line-item veto is the right 
prescription for this problem.
  Many have expressed concern that giving the President this new 
authority would undermine the ``power of the purse'' delegated to the 
legislative branch under the Constitution. While this concern maybe 
overstated, there is no question----this is a bitter pill for the 
Congress to
 swallow. But it's a recognition that the legislative branch cannot put 
its fiscal house in order, and that additional checks are needed. 
Wisely, the Dole amendment includes a 4-year sunset provision, so that 
we are not committing ourselves to an irreversible course of action.

  In closing, I want to commend the majority leader, Senator Dole, as 
well as Senators McCain and Domenici for working together to develop 
the Dole substitute to S. 4. I strongly support this amendment and hope 
that the Senate will adopt this measure with a substantial bipartisan 
vote.
  Mr. DORGAN. Mr. President, I have long believed that giving the 
President the capability to exercise a line-item veto will be helpful 
in preventing some of the unsupportable spending projects that are put 
in appropriations bills without notice, public debate, or hearings.
  I voted for the Daschle proposal for a line-item veto today, and I am 
also voting for the Dole proposal to give the President the line-item 
veto authority.
  The Daschle proposal contains two provisions that were, in my 
opinion, preferable to the Dole proposal. The Daschle proposal had a 
broader provision on the line-item veto for tax items. Also, the 
Daschle proposal called for a majority override on the vetoed 
provision. The Dole proposal requires a two-thirds vote to override the 
line-item veto. Both of the provisions in the Daschle bill are 
preferable to me.
  However, the Daschle bill did not receive sufficient votes for 
passage.
  Therefore, I am voting for the Dole proposal. I want the Senate to 
pass a line-item veto bill this session of Congress, and this is a way 
to get that done.
  The Dole proposal does contain a provision for the veto of certain 
tax provisions. I believe that is an improvement over previous 
versions.
  Although the separate enrollment requirements of the Dole bill may be 
cumbersome, I have supported that approach in my cosponsorship of the 
Bradley bill in the last session of Congress. It is, if not the 
preferred approach, still a reasonable one.
  I want to be clear that I don't think the line-item veto will have 
much affect on the size of the Federal deficit. But, in real ways, it 
will bring more discipline to congressional spending. And for that 
reason I believe it is good public policy.
  The line-item veto is one part of a series of reforms that I believe 
are necessary to change the spending habits in Congress. That is the 
reason I voted yes on both the Daschle and the Dole proposals for a 
line-item veto.
                     Amendment No. 347, As Amended

  The PRESIDING OFFICER. Under previous order, amendment No. 347, as 
amended, is agreed to.
  The amendment (No. 347), as amended, was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading, and was 
read the third time.
  Mr. McCAIN. Mr. President, as I understand the parliamentary 
situation, under the previous unanimous-consent agreement, Mr. Byrd is 
going to speak for up to 2 hours.
  The PRESIDING OFFICER. Under the previous order, there will now be up 
to 2 hours of debate under the control of the senior Senator from West 
Virginia.
  Mr. McCAIN. Mr. President, I have discussed the unanimous-consent 
agreement with Senator Byrd and he has agreed to allow a new unanimous-
consent agreement that would allow for 5 minutes for the Senator from 
Arizona, myself; followed by 5 minutes by the Senator from Indiana, 
Senator Coats; and, of course, whatever leader time he wishes to 
consume.
  So I ask unanimous consent that, in addition to the 2 hours 
controlled by Senator Byrd, following the 2 hours controlled by Senator 
Byrd, there be 5 minutes for the Senator from Nebraska, 5 minutes for 
the Senator from Arizona, and 5 minutes for the Senator from Indiana.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I thank the Chair. Pending the presence of 
Senator Byrd, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. EXON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EXON. Mr. President, under the unanimous-consent agreement, I 
understand the Senator from Nebraska has been allotted 5 minutes. I 
would like to take that 5 minutes at this time.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. EXON. Mr. President, I will vote for final passage of the Dole 
line-item veto substitute. As my colleagues well know, I would have 
preferred another version of the legislation, namely S. 14, which I 
cosponsored with the distinguished Republican and Democratic leaders 
and the chairman of the Budget Committee.
  However, S. 14 was not meant to be. We had a vote earlier today to 
substitute S. 14 for the so-called Dole compromise. Unfortunately, S. 
14's supporters, of which I am one, did not carry the day.
  All vote tallies aside, I still believe with all of my heart that S. 
14 is a better bill. As one of its architects, I can say that it is a 
cleaner bill. It is constructed on sound footing. It is a simple bill 
without the unwieldy contraptions that complicate and weigh down the 
Dole substitute. It is a bill that can weather a constitutional 
challenge.
  Yet, I tell my colleagues today that I will vote for the Dole 
substitute. I will vote for it as our only chance to win a line-item 
veto. I will vote for it as a last resort to cut pork-barrel spending.
  Mr. President, I can support this bill because it is much improved 
over its
 original version. In spite of the haste and pressure to ram this 
legislation through this body, the Senate worked its will in a number 
of areas. Through the amendment process, we made this a better bill. We 
made it a bill that Senators from both sides of the aisle can support--
albeit reluctantly.

  I am pleased to see that many of the concepts that I proposed in S.14 
have found their way into the Dole substitute. The bill now contains a 
sunset provision. It now addresses the critical areas of targeted tax 
benefits and entitlements.
  However, we are not yet in the winner's circle. We will have enormous 
hurdles to clear in conference. I hope they are not insurmountable. I 
hope that reason and bipartisanship can conspire to produce a 
conference report that the Senate can support, and as a Senate conferee 
one that I can support when we take the final action on this 
proposition when the conference report is returned to the Senate.
  In conclusion, this is not an enthusiastic vote I cast today. I have 
listened with great interest to my colleagues who oppose this bill. I 
share many of their concerns. I share many of their suspicions.
  I am still leery of the cumbersome separate enrollment process that 
was tossed into the pot at the last minute. I wish we could have had a 
thorough hearing on it. Separate enrollment could
 turn into the dreaded hydra of which Senator Byrd warns. There are 
also serious constitutional considerations which I believe could haunt 
us for years to come. Fortunately, we now 
[[Page S4465]] have a sunset provision that will allow Congress to 
revisit this legislation in 5 years.
  But, Mr. President, I will vote for this bill because it's our only 
hope for a line-item veto. There is a certain irony not lost on this 
Senator. Just as the President often has to accept the bad with the 
good in a critical spending bill, so must I accept the bad with the 
good in this bill.
  Mr. President, I wish we did not need a line-item veto at all. I wish 
Congress had the raw courage to make the sound fiscal decisions that 
would make this bill unnecessary. But a rising deficit and a nearly $5 
trillion debt underscores the necessity of this legislation.
  No, this bill will not balance the budget. No, this bill will not 
eradicate the national debt. No, this bill will not solve all of our 
problems with a wave of the hand. No, this legislation is not perfect, 
but it is one important step to blot out the red ink. It is one 
important step to put an end to out-of-control spending that is 
bleeding future generations dry. It is one important step to change the 
Nation's wasteful spending habits. And that is how we will solve our 
Nation's fiscal ills--one step at a time. I ask my colleagues to join 
with me today and take this first crucial step.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
West Virginia now controls 2 hours.
  Mr. BYRD. Mr. President, I will be happy to yield some time, if 
Senators wish. I ask the distinguished Senator from Michigan [Mr. 
Levin] how much he needs?
  I yield 5 minutes to the distinguished Senator.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I thank the Chair. I thank the Senator from West Virginia.
  Mr. President, I think it is appropriate for the President to be able 
to single out spending items that he believes to be wasteful, and to 
require a separate congressional vote on those items. For that reason, 
I was supportive of a bill similar to that originally introduced by 
Senators Domenici and Exon. That is why I also voted for the bill that 
was introduced by the Democratic leader. However, I cannot vote for the 
bill before us for three reasons.
  First, I believe the bill is unconstitutional. The Constitution 
specifies the mechanism by which laws are made. This bill establishes a 
different mechanism. We cannot do that. We cannot amend the 
Constitution by legislation.
  Second, the bill would cut up legislation into pieces which standing 
alone are bits and pieces.
  In a statement earlier this week I went through a sample piece of 
legislation that the Senator from Indiana had put together as a test 
run of how the bill would work, and the results speak for themselves. 
The bits and pieces that result would be standing alone, as they are 
left to do, would be incomprehensible and would bear no relationship to 
the bill that was passed by the Congress.
  Finally, Mr. President, the bill does not achieve its intended 
purpose of enabling the President to cut spending by vetoing earmarks. 
I do not think most of our colleagues even realize that. But under the 
Dole substitute, unlike the original S. 4 or S. 14, if the President 
vetoes an earmark, he will not save the taxpayers a dime. He still has 
the appropriations to spend. He will just spend it for something other 
than the purpose specified by Congress.
  The Constitution establishes the method by which laws are enacted and 
repealed. It specifies how a bill becomes law. It says that when a bill 
is passed by both Houses of Congress, it must go to the President. It 
does not have an exception. The bill before us would attempt to carve 
out an exception. The House bill, which is passed by both Houses, would 
not under this substitute go to the President. Instead, it gets carved 
up into bits and pieces, and the bits and pieces go to the President. 
We cannot amend the bits and pieces. We cannot refer the bits and 
pieces back to committee. The bits and pieces go to the President as if 
they were bills passed by the Congress, although the Congress never 
legislated on those bits and pieces the way we legislate on any bill by 
having it introduced, having it go through a committee process, a 
hearing process, an amendment process, a motion process, a conference 
process. The bill which we passed does not go to the President. The 
bills which he is given to sign have never been passed by us. That 
violates the Constitution. We cannot do that.
  What is ironic here also is if the President wants to sign a bill in 
its entirety, an appropriations bill, he cannot do so. He does not have 
a bill to sign. The bill disappeared. It was splintered into shards. 
Under this process, if the President wants to sign the bill, an 
appropriations bill which has been splintered into 500 parts, he cannot 
sign the bill. He has to sign 500 pieces of the bill even if he wants 
to sign the whole appropriations. If he wants to veto the entire 
appropriations bill, he cannot veto the entire appropriations bill. The 
President has vetoed appropriations bills in their entirety. Presidents 
under this approach cannot, but would have to veto each of the shards, 
each of the bits and pieces that were submitted to the President.
  I wonder if my time is up? I wonder if the Senator from West Virginia 
would yield me 1 additional minute?
  Mr. BYRD. I yield 2 additional minutes.
  Mr. LEVIN. Mr. President, Laurence Tribe, who is a constitutional 
expert, has been quoted on this floor. I was somewhat surprised by his 
most recent statement about this.
  The Assistant Attorney General for interpreting the Constitution 
under the Bush administration concluded--his name was Timothy 
Flannigan--concluded that you cannot have separate enrollment. This was 
the Bush Assistant Attorney General. In his view, the Constitution 
``requires that the bill be presented to the President as passed by the 
Congress.''
  Separate enrollment is unconstitutional.
  I believe Mr. Dellinger, President Clinton's Assistant Attorney 
General, in his statement in his most recent letter says that the best 
reading of the Constitution is that separate enrollment does not work. 
But what is interesting was Laurence Tribe's earlier opinion which I 
want to just briefly read, because, while Laurence Tribe is, indeed, a 
constitutional expert, a few years before his current opinion, he wrote 
a book. In that book called ``American Constitutional Law,'' this is 
what Professor Tribe wrote.

       The core issue is whether Congress may statutorily expand 
     the meaning of the term ``Bill''--which denotes a singular 
     piece of legislation in the form in which it was approved by 
     Congress--by defining as a separate ``Bill'' each and every 
     item, paragraph, or section contained within a single bill 
     that has passed both Houses as an entirety. The method would 
     be to direct the enrolling clerk of the House where the bill 
     originates to disassemble a bill and enrol each numbered 
     section and unnumbered paragraph as a separate bill or joint 
     resolution for presentation to the President in compliance 
     with clauses 2 and 3 of section 7 of article I. But it is far 
     from certain whether the myriad bills thus presented to the 
     President could be said to have been considered, voted on, 
     and passed by the two Houses in accord with the 
     Constitution's ``single, finely wrought and exhaustively 
     considered procedure.'' The choice of whether to adopt and 
     submit one appropriations bill or a hundred, and the decision 
     as to the form the bill or bills should take, might well be 
     deemed the ``kind of decision[s] that can be implemented only 
     in accordance with the procedures set out in article I.'' And 
     delegation to an enrolling clerk in either house of the power 
     to make decisions which would otherwise be part and parcel of 
     the political, deliberative, and legislative process is 
     constitutionally suspect.
  Mr. President, I think it is appropriate for the President to be able 
to single out spending items that he believes to be wasteful, and to 
require a separate congressional vote on those items. For that reason, 
I was prepared to vote in favor of a bill similar to that originally 
introduced by Senators Domenici and Exon. That is also why I voted for 
the substitute proposed by the Democratic leader.
  However, I cannot vote for the bill before us for three reasons.
  First, the bill is unconstitutional. The Constitution specifies the 
mechanism by which laws are made; this bill purports to establish a 
different mechanism. We can not do that. We can not amend the 
Constitution by legislation.
  Second, the bill would cut up legislation and cut it in pieces which 
standing alone are gibberish. In a statement earlier this week, I went 
through a sample piece of legislation that the Senator from Indiana had 
put together as a test run of how this bill would work. I think the 
results speak for themselves. 
[[Page S4466]] The hundreds of bits and pieces of a bill that result 
would be incomprehensible and would bear no relationship to the one 
bill Congress actually passed.
  Finally, the bill does not achieve its intended purpose of enabling 
the President to cut spending by vetoing earmarks. I do not think most 
of my colleagues realize that. Under the Dole substitute--unlike the 
original S. 4 or S. 14--if the President vetoes an earmark, he will not 
save the taxpayers a dime. He will still spend the money; he will just 
spend it for something other than the purpose specified by Congress.
  So while I support the version of a line item that comports with the 
requirements of the Constitution and the system of checks and balances 
established by our Founding Fathers, the bill before us fails that 
fundamental test.
  The Constitution establishes the method by which laws are enacted and 
repealed. It specifies that a bill becomes law when it is passed by 
both Houses of Congress and signed by the President, or, if the bill is 
vetoed by the President, when that veto is overridden by a two-thirds 
vote in each House. This bill purports to create a third way by which 
laws can be made, by giving the Clerk of the House of Representatives 
and the Secretary of the Senate the power to take a bill passsed by 
both Houses of Congress and disaggregate it.
  Despite the efforts of the sponsors, that is simply not consistent 
with what the Constitution requires. Article I, section 7 of the 
Constitution states that ``Every bill which shall have passed the House 
of Representatives and the Senate'' shall be presented to the President 
for signature. It does not say that some bills shall be presented to 
the President for signature.
  So here we have an appropriations bill that has passed both Houses of 
Congress. Under the substitute before us, it does not go to the 
President. It goes to the Clerk of the House and the Secretary of the 
Senate instead, to tear it up into different bills. That is not the 
procedures established in the Constitution. The Constitution says that 
every bill passed by Congress shall be sent to the President for 
signature or veto. It does not give us leeway to pass a bill and then 
hide it and try to pass something else.
  The President, if he wanted to sign that appropriations bill in its 
entirety, could not do so. To achieve the same result, he would have to 
sign hundreds of different bills. If we wanted to veto it in its 
entirety, he could not do so. To achieve the same result, he would have 
to veto hundreds of different bills.
  But suppose the President went ahead and vetoed each of the hundreds 
of little bills. The Constitution says that he shall return each bill, 
with his objections, to the House in which it originated, which ``shall 
proceed to reconsideration.'' The Constitution then provides that we 
must have a recorded override vote on each such bill. The Constitution 
states:

       [I]n all such Cases, the Votes of both Houses shall be 
     determined by Yeas and Nays, and the Names of the Persons 
     voting for and against the Bill shall be entered on the 
     Journal of each House respectively.

  So we cannot have a voice vote on veto overrides, and we cannot do it 
en bloc. The Constitution says that we shall act on each bill vetoed by 
the President, and we shall do it by recorded vote. So if the President 
vetoes 500 little bills, we have to have 500 recorded votes.
  Simply put, Mr. President, the procedure that this bill would put us 
through is a charade. It is a fiction, designed to pretend that we have 
passed bills that we did not write, did not introduce, did not report 
out of committee, did not debate on the floor, could not amend, and did 
not have any legitimate opportunity to vote on.
  Here is how the procedure would work. We would go through the entire 
legislative process of introducing legislation, reporting it out of 
committee, amending it, voting it through both Houses, going through a 
conference, approving a final product--a single appropriation bill.
  Further, this bill passed both Houses in identical form. Under the 
Constitution, it is supposed to be sent to the President. But that is 
not what we are going to do.
  Instead, we will give the bill to the Clerk of the House or the 
Secretary of the Senate, and tell them to disaggregate it into hundreds 
of different bills. The Clerk and the Secretary, who are not elected at 
all, but are appointed officials of the majority party in each House, 
would be directed to take the careful work of the Congress--a bill 
which, under the Constitution is supposed to be sent to the President--
and tear it up into shreds.
  This process of splintering a bill would involve a substantial 
exercise of discretion. The enrolling clerks would have to determine 
which provisions are tax expenditures. They would have to decide if 
these provisions affect a limited group of taxpayers differently from 
other, similarly situated people? What, exactly is a ``limited group'' 
of taxpayers? Who is ``similarly situated''? How do we expect the 
enrolling clerks to know?
  The enrolling clerks would have to determine which pieces of a 
paragraph, or a single sentence, contain allocations or suballocations 
of appropriations. They would have to decide where in a sentence to 
stop one bill, and start another. They would have to decide whether a 
provision is an allocation of funds creating a positive obligation to 
expend funds, or simply a limitation on funds.
  These are all legislative tasks, but they would be performed by an 
enrolling clerk, not by the Congress as the Constitution provides. We 
are supposed to make these legislative decisions, not the enrolling 
clerks.
  When the clerks have done their work, these shreds of the bill we 
passed would then be brought back to the House or Senate for what is 
called a vote en bloc. This vote is a charade. A Member who objected to 
one or more of the new bills would not have an opportunity to vote 
against them. No Member would have any opportunity to offer a motion to 
recommit. No Member would have any opportunity to offer an amendment. 
No Member would have any opportunity to offer an objection. No Member 
would even have the opportunity to correct an error in the shredding 
process.
  The only recourse that we would have, if we had a problem with any of 
the bills, for any reason, would be to vote against the entire package 
of disaggregated bills. And what would happen if we were to reject this 
product of the enrolling clerks? We would not have any opportunity to 
vote on a corrected product. We would have to start the entire 
legislative process over.
  The absence of any opportunity at all for Members to correct errors 
made in the process of disaggregation gives the Secretary and the Clerk 
extraordinary powers and raises the potential for real mischief by 
appointed officials.
  This is not the legislative process established in the Constitution. 
It is a charade, designed to create the appearance that we have 
complied with the constitutional requirements. That is not good enough. 
The Constitution says that a bill passed by both Houses of Congress 
shall be sent to the President for signature. There are no exceptions 
for momentarily convenient ends. This bill does not comply with that 
requirement.
  The Supreme Court said in the Chadha that we cannot amend the 
Constitution by legislation. The Court explained:

       The explicit prescription for legislation action contained 
     in Article I cannot be amended by legislation. . . . The 
     legislative steps outlined in Article I are not empty 
     formalities; they were designed to assure that both Houses of 
     Congress and the President participate in the exercise of 
     lawmaking authority.

  The Court explained its decision as follows:

       The bicameral requirement, the Presentment Clauses, the 
     President's veto, and Congress' power to override a veto were 
     intended to erect enduring checks on each Branch and to 
     protect the people from the improvident exercise of power by 
     mandating certain prescribed steps. To preserve those checks, 
     and maintain the separation of powers, the carefully defined 
     limits on the power of each Branch must not be eroded. . . . 
     With all the obvious flaws of delay, untidiness, and 
     potential for abuse, we have not yet found a better way to 
     preserve freedom than by making the exercise of power subject 
     to the carefully crafted restraints spelled out in the 
     Constitution.

  Mr. President, I intend to vote against the measure before us because 
it is unconstitutional.
  Second, I oppose the bill, because it would turn carefully considered 
pieces 
[[Page S4467]] of legislation into gibberish. Earlier this week, I 
showed my colleague a document prepared for the Senate enrolling clerk, 
at the request of the Senator from Indiana, as a test run of how this 
bill would work in practice.
  What the enrolling clerk put together was one appropriations bill, 
cut up into separate pieces as required by the measure before us. He 
produced a stack of paper 3 inches thick, containing 582 separate 
bills, each of which would be separately enrolled, signed by the 
Speaker of the House and the President of the Senate, and sent to the 
President for signature.
  As I pointed out at that time, many of these so-called bills are, 
standing by themselves, simply gibberish. For example, I read one, 
which states, in its entirety:

       of which $200,000 shall be available pursuant to subtitle B 
     of title I of said Act, and

  That is it. That's the entire text of the bill, which we are going to 
send to the President for signature. Who is authorized to spend this 
money? What are they authorized to spend it for? What account does it 
come from? $200,000 out of what appropriation? ``Subititle B of title 
I'' of what act? It makes no sense. And there are hundreds more bills 
that are equally incomprehensible. This is not the enrolling clerk's 
fault--he just did what the bill directed him to do.
  This is not supposed to be a jigsaw puzzle, Mr. President. It is 
legislation. Each of these sentences I read the other day is an 
independent, freestanding bill, to be sent to the President for 
signature. After they are pulled out of a bill and separately enrolled, 
not one of them means a thing. The measure before us would result in a 
product that simply makes no sense.
  Finally, Mr. President, I oppose this bill, because it would give the 
President extraordinary powers, without achieving its stated purpose of 
allowing the President to cut spending by vetoing earmarks.
  I do note that the proposal before us has been improved by the 
amendment that I offered with the Senator from Alaska [Mr. Murkowski] 
and the Senator from Nebraska [Mr. Exon]. Under the substitute 
originally introduced by the majority leader, the President could have 
used his line item veto power to increase spending or to veto 
restrictions on spending.
  Under the substitute, as originally proposed, the President could 
have used his line-item veto power to reject rescissions and 
cancellations of spending. He could have used this power to veto 
limitations and conditions placed on an appropriation, without vetoing 
the appropriations itself. In other words, he could veto the 
limitations, and spend all of the money anyway. The President could 
have rejected provisions in appropriations bills that attempt to reduce 
Government waste. He could have vetoed limitations on spending for 
consultants, for entertainment of Government officials, for Government 
travel. That means he could have spent more money for these purposes.
  Fortunately, we have corrected part of the problem. Under the Levin-
Murkowski-Exon amendment, items of the type I have just described would 
not be separately enrolled. The President would no longer be able to 
veto rescissions or cancellations of funds. He would no longer be able 
to veto restrictions on appropriations and still spend the money. He 
could no longer spend money for purposes inconsistent with the specific 
intent of the Congress.
  That was an important amendment, but my colleagues should be under no 
illusion that we have eliminated the problems with this bill. We have 
done the best that we could with a flawed approach, but the approach 
remains seriously flawed.
  Despite the adoption of the Levin-Murkowski-Exon amendment, the 
substitute before us gives the President broad powers to substitute his 
personal priorities for the budgetary priorities voted by the Congress. 
If, for example, we were to require the President to spend a specified 
amount appropriated funds for the Strategic Defense Initiative, or a 
particular approach to SDI, the President could veto that requirement 
and spend the money based on his own personal priorities.
  Moreover, the substitute before us would cede this power to the 
President without giving him the authority to save the taxpayers money 
by eliminating an earmark. Despite the extraordinary powers given to 
the President by this bill, when it comes to cutting spending, it is 
weaker than either of the two bills reported out of the Budget and 
Governmental Affairs Committees.
  How can that be? How can a bill that gives so much power to the 
President give him so little power to reduce spending?
  First, this substitute gives the President the power only to veto, 
not to reduce, an appropriation. So while the President is given great 
power to veto an earmark within an appropriation, he would not thereby 
reduce the appropriation itself, unless he were prepared to veto the 
entire appropriation.
  Here is where we need to understand what an earmark is. An earmark is 
not an appropriation. It does not give the President any additional 
power to spend money; it simply says that of the money already 
appropriated, a certain amount must be spent for a specified purpose. 
This is what we call an allocation or suballocation of an 
appropriation. Here's how it works.
  We start with an appropriation. For example, the following: ``The 
following funds are appropriated: For the purpose of program X, $600 
million.''
  We then want to specify more precisely how that money will be spent, 
so we have an allocation. For example: ``of which $20 million shall be 
available for purpose A; $12 million shall be available for purpose B; 
$15 million shall be available for purpose C; etc.''
  That is an allocation of an appropriation. If one of these 
allocations is further divided into pieces, that would be a 
suballocation.
  Now, let us look at the difference between the two bills reported out 
of Committee and the Dole substitute. The two reported bills both took 
the rescission approach. They authorized the President, subject to 
certain limitations, to rescind any amount of budget authority provided 
in an appropriation. That means that the President could veto all or 
part of an appropriation.
  In the case of the example I just gave, if the President decides that 
the $20 million for project A was a wasteful earmark, he could rescind 
the budget authority for that project. Under either of the two 
rescission bills, the President would, in effect, put a blue pencil 
through that $20 million. At the same time, and this is the important 
part, the President would also reduce the overall $600 million 
appropriated for purpose X by the same $20 million.
  The appropriation would be reduced to $580 million, and we would have 
a real cut in spending. In fact, both bills contain a so-called lock-
box amendment, under which the money rescinded by the President could 
not be spent for any other purpose. That means we would really reduce 
Government spending.
  But now let us look at what the Dole substitute does. Under this 
substitute, the $600 million appropriation and each of the allocations 
of that appropriation are enrolled as separate bills. If the President 
decides that the $20 million for project A is wasteful, he can veto the 
bill containing that allocation.
  But what happens to the $600 million appropriation if he vetoes the 
allocation? That appropriation is in a separate bill. He can not reduce 
it by $20 million as he could under the bills reported from Committee; 
he must either sign it or veto the whole thing. If he vetoes it, he is 
rejecting not only the wasteful earmark, but the entire program to 
which it is attached. If he signs it, however, he will not have saved a 
dime by vetoing the earmark.
  So under substitute amendment before us, the President can veto an 
earmark, but it will not do the taxpayers any good, because that will 
not reduce the appropriation. We will still have the same amount of 
spending that we would have had without the veto. There is no money to 
put into a lockbox, because spending has not been reduced by a dime. 
The only difference is that the President will spend the money on his 
own pet project, instead of the project specified by Congress.
  Let us look at a classic earmark. We could have an appropriation for 
post office construction, with allocations for specific post offices to 
be built in specific locations. That is what we are after in this bill, 
and I do not have a great problem with giving the President the power 
to veto those earmarks. But I will say, Mr. President, that I 
[[Page S4468]] would prefer a rescission bill, which gives the money 
back to the taxpayers, over this bill, which leaves the appropriation 
intact for the President to spend on post offices of his own choosing.
  Mr. President, some Senators appear to be under the misapprehension 
that the substitute before us would enable to President to cut spending 
by vetoing an earmark. In fact, it does not. The original version of S. 
4 would have enabled the President to do that. The Domenici bill would 
enable the President to do that. The Daschle substitute would enable 
the President to do that. But the Dole substitute does not. Under the 
Dole substitute, if the President vetos an earmark--or an allocation, 
as it is called in the bill--he can still spend the money, unless he 
vetoes the entire appropriation, which may cover many worthwhile 
projects in addition to the earmark.
  Some will say that, even so, we would be better off without the 
earmark.
  But not all allocations and suballocations are ``earmarks''. Many are 
basic statements of congressional priorities, and many place important 
conditions, limitations, and restrictions on presidential spending.
  Let us look at some real world appropriations, with their allocations 
and suballocations. I gave a few examples yesterday, all from last 
year's appropriations bill for Commerce, Justice and State. Let me go 
through them again, to explain what the President can do, and what 
happens to the money.
  One example I gave was the so-called bill which would state: ``of 
which $200,000 shall be available pursuant to subtitle B Title I of 
such Act''. Let us set aside the fact
 that, standing by itself, this is gibberish, and assume that the 
appropriating committees will figure out a way to write this so that it 
makes sense. What does it do?

  Here is the answer. Last year's bill appropriated $62 million for 
State and Local Narcotics Control and Justice Assistance under the 
Omnibus Crime Control and Safe Streets Act of 1968. The largest 
allocation out of that appropriation was $50 million for state and 
local law enforcement programs. The $200,000 was an allocation for 
enforcement of anti-car theft provisions for preventing motor vehicle 
theft.
  The $50 million allocated for State and local law enforcement 
programs and the $200,000 for enforcement of anti-car theft provisions 
was a statement of congressional priorities. We determined that the 
anti-car theft program was a relatively minor priority, compared to the 
assistance provided to state and local law enforcement programs. That 
is what we do in appropriations bills. We establish priorities.
  Under the bills reported out of committee, the President could 
rescind the $200,000 allocation and save that money for the taxpayers. 
But he can't do that under the Dole substitute.
  Under the bills reported out of committee, the President could 
rescind the $200,000 allocation and save that money for the taxpayers. 
But he can't do that under the Dole substitute.
  Under the substitute, the President could veto the $50 million 
allocation, the $200,000 allocation, or both, but that would have no 
effect on the overall appropriation of $62 million. The President would 
still be required to spend that money; he could simply substitute his 
own priorities for those established by Congress. Perhaps he thinks the 
car theft program is more important than local law enforcement; he 
could reverse the allocations. But he would not save any money without 
vetoing the full appropriation.
  These priorities are no small matter. In the last Congress for 
example, we spent weeks fighting over the relative priority to be given 
in the crime bill to hiring additional cops, building additional 
prisons, and establishing crime prevention programs. We will 
undoubtedly refight some of those battles in this Congress. But unless 
we are very, very careful about the way we write our appropriations 
bills, the President could use the veto power provided in this 
legislation to reverse our priorities. Moreover, he could do it without 
saving the taxpayers a dime.
  In short, Mr. President, the substitute before us is likely to do 
little good, and a lot of harm. In particular, the power given to the 
President to veto allocations and suballocations will enable him to 
substitute his own personal priorities for those established in bills 
passed by Congress, but will not save the taxpayers a dime, because 
unless the underlying appropriation is vetoed, the money will still be 
spent.
  This provision is well-intended. The sponsors of the substitute 
undoubtedly think that they are striking out at earmarks. But they have 
missed the mark.
  Mr. President, I will vote against this bill, because it is 
unconstitutional. I will vote against it, because it would turn bills 
carefully considered and passed by the Congress into gibberish. And I 
will vote it because for all this trouble, we would not even succeed in 
giving the President the power intended, to cut spending by eliminating 
earmarked funds. I urge my colleagues to join me in opposing this bill.
  I thank the Senator from West Virginia, not just for yielding time 
but for his stalwart defense of the Constitution. The spirit of Henry 
Clay is on this floor. I thank the Senator from West Virginia for the 
kind of defense of the Constitution which Henry Clay put up when he was 
here.
  Mr. BYRD. I thank the distinguished Senator from Michigan for his 
most generous and charitable words. I deeply appreciate them. I am 
flattered by them.
  The Senator from Rhode Island [Mr. Pell], did he wish time?
  Mr. PELL. Three minutes.
  Mr. BYRD. I yield 3 minutes to Mr. Pell.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. PELL. Mr. President, I find myself in opposition to the line 
item-veto legislation before us, both on philosophical as well as 
practical grounds.
  Philosophically, I simply believe that Congress should be extremely 
chary in yielding its power of the purse to the executive branch. I 
hold this view on the basis of my Senate service under eight Presidents 
of both parties during my 34 years in the Senate, and notwithstanding 
the cordial relationships I have had with all of them.
  The fact is that the executive branch, under our Constitution, quite 
properly is a separate power center with its own agenda and its own 
priorities. Inevitably, it will seek and use any additional power to 
achieve its objectives. And the pending grant of veto power over 
specific items, I fear, will surely give even the most benign and well 
motivated Chief Executive a new means for exercising undue influence 
and coercion over individual members of the legislative branch.
  So my preference would be to simply retain the present system of 
Presidential recommendation of rescissions. I fully recognize that 
under that system our appropriations bills do sometimes cater to narrow 
special interests. It was for that reason that I favored the substitute 
offered by the minority leader to require congressional action, by 
majority vote, on proposed rescissions. It is unfortunate that the 
majority saw fit to withdraw its support for the earlier version of 
this approach, as originally proposed by Senator Domenici.
  It is even more regrettable that the only viable compromise that 
could be devised involves the dismemberment of all appropriations bills 
into hundreds of separate bills. Quite apart from the constitutional 
questions which have been raised with respect to the form of 
presentation of bills, the compromise is mind boggling in its 
complexity.
  Separate enrollment, it seems to me, is so cumbersome and unwieldy as 
to invite ridicule on this body for even considering it. More to the 
point, it invites bureaucratic confusion or at worst tampering with the 
legislative process. It is the kind of jerry-built solution which seems 
almost certain to spawn more problems than it was designed to fix. We 
should reject it, or failing that, hope that the conferees in their 
wisdom will set it aside.
  Mr. BYRD. Mr. President, I yield to the distinguished Senator from 
Maryland [Mr. Sarbanes], 5 minutes.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, I thank the very distinguished and able 
Senator from West Virginia for yielding me time.
  I wish to join my colleague from Michigan in the comments he made a 
few moments ago in expressing my 
[[Page S4469]] deepest appreciation to the Senator from West Virginia 
for the very strong fight he has been making in the Chamber on this 
issue and on other issues which touch the Constitution of the United 
States. He has been a true champion of our Constitution and the Nation 
is in his debt.
  I am deeply troubled that this body appears to be into the symbolism 
but not the reality of addressing important national problems. There is 
a dedicated craftsmanship in dealing with problems of public policy 
which members of a legislative body are supposed to bring to the task. 
Anyone can stand up and thump their chest and holler there is a problem 
and we need to have a response.
  The real question is will the response be a sensible one? Will it in 
fact, in real practical terms, improve the situation? Too few want to 
face those questions and deal with them in a tough-minded way. Witness 
the proposal before us. The Congress is going to send thousands of 
little ``billettes'' down to the President to sign or veto. As the able 
Senator from Michigan pointed out, there are manifestly serious 
constitutional questions about this approach.
  There was a path the Senate could have followed, pursuant to the 
concept of expedited rescission, which I think would have commanded 
very broad support in this body. An approach which would have gotten at 
some of the spending problems people have criticized without bringing 
about a radical and fundamental shift in the allocation of powers 
between the executive and the legislative branches.
  I said earlier on in the debate that it is no great trick to have a 
strong executive. If you go through history, many countries have had 
strong executives. In fact, when it is carried to extreme, we call them 
dictatorships. The hallmark of a free society is to be able to have a 
legislative branch and a judicial branch in addition to an executive 
branch and for those two branches to have independence of judgment and 
real decisionmaking power, with the ability to check and balance 
executive authority.
  I can understand executives wanting to maximize their authority, but 
I have difficulty understanding legislators who in a blind way, are 
giving up a significant part of their role in the operation of the 
political system.
  I do not say that from the point of view that they should guard their 
own personal power and authority but from the point of view of guarding 
their role under the Constitution as representatives of the people. The 
Founding Fathers devised a constitutional system which has been the 
marvel of the world. They established a National Government with 
independent branches that check and balance one another; to have not 
only the executive with power and authority but also to have a 
legislative branch with power and authority.
  The thing we must be careful about as we consider these various line-
item veto proposals is not to erode the balance, the basic balance and 
constitutional arrangement that has served the Republic well for over 
two centuries.
  The Congress passed the Budget Impoundment and Control Act in the mid 
1970's, to address this balance between the executive and the 
legislative branches which provided a rescission process. It is 
possible to do further refinements with respect to the rescission 
arrangements that currently exist in the law and it is down that path I 
believe we should be proceeding.
  The current approach has been criticized. It is said the President 
makes rescissions, sends them to the Congress, the Congress simply 
ignores them.
  A proposal was offered by the minority leader which would have 
addressed this problem by requiring the Congress to act upon 
rescissions sent to it by the President. The Congress would not simply 
be able to ignore it. The President would be able to focus the 
spotlight on the issue and require the Congress to act on it. The 
expedited rescission proposal provided that if a majority in both 
Houses did not agree that the item should be rescinded then it would 
not be rescinded. That seemed to me to be a sensible way of trying to 
address some of the problems that have been raised without 
fundamentally altering our constitutional arrangements.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SARBANES. Could the Senator yield me just 2 more minutes?
  Mr. BYRD. Yes. I yield the Senator 2 additional minutes.
  Mr. SARBANES. I thank the Senator.
  I just want to touch finally on a point made immediately preceding me 
by the distinguished Senator from Rhode Island. Namely, that the 
proposal before us places enormous power in the hands of the Executive 
to bring pressure on the legislative branch. What the executive branch 
can do under this proposal is link items in an appropriations bill with 
totally unrelated issues on which a Member of the legislative branch 
may be challenging the Executive.
  For example, the Executive may have a nomination it is trying to move 
through the Senate. A Senator opposes that nomination. The Executive 
can pick out of an appropriations bill an item of critical importance 
to the Senator's home State, an item which everyone would concede is 
meritorious, but yet the Executive would be able to use his veto to 
negate that item, not on the merits of the item itself, but because the 
executive branch would relate it to a totally separate item in which 
they are being opposed by the Member in the legislature.
  Think very carefully about that. I believe it will happen. In the 
hands of a vindictive President, it could be absolutely brutal.
  But I think the temptation for its use in this manner will be 
tempting to any Chief Executive who is concerned about moving some 
other matter through the legislative body and finds himself being 
thwarted or frustrated.
  Finally, let me go back to the point with which I opened. My deepest 
concern is the manner in which we are trivializing very important 
issues. The Senator from West Virginia has rendered an extraordinary 
service to the people of the country by highlighting that. He has stood 
here on the floor and underscored that we are dealing with serious 
matters. This is serious business. Decisions are being made in the rush 
of the moment that may well alter in a fundamental way our basic 
constitutional arrangements. We ought to be very careful about doing 
that, Mr. President. I regard the measure before us as a giant step 
down that path and, therefore, I very strongly oppose it.
  Mr. President, I yield the floor.
  Mr. BYRD. Mr. President, I thank the very able and distinguished 
senior Senator from Maryland for his vision, his dedication to this 
Constitution of ours, his love for the Senate, and his patriotism which 
has stood the test many times on this floor in recent days and in 
months and years past. It has always been with great pride that I have 
listened to him and been thankful for someone of Paul Sarbanes' stature 
and courage.
  I know of others in this institution who treasure their membership in 
this body and who cherish the Constitution. I perhaps should not 
mention names because, inevitably, I would not think of all the names 
that should be mentioned at a time like this.
  But I shall mention the name of the Senator from Michigan, Mr. Levin. 
He is a master craftsman when it comes to legislation. He is meticulous 
and careful and exact.
  I have often thought that in that Convention which met from May 25 to 
September 17, 1787, he would have been an appropriate man to appoint to 
the Committee of Detail. He is so methodical, so very, very thoughtful 
in probing the depths of every word. He would have been well placed in 
that great gathering, because there are very few words in that 
Constitution that are without great purpose. Not many words were 
wasted.
  I suppose that if I could flatter myself by thinking that I might 
find a few words in that Constitution that perhaps ought not to have 
been there--and I cannot say this with certitude, of course--it would 
be those words in that veto clause, in the second part thereof, which 
refers to ``every order, resolution, or vote,'' in saying that they 
should be presented to the President for his consideration.
  Of course, we do not send votes to the President. We do not enact 
orders of a nature to be approved or disapproved by a President. We do 
enact simple resolutions, concurrent resolutions, and 
[[Page S4470]] joint resolutions, neither of the first two of which 
goes to the President.
  But as to the words ``order'' and ``vote,'' I have never been able to 
understand why the Framers put those words in the Constitution. But 
they, too, were afraid that something would be sent to the President 
and called a bill which was, in reality, not a bill. Bills have to be 
presented to the President for his approval or rejection. And so the 
Framers took every precaution to make sure that anything that went to 
the President for his signature or for his veto would, indeed, be a 
bill or a joint resolution.
  Mr. LEVIN. Will the Senator yield for a question?
  Mr. BYRD. Yes.
  Mr. LEVIN. First of all, for a thank you and to say how grateful I am 
for your comments, but also for a question.
  First, on that clause that the Senator just made reference to, 
``Order, Resolution, or Vote,'' I have not wondered as long or as hard 
as the Senator from West Virginia has about that, but I wondered a bit 
about it.
  I am wondering whether or not that might have been intended precisely 
to avoid the Congress from failing to send to the President something 
to which the concurrence of both Houses was required but which they 
would put a different label on in order to avoid it going to the 
President; that they might call it an order or a vote instead of a 
resolution to avoid the clear intent of the Constitution that something 
to which the concurrence of both Houses may be necessary go to the 
President.
  I wondered whether that might be the reason for those words so that 
the Congress could not put the label, some label other than resolution 
on something, and avoid a document which required concurrence of both 
Houses from going to the President.
  But my question of the Senator from West Virginia is this: The 
Senator has focused a great deal of attention--needed attention--on 
section 7 of article I, which requires that ``Every Bill which shall 
have passed the House of Representatives and the Senate, shall, before 
it become a Law, be presented to the President . . .'' It does not say 
``some bills,'' it says ``Every Bill.''
  The Senator has pointed out eloquently and persuasively that what is 
attempted here legislatively is that a bill which passes both Houses 
not go to the President and we cannot amend the Constitution by 
legislation.
  There is another part of that section 7 which has had less attention, 
and I would like to ask the Senator from West Virginia a question about 
it.
  That is, currently if the President decides to veto an appropriations 
bill, he can just simply veto the bill. But under this proposal, after 
the bill is divided into these bits and pieces, or ``billettes,'' as 
the Senator from West Virginia calls them, in order to veto an 
appropriations bill, the entire bill, the President would have to veto 
each of the bits and pieces of that bill.
  Let us say that the appropriations bill is divided by an enrollment 
clerk, assuming this politically appointed enrollment clerk can figure 
out what represents a tax and a general tax and a tax which is limited 
to a group, and he can properly put the limitations to the right 
appropriation and do all these other things which are really 
legislative--these are not ministerial functions, these are critical 
policy decisions--but assuming you have an enrollment clerk who does 
all that and sends these 500 bits and pieces to the President and the 
President says, ``I want to veto this entire appropriations bill,'' it 
is my understanding that under the pending substitute, he would have to 
veto each of the 500 bits and pieces in order to get to the entire 
bill.
  If that happened, if he wants to veto the entire bill, he would then 
return all the bits and pieces--all of them would come back to the 
Congress--and then, as I read article I, section 7, it says that in all 
cases of a veto, each bill vetoed--now we have 500 of them--``. . . the 
Votes of both Houses'' on the override ``shall be determined by yeas 
and Nays, and the Names of the Persons voting for and against the Bill 
shall be entered on the Journal of each House, respectively.''
  So that as I read the Constitution, if the President decides to veto 
the entire bill, therefore he has to do all the bits and pieces. Each 
of the vetoed bills would have to come separately before the Congress 
for an override vote, and they could not be voice voted and they could 
not be voted en bloc.
  Is that the Senator's reading of that language of the Constitution? 
It seems clear to me, but the Senator is the constitutional expert, I 
believe, around here, in my judgment, at least, and I am wondering 
whether he might indicate whether that is the way he also reads that 
provision.
  Mr. BYRD. Mr. President, the Senator flatters me, but aside from 
that, he has posed a very significant question.
  I think what it amounts to is, we are doing indirectly what we cannot 
do directly. And that is, that we are conveying a share of power over 
the purse to the Executive. We are purporting to send him a line-item 
veto, when, under the Constitution, the Senate and the House, in my 
judgment, cannot give away that power, cannot give to the President of 
the United States a line-item veto. Only the people can do that through 
an amendment to the Constitution.
  The Framers gave to the President a qualified veto. They did not give 
to the President an absolute negative. He has to take it all or leave 
it all. But there are so many questions that are raised by this 
substitute. I wish we could have gone on with this debate for a few 
more days. Several flaws have already been brought to light during the 
limited debate that we have had on this measure, and only God knows 
what additional ones might have come to light upon further examination. 
The Senator raises a very important question.
  Each of the little ``billettes'' would have to be signed or vetoed by 
the President or, if he did not sign them, and if Congress were in 
session, they would become law without his signature. But if the 
President vetoes one or several or all, there is no provision in this 
measure whereby a House, in which the bill first originated, has any 
authority to collect those vetoed bills and vote to override them en 
bloc. I raised that question in this Chamber yesterday.
  In most cases, the House, being by custom the originator of 
appropriations bills, would be the first to decide and, in many cases, 
the only House to decide, because if the House chose not to attempt to 
override, the Senate would never have a voice and, to that extent, the 
Senate is being subordinated to the other body by this legislation.
  Many of the ``billettes'' would, by virtue of their having been 
offered to the bill as amendments in the Senate, thereby have 
originated in the Senate and, under the Constitution, the measure which 
is vetoed is to be returned to the House in which it originated. Even 
though an amendment in the form of an enrolled bill may have been 
offered in the Senate by the Senator from Michigan, the Senator from 
Michigan may never see that measure again. The House will determine, 
because the overall bill originated in the House, whether or not there 
will be an attempt to override a veto.
  In short, there is no provision for escaping the strictures of that 
constitutional provision that the Senator has mentioned. The bill goes 
back to the originating body and that House then votes to pass it over 
the President's veto, or it fails to do so. It cannot put two of those 
``billettes'' together and vote en bloc to override the presidential 
vetoes. It cannot put a dozen or 50 or 100 of them in a package, and if 
the President chose to veto all of them, there is no provision to 
override en bloc.
  Oh, I know, we have decided by way of the Abraham amendment that, 
after the House and Senate have voted on the conference report and the 
enrolling clerk of the originating body has enrolled all of these 
little billettes, packaged them into one big bill again and it is put 
on the calendar, all of the little billettes are to be voted on en 
bloc.
  Mr. LEVIN. Without amendment.
  Mr. BYRD. Without amendment, with very limited debate, no motion to 
recommit, no motion to reconsider. It mystifies me.
  I have to say that I have heard Jefferson's name invoked so many 
times during the debate on the ``unbalanced'' budget amendment 
euphemistically called the balanced budget amendment. Jefferson's name 
was invoked so many 
[[Page S4471]] times, so often in that debate, to the total disregard, 
almost, of what Madison thought about the Constitution, or what 
Hamilton had to say. Jefferson's name was invoked. He was not even at 
the Convention. He was in Paris at the time.
  We will see what Jefferson says in his manual, The Parliamentary 
Practice for the use of the Senate of the United States, printed 1801. 
On page 73, thereof, one sentence: ``After the bill is passed there can 
be no further alteration of it in any point.'' Why it would have been 
anathema to Jefferson to have even mentioned letting the enrolling 
clerk break that bill up into several parts, and thus, through a 
fiction, created a multiplicity of bills.
  Reading further what Jefferson says about that: ``When the bill is 
enrolled, it is not to be written in paragraphs, but solidly''--
solidly, solidly--``and all of a piece, that the blanks between the 
paragraphs may not give room for forgery.'' That is Thomas Jefferson, 
in his parliamentary manual.
  So, the Senator asked a question which, if this measure ever becomes 
law, which God avert, somebody will have to answer. And at some point, 
even though the courts may try to avoid a political thicket, they may, 
indeed, have to make a decision there. That is a problem with this 
measure. It is not just a thicket, it is a political thicket.
  That is what is behind this whole exercise here, this whole effort--
politics. We have to act on the line-item veto and, under the so-called 
Contract With America, send the President a line-item veto.
  Mr. President, I thank the distinguished Senator for his question. It 
is a penetrating one, one which we will have time to ponder. I see 
great difficulty, great difficulty. Never again will a bill, which 
originally passed the House and the Senate, through a process of 
debate, amendment, recommittal, and reconsideration of votes, resume 
its original form. Instead it will be sent to the President in the form 
of 100, 500, 1,000, 2,000 little billettes. Never again will that bill 
be the same original bill that passed both Houses. Never.
  Never again will there be a public law that refers to that bill in 
the manner in which appropriations bills are now cited as public laws. 
When it comes to overriding a veto, just think of the time that will be 
consumed in any effort to override the vetoes of 15 or 20 of those 
little billettes that have been enrolled by a clerk in the other body.
  When we annually consider 13 bills, plus supplemental bills, plus 
possibly continuing resolutions, plus certain authorization bills, it 
boggles the mind to think of the waste of time in trying to override 
such vetoes. Even the thought itself is intimidating.
  Mr. President, I want to thank all Senators. I think this has been a 
fairly good debate. It is highly regrettable, Mr. President --and I do 
not say this with any rancor--highly regrettable that this bill on 
which the Senate is about to vote was brought to the Senate on Monday 
of this week and offered as a complete substitute to S. 4. The minority 
had no opportunity, as far as I know, to participate in the writing of 
it. There has been no committee hearing on it. There has been no 
committee markup of the Dole substitute. There was no committee report, 
no minority views, no supplemental views, no additional views by 
committee members. Yet, the Senate was immediately faced with the 
prospect of a cloture motion offered on that substitute.
  Now, what was done was within the rules of the Senate. I do not 
question that at all. Some may say, well, the former majority leader 
often offered a cloture motion the very moment that a motion to proceed 
was made. That is true. I never thought of those instances as 
filibusters and have said so. I never considered it to be a filibuster 
simply because the former majority leader could not get unanimous 
consent to take up a measure. He made the motion to proceed and offered 
a cloture motion immediately. I have never thought of that as a 
filibuster.
  But he was offering a motion to invoke cloture on a motion to 
proceed. I do not recall any instances--there may have been instances--
I do not recall any instances, however, in which the previous majority 
leader--while he often offered a motion to invoke cloture on a motion 
to proceed--I do not remember any instances in which he immediately 
upon the Senate's proceeding to take up a measure or matter, I do not 
remember any instances in which he immediately thereupon offered a 
cloture motion on the matter itself. There may have been some such 
instances. I do not recall such.
  But even if he did so, it was certainly not a matter of this gravity, 
a matter of this nature. We are talking now about a matter here which 
goes to the heart of the Constitution. It is not a constitutional 
amendment, but it seeks to amend the Constitution without appearing to 
amend the Constitution.
  It seeks to do indirectly that which it cannot do directly. Congress 
cannot give to the President of the United States line-item veto 
authority. That would require a constitutional amendment. I know there 
are some who maintain that the line-item veto authority is in the 
Constitution already. I do not believe that for a moment.
  If it were in there, surely some President, along the line somewhere, 
would have been advised by his chief counsel that there, in that 
Constitution, is something that you can use, and it is the line-item 
veto.
  It has never been discovered up until this time. It has never been 
used up until this time. And the reason it has not been used is because 
it is not there.
  Mr. SARBANES. Will the Senator yield on that point?
  Mr. BYRD. Yes, I will yield.
  Mr. SARBANES. It is my understanding there have been Presidents, 
Chief Executives, who have urged their lawyers within the executive 
branch to do exactly that: Look in the Constitution to find an existing 
line-item veto authority. And as much as the Presidents have wanted 
that authority, it is my understanding his lawyers have always come 
back to him and said, ``We cannot find that authority in the 
Constitution that enables us, in good conscience, exercising our 
professional judgment, to say that authority is there to be found.''
  Mr. BYRD. I think that is true. In the instance of Mr. Bush, for 
example, I think he was so advised. I know George Washington maintained 
that he had to sign or veto the whole bill. The first President of the 
United States maintained that he had to sign the bill or veto it in its 
entirety. He could not take part and reject part.
  So, Mr. President, here a cloture motion was offered immediately on a 
measure which the minority only saw for the first time, a far-reaching 
measure, a measure which we, even after these 4 days of debate, cannot 
really comprehend. We really do not know what this bill does. And I 
regret that the Senate was faced with that fait accompli: Here it is. 
Here is a new bill. We do not have a committee report on it. We have 
never had any committee hearings on it. But here it is, and here is a 
cloture motion along with it--which means that come the following day 
but one, the Senate will vote on cloture.
  It would seem to me that a minority should find that pretty hard to 
swallow, the application of a gag rule immediately upon a bill which 
had not seen the light of day until the moment that it was introduced.
  As I say, I do not speak with rancor. I speak only with sadness that 
we have come to this in the U.S. Senate. When I came to the Senate, the 
minority would not have stood for that, that approach. The minority at 
that time was on the Republican side of the aisle. Nor would the 
majority have sought to take advantage of the minority in that way. 
Senators in that day would have rebelled at the thought.
  But that day is gone now. And I will say this. If a minority does not 
seek to protect its rights, then it cannot blame the majority for 
riding and running over it, trampling it under foot.
  This substitute is an absurdity, an absolute absurdity. Here we are, 
grown men and women. We have taken the oath to support and defend the 
Constitution of the United States. We have been favored and blessed 
with the high title of ``Senator.'' And we are judged to be craftsmen 
of the art in legislating. We are thought to be men and women who 
should take great pride in our work here, but alas, we fall far short.
  The very idea that for the first time in all history, as far as I am 
concerned--I know of no precedent for this 
[[Page S4472]] approach. I know of no precedent for the handling of a 
bill such as is outlined in this substitute. There is no precedent in 
British history, the history of Parliament; in the history of the 
Colonial legislatures; in the history of the State legislatures; in the 
history of our republic under this Constitution--absolutely no 
precedent for handling a bill in this manner. And not only does 
tradition and custom refute this approach, but the great 
parliamentarians of the past refute it.
  I have just read from Jefferson's manual, and he, in turn, refers to 
the great authority on the British Parliament and its parliamentary 
procedures, William Hakewill, in whose treatise on parliamentary 
procedures, dated 1671, are noted the various authorities referred to 
in so many instances by Jefferson in his book on parliamentary 
procedure. There is nothing like it. I have never seen anything like 
it. I could never have thought that here in the Senate we would be 
voting on such a deformity as is this piece of legislation.
  If we can do what we are doing with this bill, we can do almost 
anything. Do not be surprised at anything when a legislative body 
allows itself to be hoodwinked, blinded, cajoled, or whatever, into 
stamping its imprimatur on such a piece of legislation, if it can be 
called that. It will go to conference. I hope it never sees the light 
of day after it gets to conference. But for us to put our imprimatur on 
it?
  I have to stand before God when I leave this life and give an 
accounting of my stewardship here. There is no way out of it. It is 
unavoidable. And I have to give an accounting to my children and my 
grandchildren.
 There is no way out of that. I have to give an accounting to myself 
when I look in the mirror. I have to say, ``Old boy, you did not do 
very well today. You have seared your conscience. You voted to do 
indirectly what you could not do directly.'' I would have to look at it 
in that way. How others may wish to look at it, is up to them. But I 
cannot in good conscience ever look back upon this hour and think that 
the Senate did the right thing.

  This thing is going to pass. I wish that this bill had been before 
the Senate for at least another week. Several flaws have been detected 
and made visible by the distinguished Senior Senator from Georgia [Mr. 
Nunn] and others. There have been attempts to correct the flaws that 
came to light.
  So for the time that this measure has been on the Senate floor, the 
time has been well spent. But we were deprived of further examination 
and study by the very fact that a cloture motion was entered on the 
very day that this substitute was introduced. We were deprived of the 
opportunity to thoroughly probe it, uncover it, and look at it 
minutely. I do not think that is the proper way to legislate.
  I am sorry that the minority took it lying down. I will bet that when 
the Republican side was in the minority, it would not have taken that 
lying down. I praise our minority leader, Mr. Daschle. He has done 
everything that he could do. But the minority leader with 39 others 
cannot block cloture. It takes the minority leader plus 40 others to 
block cloture.
  I chose to agree with the minority leader. There was no point in 
making the effort when we knew the votes were not there. It would only 
be an embarrassment. So let us do the best we can, fight the good 
fight, and be on to the next battle.
  Mr. President, this is indeed a sad moment for the Senate. I remember 
what Brutus said in a letter to Cicero. Cicero, in order to gain favor 
with Anthony and Octavian, came to agree with them on certain things, 
and Brutus criticized Cicero for doing so, according to Plutarch, in a 
letter: ``Our forefathers would have scorned to bear even a gentle 
master.''
  Mr. President, our forefathers, too, would have scorned to bear even 
a gentle master.
  As I look around this Chamber tonight, I think of Everett Dirksen. I 
think of Norris Cotton, George Aiken, Bob Kerr, Richard Russell, Lister 
Hill, Allen Ellender, Spessard Holland, and others whose voices have 
long been stilled, how they would have been ashamed, ashamed, to see 
the Senate accept without a fight, and a long fight, a piece of junk 
like this. This is a piece of junk out of keeping with any precedent in 
any legislative body that I know of. In the words of Brutus, ``Our 
forefathers would have scorned to bear even a gentle master.''
  Yet, there are some in the minority who cannot stand and vote against 
cloture once. Do not mention twice, or three times.
  When the Republicans were in the minority, and I was the majority 
leader, I offered cloture eight times on the campaign financing bill, 
and eight times that cloture motion was rejected. No majority leader 
has ever offered cloture on the same measure eight times. I offered a 
cloture motion eight times. Never were we able to get more than three 
votes for cloture from the Republicans. They stood like a stone wall. 
You have to respect that kind of unity.
  I am sad. I am sad that we have a more powerful minority than the 
Republicans had, as far as numbers go.
  We have a good leader. He has demonstrated leadership, statesmanship, 
heroism, and patriotism and great courage on the balanced budget 
amendment, and on this measure. But a leader cannot lead, if there are 
those who will not follow. You have to let the followers lead.
  Can you depict a leader who has to follow? That is what a leader is 
reduced to, if his troops will not stand behind him.
  I have been a leader. I was elected by my party to be leader six 
times, three terms in the majority and three terms in the minority. I 
know. If you look behind you and your troops are not there, you may 
carry the title of leader but in name only. Of all times when Senators 
should have stood, immovable, it is in an instance when the very 
structure of our constitutional system is being endangered.
  Mr. President, I want to read from a book that has just been 
published. This book is titled ``Constitutional Equilibrium: Mainstay 
of the Republic.'' And I begin by reading from page 183, under the 
subtitle ``Decline and Fall of the Roman Republic.''

       The theory of a mixed constitution--

  That is what ours is, a mixed constitution, with checks and balances, 
and separation of powers--

       The theory of a mixed constitution had its great measure of 
     success in the Roman republic. It is not surprising, 
     therefore, that the Founding Fathers of the United States 
     should have been familiar with the works of Polybius, or that 
     Montesquieu should have been influenced by the checks and 
     balances and separation of powers in the Roman constitutional 
     system, a clear and central element of which was the control 
     over the purse, vested solely in the Senate in the heyday of 
     the republic.

  And what happened to Rome? Rome had its legendary founding in 753 
B.C. Under the old republic and the middle republic, the Senate was 
supreme. The Senate had control, complete control over the finances.

       In short, Rome's fate was sealed by the one-by-one 
     donations of power and prerogative that the Roman Senate 
     plucked from its own quiver and voluntarily delivered into 
     the hands, first, of Julius Caesar and then Octavian, and 
     subsequently into the trust of the succession of Caligulas, 
     Neros, Commoduses, and Elagabaluses who followed, until at 
     last, the ancient and noble ideal of the Roman republic had 
     been dissolved into the stinking brew of imperial debauchery, 
     tyranny, megalomania, and rubble into which the Roman empire 
     eventually sank.
       At the height of the republic, the Roman Senate had been 
     the one agency--

  And the same can be true of this Republic. This Senate was the most 
brilliant spark of ingenuity that came out of that Constitutional 
Convention in 1787. The Senate was part of the Great Compromise. And 
every Member who has ever stood at that desk up there and taken the 
oath ought to take great pride in being a Member of this body, a 
continuing body. There has never been a new Senate since the original 
Senate sat, began its sittings on April 6, 1789.
  The same as can be said about the Roman Senate could be said about 
this Senate.

       At the height of the republic, the Roman Senate had been 
     the one agency with the authority, the perspective, and the 
     popular aura to debate, investigate, commission, and correct 
     the problems that confronted the Roman state and its 
     citizens. But the Senate's loss of will, and its eagerness to 
     hand its responsibilities over to a one-man Government . . . 
     a dictator, and later an emperor, doomed Rome and predestined 
     Rome's decline and ultimate fall.
       Mr. President, let us learn from the pages of Rome's 
     history. The basic lesson that we 
     [[Page S4473]] should remember for our purposes here is, that 
     when the Roman Senate gave away its control of the purse 
     strings, it gave away its power to check the executive. From 
     that point on, the Senate declined and, as we have seen, it 
     was only a matter of time. Once the mainstay was weakened, 
     the structure crumbled and the Roman republic fell.

  This lesson is as true today as it was two thousand years ago.
  And it pains me to see Members come into this body who seem to have 
absolutely no conception of what this body is all about, no conception 
of the constitutional system, no conception of the system of separation 
of powers and checks and balances, no conception of the wisdom of the 
Founders in placing into the legislative branch the power over the 
purse, little conception, apparently little respect for or regard for 
the lessons of history.

       Does anyone really imagine that the splendors of our 
     capital city stand or fall with mansions, monuments, 
     buildings, and piles of masonry? These are but bricks and 
     mortar, lifeless things, and their collapse or restoration 
     means little or nothing when measured on the great clock-
     tower of time.
       But the survival of the American constitutional system, the 
     foundation upon which the superstructure of the Republic 
     rests, finds its firmest support in the continued 
     preservation of the delicate mechanism of checks and 
     balances, separation of powers, and control of the purse, 
     solemnly instituted by the Founding Fathers. For over two 
     hundred years, from the beginning of the Republic to this 
     very hour, it has survived in unbroken continuity. We 
     received it from our fathers. Let us as surely hand it on to 
     our sons and daughters.

  Now, Mr. President, I have said about all that I wish to say. It 
would not matter if I spoke for days. The die is cast. This bill will 
go to conference. What comes therefrom nobody knows. It may be this 
bill; it may be H.R. 2; it may be a blend of the two; it may be 
nothing. Nobody knows. But the record will have been written here, and 
it is a record of which I cannot be proud. And the roll of Senators 
will soon be called.
  Let me read the roll of the great men who wrote this Constitution. 
Here it is:

       New Hampshire: John Langdon, Nicholas Gilman; 
     Massachusetts: Nathaniel Gorham, Rufus King; Connecticut: 
     William Samuel Johnson, Roger Sherman; New York: Alexander 
     Hamilton; New Jersey: William Livingston, David Brearley, 
     William Patterson, Jonathan Dayton; Pennsylvania: Benjamin 
     Franklin, Robert Morris, Thomas Fitzsimons, James Wilson, 
     Thomas Mifflin, George Clymer, Jared Ingersoll, Gouverneur 
     Morris;
      Delaware: George Read, John Dickinson, Jacob Broom, Gunning 
     Bedford, Jr., Richard Bassett; Maryland: James McHenry, 
     Daniel Carrol, Daniel of St. Thomas Jenifer; Virginia: 
     John Blair, James Madison, Jr; North Carolina: William 
     Blount, Hugh Williamson, Richard Dobbs Spaight; South 
     Carolina: J. Rutledge, Charles Pinckney, Charles 
     Cotesworth Pinckney, Pierce Butler; Georgia: William Few, 
     Abraham Baldwin; and President and deputy from Virginia, 
     George Washington.

  Mr. President, what would they think of us?
  Nathan Hale was a young schoolteacher who answered the call of his 
commanding chief, General George Washington to go behind the British 
lines and bring back drawings and notes concerning the fortifications 
of the British. Hale was 21 years old. He was a schoolteacher.
  He went behind the British lines, disguised as a Dutch schoolmaster. 
He completed his work. He made drawings of the batteries and the 
British fortifications.
  On the night before he was to return to the American side, he was 
apprehended and arrested as a spy. The next morning, he was brought 
before the gallows with his hands tied behind him. His last request was 
for a Bible, and the request was denied.
  The British commander, whose name was Cunningham, asked Nathan Hale 
if he had anything he wished to say. Nathan Hale, looking at the stark 
wooden coffin in which his lifeless body would soon be placed, said, 
``I only regret that I have but one life to lose for my country.''
  Nathan Hale was willing to give his one life. It is sad to say that 
there are Members of this body who are not willing to give one vote for 
the Constitution which was written by this illustrious list of Framers 
whose names I have just read. Not one vote to save their country, to 
save the constitutional system.
  On a monument in Atlanta Georgia, these words are inscribed to the 
memory of the great Senator and orator Benjamin Hill:

       Who saves his country, saves all things, saves himself, and 
     all things saved do bless him. Who lets his country die, lets 
     all things die, dies himself ignobly and all things die curse 
     him.

  Mr. President, I wish that it could be said that we Republicans and 
Democrats alike tonight had conspired to save our country and to 
preserve the liberties of the American people. Because in saving the 
Constitution, we preserve the liberties of our people.
  Claudius Marcellus was a Roman consul. His colleague was Paulus. They 
both were enemies of Caesar. Curio was a tribune, also an enemy of 
Caesar. But Caesar with 1,500 talents had bought off Paulus and with an 
even greater sum had secured the services of Curio. The vote was put. 
Claudius Marcellus could not be bought. Marcellus was of the opinion 
that Caesar should lay down his arms. Curio, in the pay of Caesar, 
opposed the motion by Claudius Marcellus, and moved instead that both 
Pompey and Caesar lay down their arms. Most of the Senators who had 
theretofore been of the same opinion as Marcellus went over to the 
other side and voted with Curio. Whereupon, Claudius Marcellus closed 
the doors of the Senate and exclaimed to his fellow Senators, ``Enjoy 
your victory. Have Caesar for your master.''
  The PRESIDING OFFICER (Mr. Frist). The Senator from West Virginia has 
28 minutes remaining. Does he wish to yield that time?
  Mr. BYRD. Mr. President, I yield 5 minutes to the distinguished 
Senator from Arizona.
  Mr. McCAIN. I thank the Senator from West Virginia. As always, I am 
extremely impressed by the power of his thoughts and his speech.
  Mr. President, I will be brief. The Senate has debated this 
legislation for a full week. The concept of a line-item veto has been 
debated on this floor for many years. For eight years, I have sought 
the Senate's consideration of a legislative line-item veto. I believe 
that in a few minutes the issue will be decided. And I am hopeful that 
the issue will be decided in favor of the proponents of this measure.
  As I am not known for my great patience, it would be hard to 
overstate how gratified I am to have finally arrived at this moment. It 
has been a long, difficult but worthwhile contest. And one in which I 
feel honored to have participated--honored to have participated 
irrespective of the outcome.
  Much of that honor derives from the quality of the opposition to this 
legislation. I know that some of the best minds and ablest legislators 
in the Senate have argued in opposition to the line-item veto. Their 
eloquence and their skill at debate surely exceed my own powers of 
persuasion. I had to rely heavily on the skills of the majority leader, 
the persuasiveness of my fellow proponents, and the merits of the cause 
to advance this legislation.
  The senior Senator from West Virginia, the estimable Senator Byrd, 
distinguished this debate--as he has distinguished so many of our 
previous debates--with his passion, his eloquence, his wisdom, and his 
deep and abiding patriotism. Although my colleagues might believe that 
I have eagerly sought opportunities to contend with Senator Byrd, that 
was--to use a sports colloquialism--only my game face. I assure you, I 
have approached each encounter with trepidation. Senator Byrd is a very 
formidable man.
  Senator Byrd has solemnly adjured the Senate to refrain from 
unwittingly violating the Constitution. His respect, his love for our 
Constitution is profound, and worthy of a devoted public servant. But 
my love for our Constitution is no less than his, even if I cannot 
equal the Senator's ability to express that love.
  Like Senator Byrd, my regard for the Constitution encompasses more 
than my appreciation for the genius of that document, for the wisdom 
and skill of its authors. It is for the ideas it protects, for the 
nation born of those ideas that I would ransom my life to the defense 
of the Constitution of the United States.
  No ethnicity, no tribal identity, no accidents of geography or birth 
define this Nation. We are defined by ideas; ideas whose antecedents 
are found in antiquity, as Senator Byrd has so often and so eloquently 
recalled for us, but whose application has been so well 
[[Page S4474]] refined in our Nation's history that we are now without 
peers in this world.
  It is to help preserve the notion that government derived from the 
consent of the governed is as sound as it is moral that I have 
advocated this small shift in authority from one branch of our 
Government to another. I do not think the change to be as precipitous 
as its opponents fear. Even with line-item veto authority, the 
President can ill afford to disregard the will of Congress. Should he 
abuse his authority, Congress could and would compel a redress of that 
abuse.
  I contend that granting the President this authority is necessary 
given the gravity of our fiscal problems and the inadequacy of 
Congress' past efforts to remedy those problems. I do not believe that 
the line item veto will empower the President to cure government's 
insolvency on his own. Indeed, it is and will always remain mostly 
Congress' burden to restore our government's fidelity to the principle 
of spending no more than it receives. The amounts of money that may be 
spared through the application of the line-item veto are significant, 
but--as the opponents contend--certainly not sufficient to remedy our 
deficit.
  But granting the President this authority is, I believe, a necessary 
first step toward improving certain of our own practices--improvements 
that must be part of any serious redress of our fiscal problems. The 
Senator from West Virginia reveres--as do I--the customs of this 
honorable institution. But I am sure he would agree that all human 
institutions, just as all human beings, must fall short of perfection.
  For some years now, Congress has failed to exercise its power of the 
purse with as much care as we should have. Blame should not be unfairly 
apportioned to one side of the aisle or the other. All have shared in 
our failures. Nor have Congress' imperfections proved us to be inferior 
to the other branches of Government. That is not what the proponents 
contend.
  What we contend is that the President is less encumbered by the 
political pressures affecting the spending decisions of Members of 
Congress whose constituencies are more narrowly defined than his. Thus, 
the President will take a sterner view of public expenditures--be they 
in the form of appropriations or tax concessions--which serve the 
interests of only a few or which cannot be reasonably argued as worth 
the expense given our current financial difficulties.
  In anticipation of a veto and the attendant public attention to the 
vetoed line-item appropriation, narrowly targeted tax break, or a new 
entitlement, Members should prove more able to resist the attractions 
of unnecessary spending--and, thus, begin the overdue reform of our 
spending practices. It is not an indictment of Congress nor of any of 
its Members to note that this very human institution can stand a little 
reform now and then.
  Mr. President, I urge my colleagues to support the legislative line-
item veto, and show the people of this country that for their sake we 
are prepared to relinquish a little of our own power. I thank the 
chair, and thank all my colleagues for their patience during this very 
long debate.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Indiana has 5 minutes.
  Mr. McCAIN. Mr. President, I believe the Senator from West Virginia 
had not expended all of his time. If he seeks to be recognized, I think 
it is in order.
  Mr. BYRD. Mr. President, I yield such time as he may desire to the 
Senator from Indiana [Mr. Coats]. Will he tell me how much time he 
would like?
  Mr. COATS. Mr. President, I believe under the previous order, the 
Senator from Indiana was reserved 5 minutes of his own time. I inquire 
of the Senator from West Virginia, if he wishes to use or delegate any 
of the remainder of his time?
  Mr. BYRD. I think the Senator from Vermont wants time. If the Senator 
wishes to use his own time, if he needs a few more minutes, I will be 
happy to yield.
  The PRESIDING OFFICER. The Senator from West Virginia has 23 minutes.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I will take but a minute.
  Mr. BYRD. Mr. President, I yield to the distinguished Senator from 
Vermont such time as he may require.
  Mr. LEAHY. Mr. President, earlier today I made a statement, I put an 
additional statement in the Record, of my opposition to the amendment, 
so I will not expand on that, other than to say I wish all Senators, no 
matter how they vote, will either listen to or read what was said by 
the distinguished senior Senator from West Virginia.
  I have served with him here for 20 years. Throughout that time, we 
have had times of agreeing and times of disagreeing. One thing I always 
agreed on is his sense of history, his allegiance to the Constitution. 
I know of no Member of this body now serving or previous serving who 
stood stronger for the Constitution or stood stronger for history as 
Senator Byrd.
  Mr. President, we should ask ourselves, in a Nation as powerful as 
ours, in a Nation, really the most powerful democracy known to mankind, 
the most powerful economy, the most powerful military worldwide reach, 
but a democracy and the most powerful democracy, one based on three 
separate branches of Government, the ability for them to be separate, 
the ability for them to have the respect of the people, we should ask 
ourselves as we continue to try to destroy any one of those branches of 
Government, what do we do to our democracy?
  If we give up the power of the purse to the executive, that is 
chipping away. We find Members who want to denigrate the very bodies in 
which they serve--both this and the other body--and that chips away at 
our democracy. We find those who want to destroy the Presidency no 
matter who holds it. That chips away at our democracy.
  Mr. President, each one of us should take a little bit of time out, 
read some history, consider what maintains this great and powerful 
democracy and ask ourselves: Are we supporting it or are we whittling 
away at it?
  I yield the floor and thank the distinguished Senator from West 
Virginia.
  Mr. FEINGOLD. Mr. President, though the legislation is seriously 
flawed, I am willing to support an experimental line-item veto 
authority and to see it tested over the next several years. The so-
called sunset clause of the legislation, which terminates the expanded 
veto authority unless Congress takes action, was the key to my support 
for the bill.
  If the Congress decides that we have gone too far in delegating 
authority to the President, the sunset clause will make it much easier 
to act. The burden will be on those who want to retain the authority.
  Without a sunset clause, Congress would have to pass a bill to 
overturn the line-item veto authority, and it is likely that any 
President would veto such a bill, thus retaining this extraordinary new 
power.
  The continuing Federal budget deficits justify granting this 
temporary authorty to the President, but I have a number of grave 
concerns with the proposal as it passed the Senate.
  First, and foremost among those concerns is the threshold of a two-
thirds vote in each House to overcome this new expended veto authority.
  That kind of threshold is provided in the Constitution for entire 
bills, but extending that authority for individual sections of a bill 
may be going to far.
  There are many uncertainties in this new authority that we are 
providing the President, and no one can anticipate all the potential 
abuses that might flow from this new authority.
  In Wisconsin, we have seen the abuse of a line-item veto authority by 
a number of Governors, and it is safe to say that no one anticipated 
the extent of those abuses when the line-item veto authority was first 
contemplated. Governor Thompson has used the veto authority not only to 
rewrite entire laws, but to increase spending and increase taxes.
  The two-thirds threshold will compound the uncertainty about possible 
abuses by making it that much more difficult for Congress to respond to 
that possible abuse.
  I am also concerned about the potential unconstitutionality of the 
measure. A number of serious questions on this very issue were raised 
during the debate, and I am glad that the proposal also includes 
expedited judicial review to help resolve this matter.
   [[Page S4475]] The provisions relating to tax expenditures may not 
be adequate. I am troubled that the language in this proposal may be 
too protective of tax loopholes for the wealthy. Tax expenditures 
contribute greatly to pressure on the deficit, and if any area should 
be subjected to the scrutiny of line-item veto authority, it is this 
one.
  The basic structure of this particular line-item veto authority also 
raise problems. If it becomes law, the measure could mean sending the 
President hundreds, even thousands, of tiny bills. That could be a 
procedural nightmare, and I would much prefer to have seen a different 
approach.
  On the positive side, unlike the recently debated balanced budget 
amendment, this line-item veto authority is established by statute, not 
as part of the Constitution. By providing this new authority by law 
instead of through the Constitution, the measure does not raise the 
serious concerns that making a permanent change to our basic law would 
raise.
  Also unlike the balanced budget amendment, this proposal is no 
gimmick. Though it is not a substitute for making real spending cuts, 
it can help the cause of deficit reduction because it does convey real 
authority to the President.
  Indeed, the danger is that it conveys authority that is too broad, 
and because of that, I will watch how the President uses this new 
authority, and will lead the charge to oppose any extension of this 
particular line-item veto authority if problems arise.
  The proposal now goes to a conference committee to settle the 
differences between the two Houses, and I will revisit my support for 
this bill when it comes back to the Senate. I would certainly oppose 
the measure if the sunset clause it removed, and may well oppose the 
measure if other changes are made, but for now, I support this 
temporary new authority.
  Mr. MACK. Mr. President, a few weeks ago, the Senate failed to take 
what would have been a courageous and historic step toward fiscal 
responsibility when it defeated the balanced budget amendment. It was 
one of the most disappointing and discouraging votes I have been a part 
of.
  That's because we failed the American people, who sent us a very 
clear message last November. They said they wanted an end to business 
as usual. Their message was emphatic: they want less spending, less 
Government and more freedom. But we turned a deaf ear.
  I hope the Senate has another chance to pass the balanced budget in 
the future and I will continue to fight for its passage. But in the 
meantime, there are other steps we can take to significantly reform the 
way the Federal Government spends the American people's money. today, 
we can take a giant step in the direction of fiscal sanity by passing 
the line-item veto.
  The biggest threat to America's long-term prosperity is out-or-
control deficit spending. The result of 26 straight years of deficit 
spending is a mountain of debt. In fact, our national debt now totals 
nearly $5 trillion. Every day that we fail to impose fiscal discipline 
on ourselves we are mortgaging our children's future.
  Giving the president the line-item veto will not solve the larger 
problem--massive deficits as far as the eye can see. But it will begin 
to restore fiscal sanity to a broken budget process. It will allow 
presidents to strike out specific wasteful and unnecessary programs 
that get stuck into huge and complex appropriations bills. Now, if a 
President wants to cut out a specific item, no matter how big or small, 
he must veto the entire funding bill. The line-item veto, a power some 
43 governors already have, would allow the President to eliminate those 
programs without having to send the entire bill back to Congress. It's 
a common-sense reform that is long overdue.
  The line-item veto is only one of what I hope will be a number of 
reforms in the budget process. There are other reforms that would force 
Congress to finally get its spending under control. For example, I am 
proposing a Spending Reduction Commission which would serve as a fail-
safe mechanism to help ensure we achieve the spending cuts necessary to 
get to a balanced budget. There are other proposals to change the 
current process that I believe we should seriously consider as well.
  But the issue before us today is the line-item veto. The American 
people are demanding that we act, and act now, to control Government 
spending. Passing the line-item veto is an important step in that 
direction. I urge all my colleagues on both sides of the aisle to 
support this bill.
  Mr. THOMPSON. Mr. President, I sat in your chair on Tuesday, when the 
distinguished senior Senator from West Virginia made an eloquent 
argument against this bill. I agree with him that Senators should take 
great care to consider the Constitution. And his arguments were very 
helpful to me, as I am sure they were to all our colleagues. I believe 
that the Abraham amendment addresses the constitutional arguments that 
Senator Byrd raised concerning orphan bills. The original Dole 
substitute prompted questions concerning the constitutional requirement 
of article I, section 7, that a bill that has passed the House and 
Senate must be presented to the President for his approval or 
disapproval. Under the original Dole substitute, neither House would 
have passed the orphan bills in that form. However, both Houses would 
have passed the same legislative language.
  Even without the Abraham amendment, S. 4 is constitutional. Congress 
has the power under article I, section 5 to establish its rules. We can 
enact a rule that deems an item of a bill to be a bill. More 
importantly, the Supreme Court has held that it is a political question 
whether both Houses have actually passed the same language if the bill 
that is presented to the President is authenticated by both the Speaker 
of the House and the President of the Senate. In other words, courts 
afford conclusive effect to a congressional determination that both 
Houses have passed identical bills. But there can be no doubt that the 
Abraham amendment removes any question under the presentment clause. 
And I commend my fellow freshman for his significant contribution.
  There is little doubt that when this bill becomes law, a 
constitutional challenge will be raised. And that challenge will go all 
the way to the Supreme Court. And the result will be an important 
Supreme Court decision on separation of powers. When courts consider a 
constitutional challenge to a statute, a level of deference is paid to 
congressional resolution of the constitutional issue. This Senator's 
remarks are not legislative history in the sense that they illuminate 
statutory language. But they do demonstrate that Congress had expressly 
considered and resolved constitutional issues raised by the bill. 
Courts will therefore provide the level of respect due to a coordinate 
branch's considered constitutional conclusion. So I will take this 
opportunity to address some of the constitutional arguments that have 
been raised apart from the presentation clause.
  The charge is made that this bill would transfer power, in particular 
the power of the purse, unconstitutionally from the legislative branch 
to the President. But this is not the case. It cannot truly be said 
that Congress alone has the power of the purse. Like so many powers in 
the Federal Government, the power of the purse is not vested solely in 
one branch of government. Powers are shared as well as separated in our 
constitutional system. The branches do not operate as hermits in 
splendid isolation. They need each other. They were designed to 
function with each other, and occasionally even against each other. The 
authority that each branch legitimately exercises sometimes overlaps 
with the legitimate authority of another branch. It is this mutual 
dependence that makes checks and balances possible. And it is this 
system of checks and balances that reduces the likelihood that the 
Government will trample over the liberties of the people.
  The power of the purse is a classic example of a shared power. It is 
true that if Congress will not appropriate money for an expenditure, 
money from the Federal Treasury cannot be spent for that purpose. But 
it is also the case that an appropriation is not made merely because 
Congress votes to create it. The President shares the power of the 
purse. If he signs the appropriations bill, the money is appropriated--
not because the Congress voted for it, 
[[Page S4476]] but because the President also approved of the 
expenditure. One person's opinion in the executive branch counts as 
much as the vote of the Congress. And if the President vetoes the 
expenditures, then the President's power of the purse counts more than 
up to two-thirds of both Houses. If the appropriation fails, that does 
not mean that Congress has transferred any power to the President.
  S. 4 is fully consistent with the constitutional arrangement that the 
Founders created. Indeed, the better argument is not that the bill 
would transfer power to the President that the
 President never had, but that it restores to the President the power 
that Congress wrested away from him. In the early years of the 
Republic, appropriations bills were essentially line items. Congress 
simply did not pass appropriations bills that contained hundreds or 
thousands of items and that directed the spending of billions of 
dollars. Rather, Congress acted on each item on its merits. And the 
President signed or vetoed the item on its merits.

  Over the years, the level playing field the Framers anticipated has 
been tilted sharply in favor of the Congress. Late in the session, 
Congress passes enormous bills with a large number of provisions of 
varying merit. Not only is the bill presented to the President, but so 
is a Hobson's choice: Sign the bill and let it become law regardless of 
the merits of some of its line items, or veto the bill and shut down a 
department of Government upon which every American depends. Unlike 
Congress, Presidents have historically been responsible, and have 
prevented the Government from shutting down by accepting Congress' 
terms. By passing individual items, Congress will give the President 
only the power that the Framers always intended for him to exercise.
  Even apart from the supposed loss of power that Congress will suffer, 
it is also contended that under this measure the Senate will lose power 
at the expense of the other body. Because the other body is normally 
the one where appropriation bills originate, the decision whether to 
override the veto of an item that originated in the Senate is solely up 
to the other body. If they do not override vetoes of such items, the 
Senate cannot work its will.
  Of course, that can happen now as well. If an appropriations bill is 
vetoed, and the President successfully persuades the American people 
that the bill should have been vetoed because of items that the Senate 
insisted upon, the other body may choose not to override the bill. The 
Senate cannot then succeed in overriding the veto. Under the new 
system, that may occur as well, but the Senate will not be defenseless. 
The other body may choose to override vetoes of items of its choice. 
But if the Senate does not concur, the House's override vote will be 
meaningless. In practice, both bodies will cooperate to override vetoes 
of each other's truly important items because each House has the power 
of mutually assured destruction of the other's vetoed items.
  The language of the Constitution rarely answers the difficult 
questions. It is necessary to examine the court decisions. And no 
Supreme Court decision has ever struck down a statute based upon a 
generalized contention that it violates the separation of powers. Many 
specific constitutional provisions together create the doctrine of the 
separation of powers. Only if the statute violates one or more of those 
specific provisions is the Constitution violated. No one has made an 
effective argument that S. 4 violates any specific constitutional 
provision.
  Therefore, S. 4 complies in every respect with the Constitution. In 
fact, it restores the constitutional balance between the President and 
Congress that was originally contemplated. And it does not change the 
balance of power between the two Houses. Its enactment today will be a 
historic step in making Congress more accountable for its spending 
decisions, one which will preserve, not harm, the liberties of the 
American people.
            EXPEDITED JUDICIAL REVIEW OF THE LINE-ITEM VETO

  Mr. SIMON. Mr. President, at this time I ask the distinguished 
Senator from Arizona to enter into a colloquy with me.
  Two days ago, the distinguished Senator joined me in passing an 
amendment to ensure expedited review of any remaining constitutional 
questions raised by the line-item veto proposal. The intent of that 
amendment was to provide a speedy way of removing any cloud regarding 
the separate enrollment provision I would like to thank the 
distinguished Senator for his support in this matter.
  Upon review of the amendment, I believe the amendment warrants 
additional clarification. As written, the amendment permits ``any 
Member of Congress'' to bring an action under the expedited review 
procedures. However, it has come to my attention that the Federal 
courts have raised some question about whether a Member of Congress has 
standing to pursue such a suit under article III of the Constitution. 
If the Federal courts ruled that a Member of Congress lacked standing 
in such a case, the expedited review procedures would become null and 
void.
  To take account of this contingency, I believe that it is important 
also to allow any person adversely affected by the act to bring an 
appropriate test challenge under the act's expedited review procedure. 
Does the distinguished Senator from Arizona agree?
  Mr. McCAIN. Yes, I do.
  Mr. SIMON. Does the Senator from Arizona further agree that, when the 
bill proceeds to conference, it will be the intent of the manager of 
the bill to specify that both Members of Congress and persons adversely 
affected by the act may utilize the review procedures.
  Mr. McCAIN. Yes, I do.
  Mr. SIMON. To eliminate any misapprehension, let me specify that 
subsection (a)(1) of the expedited review procedure should read as 
follows:

       (a) Expedited Review.--
       (1) Any Member of Congress or any person adversely affected 
     by the Act may bring an action, in the United States District 
     Court for the District of Columbia, for declaratory judgment 
     and injunctive relief on the ground that a provision of this 
     Act violates the Constitution.

  Does the Senator from Arizona concur with my modification?
  Mr. McCAIN. Yes, I do, and I very much appreciate the Senator's 
efforts to clarify this issue.
  Mr. HEFLIN. Mr. President, I rise to express my support for the 
separate enrollment version of a line-item veto. In the 103d Congress, 
I cosponsored S. 92, the Legislative Line-Item Veto Separate Enrollment 
Authority Act, which was sponsored by my good friend and colleague 
Senator Hollings. I am pleased that the separate enrollment approach is 
now emerging as the compromise version of the line-item veto that will 
hopefully pass Congress and be signed into law by the President.
  In my judgment, the line-item veto, if enacted into law, would 
provide the President with an effective weapon with which to fight 
wasteful Government spending. Over the past few years, a consensus has 
developed, even among most Members of Congress, that, as the 1989 
report of the National Economic Commission stated: ``The balance of 
power on budget issues has swung too far from the Executive toward the 
Legislative Branch.'' This imbalance has most likely contributed to the 
deficit spending of recent years.
  It is believed by many that the President, exclusively representing 
the general, national interest of the country as a whole, is more 
inclined to oppose Government spending which only serves parochial 
interests, yet increases the national debt. Increasing the budgetary 
power of the President relative to the Congress would therefore lessen 
the current bias toward more pork barrel spending and strengthen the 
bias which favors national priorities.
  The largest obstacle that we face as a nation to sustainable, long-
term economic growth is our huge national debt. Although we have made 
substantial progress in reducing our annual budget deficits over the 
past 2 years, cutting them in half in real terms, the national debt is 
still standing at an unacceptably high level.
  The national debt as a percentage of the economy, as measured by 
gross domestic product, or GDP, now stands at 52 percent. In other 
words, the size of our national debt is just over half the size of the 
output of our economy for 1 year.
  To put today's figure in historical perspective, the national debt as 
a percentage of the economy reached a peak of 114 percent in 1946 
because of the debt incurred to finance our efforts in 
[[Page S4477]] World War II. After 1946, the size of the national debt 
relative to the economy declined steadily over the years even during 
the Vietnam war and Great Society years, to a low of 26 percent by 
fiscal year 1981. This is because our economy grew much faster than the 
national debt during this period.
  This downward trend in the size of the national debt, which is common 
in times of peace, reversed itself in 1981 and rose over the next 12 
years. The national debt doubled in real terms, from a low of 26 
percent in fiscal year 1981 to a high of 52 percent in 1993 due to the 
huge deficits we ran in the 1980's. In other words, our national debt 
grew twice as fast as the economy, the first time in American history 
this has happened in peacetime.
  The debt runup of the 1980's is unique in American history, and it is 
worth repeating that it is the only time in our history that the 
national debt has grown substantially in peacetime. We have had only 
three similar runups in the national debt during the 219 years of the 
existence of the United States: during the Civil War, during World War 
I, and during World War II.
  During the peacetime periods after each of the three major wars just 
mentioned, during which it was necessary to increase the national debt, 
we returned to prewar levels of national debt. Now it is time to return 
to pre-1980's levels of debt. We have made a good start by cutting the 
deficit in half, and thereby halting the growth of the national debt. 
It ha been stabilized at 52 percent of GDP for the last 2 years, as the 
economy and the debt have grown at about the same pace.
  Our next task is to start reducing our level of debt by balancing the 
budget, thereby allowing the economy to grow much faster than the debt, 
because the debt will not be growing at all. In my judgment, it will be 
necessary to reform the current budget process in order to achieve the 
desired end of budget balance. That is why I have fought so hard for a 
balanced budget amendment to the Constitution and for a Presidential 
line-item veto.
  Constitutions in 43 States provide for a line-item veto whereby the 
Governors have the ability to eliminate individual provisions or reduce 
amounts of spending in legislation presented for their signature. The 
line-item veto has a proven track record on the State level at 
discouraging and preventing unnecessary and wasteful spending. Because 
it has been a proven, effective tool against excessive spending on the 
State level, it would make an effective tool on the national level as 
well.
  In 1992, 188 Governors and former Governors, including Presidents 
Carter, Reagan, and Clinton, were surveyed with regard to the line-item 
veto. Nearly 70 percent of those who responded said that, as Governors, 
they had found the line-item veto useful. Ninety-two percent of the 
past and present Governors surveyed support a line-item veto on the 
Federal level in order to restrain Federal spending.
  Also in 1992, the General Accounting Office evaluated the potential 
effectiveness of the line-item veto on the Federal level. The GAO 
report stated, and I quote at length:

       If the President had line-item veto authority from fiscal 
     years 1984 through 1989 and used that authority to reduce or 
     eliminate each item to which an objection was raised in the 
     Statements of Administration Policy, we estimate that the 
     savings would have ranged from $7 billion to $17 billion per 
     year, for a cumulative 6-year total of about $70 billion. . . 
     . This would have reduced Federal deficits and borrowing by 
     6.7 percent, from the $1,059 billion that actually occurred 
     during that period to $989 billion. . . . In addition, the 
     reduced federal borrowing associated with the program savings 
     explicitly shown would have resulted in interest cost 
     savings.

  The line-item veto has bipartisan support in both Houses of Congress. 
In addition, Presidents Reagan, Bush, and Clinton are advocates of the 
line-item veto at the Federal level. In addition, according to Gallup 
surveys, large majorities of Americans spanning more than four decades 
have consistently favored the line-item veto.
  There has been some talk of the separate enrollment line-item veto 
creating a bureaucratic ``cut and paste'' nightmare in the enrolling 
clerk's office. But these nightmare scenarios are unfounded. Due to the 
modern computer technology we enjoy in Congress, separate enrollment 
would not pose a prohibitive burden on the clerk's staff. In fact, such 
technology makes the process quite simple.
  I urge my colleagues to support the line-item veto. This is a clear 
opportunity to seriously address our biggest national problem--
excessive deficit spending--with a realistic, proven solution. The 
voters have spoken; it is time to end wasteful Government spending. Let 
us give the President the line-item veto through the separate 
enrollment mechanism.
  Mr. LIEBERMAN. Mr. President, I rise in support of a broad-based 
line-item veto which would allow the President to strike spending as 
well as tax provisions.
  I am a relative newcomer to this institution. But in my time here I 
have observed that the system of rules we live under makes it far 
easier to spend money than to save money. Maybe that is just a fact of 
life. Most Americans would probably agree that spending is easier than 
saving. We have the same problem here in Congress.
  The line-item veto may not fix all of our budgetary problems; in 
fact, I am reasonably sure it will not do so. But I do believe it is 
worth a try to make a dent in those problems, and for that reason, I 
support giving the President greater authority to strike spending as 
well as tax expenditures, subject to a congressional override. And if 
the line-item veto does not work, I support getting rid of it--for that 
reason I am pleased that there is general agreement among both sides 
that any line-item veto provision ought to have a sunset provision.
  Certainly the current system has its flaws. Let me give you just one 
example, a $16 million urban tree-planting program at the Small 
Business Administration. I do not believe in governing by anecdote, but 
the repeated and unsuccessful attempts to kill this program are 
illustrative. The administration has tried to get rid of this program 
at least twice. The SBA does not want the money--tree planting is not 
their specialty. The House has tried on numerous occasions to get rid 
of this program because it simply makes no sense for the SBA to be in 
the business of planting trees. The Kerrey-Brown group, of which I was 
a participant, tried to get rid of this program. But it has proved to 
be the Freddy Krueger of Federal programs--no matter what you do to 
kill it, this program survives.
  I am hoping the line-item veto proposals before us will make it 
possible to finally get at programs like this tree-planting program. I 
happen to be a big fan of trees and I spend a lot of my time working to 
keep our air and water clean enough to keep those trees alive. I just 
do not think we can afford to have the SBA running a program like this, 
and I suspect most of my colleagues agree with me. I am also convinced 
that the reason we have had a tough time getting at this program is 
because it has been wrapped into larger bills. When I was in the State 
Senate in Connecticut, it was common wisdom that the way to pass the 
tough items was to bury them in the big bills and keep your fingers 
crossed that they would slip through unnoticed. Given our deficit, I 
just do not think we can afford this approach anymore.
  In addition, I am firmly convinced that tax expenditures should also 
be subject to any line-item veto passed by this Chamber. Put simply, 
new taxes should be put to the test in the same way as new spending. As 
a proponent of a capital gains cut as a way to increase needed 
investment and saving in this country, I am well aware that adding new 
tax expenditures to the
 line-item veto bill could put some tax investment incentives at risk. 
However, that is a risk I am willing to take if the end result will be 
more discipline, and fewer loopholes, in our Tax Code.

  We have heard a lot about possible abuses of the line-item veto by 
the executive branch. I come from one of the 43 States with a line-item 
veto in our State Constitution. It is a pretty tough provision--
allowing the Governor to ``disapprove any item or items of any bill 
making appropriations of money.'' And the provision has worked just 
fine--the legislative branch has not been overthrown, and no 
revolutions have occurred. By most accounts, the provision has been a 
success.
  Despite all of this, I do harbor some concerns that an Executive 
might use this provision for political ends. Surely we are not above 
politics. I have 
[[Page S4478]] watched with some dismay as the other body has targeted, 
or appeared to target, programs which are priorities of this 
administration--programs like national service and the various 
technology programs like TRP and ATP. For this reason, I am pleased 
that there is general agreement that passage of a line-item veto should 
be something of an experiment--that it should sunset after a few years 
so that we can debate its effectiveness and, if it has been successful, 
pass it again. A sunset provision should help keep the executive branch 
away from abuses.
  Mr. President, I support a line-item veto which covers a broad range 
of spending and tax cuts, and I hope my colleagues will do so as well.
  Mr. BIDEN. Mr. President, I have long held that separate enrollment 
is the solution to the tough question of how to provide the President 
with line-item veto power.
  Since 1984, when I joined Senator Mattingly and others in introducing 
a separate enrollment line-item veto bill, until this year, as 
cosponsor of Senator Bradley's bill, I have supported both the 
principle of a line-item veto and the specific approach of separate 
enrollment.
  Today, I want to explain my position on this important issue, a 
position that has, until just last week, had little support on either 
side of the aisle. I am gratified by the recent embrace of this 
approach as the compromise position that could finally permit a 
controlled experiment with a line-item veto to go forward.
  Mr. President, a controlled experiment is just what this proposal 
calls for.
  Mr. President, I share the concerns of many of my colleagues that a 
line-item veto could threaten the balance of power established in the 
Constitution between the Congress and the President.
  That is why I argued unequivocally against any constitutional version 
of line-item veto just 2 months ago in the Judiciary Subcommittee on 
the Constitution.
  Because this is a statutory line-item veto, Mr. President, and one, I 
must emphasize, with a built-in sunset it remains the prerogative of 
Congress to decide if this is, in the end, what we want to do and how 
we want to do it.
  And that is, indeed, the intended effect of the legislation before us 
today. It grants new power to the President--to veto separate items in 
appropriations bills, not the whole bill as would be required today. 
This change permits the President to target specific spending programs, 
not whole categories of Government activity.
  But this change would not only provide the executive with additional 
responsibility for controlling Federal spending at the margins. It 
would put additional responsibility on Congress to remove those items 
that would be easy targets for a presidential veto.
  No one can look upon the deplorable state of our Federal finances and 
tell me that a little more fiscal responsibility, at both ends of 
Pennsylvania Avenue, is not in order.
  Of course, if the question were that simple, we would not be at the 
impasse we have reached today.
  There is honest, deeply held disagreement on whether we should go 
forward with any experiment in a line-item veto.
  Everyone of us in the Senate, and every citizen of this country, 
should be grateful for Senator Byrd's tireless efforts to remind us of 
the historical significance and constitutional implications of the step 
we are contemplating here.
  But I would like to make two points in defense of separate enrollment 
line-item veto legislation.
  First, our Constitution was intended to be flexible enough to adjust 
to a variety of new circumstances. Within the limits I believe are 
rightly imposed in this case--a statutory change, with a built-in 
sunset provision, in the year 2000--we should be willing to make 
incremental adjustments in our procedures that have some prospect of 
promoting our shared goal of deficit reduction and more responsible 
budgeting.
  Second, Mr. President, it could be argued that by enrolling each 
element in our spending bills separately, we are restoring a historical 
relation between the President and Congress, a relationship that took a 
new course when we began to write appropriations bills that lumped 
hundreds, even thousands, of items of spending together.
  I am pleased that some of my colleagues have cited arguments I made 
several years ago in the Judiciary Committee in defense of the 
constitutionality of the separate enrollment approach.
  It is my considered opinion that this approach can survive any court 
challenge on constitutional grounds. I am persuaded that the Congress 
may choose--as it will, if we accept this legislation--its own 
procedure for enrolling and presenting legislation to the President. 
There is nothing inappropriate about choosing to present our bills to 
the President in a way that will expose them to the same veto power 
that he has always possessed.
  I must stress, Mr. President, that I do have some concern about the 
difference between S. 4, the proposal before us today, and S. 137, the 
version I cosponsored this year and--with one exception--identical to 
the bill I introduced a decade ago with Senator Mattingly.
  That difference is in the level of detail that is required of the 
bills that we will send separately to the President. The version that I 
have consistently supported required the separate enrollment of 
numbered items or unnumbered paragraphs.
  To use one example, one of those items or paragraphs might include 
the budget for veterans' construction projects. Under the versions I 
have consistently supported, the President could veto that element of 
the Veterans' Affairs, Housing and Urban Development, independent 
agencies appropriations bill, rather than the whole bill.
  Now, some of my colleagues have expressed concern that the new 
requirement, added in S. 4, that Congress has to include additional 
detail, detail that could, to continue my example, include specific 
construction projects at specific veterans' hospitals in specific 
States.
  The temptation for a President to use the line-item veto to extort 
concessions, or to punish transgressions, may be greater under this new 
formulation than under the legislation I have supported in the past.
  Mr. President, we still retain the authority to determine the level 
of detail that we include in our committee reports, and thus the level 
of detail that will be required under S. 4.
  And again, Mr. President, the new process we will adopt here today is 
not a constitutional change, but a statutory one, and a statutory 
change with a date certain--5 years from now--when its authority 
automatically ends.
  Now, I supported a quicker sunset of line-item veto power in the 
versions that I cosponsored, this year and in the past. But I am 
satisfied that we have built in sufficient safeguard to give this 
experiment a chance to succeed--or to fail.
  Because of the sunset provision, we have reserved the right to 
reverse this decision if the anticipated benefits of this bill do not 
outweigh its potential costs.
  Its benefits, I believe, will come not only in the form of reduced 
spending; in these times, any money saved is important, but we should 
not expect this to affect deficits in any fundamental way.
  Its benefits are likely to be more subtle, in the reduction of 
spending programs that can't pass the ``laugh test''--that would be 
laughed at if they were
 exposed to public ridicule.

  That is the real promise of this line-item veto bill, that it will 
improve, at the margin, the quality, as well as the quantity, of our 
spending decisions.
  Mr. President, a major improvement of this proposal over earlier 
line-item veto proposals is that it includes those programs that spend 
money through the Tax Code--what we call tax expenditures, and what 
everyone else knows as loopholes.
  This is an approach I supported when I cosponsored Senator Bradley's 
separate enrollment bill this year.
  This is a substantial and far-reaching line-item veto proposal that 
we will vote on this afternoon. And we must recognize that it will 
grant power to the President that he does not have today.
   [[Page S4479]] Again, I prefer the language of S. 137, Senator 
Bradley's separate enrollment bill, defining just what a tax 
expenditure is. And I supported Senator Bradley's attempt to clarify 
the tax expenditure definition in S. 4, that could be open to ``back-
loaded'' tax cuts that lose revenue more than 5 years in the future.
  But the debate here on the Senate floor has convinced me that the 
language of S. 4 covers real tax loopholes, both the narrowest gimmicks 
and the broadest, that are such a drain on the Federal Treasury.
  Mr. President, at the heart of S. 4 is the traditional veto power 
that the President has always possessed. The change that this bill will 
bring about is a change in the way we choose to send our bills to the 
President.
  I have no doubt that this will shift some influence over spending 
priorities to the Executive; this is, of course, one purpose of the 
line-item veto--to exchance executive budget authority, and to put the 
Congress on notice that our spending proposals will be exposed to an 
additional level of scrutiny.
  This may well add to the President's influence on the legislative 
agenda, and, at the extreme, could provide a President with the 
temptation to use the line-item veto to threaten or to retaliate 
against Members of Congress.
  If some future President chooses to make such use of this new budget 
tool we offer him, then we will take it away.
  In the end, should we not examine each of our spending decisions 
individually? Should we not subject our spending plans to the closest 
possible scrutiny, down to presenting them separately to the President?
  In the face of the deficit problem we now confront, and in the face 
of corrosive public cynicism about our ability to get our houses in 
order, Mr. President, do we want to send the message that business as 
usual is good enough for us?
  In passing S. 4, we will take more care with our spending decisions, 
and in a small but important way, end business as usual.
  Mr. CRAIG. Mr. President, I rise in support of S. 4, the Legislative 
Line Item Veto Act, as modified by the Dole compromise amendment.
  This landmark legislation promises to bring some long overdue 
progress in fiscal responsibility and in our war on government waste.
  When it finally becomes law in the coming weeks:
  It will help reduce the deficit;
  It will subject a lot of questionable pork provisions to the 
withering bright sunlight of Presidential and public scrutiny; and
  It will also subject the President to increased scrutiny--we'll see 
if his veto pen matches his promises.
  I recognize that the Daschle amendment--which we tabled earlier 
today--is essentially the same as S. 14, which was cosponsored by 
several Senators on this side, including myself.
  I was an original cosponsor of both S. 4 and S. 14 as introduced, 
because I wanted to increase the chances of the Senate passing a 
legislative line item veto, passing the strongest one we can, passing 
one that was carefully crafted, and passing one that is bipartisan.
  I voted to table the Daschle amendment--as did some of the other 
cosponsors of S. 14;
  This is because we now have a chance to pass a bill that is stronger 
than S. 14, and like S. 14, is carefully crafted to do the variety of 
things that the large majority Senators want to do.
  That is what we now have in the Dole amendment. As in the original 
McCain-Coats S. 4, we have a \2/3\ vote required to override an item 
veto.
  As in both S. 4 and the original S. 14, we now have a process that 
prevents circumventing the veto by passing a one-line appropriation 
bill and putting hundreds of detailed directions in a committee report; 
and we will avoid extending the item veto to policy items that are non-
dollar items.
  As in S. 14, and somewhat similarly to the Bradley proposal, we apply 
the line item veto to targeted tax breaks.
  As in S. 14, we apply the item veto to new direct spending, and will 
include a deficit-reduction lockbox.
  As in bills introduced by Senators Hollings and Bradley, in a 
bipartisan spirit, we use the process of separate enrollment.
  I said before that I preferred a strengthened rescission process to 
separate enrollment; I still do; but taking each proposal as a whole, 
taking all the provisions in each, the Dole amendment is the best 
package to come before this body.
  Of all the versions discussed, the Dole amendment is the least likely 
to be subject to constitutional problems and court review.
  It is clear that, under Article I of the Constitution, the Congress 
determines the form of bills it sends to the President.
  This approach does not involve any of the issues raised in the past 
that might question the constitutionality of legislative vetoes or 
impoundment powers that might cross the barriers separating the 
legislative and executive powers.
  Some Senators supported the Daschle substitute as being the ``middle 
ground'' version. But now, by extending the veto to targeted tax breaks 
and new direct spending, the Dole amendment also is in the middle 
ground and covers a range of Senators' concerns.
  The only material difference remaining between the Dole and Daschle 
versions is whether you want a line item veto to be overridden by a 
majority vote or a \2/3\ vote.
  I agree with President Clinton on this one: I want the stronger line 
item veto.
  In this case, it is possible to pass the better of 2 proposals, and a 
\2/3\ override is better than a majority override. It is that simple.
  In all other important respects, the Dole amendment and other 
amendments that we are accepting incorporate the other positive aspects 
of S. 14 and the Daschle substitute into the bill we are going to pass.
  The bottom line is this: The principal difference between separate 
enrollment and enhanced rescission in how the papers are bundled. That 
is all.
  As improved here on the floor, that difference in bundling will not 
be a problem.
  Separate enrollment under the Dole amendment would wind up 
accomplishing essentially the same ends a the McCain-Coats type of 
enhanced rescission process in S. 4, with improvements from S. 14 
added.
  I also wanted to address some of the concerns about separate 
enrollment raised by Senator Nunn and others.
  Some Senators are concerned that moving the details of committee 
reports into separately enrolled bills would present the President with 
10,000 appropriations bills to sign or veto instead 13 or so.
  If writer's cramp truly becomes a concern, the Constitution allow the 
President simply to let the least controversial or least notable of the 
these bills become law without signature or veto.
  Article I, section 7 says, in part:

       If any Bill shall not be returned by the President within 
     ten Days (Sundays excepted) after it shall have been 
     presented to him, the Same shall be a Law, in like Manner as 
     if he had signed it, . . .

  This simple answer is more than this concern deserves.
  Some Senators are concerned that, conversely, to thwart the President 
and the line item veto, bills may be reduced to one-line 
appropriations, with the details, earmarks, requirements, directions, 
and requests that now appear in committee reports being moved instead 
into floor colloquies and letters.
  Senators who raise this kind of concern are assuming that business as 
usual will not change, but will just get more difficult under the new 
rules.
  They are missing the point: This bill will change how we conduct 
business around here.
  The new rules mean it is a whole new ball game.
  Senator Nunn correctly points out that, as a matter of accommodation, 
currently, report language is treated as ``sort of binding'' on 
agencies as they spend appropriations.
  The point is, this part of the process should change.
  Now, so-called ``earmarks'' will have to appear right out there in 
the open--not hidden from view by an obscure comment in a conference 
report that the lack of mention of contradiction in the Senate 
committee report means that the Congress expects an agency to honor a 
direction given in the House 
[[Page S4480]] report as implicitly modified by a floor colloquy.
  How many of my colleagues even understand that this is the way we do 
business now?
  I can guarantee that most Americans do not know that--and would be 
incredulous if they did.
  The current process leads to ambiguity at best, evasion of 
responsibility at worst.
  Here is an actual example of how the current system breaks down--it 
happened to this Senator:
  In 1994, the House report on one appropriation bill took position on 
a matter of agency discretion; several Senators entered into a Senate 
floor colloquy directly contradicting the House position; the 
conference committee should have resolved that disagreement but did 
not. As a result, the agency had no idea what, if any, guidance it had 
from Congress or how binding it was.
  Well, under this bill, if we put it in law, we know it is binding. If 
it is in a floor colloquy, we know it is advisory, interpretative, 
clarifying.
  That is well-known and well settled.
  There is no doubt--no doubt--that no court ever would find a floor 
colloquy to have the binding effect of law.
  So, what this line item veto means is that a lot of unimportant 
earmarks and so-called ``directions'' simply will disappear from the 
formal parts of the process. The important ones will become law or be 
vetoed.
  That is the way it should be.
  What a novel idea--that we should put into law the instructions that 
we expect agencies to carry out.
  Some Senators are concerned that reprogrammings would have to be 
accomplished through an act of Congress instead of over the telephone 
among committee chairman and ranking members.
  The possible problems pointed out with reprogramming, once again, are 
only problems if you keep trying to do business as usual under the new 
procedure.
  Now, under this bill, we will have to decide when micromanagement of 
an item is so important that it should be in law, and when we are just 
going to let the agency have some discretion in how it does its job.
  We will need fewer reprogrammings, because this new process creates a 
disincentive for Congress to micromanage agencies through the 
appropriations process.
  When we do handle that reduced number of reprogrammings, they ought 
to become routine legislation, basically technical corrections.
  And, after all, if an item of reprogramming is so controversial that 
it would be subject to contention on the floor of the Senate, then it 
is too important to go through the status quo's ``informal'' process.
                             line-item veto

  Mr. KERRY. Mr. President, several weeks ago I voted ``no'' when this 
body voted on the proposal to send to the States for ratification an 
amendment to the Constitution to require a balanced budget. I 
enumerated the reasons for my opposition. Principal among them was that 
the constitutional amendment proposal was a fraud; its proponents 
claimed that it was essential to achieving a balanced Federal budget--a 
goal to which I fervently subscribe--when, in reality, the amendment 
would not cut so much as a thin dime from the deficit. In addition, the 
amendment, had it been approved by Congress and ratified by the 
requisite number of States, would have created a dangerous situation 
and a disturbing precedent of sinking not only into standard procedure 
but into the U.S. Constitution requirements that several key types of 
Congressional fiscal policy decisions would have to be made by 
supermajorities. I was persuaded than and remain persuaded now that the 
Founding Fathers--rightly--would be spinning in their graves in anxiety 
for our Union if they knew what was then being proposed and debated.
  But I promised at that time, Mr. President, that I would vote for 
proposals that would make--or make likely--real savings in the Federal 
budget, and that did not sink fraudulent or untested methods into the 
Constitution or trample on the basic tenets of that Constitution.
  And tonight, Mr. President, the Senate is considering the kind of 
proposal I promised to support, a proposal that is very different than 
the Balanced Budget Amendment. The proposal on which we are about to 
vote--to which some refer loosely as a ``line-item veto'' although it 
has features quite different than proposals that carried that moniker 
for many years--is not a fraud. It is real. It provides the ability to 
the President of the United States to achieve real economies in the 
federal budget much more easily than such economies can be achieved 
today.
  Is this a cure-all? No, of course not, Mr. President. The passage of 
the line-item veto will not instantaneously and surely erase our 
nearing-$200-billion deficits. But it is one tool--a new tool with 
teeth--that any President can use to remove less essential spending 
from the budget. And it gives strength to such a Presidential decision 
by requiring a two-thirds vote of both houses to overturn the 
President's decision and reinstate the spending he vetoed.
  I believe this tool can and will make a beneficial difference. It 
applies to tax expenditures as well as to direct spending.
  But if it proves not to work as advertised--as those of us who vote 
for it believe it work--we can return to this floor and, by engaging in 
the Constitutional process of enacting a law, we can repeal it or 
modify it. And, in any event, the provision on which we vote tonight 
will disappear automatically--it will sunset--in the year 2000 unless 
we act to extend it.
  Mr. President, this is worth a try. It could have--and I hope and 
trust it will have--a sobering effect on those who seek to lard 
appropriations bills with special-purpose pork. It can provide--and I 
hope and trust it will provide--a tool to the President to achieve 
significant economies in the federal budget by eliminating programs 
that are not in the national interest, or have outlined their 
usefulness but not their political patronage.
  We must take real steps to achieve a balanced budget. This will not 
be sufficient by itself to achieve that balance--we have much and very 
difficult work ahead of us to cut the deficit the old fashioned way by 
cutting programs and expenditures and bringing revenues in line with 
spending. But this truly is a real step, and I support it.
  Mr. LAUTENBERG. Mr. President, the Senate is debating a truly 
fundamental change to our system of government. We have before us 
legislation which proposes to reconsider some of the most basic 
principles of our democracy. For over 200 years, the Federal government 
has maintained a careful balance between the powers of the legislative, 
executive, and judicial branches. That balance has stood the test of 
time, and has helped sustain our nation's cherished liberties for 
generations.
  Mr. President, given that remarkable record, we need to be very 
cautious before altering this historic balance of powers. It's not 
something we should do lightly. It's not something we should rush 
through.
  We do, however, have to be prepared to respond to changing 
conditions, and to make needed changes in the way we do business. 
Despite all that's good about our democratic system, we also face some 
real problems. And one of the most important is government waste, and 
the deep public anger that it provokes.
  Mr. President, as much as any time in our history, it is critical to 
reduce waste in government. We are continuing to load debt on our 
children and grandchildren. The tax burden is heavy. Americans are 
losing faith in government as they are repeatedly bombarded with 
examples of unnecessary spending--from fraud in government programs to 
the Lawrence Welk Center--and taxpayers are infuriated. They have a 
right to be.
  They also have a right to demand that we do something about it. And 
there is broad public support for trying some form of line item veto.
  Yet, Mr. President, we should not exaggerate what a line item veto 
can accomplish. It won't eliminate all government waste. Nor will it 
balance the budget. It may result in eliminating unnecessary pork 
barrel projects and special-interest tax loopholes.
  This is not to say, Mr. President, that all narrowly--targeted 
spending or tax provisions are wasteful. But many are. And the most 
egregious examples get the most publicity, and erode public confidence 
in the Congress and our government. Surely that's one 
[[Page S4481]] reason why the public is so angry with Washington.
  We need to look for ways to address this problem. And the line item 
veto might help, by giving the President additional power to eliminate 
items that are truly indefensible.
  Under current law, when the Congress sends the President a broad 
spending or tax bill, the President's options are pretty limited. He 
can sign the whole bill into law. Or he can veto the entire package.
  Once an appropriations bill is enacted, the President can proposed to 
rescind specific items of spending, and send Congress a rescission. But 
this rescission power is extremely limited. First, it does not apply to 
tax breaks. And, in the case of proposed rescissions to appropriations, 
Congress can simply ignore them.
  It seems to me, Mr. President, that it's worth trying to give the 
President additional powers to eliminate waste. But, as we move into 
these uncharted waters--fundamentally changing our form of government--
we should build in certain protections against abuse of executive 
power. Restraint of executive power has been a hallmark of our 
Constitution and guided our Founding Fathers in its creation.
  We can strengthen the President's rescission power by making sure the 
Congress considers all Presidential rescission proposals, and does so 
on an expedited basis. That would be a significant step forward in the 
fight against waste. Currently, if the President sends rescissions to 
us to eliminate wasteful spending, we can just ignore them. And we 
usually do. Forcing review of wasteful expenditures, in the glare of 
public debate, would be a healthy antidote to our current way of doing 
business.
  We can also build in protections against abuse of this expanded 
executive power by retaining the democratic practice of majority rule. 
The pending legislation would permit the President to kill any 
increases in spending or changes to entitlement programs if he can 
convince just one-third of one house of Congress to support him. That's 
an enormous expansion of executive power. It would permit the President 
to nullify what a majority of the people's representatives have already 
approved.
  Finally, we can guard against abuse of power by the Executive by 
requiring the Congress to review the line item veto after a prescribed 
trial period. Initially, I think the shorter this trial the better. If 
the line item veto works as its authors intend, it will have a salutary 
effect on our government and there will be no problem extending it.
  Unfortunately, Mr. President, the proposal before us fails to protect 
against executive branch abuses. It also puts power in the hands of a 
small minority, undermining majority rule. It lets one-third of 
Congress rule with the President, controlling Federal policy on 
virtually all new spending and entitlement programs.
  The legislation also could unintentionally hurt smaller States, with 
smaller congressional delegations, like my State of New Jersey. The 
proposal would load the deck in favor of bigger States which have a leg 
up on building the necessary two-thirds vote to override a Presidential 
line-item veto. In my view, that's unwise.
  Mr. President, the case for a line item veto rests largely on the 
need to eliminate narrowly targeted pork-barrel spending. But the 
majority leader's amendment goes much further than that. It would allow 
a President to unilaterally eliminate funding for entire programs. This 
would give a single individual the power to kill major initiatives in 
education, law enforcement, health care, veterans, mass transit, 
immigration enforcement, housing, you name it. All would be at risk.
  It would also put Medicare, veterans benefits, and other entitlement 
programs under the control of a small minority of Congress aligned with 
a President.
  Mr. President, I'm not suggesting that President Clinton or any 
future President would abuse this new power. But we really don't know.
  That's not a Democratic concern or a Republican concern. It's a 
nonpartisan concern.
  That's not a liberal concern or a conservative concern. It's a 
democratic--with a small `d'--concern.
  It has nothing to do with party or ideology. It has everything to do 
with the potential for abuse of power and rule by a congressional 
minority.
  Let's take one example, Mr. President, of a President of my own 
party, Lyndon Baines Johnson. President Johnson was a strong leader who 
excelled at cajoling and pressing Members of Congress into voting with 
him. I never experienced it myself, but the ``Johnson treatment'' was 
something that is legendary.
  Lyndon Johnson used every tool in his arsenal to win.
  Looking to the future, a President with strong leadership skills and 
strong convictions would gain enormously in power. With just one-third 
of one House of Congress, he could wipe out essential benefits for 
ordinary Americans and a majority in Congress could do nothing to stop 
him.
  Mr. President, I'd urge against giving the President that virtually 
unbridled power.
  I'm not willing to risk that a future President would be able to 
overrule a majority in Congress and eliminate all school lunches.
  Or deny middle-class students the opportunity to go to college.
  Or deny working families assistance with child care.
  Or take police officers off the streets.
  Or force young children to go hungry.
  Or increase the number of the homeless on our streets.
  Or deny veterans the benefits they've earned by serving our country.
  Or deny senior citizens needed benefits under Medicare.
  Mr. President, these expenditures and these benefits are not pork. 
But they all would be vulnerable to the line-item veto under this 
amendment. And a President bent on eliminating them could wield this 
new tool as a meat ax against ordinary Americans. There need to be some 
real protections against that if we are to have a line-item veto.
  Mr. President, I also am concerned that a line-item veto could open 
the door to what some have called ``political extortion''. I use that 
term to convey how a President would be able, in effect, to hold a gun 
to the head of Members of Congress.
  This is what could happen. A President could go to a Member of 
Congress and say this:
  ``I need your support for my favorite new initiative. If you don't 
agree to support it, I'm going to rescind that bridge, or highway, 
that's so important to your district.''
  Mr. President, that kind of political pressure occurs in some States 
that have a line-item veto. And it can lead to more wasteful spending, 
not less.
  Mr. President, to limit the possibility that a line-item veto will be 
abused, it's important to keep the Executive on a short leash. One way 
is to require Congress to reauthorize the line-item veto on a routine 
basis. Another is to allow a majority in Congress to overrule the 
President. These protections would preserve the constitutional 
principle of balance of power and avoid shifting power extraordinary 
power to the executive branch, or to larger States at the expense of 
medium sized or smaller States.
  They would make it less likely that a future occupant of the White 
House would ride roughshod over the people and Congress.
  Unfortunately, Mr. President, the pending proposal doesn't include 
adequate protections. It's a serious flaw in the legislation.
  I'm also concerned about the provisions in the pending amendment 
related to tax expenditures. Those provisions, though drafted 
ambiguously, apparently are intended to provide a ``loophole for 
loopholes'' that will protect many special interest tax breaks from 
rescission.
  Mr. President, we all know the many special tax breaks that have been 
included in tax bills over the years. There are special rules for the 
timber industry. For the oil and gas industry. For cruise liners. In 
fact, a few years ago we even tried to enact a special loophole for the 
tuxedo industry.
  Once enacted, Mr. President, most tax breaks enjoy a special status 
that even the most popular spending programs would envy. They never 
have to be appropriated. They never have to be reauthorized. They never 
have to compete for scarce budgetary resources. Instead, they simply 
nestle quietly and 
[[Page S4482]] unobtrusively into the nooks and crannies of the Tax 
Code, never to be seen or heard from again. But, they lose substantial 
revenue, and their costs are made up by ordinary taxpayers.
  Mr. President, unwarranted tax loopholes go to the heart of what 
bothers so many Americans today. Loopholes generally are provided only 
to special interests and wealthy individuals who either have special 
connections, or enough money to hire a lobbyist with access to Members 
of Congress.
  Meanwhile, ordinary Americans don't have these connections. They 
don't have personal relationships with powerful Senators. And they 
don't have lobbyists working for them.
  So when ordinary Americans see the clients of lobbyists getting 
special treatment in the Tax Code, they resent it. And they resent it 
very, very deeply.
  Mr. President, the pending amendment includes some ambiguous language 
on targeted tax benefits. But, according to statements made on this 
floor, that language is intended to be very narrow. Apparently, if a 
tax break benefits a particular company, it may be subject to a 
rescission. But if the loophole benefits two companies, or an entire 
industry, it will get special protection.
  Mr. President, that's a loophole for loopholes, and I cannot support 
it.
  In conclusion, Mr. President, let me again emphasize that we're 
talking about the basic structure of Government that was established 
over 200 years ago, and we should proceed with caution. To help 
eliminate waste in Government, it's worth trying a line-item veto. But, 
we should not support proposals that are vulnerable to abuse, that fail 
to adequately protect the public interest and our constituents, or that 
provide a loophole for special interest tax loopholes.
  I yield the floor.
  Mr. FORD. Mr. President, would the distinguished Senator from West 
Virginia give me about 3 minutes?
  Mr. BYRD. Mr. President, I yield as much time as is under my control, 
as the Senator from Kentucky requires.
  Mr. FORD. I thank the Senator, and I thank the Chair.
  Not many people in this Chamber--several, probably--have operated 
under the line-item veto. As Governor of Kentucky, I was given the 
opportunity for use of the line-item veto. I had three things I could 
do. I checked with the legislative research commission to be sure that 
there have been no changes, or whether they have broadened some.
  I had three things I could do when an appropriations bill comes to 
you. You can veto the whole bill. But you can run a line through the 
item, initial it, then you have to give your reason for that veto, and 
send it back to the legislature within 10 days. They either sustained 
or overrode your veto.
  Second, I had the opportunity to reduce a number from $1 million to 
$500,000 and give the reason for the reduction. I had 10 days to send 
it to the legislature. I also had the authority to veto a phrase in the 
language of the appropriations bill.
  That is all it was. Simple is better, in my opinion here. Either give 
the President the authority to line item, initial it, send it back up 
here, and say ``These are the reasons I had to line-item veto this 
particular position in an appropriation bill.''
  I am beginning to worry that we have gotten to a point where our 
distinguished friend from West Virginia is calling them billettes. I 
have heard of ``sermonettes.'' They are probably better than billettes. 
But we hear all Governors have had this authority. Governors use it. So 
do many States.
  Well, we are not modeling after what the Governors have at all. Maybe 
this is a little bit different, but still we deal with the legislative 
body, we deal with appropriations bills, and third, we have a 
responsibility to give the reason, and the legislative body then has 
the opportunity.
  I am hoping that when this bill goes to conference and comes back--
and it is going to conference--that it will be a somewhat better bill. 
There has been a lot of Members that have had enthusiasm for the 
Domenici-Exon bill legislation and it was voted out. Some could not get 
together on it, and as we have heard about Henry Clay, Henry Clay was 
the great compromiser. Come to Lexington, KY, sometime, and see his 
library. You would be quite impressed with that. Henry Clay said, 
``Compromise was negotiated here.''
  Well, we have seen no negotiation here except on one side, 49-48 a 
while ago. When we said all this money that is going to be saved ought 
to reduce the deficit, there was a lot of blustering going on around 
here, and they said, ``No, we don't want it to go to the deficit, we 
want to use it for something else.'' We will see how that comes out.
  Mr. President, I hope when this bill leaves the Chamber tonight and 
it goes to conference that the conference will have the wisdom to send 
back something we can all join in, and have an opportunity to give the 
President line-item veto. And if this line-item veto we are passing 
tonight is the one that comes back from conference, and it is finally 
passed and the President does sign it, I am not sure how long it will 
last because I was amazed at the statement by my friend from Arkansas, 
Senator Bumpers. He thought he would have a sense of the Senate that 
they would save so many acres of timber in order to be sure we had 
enough paper to be used to all of these 2,000, 3,000, 4,000, billettes 
that are going to come back.
  I remember when I was Governor, we had to go get bond issues. We may 
have to do this for the President. You would have 49 pens you were 
looking at, and one in your hand, and you would sign on the bottom. So 
you would write Wendell H. Ford and all those pens go up and down with 
you, and you would sign 50 sheets, as they would slide across. Then you 
got 50 more you have to sign, they slide across. That is what you are 
doing.
  Maybe we could have a patent on the pens that are going to be used by 
the President, so when he signs hundreds and hundreds of billettes that 
he will just be able to use one pen, and one pen will work on all those 
billettes.
  It will be an interesting day and an interesting night. The future is 
not yet here. We will have to wait and see how it comes. I hope this 
bill leaves here and comes back with something we can all join together 
on.
  I yield the floor, and I thank the Senator from West Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia has 14 minutes.
  Mr. BYRD. I thank the Chair.
  Mr. President, how much time does the distinguished Senator from 
California need?
  Mrs. BOXER. Two minutes.
  Mr. BYRD. I yield 4 minutes.
  Mrs. BOXER. I thank my friend from West Virginia.
  Mr. President, I will be brief. The hour is late and there has been 
an excellent debate on this. I really had not planned to speak. I have 
written something that is going to go in the Record to explain why I am 
voting ``no'' on this bill.
  But I was really moved to come over to the floor and to shake the 
hand of my friend from West Virginia. I am so proud to serve in this 
body with so many extraordinary people, but I have to say that I really 
do not think there is anyone in this Chamber--this is my opinion--who 
understands the Constitution so well--but more than that, feels it 
inside.
  It is a combination that is just extraordinary. His ability to put it 
into the history of the world, it is such a gift. I wanted to thank the 
Senator for sharing his wisdom, his thoughts, here.
  I have to say when I was over in the other body for 10 years and 
someone said, ``Well, what do you think of Senator Byrd,'' I would not 
have said all these glowing things because I did not understand what I 
understand now.
  Having been exposed to him in this debate and other debates, we are 
so privileged here. I hope that everyone understands when we cast our 
vote on this, how it will be viewed in the long term.
  Things may lack real power on the surface, but I guess I have to ask 
this question on this bill: Why do we want to be here if we are going 
to give away our ability to fight for the people we represent? Why do 
we want to be here? We do not have to be here.
  Why not just give up the power to the executive branch--and I do not 
care who is there. I happen to like this President. I think this 
President is compassionate and smart. He is a good deficit cutter. I 
trust him. But that is not what we are legislating about.

[[Page S4483]]

  I see my colleagues on the other side are smiling and are happy 
tonight because they are going to win something in the contract. Well, 
I will put that contract up against the Constitution any day of the 
week, and I am picking the Constitution. I am proud that I am here and 
I thank the people of California, 31 million people, the people who 
sent me here to stand up for the Constitution tonight.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia has 11 minutes.
  Mr. BYRD. Mr. President, I will be glad to yield time to any Senator 
on either side if any Senator wishes it. If not, I am ready to yield 
back my time if the other side is ready to do the same.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, earlier the Senator from West Virginia read 
the names of the distinguished Americans who signed the Constitution, 
which is a document that we all revere. He asked the question: What 
would they think if they observed what we were doing this evening?
  And I ask the question: What would they think if they were able to 
observe the spending habits of this Congress, the abuse of the power of 
the purse that has resulted in a $4.8 trillion debt, the practice of 
taking every penny of appropriations and putting it into one continuing 
resolution, placing it on the desk of the President at 11:59 of the 
last day of the fiscal year and saying, ``Mr. President, take it all or 
close down the entire Government of the United States.''
  What would the Founding Fathers think of that practice? What would 
the Founding Fathers think of the practice of taking appropriations 
bills and titling them ``Emergency Supplemental Appropriations'' or 
``Dire Emergency Supplemental Appropriations,'' to provide relief for 
hurricane victims in South Carolina or Florida, or earthquake victims 
in California, or flood victims in the Midwest--and attaching to that 
spending that is totally irrelevant to the question, totally 
unnecessary, at a time when we are running deficits of several hundred 
billion dollars and increasing a debt which our children and 
grandchildren and our posterity will find extraordinarily difficult to 
pay? Mr. President, $20,000 now for every new child born in America, of 
debt that child assumes. What would they think of that?
  We are not new to this issue. Line-item veto was first introduced 
nearly 120 years ago by a gentleman from West Virginia, Congressman 
Charles Faulkner. He was the first to introduce line-item veto in 1876. 
It was referred to committee, the Committee of Judiciary, where it 
died. Since then, nearly 200 attempts at line-item veto have been 
introduced, each time buried in committee, filibustered to death, or 
procedurally blocked from direct consideration.
  Last November the long-building anger against this Congress for such 
abuses of the power of the purse erupted, and with their votes the 
American people decisively demonstrated their deep frustration with 
business as usual, with the status quo, with the practice of the 
Congress in exercising the power of the purse.
  Recently the U.S. Senate fueled that anger by failing to pass a 
balanced budget amendment and in doing so clearly demonstrated that we 
as an institution are more concerned with preserving our power than 
protecting our Nation's posterity. Let us, by our vote tonight, show 
the American people that we heard their message in November; show them 
that we are serious about fundamental changes in the way the Congress 
works and does its business. Let us show them that we intend to present 
tax and appropriations bills without subsequent embarrassment. Let us 
send the message to taxpayers that under our guidance, their dollars 
will no longer be wasted on pork-barrel spending or tax benefits that 
favor the few at the expense of the many. Let us act boldly to 
eliminate the dual deficits of public funds and the public trust. Let 
us tonight show the American people that business, as the Senate has 
practiced, it is over.
  Mr. President, it has been 120 years since that Congressman from West 
Virginia offered line-item veto. The time has come for this Congress to 
finally pass that measure.
  The PRESIDING OFFICER. The Senator from West Virginia still has 10 
minutes.
  Mr. BYRD. Mr. President, I do not choose to use the 10 minutes. I 
will be glad to yield it to others.
  Mr. DOLE. I will only take 1 minute of my leader's time.
  Mr. BYRD. I yield back my time.
  Mr. DOLE. Mr. President, the long awaited moment has finally arrived. 
It has been a long time in coming, but it is welcome nonetheless.
  As with the balanced budget amendment, the line-item veto has the 
overwhelming support of the American people, and I hope it will receive 
the overwhelming support of the Senate.
  Those of us on the Republican side have supported giving the 
President the line-item veto for years. During the 1980's, opponents of 
the line-item veto used to say that Republicans supported it only 
because the President happened to be a Republican at that time. With 
passage of the measure we hope to dispel that myth once and for all. We 
believe that any President of the United States, as Chief Executive, 
should be given more power to reduce Federal spending.
  If we cannot control ourselves--maybe the Chief Executive can help.
  As Governor and as a candidate for President, President Clinton 
joined with 10 former Presidents and a great many Governors in calling 
for a line-item veto. We intend to give him that authority.
  Many in this body deserve our thanks for bringing us this far along. 
Former Senator Mack Mattingly of Georgia first suggested the idea of 
separate enrollment in 1985. The distinguished Senator from new Jersey, 
Mr. Bradley, had a similar interest.
  The distinguished Senator from Indiana, Senator Coats, The 
distinguished Senator from Arizona, Senator McCain, and my 
distinguished friend from New Mexico, Senator Domenici, have worked 
tirelessly in support of legislation to give the President this 
additional authority. Each time the Senate has voted on the line-item 
veto, we have been able to garner a few more votes. Tonight we will 
hopefully have more than we need to ensure final passage.
  We are familiar with the issue. We have debated it and discussed it 
before and again at length this week.
  Our substitute was not perfect. The amendments offered by Senators 
Simon, Levin, Murkowski, and Abraham, have all served to improve the 
bill. I am sure there will be other issues to address in the conference 
but we are almost there.
  The status quo just wasn't working. We have all at some point in time 
had some special project or concern that we felt had to be included in 
a bill. All these small things added up and here we are today--out of 
control.
  Can we still add our special projects--yes, but it will truly be 
government in the sunshine. Those items will be front and center. We 
have the opportunity to propose--and the President has the opportunity 
to oppose.
  It may not be perfect--but it is the best chance we have got. Let us 
give it a try. If it does not work, we can change it.
  But first--let us try.
  I would just say, as the Senator from Indiana just indicated, it has 
been a long time coming. We are now going to have the vote. This 
measure may not be perfect, but I think it is an indication that we are 
serious about it and, again, I thank many of my colleagues, especially 
my colleague from Arizona, Senator McCain, and my colleague from 
Indiana, Senator Coats, for their untiring, ceaseless efforts over the 
past several years.
  I agree with the distinguished Senator from Indiana we have stubbed 
our toe on the balanced budget amendment. We sent the wrong message to 
the American people. They do not want business as usual. We had 
business as usual on the balanced budget amendment but that took 67 
votes. I hope we will have many more than a majority on this important 
measure.
  So I suggest, as I have said--I know my colleagues would like to 
leave. This will be the last vote tonight.
  I remember back when Senator Mattingly from Georgia was here and we 
[[Page S4484]] debated this and offered the amendment and we talked 
about separate enrollments at that time. The distinguished Senator from 
New Jersey, Mr. Bradley, had a similar interest.
  In any event, I think we have had some amendments adopted that have 
improved the bill. We will go to conference with the House. They have a 
somewhat different version in some respects, as far as separate 
enrollment is concerned. I think perhaps we can work this out. We are 
prepared, as we said, to give a Democratic President--I remember the 
days when we had Republican Presidents, we were always accused, on the 
other side: Oh, well, the Republicans want this for a Republican 
President.
  Now we are in the majority and we are prepared, nearly all of us on 
this side, to give this authority to a Democratic President, President 
Clinton, who sent me a letter today saying he supported this measure 
and asked that we move it as quickly as we can.
  I would also like to thank my colleagues on the other side of the 
aisle--I think we have handled this matter expeditiously. It has not 
dragged on. We have not had a lot of extraneous amendments. I thank 
also the Democratic leader.
  Finally, I also thank my friend from New Mexico, Senator Domenici, 
who worked with Senator Stevens and Senator Coats and Senator McCain in 
sort of molding this compromise package, and also members of my staff 
and the various Senators' staffs who have worked so hard over the past 
3 or 4 weeks.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. Under the previous order, the question now 
occurs on S. 4, as amended.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm] is 
necessarily absent.
  I also announce that the Senator from Alaska [Mr. Stevens], is absent 
on official business.
  The PRESIDING OFFICER (Mr. Frist) Are there any other Senators in the 
Chamber who desire to vote?
  The result was announced--yeas 69, nays 29, as follows:

                      [Rollcall Vote No. 115 Leg.]

                                YEAS--69

     Abraham
     Ashcroft
     Bennett
     Biden
     Bond
     Bradley
     Breaux
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kennedy
     Kerry
     Kohl
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Robb
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                                NAYS--29

     Akaka
     Baucus
     Bingaman
     Boxer
     Bryan
     Bumpers
     Byrd
     Conrad
     Dodd
     Glenn
     Hatfield
     Inouye
     Jeffords
     Johnston
     Kerrey
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Rockefeller
     Sarbanes
     Simon

                             NOT VOTING--2

     Gramm
     Stevens
       
  So, the bill (S. 4), as amended, was passed.
                                  S. 4

         Be it enacted by the Senate and House of 
     Representatives of the United States of America in 
     Congress assembled,

     SECTION 1. SHORT TITLE.

         This Act may be cited as the ``The Separate Enrollment 
     and Line Item Veto Act of 1995''.

     SEC. 2. STRUCTURE OF LEGISLATION.

       (a) Appropriations Legislation.--
       (1) 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.
       (2) If an appropriation measure is reported to the House or 
     Senate that fails to contain the level of detail on the 
     allocation of an item of appropriation as required in 
     paragraph (1), it shall not be in order in that House to 
     consider such measure. If a point of order under this 
     paragraph is sustained, the measure shall be recommitted to 
     the Committee on Appropriations of that House.
       (b) Authorization Legislation.--
       (1) A committee of either the House or the Senate shall not 
     report an authorization measure that contains new direct 
     spending or new targeted tax benefits unless such measure 
     presents each new direct spending or new targeted tax benefit 
     as a separate item and the accompanying committee report for 
     that measure shall contain such level of detail as is 
     necessary to clearly identify the allocation of new direct 
     spending or new targeted tax benefits.
       (2) If an authorization measure is reported to the House or 
     Senate that fails to comply with paragraph (1), it shall not 
     be in order in that House to consider such measure. If a 
     point of order under this paragraph is sustained, the measure 
     shall be recommitted to the committee of jurisdiction of that 
     House.
       (c) Conference Reports.--
       (1) A committee of conference to which is committed an 
     appropriations measure shall not file a conference report in 
     either House that fails to contain the level of detail on the 
     allocation of an item of appropriation as is set forth in the 
     statement of managers accompanying that report.
       (2) A committee of conference to which is committed an 
     authorization measure shall not file a conference report in 
     either House unless such measure presents each direct 
     spending or targeted tax benefit as a separate item and the 
     statement of managers accompanying that report clearly 
     identifies each such item.
       (3) If a conference report is presented to the House or 
     Senate that fails to comply with either paragraph (1) or (2), 
     it shall not be in order in that House to consider such 
     conference report. If a point of order under this paragraph 
     is sustained in the House to first consider the conference 
     report, the measure shall be deemed recommitted to the 
     committee of conference.

     SEC. 3. WAIVERS AND APPEALS.

       Any provision of section 2 may be waived or suspended in 
     the House or Senate only by an affirmative vote of three-
     fifths of the Members of that House duly chosen and sworn. An 
     affirmative vote of three-fifths of the Members duly chosen 
     and sworn shall be required to sustain an appeal of the 
     ruling of the Chair on a point of order raised under that 
     section.

     SEC. 4. SEPARATE ENROLLMENT.

       (a)(1) Notwithstanding any other provision of law, when any 
     appropriation or authorization measure first passes both 
     Houses of Congress in the same form, the Secretary of the 
     Senate (in the case of a measure originating in the Senate) 
     or the Clerk of the House of Representatives (in the case of 
     a measure originating in the House of Representatives) shall 
     disaggregate the items as referenced in section 5(4) and 
     assign each item a new bill number. Henceforth each item 
     shall be treated as a separate bill to be considered under 
     the following subsections. The remainder of the bill not so 
     disaggregated shall constitute a separate bill and shall be 
     considered with the other disaggregated bills pursuant to 
     subsection (b).
       (2) A bill that is required to be disaggregated into 
     separate bills pursuant to subsection (a)--
       (A) shall be disaggregated without substantive revision, 
     and
       (B) shall bear the designation of the measure of which it 
     was an item prior to such disaggregation, together with such 
     other designation as may be necessary to distinguish such 
     measure from other measures disaggregated pursuant to 
     paragraph (1) with respect to the same measure.
       (b) The new bills resulting from the disaggregation 
     described in paragraph (1) of subsection (a) shall be 
     immediately placed on the appropriate calendar in the House 
     of origination, and upon passage, placed on the appropriate 
     calendar in the other House. They shall be the next order of 
     business in each House and they shall be considered and voted 
     on en bloc and shall not be subject to amendment. A motion to 
     proceed to the bills shall be nondebatable. Debate in the 
     House of Representatives or the Senate on the bills shall be 
     limited to not more than 1 hour, which shall be divided 
     equally between the majority leader and the minority leader. 
     A motion further to limit debate is not debatable. A motion 
     to recommit the bills is not in order, and it is not in order 
     to move to reconsider the vote by which the bills are agreed 
     to or disagreed to.

     SEC. 5. DEFINITIONS.

       For purposes of this Act:
       (1) The term ``appropriation measure'' means any general or 
     special appropriation bill or any bill or joint resolution 
     making supplemental, deficiency, or continuing 
     appropriations.
       (2) The term ``authorization measure'' means any measure 
     other than an appropriations measure that contains a 
     provision providing direct spending or targeted tax benefits.
       (3) The term ``direct spending'' shall have the same 
     meaning given to such term in section 250(c)(8) of the 
     Balanced Budget and Emergency Deficit Control Act of 1985.
     [[Page S4485]]   (4) The term ``item'' means--
       (A) with respect to an appropriations measure--
       (i) any numbered section,
       (ii) any unnumbered paragraph, or
       (iii) any allocation or suballocation of an appropriation, 
     made in compliance with section 2(a), contained in a numbered 
     section or an unnumbered paragraph but shall not include a 
     provision which does not appropriate funds, direct the 
     President to expend funds for any specific project, or create 
     an express or implied obligation to expend funds and--
       (i) rescinds or cancels existing budget authority;
       (ii) only limits, conditions, or otherwise restricts the 
     President's authority to spend otherwise appropriated funds; 
     or
       (iii) conditions on an item of appropriation not involving 
     a positive allocation of funds by explicitly prohibiting the 
     use of any funds; and
       (B) with respect to an authorization measure--
       (i) any numbered section, or
       (ii) any unnumbered paragraph,
     that contains new direct spending or a new targeted tax 
     benefit presented and identified in conformance with section 
     2(b).
       (5) The term ``targeted tax benefit'' means any provision:
       (A) estimated by the Joint Committee on Taxation as losing 
     revenue for any one of the three following periods--
       (1) the first fiscal year covered by the most recently 
     adopted concurrent resolution on the budget;
       (2) the period of the 5 fiscal years covered by the most 
     recently adopted concurrent resolution on the budget; or
       (3) the period of the 5 fiscal years following the first 5 
     years covered by the most recently adopted concurrent 
     resolution on the budget; and
       (B) having the practical effect of providing more favorable 
     tax treatment to a particular taxpayer or limited group of 
     taxpayers when compared with other similarly situated 
     taxpayers.

     SEC. 6. JUDICIAL REVIEW.

       (a) Expedited Review.--
       (1) Any Member of Congress may bring an action, in the 
     United States District Court for the District of Columbia, 
     for declaratory judgment and injunctive relief on the ground 
     that a provision of this Act violates the Constitution.
       (2) A copy of any complaint in an action brought under 
     paragraph (1) shall be promptly delivered to the Secretary of 
     the Senate and the Clerk of the House of Representatives, and 
     each House of Congress shall have the right to intervene in 
     such action.
       (3) Any action brought under paragraph (1) shall be heard 
     and determined by a three-judge court in accordance with 
     section 2284 of title 28, United States Code.
     Nothing in this section or in any other law shall infringe 
     upon the right of the House of Representatives or the Senate 
     to intervene in an action brought under paragraph (1) without 
     the necessity of adopting a resolution to authorize such 
     intervention.
       (b) Appeal to Supreme Court.--Notwithstanding any other 
     provisions of law, any order of the United States District 
     Court for the District of Columbia which is issued pursuant 
     to an action brought under paragraph (1) of subsection (a) 
     shall be reviewable by appeal directly to the Supreme Court 
     of the United States. Any such appeal shall be taken by a 
     notice of appeal filed within 10 days after such order is 
     entered; and the jurisdictional statement shall be filed 
     within 30 days after such order is entered. No stay of an 
     order issued pursuant to an action brought under paragraph 
     (1) of subsection (a) shall be issued by a single Justice of 
     the Supreme Court.
       (c) Expedited Consideration.--It shall be the duty of the 
     District Court for the District of Columbia and the Supreme 
     Court of the United States to advance on the docket and to 
     expedite to the greatest possible extent the disposition of 
     any matter brought under subsection (a).
       (d) Severability.--If any provision of this Act, or the 
     application of such provision to any person or circumstance 
     is held unconstitutional, the remainder of this Act and the 
     application of the provisions of such Act to any person or 
     circumstance shall not be affected thereby.

     SEC. 7. TREATMENT OF EMERGENCY SPENDING.

       (a) Emergency Appropriations.--Section 251(b)(2)(D)(i) of 
     the Balanced Budget and Emergency Deficit Control Act of 1985 
     is amended by adding at the end the following new sentence: 
     ``However, OMB shall not adjust any discretionary spending 
     limit under this clause for any statute that designates 
     appropriations as emergency requirements if that statute 
     contains an appropriation for any other matter, event, or 
     occurrence, but that statute may contain rescissions of 
     budget authority.''.
       (b) Emergency Legislation.--Section 252(e) of the Balanced 
     Budget and Emergency Deficit Control Act of 1985 is amended 
     by adding at the end the following new sentence: ``However, 
     OMB shall not designate any such amounts of new budget 
     authority, outlays, or receipts as emergency requirements in 
     the report required under subsection (d) if that statute 
     contains any other provisions that are not so designated, but 
     that statute may contain provisions that reduce direct 
     spending.''.
       (c) New Point of Order.--Title IV of the Congressional 
     Budget Act of 1974 is amended by adding at the end the 
     following new section:


                 ``point of order regarding emergencies

       ``Sec. 408. It shall not be in order in the House of 
     Representatives or the Senate to consider any bill or joint 
     resolution, or amendment thereto or conference report 
     thereon, containing an emergency designation for purposes of 
     section 251(b)(2)(D) or 252(e) of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 if it also provides an 
     appropriation or direct spending for any other item or 
     contains any other matter, but that bill or joint resolution, 
     amendment, or conference report may contain rescissions of 
     budget authority or reductions of direct spending, or that 
     amendment may reduce amounts for that emergency.''.
       (d) Conforming Amendment.--The table of contents set forth 
     in section 1(b) of the Congressional Budget and Impoundment 
     Control Act of 1974 is amended by inserting after the item 
     relating to section 407 the following new item:

``Sec. 408. Point of order regarding emergencies.''.

     SEC. 8. SAVINGS FROM RESCISSION BILLS USED FOR DEFICIT 
                   REDUCTION.

       (a) Not later than 45 days of continuous session after the 
     President vetoes an appropriations measure or an 
     authorization measure, the President shall--
       (1) with respect to appropriations measures, reduce the 
     discretionary spending limits under section 601 of the 
     Congressional Budget Act of 1974 for the budget year and each 
     outyear by the amount by which the measure would have 
     increased the deficit in each respective year;
       (2) with respect to a repeal of direct spending, or a 
     targeted tax benefit, reduce the balances for the budget year 
     and each outyear under section 252(b) of the Balanced Budget 
     and Emergency Deficit Control Act of 1985 by the amount by 
     which the measure would have increased the deficit in each 
     respective year.
       (b) Exceptions.--
       (1) This section shall not apply if the vetoed 
     appropriations measure or authorization measure becomes law, 
     over the objections of the President, before the President 
     orders the reduction required by subsections (a)(1) or 
     (a)(2).
       (2) If the vetoed appropriations measure or authorization 
     measure becomes law, over the objections of the President, 
     after the President has ordered the reductions required by 
     subsections (a)(1) or (a)(2), then the President shall 
     restore the discretionary spending limits under section 601 
     of the Congressional Budget Act of 1974 or the balances under 
     section 252(b) of the Balanced Budget and Emergency Deficit 
     Control Act of 1985 to reflect the positions existing before 
     the reduction ordered by the President in compliance with 
     subsection (a).

     SEC. 9. EVALUATION AND SUNSET OF TAX EXPENDITURES

       (a) Legislation for Sunsetting Tax Expenditures.--The 
     President shall submit legislation for the periodic review, 
     reauthorization, and sunset of tax expenditures with his 
     fiscal year 1997 budget.
       (b) Budget Contents and Submission to Congress.--Section 
     1105(a) of title 31, United States Code, is amended by adding 
     at the end the following paragraph:
       ``(30) beginning with fiscal year 1999, a Federal 
     Government performance plan for measuring the overall 
     effectiveness of tax expenditures, including a schedule for 
     periodically assessing the effects of specific tax 
     expenditures in achieving performance goals.''.
       (c) Pilot Projects.--Section 1118(c) of title 31, United 
     States Code, is amended by--
       (1) striking ``and'' after the semicolon in paragraph (2);
       (2) redesignating paragraph (3) as paragraph (4); and
       (3) adding after paragraph (2) the following:
       ``(3) describe the framework to be utilized by the Director 
     of the Office of Management and Budget, after consultation 
     with the Secretary of the Treasury, the Comptroller General 
     of the United States, and the Joint Committee on Taxation, 
     for undertaking periodic analyses of the effects of tax 
     expenditures in achieving performance goals and the 
     relationship between tax expenditures and spending programs; 
     and''.
       (d) Congressional Budget Act.--Title IV of the 
     Congressional Budget Act of 1974 is amended by adding at the 
     end thereof the following:


                           ``Tax expenditures

       ``Sec. 409. It shall not be in order in the House of 
     Representatives or the Senate to consider any bill, joint 
     resolution, amendment, motion, or conference report that 
     contains a tax expenditure unless the bill, joint resolution, 
     amendment, motion, or conference report provides that the tax 
     expenditure will terminate not later than 10 years after the 
     date of enactment of the tax expenditure.''.

     SEC. 10. EFFECTIVE DATE.

       The provisions of this Act shall apply to measures passed 
     by the Congress beginning with the date of the enactment of 
     this Act and ending on September 30, 2000.

  Mr. EXON. Mr. President, I move to reconsider the vote.
  Mr. COATS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mrs. BOXER. Mr. President, I voted against this bill because I 
believe the 
[[Page S4486]] Dole proposal creates a dangerous shift of power from 
the Legislative to the Executive branch.
  The power of the purse, Madison said in Federalist No. 58, represents 
the ``most complete and effectual 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.'' Through this power, Congress--as the directly 
elected representatives of the people--can serve as a check on the 
Executive branch.
  An alternative proposal by Minority Leader Tom Daschle was far more 
balanced and far less cumbersome and I was pleased to vote for it. I 
did not come to the Senate to fight for a shift of power to the 
President--any President. I came here to fight for the people of 
California in an equal partnership with the Executive.
  This measure tips the scale unfairly away from the carefully crafted 
balance of powers so wisely designed by the founders of our Nation.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. I ask unanimous consent to speak for 10 minutes as if 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  

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