[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Pages S18937-S18939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             SHUTDOWN II: THE RIGHT NOT TO PASS MONEY BILLS

  Mr. BINGAMAN. Mr. President, we are now in the second Government 
shutdown of the year. This is the second one we have had in a month.
  There have been many Government shutdowns in the past. In fact, I 
have been here in the Senate during some of those. But the shutdowns of 
this year seem very different than previous ones.
  Prior to this Congress, the shutdowns of Government were short, and 
they were generally regretted by the congressional leaders. And, even 
when the Congress and the President continued to be at odds, those 
involved were eager to pass continuing resolutions to restart the 
Government and maintain basic services.
  In this Congress we have a very different situation. In this 
Congress, the shutdowns are longer, and the Republican leadership in 
Congress sees the shutdown and the maintenance of the shutdown as an 
essential part of their strategy to gain leverage on the President in 
their negotiations with him about major policy issues.
  Monday morning, when I was reading the Wall Street Journal, I saw a 
statement in the front page article. The statement was from Speaker 
Gingrich. In reading that, I gained an insight into how we arrived at 
this year's shutdowns, and why these shutdowns are so different from 
those of the past.
  The paper describes the strategy that Speaker Gingrich devised to get 
his way in disagreements with the President. I will quote very briefly 
from that article.

[[Page S18938]]

  ``He''--that is Speaker Gingrich--``would need to make heavy use of 
the only weapon at his disposal that could possibly match President 
Clinton's veto: The power of the purse.''
  Here is a quote from the Speaker.
  ```That's the key strategic decision made on election night a year 
ago,' Mr. Gingrich says. `If you are going to operate with his veto 
being the ultimate trump, you have to operate within a very narrow 
range of change . . . You had to find a trump to match his trump. And 
the right not to pass money bills is the only trump that is equally 
strong.'''

  Mr. President, I want to focus people's attention on this phrase 
``the right not to pass money bills.'' The Speaker talks about this 
right, this so-called right. The obvious question is whether this is an 
appropriate and an acceptable trump for the Presidential veto, as the 
Speaker seems to believe, or whether, on the contrary, it is an abuse 
of power, whether it is a proper use of the power vested in the 
congressional majority under the Constitution, or whether it is a 
perversion or destruction of the delicate system of checks and balances 
set out by the Framers of the Constitution.
  I have done my best to analyze the Constitution in light of the 
Speaker's remarks, and it is my conclusion that the refusal to maintain 
funding for basic Government services is, in fact, an abuse of the 
power granted by the people to the Congress and the Constitution. I 
would like to take a few minutes to explain that reason.
  The Founding Fathers set up a very delicate system of checks and 
balances. In article I, Congress is given authority to make laws in a 
wide range of areas. For instance, Congress is given exclusive 
authority to appropriate money.
  Article I, section 9, reads:

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

  The Framers recognized the need to have a check on irresponsible 
legislation by the Congress and they gave the President the power to 
veto.
  Article I, section 7 contains that power. It says:

       Every bill which shall have passed the House of 
     Representatives and the Senate, shall, before it become 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. 
     . . .

  Clearly, when there would be a disagreement between the Congress and 
the President, the Framers of the Constitution wanted to provide a 
method for reconciling the differences, and in this language, this 
language describing the veto, they established a procedure to determine 
which side should prevail. When in disagreement with the Congress, the 
President would veto the bill and return it to Congress. If no 
agreement were reached, the Congress could pass the bill again, and if 
they had the votes, the two-thirds votes in each House to override the 
President's veto, the bill would become law.
  This system of checks and balances has served us reasonably well for 
206 years, with both the Congress and the President generally agreeing 
to abide by the procedures set out in the Constitution. There was one 
major departure, and that was with the action by President Nixon to 
impound funds which the Congress had appropriated for spending. In that 
case, the final determination was that the President had, in fact, 
abused his power, that appropriations legally made and passed, in some 
cases over the veto of the President, prevailed over the contrary 
desire of the President to get his way. And just as the President in 
that case abused his power under the Constitution when he impounded 
funds that were legally appropriated over his objection, I believe that 
by shutting down Government services and maintaining those services 
shut down in order to gain leverage with the President on larger policy 
issues, the Congress is similarly abusing its authority under the 
Constitution.
  Those who wrote the Constitution were focused on how to resolve 
legislative differences between the Congress and the President. The 
Supreme Court has recognized this focus of the Founding Fathers. Mr. 
Justice Jackson in Youngstown Sheet & Tube Ccompany versus Sawyer 
stated:

       While the Constitution diffuses power the better to secure 
     liberty, it also contemplates that practice will integrate 
     the dispersed powers into a workable Government. It enjoins 
     upon its branches separateness but interdependence, autonomy 
     but reciprocity. 343 U.S. 579,635 (1952).

  The Founders of the country assumed that the failure of the President 
to sign legislation or the failure of Congress to enact legislation 
would be based on specific disagreements on what that legislation 
should contain, not on the desire of either the Congress or the 
President to extort concessions from the other on basic policy 
differences.
  Mr. President, I use the word ``extort'' here because I believe it 
actively describes the current situation. The dictionary defines 
``extort'' as ``to wrest or wring from a person by violence, 
intimidation or abuse of authority.''

  I believe we have an attempt here to wrest or wring concessions from 
the President by abuse of authority. Mr. Gingrich talks about Congress' 
so-called right not to pass money bills--in other words, the right to 
shut down the Government to get his way in disagreements with the 
President. He is not just asserting his right to disagree with the 
President on spending levels or levels of taxation. He is not just 
asserting the right to pass legislation reflecting his view of what is 
the right level of spending or taxation. He is not just asserting the 
Congress' right to pass those laws again over the President's veto if 
the disagreement continues.
  No, here the Speaker's position goes well beyond the constitutional 
framework for resolving disagreements between the Congress and the 
President. Here we have Mr. Gingrich's majority in Congress arguing for 
major changes in authorizing legislation in Medicare, in Medicaid, and 
in numerous other areas of policy in seeking to get its way by, in 
fact, refusing to fund the Government itself, the entire Government or 
what is left of the Government to be funded, if the President does not 
bow to their wishes--not just refusing to fund the portion of the 
Government that the President wants to fund and the majority wants to 
defund but refusing to fund other broadly supported areas of Government 
activity.
  This abuse of power or extorting of concessions from the President by 
refusing to maintain the basic services of Government is not part of 
the checks and balances that the Framers of the Constitution 
envisioned. They assumed that the maintenance of Government activities 
which both the Congress and the President deemed to be worthwhile would 
be supported by mutual consent of the two branches of Government. They 
did not anticipate that one branch would be willing to kill its own 
children unless the other branch agreed to give ground on policy 
disputes.
  The obvious question is whether in fact this so-called right not to 
pass money bills is the ultimate trump or even the best trump. I 
suggest it is not. I suggest that the Founding Fathers put one more 
trump in this delicate balance of Government structure, and that is the 
trump of the people's vote every 2 years.
  Abuse of power is always possible in politics and government, and the 
Framers of our Constitution were more keenly aware of the danger than 
any of us. In fact, the entire Constitution was written in reaction to 
the very abusive power which they suffered at the hands of the British 
monarchy.

  For that very reason, they provided what is literally the ultimate--
and certainly the best--trump, the right of the people to express their 
will every 2 years on who comprises the House of Representatives and on 
who holds one-third of the seats in the Senate.
  Article I, section 2, and article I, section 3, set out that the 
House of Representatives shall be composed of Members chosen every 2 
years and that a third of the Senate shall be elected every 2 years.
  Time will tell whether the people of the country decide to use that 
ultimate trump to remedy what appears to me to be a clear abuse of the 
power granted by the people to the Congress by way of the Constitution. 
Until that time, this extortion, this abuse of power, should stop. It 
should stop today.
  Today we should pass a continuing resolution to bring the Government 
back to full operation. Today we should pass a continuing resolution 
for a period long enough to allow careful negotiation on the budget and 
serious negotiation on the budget, not for the 

[[Page S18939]]
2 or 3 days for which we were just advised by the majority leader we 
are likely to be passing a continuing resolution.
  And today we should resolve that the power not to pass money bills, 
which the Congress clearly has--and I do not dispute that Congress has 
that power, but that power should never become or never be seen as a 
right not to pass money bills, as Mr. Gingrich asserts. Today we should 
fully restore the checks and balances between the President and the 
Congress which the Constitution of the United States contemplated at 
the time of the founding of the Republic.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will read the roll.
  The legislative clerk proceeded to call the roll.
  Mr. D'AMATO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so 
ordered.

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