[Congressional Record Volume 142, Number 3 (Friday, January 5, 1996)]
[Extensions of Remarks]
[Pages E33-E34]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           POWER OF THE PURSE

                                 ______


                          HON. JOE KNOLLENBERG

                              of michigan

                    in the house of representatives

                        Friday, January 5, 1996

  Mr. KNOLLENBERG. Mr. Speaker, it has come to my attention that 
amounts appropriated in the fiscal year 1994 Defense budget are not 
being spent for the specific purposes for which they were intended.
  Central to our debates over appropriations funding in the last 
several months has been a tacit understanding by both sides of the 
aisle that the Congress, and the Congress alone, has the constitutional 
``Power of the Purse.'' From this power, the Congress--and the Congress 
alone--specifies the objects of the appropriations funding. This means 
that the Congress can direct that agencies expend funds at the level, 
and in the direction, which Congress indicates.
  This principal has remained so settled that it has been virtually 
unchallenged--that is, until relatively recently. In recent litigation 
before the U.S. District Court for the District of Columbia, however, 
The Justice Department has taken the position that the language 
commonly employed in appropriations acts to direct funding is 
permissive only, and not mandatory. Specifically, according to the 
Justice Department, the language ``not less than $40 million shall be 
made available only for the National Center for Manufacturing 
Sciences'' as employed in the fiscal year 1994 Defense Appropriations 
Act and the language ``not less than $20 million shall be made 
available only for the National Center for Manufacturing Sciences'' as 
employed in the fiscal year 1995 Defense Appropriations Act, is not 
binding on the agency.
  The Department has used this interpretation to withhold funding from 
the National Center for Manufacturing Sciences. As a result, the 

[[Page E34]]
Department is effectively supplanting its policy judgment for the will 
of Congress. And, at this very moment, important projects of the 
National Center for Manufacturing Sciences are being scaled back, and 
personnel are being laid off.
  To clear up the interpretation of this important language, I have 
written to my colleagues, Mr. Livingston and Mr. Obey, and have asked 
for their opinions on the meaning of these terms. I ask that the 
Justice Department take note of the opinions of the Chairman and the 
ranking minority member of the Committee on Appropriations when 
defining these terms. At this point I ask unanimous consent to enter 
into the Record this letter and a section from the GAO's review of 
appropriations law.


                                U.S. House of Representatives,

                                Washington, DC, December 19, 1995.
     Hon. Joe Knollenberg,
     U.S. House of Representatives,
     Washington, DC.
       Dear Joe: Your letter regarding a Justice Department 
     interpretation of legislative earmark appropriations bill 
     language is interesting. It points out the strains that occur 
     when we legislate and the Executive branch searches out 
     loopholes.
       The Committee would expect, when using the language you 
     cited ``not less than $X of the funds appropriated shall be 
     made available only for * * *'', that the agency to which the 
     appropriation was made would use at least that much money 
     solely for the specified purposes in the language.
       After reading your letter, a review was made of the GAO 
     Principles of Federal Appropriations Law. I have attached 
     chapter 6(B), Types of Appropriation Language and the Concept 
     of Earmarking. In this chapter there is a paragraph on ``not 
     less than'' earmarks. You may find some of these citations 
     useful.
       I hope this will be helpful.
           Sincerely,
     Bob Livingston,
       Chairman.
     Dave Obey,
       Ranking Minority Member.

           Chapter 6.--Availability of Appropriations: Amount


    b. types of appropriation language and the concept of earmarking

       Congress has been making appropriations since the beginning 
     of the Republic. Over the course of this time, certain forms 
     of appropriation language have become standard. This section 
     will point out the more commonly used language with respect 
     to amount.
       Congress may wish to specifically designate, or 
     ``earmark,'' part of a more general lump-sum appropriation 
     for a particular object, as either a maximum, a minimum, or 
     both.\1\ For simplicity of illustration, let us assume that 
     we have a lump-sum appropriation of $1,000 for ``smoking 
     materials'' and a particular object within that appropriation 
     is ``Cuban cigars.''
     \1\ We use the term ``earmarking'' here to mean a specific 
     statutory designation of a portion of a lump-sum 
     appropriation or authorization. The term is also used to 
     refer to the statutory designation of revenues for particular 
     uses. For a brief but nevertheless useful discussion of 
     earmarking in this latter sense, see GAO report entitled 
     Budget Issues: Earmarking in the Federal Government, GAO/
     AFMD-90-8FS (January 1990).
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       If the appropriation specifies ``not to exceed'' $100 for 
     Cuban cigars or ``not more than'' $100 for Cuban cigars, then 
     $100 is the maximum available for Cuban cigars. 64 Comp. Gen. 
     263 (1985).\2\ A specifically earmarked maximum may not be 
     augmented with funds for the general appropriation.
     \2\ A ``not to exceed'' earmark was held not to constitute a 
     maximum in 19 Comp. Gen. 61 (1939), where the earmarking 
     language was inconsistent with other language in the general 
     appropriation.
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       Statutory transfer authority will permit the augmentation 
     of a ``not to exceed'' earmark in many, but not all, cases. 
     In 12 Comp. Gen. 168 (1932), it was held that general 
     transfer authority could be used to increase maximum earmarks 
     for personal services, subject to the percentage limitations 
     specified in the transfer statute.

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