A Constitutional Emergency Response Fund

April 11, 2003

A CONSTITUTIONAL EMERGENCY RESPONSE FUND

Mr. BYRD. Madam President, tonight the Senate will consider the supplemental appropriations conference report to begin to fund the war in Iraq. For many hours today, members of the House and Senate Appropriations Committees worked to complete action on the legislation, and I am pleased to report that we are nearing a final package.

Despite the progress today, however, I remain concerned about the path on which this conference report places the Congress.

For decades, Presidential administrations have sought to wrap their fingers around the purse strings, push away the Congress, and ignore the Constitution—this Constitution which I hold in my hand. It does not matter what administration it is. It does not matter the political party of the President. What matters is nothing more than raw power. That executive branch is always out there seeking to expand its power. Twenty-four hours every day, the administration is somewhere on the globe reaching, seeking to grasp more power. When Congress is out on recess, when Congress is at home, when the men and women of the Congress are sleeping, the executive branch is there. At some point on the compass, on the high seas, in the tundra of the far north, in the tropics, it is always, always awake, always there. What matters is nothing more than raw power. Congress has it. The executive branch wants it. And the executive branch will use virtually any excuse to get it.

It was not long ago that I joined with the late Senator from New York, Daniel Moynihan, the Republican Senator from Oregon, Mark Hatfield, the Democratic Senator from Michigan, CARL LEVIN, and two Members of the House of Representatives, Congressman David Skaggs of Colorado and Congressman HENRY WAXMAN of California, to challenge the line-item veto. Every President in the 20th century, save for William H. Taft, sought some form of line-item veto. Foolishly, on March 23, 1995, the United States Senate passed by a vote of 69 to 29 the Line-Item Veto Act, giving the Office of the President—or seeking to give the Office of the President—the power to pick and choose which items in appropriations bills to fund and which to ignore. With the line-item veto, a President had the power to threaten and to intimidate Members of Congress, the people's directly elected representatives. It gave to one man the power to change unilaterally a bill that was the product of the give and take, the debate and compromise between and among 535 men and women who were directly elected by the people to represent them in Congress.

Fortunately, 5 years ago this June, the United States Supreme Court had the wisdom to see the danger of this approach. The Justices on that High Court ruled 6 to 3 to overturn the Line-Item Veto Act. God save the United States. We do not say it in this body, "God save the King." There is no monachist party in the Senate, or there should not be. We say, "God save the United States."

So the Justices, as I say, ruled that Congress did not have the authority to delegate away its constitutionally granted power of the purse. We just cannot do it. We might want to foolishly, but Congress cannot do that. It cannot delegate away its constitutional power over the purse. Thank God for the Supreme Court of the United States.

The Court understood precisely what was at stake, even though some here did not. The absolute bedrock of the people's continued freedom from tyranny and excesses of all types of authority is the power of the purse. That is it. Cicero said: There is no fortress so strong that money cannot take it.

James Madison summed up in a very few words the significance of this power in protecting the people's rights and the people's liberties.

In Federalist No. 58, he wrote—now get this:

This power over the purse, may in fact be regarded as the most compleat 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.

Let me read that again, from the Federalist No. 58. Madison wrote:

This power over the purse, may in fact be regarded as the most compleat 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.

Every Senator should have to sleep with those words of Madison under his pillow at night. Not every Member would need to do that but some would. All too often Senators stand up at that desk and put their hand on the Holy Bible and swear before God and man that they will support and defend the Constitution of the United States against all enemies, foreign and domestic, and they turn right around and seek to give away the power over the purse which constitutionally vests in this branch—seek to give it away to a President.

Why, the President is just a hired hand. He will be around here for a little while and then he will have to go away, have to go back home. The same for Senators; we are hired hands. We will not be here forever. We have to have a new contract every 6 years to stay and continue to serve.

It is this essential tool, the power of the purse, control of the purse by the people's representatives in Congress, and that tool lies at the very foundation of our Nation's liberties, our Nation's freedoms. Take away Congress's power over the purse and the people's liberties cannot be assured. It is that fundamental.

The power over the purse, it is the fulcrum of the people's leverage. It is that power over the purse that caused Englishmen centuries ago to shed their blood, to wrest from tyrannical monarchs that power over the purse and place that power in the hands of the representatives of the people, in the House of Commons in England.

Too many of us forget our roots. Too often we forget our roots. The roots of the Constitution go back not just to 1787 but a thousand years to the Magna Carta in 1215 and beyond.

As enshrined in the Constitution, the power over the purse is one of the chief protectors of all of our cherished freedoms: The freedom of the press, the freedom to assemble, freedom of religion, all of these are freedoms. And that power over the purse vested in this body and the other body of the Congress is a precious power.

This control of the purse is one of the most effective bulwarks ever constructed to repel a despot, control a tyrant, shackle the hands of an overreaching chief executive. Chip away at this fundamental barrier and one chips away at the very cornerstone of the people's liberties. Incredibly, Members of Congress in this day seem to be intent all too much on doing just exactly that, steadily chipping away at the power of the purse and at the other constitutional powers and prerogatives of the people's representatives in Congress.

Since that June day nearly 5 years ago when the High Court struck down the Line Item Veto Act, administrations have sought ways around the High Court ruling. So I say that executive branch is always there, always reaching, always probing, always seeking to get around that constitutional power of the purse. They have sought to chip away at this Constitution. They have sought to control the crucial power of appropriating. That concerted executive branch effort has continued right to this hour in this supplemental request.

I am always amazed, seemingly more so than ever in recent times, that the judicial branch will always stand for the judicial branch. It will always act to protect itself. The executive branch will always act to protect itself and it seeks, as I say, for more and more power. But it is the legislative branch—the branch that is closest to the people, the branch that is first mentioned in the Constitution, the first article of the Constitution, the very first sentence of the Constitution—that more and more so in recent years is willing to give away its prerogatives, to yield to the executive branch.

Ours is a government of three equal branches. We have no king in this country. Our forebears fought a war to break away from the king, King George, III. Those signers of the Declaration of Independence put in jeopardy their lives, their fortunes, their sacred honor, to be independent of the king. They could have been arrested, hauled away, put on ships, sent across the Atlantic to England and hanged for what they did in signing that Declaration of Independence. They put their lives on the line when they did that.

I have to wonder, when Members of the legislative branch will be so obsequious to a President. We see it when we have a Democratic President, many Members on my side of the aisle will be obsequious. They are willing to hand over to that President the line item veto. I see it when a Republican President is in the White House so many on that side of the aisle are so obsequious to the President, as though he brought them here, as though they were elected by a President.

The President is a hired hand, just as I am. Why should we be so obsequious to a President? He is no king. Our forefathers fought a war, as I say. Nathan Hale gave his life for his country.

I often talk to these pages. I get a new lease on life just talking with these young people and breathing the fresh air of their vigor, their vision, and their enthusiasm. I say to them: Who is Nathan Hale? I tell them the story of Nathan Hale, if they have not heard it. We do not have history books today like we had when I went to school. I studied Muzzy. It was not a book filled with pictures. There were very few pictures, but it was crammed with text. And there for Muzzy did I get my hero from the patriots of the Revolutionary period, from those who wrote the Constitution, who wrote the Bill of Rights, who wrote the Declaration of Independence, Benjamin Franklin, James Madison, and Nathan Hale.

Nathan Hale answered the call of George Washington to go behind the enemy lines and bring back drawings of the British gun emplacements. And on the night before he was to return to the American lines, Nathan Hale was arrested as a spy. The next morning, he stood before a crude gallows, a wood coffin within sight, knowing that his body would soon lie and grow cold in that wood coffin. He was asked by the British commander, a Commander Cunningham, if he had anything to say. There with his hands clasped behind him, he said:

I only regret that I have but one life to lose for my country.

What a lesson we can all draw from that man who gave his only life. Did he die to give a President the power of the purse?

We did not have a constitution at that point. But I cannot believe that he would have died to give a President the power of the purse. He died because he was fighting for independence, to make this Nation a separate nation from that nation which was ruled by a king.

Just a few weeks ago, after months of stiff-arming Congress's request for information regarding the cost of military action in Iraq, the President finally provided the details of the first installment payment totaling $74.7 billion. Of that amount for the Department of Defense, the President sought $62 billion. But the President wanted the Secretary of Defense to pick and choose how to spend more than $59.8 billion of that money. Congress was asked to provide this funding in an account labeled the Defense Emergency Response Fund. Around here, this fund is nicknamed DERF. I can think of another explanation for DERF: The Dangerous Erosion of the Right to Fund. No, it was not flexibility that the President sought; it was control; it was power.

The President's supplemental sought another $1.4 billion for the Department of Defense to allow the Secretary of Defense to allocate funds to pay nations that have provided support for the global role on terrorism. And again, the Secretary of Defense would decide where, how, when to invest those dollars—not the Congress. Nowhere in the Constitution is the Secretary of Defense given the power of the purse. Nowhere is the Secretary of Defense even mentioned—because there was not any Secretary of Defense when that Constitution was written.

Again, however, it was not flexibility that the President sought; it was power. Time after time in line after line, this administration sought unprecedented authority to spend the people's money—your money—you, the people out there looking at this Chamber through those electronic eyes; your money. How it wanted, where it wanted, when it wanted, why it wanted.

The cry went out: Give us flexibility. That was the cry of the administration when it sent up this supplemental appropriations bill. Give us flexibility. But it was not really flexibility that the administration wanted; it was power—power, power over the purse, power over the Congress.

Wisely, the House and Senate Appropriations Committees limited this power grab in this supplemental request. Despite the best efforts of the administration, the conference report holds to almost all of the committee's limitations and presentations. But it took a vote of the conference this morning to give protection to the prerogatives of this Congress.

With that vote—and the prerogatives of the Congress, I say, are the prerogatives of the people; that is what we are really talking about, the people—with that vote, the House and Senate conferees approved a 5-day notification on how the Secretary of Defense and the President may choose to spend $15 billion in the Defense Emergency Response Fund. Five days' notification is not too great a burden for the administration to meet, and you would not have thought the administration would have resisted that with every ounce of its strength.

I read in the newspaper something to the effect that the President was on the floor, the Vice President visited offices around this Hill, and the Secretary of Defense was on the phone urging Members to stand by the administration. The administration resisted this bipartisan effort to require this short notification, but the conferees acted to protect the people against a would-be power grab by the administration. If there is an imminent danger facing the Nation today, the Commander in Chief does not need to wait to respond. He will not have to say that he cannot stop an attack against America simply because he has to tell Congress first. He has the inherent constitutional right to counter any imminent direct threat facing the United States. A 5-day notification requirement on the DERF does not tie the President's hands at all, but it does help to protect the people's liberties against an overreaching executive.

Despite the good work by the conferees to limit the so-called flexibility, I fear that this conference report is nothing more than a first step down a slow road to oblivion for Congress. Because of this President's insatiable desire—and especially this administration, I say, after having watched for 50 years one administration after another, Republican and Democrat—because of this administration's insatiable desire to control the power of the purse, what we are witnessing in this DERF is a unique and creative strategy to circumvent the people's directly elected representatives.

What will be next? Which department will seek its own emergency response fund with no strings, no questions, no examination? Why not just hand each department in this administration a huge check at the start of each fiscal year and say: Here you go, boys. Have a good time. Send us a postcard.

Put a sign on the Capitol dome: Going out of business.

I hope this will be the last time Congress feels the need to accommodate an emergency response fund that contains so few strings, so few protections for the people. After all, it is their money. I have heard that many times, "It's their money." Well, now I say it, yes, it is their money.

Since this war began I have stated my strong support for the men and women engaged in military action and for their families. I have pledged every resource necessary to speed their victory and their safe return home. I will keep that pledge and vote for this conference report.

But I have also sworn an oath to protect and defend this Constitution. I will not stand by quietly while we demolish this document that has served us well for more than 200 years as the foundation of this Republic.

The bill that we are talking about is only the downpayment on this war. Remember that—only the downpayment on this war. We have asked the administration time and again, and the administration's representatives who came to the Hill: What will be the cost? What will be the cost?

Secretary Rumsfeld said the cost is not knowable. So in the President's budget that he sent to the Hill there was not one thin dime for the war.

This bill is only the downpayment on this war and on the occupation and reconstruction of Iraq. This conference report is only a fraction of the cost. As this body writes the checks for the rest of the war and the reconstruction, the Senate should defend vigorously the power of the purse and ensure that the system of checks and balances is preserved.

Madam President, I personally want to thank the Senator who presides over the Senate at this late hour, the hour of 9 o'clock p.m. lacking 1 minute. Here she presides, the junior Senator from Alaska, LISA MURKOWSKI. I apologize to her for keeping her waiting. I apologize to all the staff, the floor staff, Republicans and Democrats, tonight. And I certainly want to express every good wish for them, to wish them happiness and safety—safety in a dangerous world and at a dangerous time.

I hope that we will all keep in mind the true meaning of Easter as we depart for the holidays. Let us depart, as we shall, hoping that we have served our country to the best of our ability, knowing as we do that even that is not good enough for this country, this land.

I would like to depart this evening in the spirit of the poet Henry Van Dyke, who wrote that marvelous poem

"America For Me."
'Tis fine to see the Old World, and travel up and down
Among the famous palaces and cities of renown,
To admire the crumbly castles and the statues of the kings,
But now I think I've had enough of antiquated things.
So it's home again, and home again, America for me!
My heart is turning home again, and there I long to be
In the land of youth and freedom beyond the ocean bars,
Where the air is full of sunlight and the flag is full of stars.
Oh, London is a man's town, there's power in the air;
And Paris is a woman's town, with flowers in her hair;
And it's sweet to dream in Venice, and it's great to study Rome,
But when it comes to living, there is no place like home.
I like the German fir-woods, in green battalions drilled;
I like the gardens of Versailles with flashing fountains filled;
But, oh, to take your hand, my dear, and ramble for a day
In the friendly West Virginia woodland where Nature has her way.
I know that Europe's wonderful, yet something seems to lack!
The Past is too much with her, and the people looking back.
But the glory of the Present is to make the Future free,
We love our land for what she is and what she is to be.
Oh, it's home again, and home again, America for me!
I want a ship that's westward bound to plough the rolling sea,
To the blessed Land of Room beyond the ocean bars,
Where the air is full of sunlight and the flag is full of stars.
Madam President, I thank you and I thank all Senators.
I yield the floor.