Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990

Today I sign H.R. 3743, the appropriations bill for foreign operations, export financing, and related programs for the fiscal year 1990. I am signing this bill because it appropriates funds that in my judgment are necessary to support the Administration's important foreign policy and foreign aid initiatives.

I appreciate the efforts of many members of Congress to draft a bill containing many provisions the Administration supports. The provisions contained in the bill reflecting Congressional support for the Philippines Multilateral Assistance Initiative, the Stabilization and Enterprise Funds for Poland, and my initiative to help our Andean partners in our shared war on drugs are particularly welcome.

I continue, however, to have serious misgivings as to the constitutionality and the wisdom of many provisions contained in the bill. I of course intend to construe any constitutionally doubtful provisions in accordance with the requirements of the Constitution.

I have been most troubled by Section 582. Section 582(a) would prohibit the provision of funds appropriated by the Act "to any foreign Government (including any instrumentality or agency thereof), foreign person, or United States person in exchange for that foreign government or person undertaking any action which is, if carried out by the United States Government, a United States official or employee, expressly prohibited by a provision of United States law." Subsections (b) and (c) impose some limits on the scope of subsection (a).

Consistent with the expressed intent of the Congress and to avoid constitutional problems, I intend to construe this section narrowly. I agree with the view expressed on the House and Senate floor that this section is intended only to prohibit "quid pro quo" transactions -- that is, transactions in which U.S. funds are provided to a foreign nation on the express condition that the foreign nation provide specific assistance to a third country, which assistance U.S. officials are expressly prohibited from providing by U.S. law. As reflected both in Congressman Edwards' statements and in the explanatory colloquy between Senators Kasten and Rudman, a "quid pro quo" arrangement requires that both countries understand and agree that U.S. aid will not be provided if the foreign government does not provide the specific assistance. The Senate record also makes clear that neither the criminal conspiracy statute, nor any other criminal penalty, will apply to any violation of this section. My decision to sign this bill is predicated on these understandings of Section 582.

Even so understood, I remain concerned about regulatory provisions of this type, which can have a detrimental impact on our foreign relations. Diplomacy by its nature involves give-and-take. Many routine and unobjectionable diplomatic activities could be misconstrued as somehow involving a forbidden "exchange." Given the ease with which such activities could be so misconstrued, this type of provision can chill U.S. diplomats in the proper discharge of their duties. I believe it is neither fair nor wise for the Congress to make those who formulate and execute foreign policy serve the public under such conditions. I urge the Congress to consider whether the Constitution and the public interest would not both be better served if the Congress joined with me in building a better relationship between the legislative and executive branches, rather than micromanaging foreign policy through enactment of blanket prohibitions.

It is important to note that Section 582 does not affect the ability of the executive branch to urge any course of action upon a foreign government or any third party. In addition, the section applies only where there is a provision of U.S. law that "expressly prohibits" the United States Government, or a U.S. official or employee, from undertaking a particular action, and thus would not apply to provisions that merely limit funding to undertake such an action.

In these and other key respects, Section 582 is substantially narrower than a related provision that prompted my veto of H.R. 2939 on November 19, 1989.

I also am compelled to note my serious concerns regarding the extensive earmarking of funds in the bill. This degree of earmarking will vastly complicate my ability to fund key programs and will hamper U.S. efforts to meet its responsibilities to important allies and friends. I believe that the conduct and effectiveness of U.S. foreign policy would be promoted by the elimination or sharp reduction of the level of earmarking, and I intend to work with the Congress to reach this objective.

George Bush

The White House,

November 21, 1989.