 Debt Obligations of the National Credit Union Administration

D eb t oblig atio n s o f the National Credit Union A dm inistration, lawfully incurred on behalf o f the
   C entral L iquidity Facility, pursuant to 12 U S .C § 1795f(a), represent obligations of the U nited
   S tates backed by its full faith and credit.

T h ere is a p resu m p tio n, historically reflected in opinions o f the A ttorney G eneral, that federal agency
    o b ligations are su pported by the fu ll faith and credit of the U nited States, unless the statute
    authorizing such obligations expressly provides otherw ise. T his presum ption extends to obliga­
    tions incurred by an agency on b e h a lf o f a non-federal entity.

W hile p rinciples o f restraint and respect for the C om ptroller G eneral as an agent of Congress
   ordinarily require that his opinions be accorded substantial w eight by the A ttorney G eneral, in this
   case the C o m p tro ller G eneral failed properly to apply the legal principles governing full faith and
   credit w hich are delineated in the o p in io n s of the Attorney G eneral.

O pin io n s of the A ttorney General on m atters of law are, as a m atter of course, to be follow ed by all
   officers o f the E xecutive Branch.

                                                                                                           May 24, 1982

    MEMORANDUM OPINION FOR THE PRESIDENT, CENTRAL
LIQUIDITY FACILITY, NATIONAL CREDIT UNION ADMINISTRATION

   This responds to your request for an opinion concerning debt obligations to be
issued by the National Credit Union Administration (NCUA) on behalf of the
Central Liquidity Facility (CLF or Facility) pursuant to 12 U.S.C. § 1795f(a)
(1982). The NCUA is considering issuing these obligations for the CLF in order
to fund the latter’s lending activities. Previous to this request, you received an
opinion from the Comptroller General of the United States' regarding NCUA’s
authority to issue these debt securities. That opinion stated that the NCUA has
authority to issue debt securities on behalf of the CLF, but that these securities
would not constitute obligations of the United States supported by its full faith
and credit. Because the Comptroller General’s opinion may impair the CLF’s
ability to perform its lending function, you have asked us to review the full faith
and credit questions,2 and to address additional questions that have arisen as a

    1 C om p. G en . D e c ., File: B -204227 (O ct. 2 1 , 1981) (herein afte r Comp. G en Dec.).
    2 S ince 1973, it has b een th e policy of the D ep artm en t o f Ju stice to d ecline to issue form al opinions o n full faith
an d cred it m atters unless th e re is drawn into q u estio n a genuine issue o f law. See Elliot L. R ichardson, A ttorney
G en eral, M em o ra n d u m for H ead s of the E x ecu tiv e D epartm ents and C ounsel to the P resident (O ct 10, 1973). In
this case we find both a su b stan tial issue of law , and a m isapplicatio n by th e C om ptroller G eneral o f a series of
o p in io n s o f th e A ttorney G en eral which treat th e obligations o f the U nited S tates T herefo re we have d ecid ed to
ad d ress th e fu ll faith and credit issue you p re se n t.


                                                               262
result of the Comptroller General’s opinion.3
   We find— contrary to the Comptroller General’s opinion4— that lawful debt
obligations of the NCUA incurred on behalf of the CLF represent obligations of
the United States backed by its full faith and credit.

                                                            I.

   The Central Liquidity Facility was established in 1978 by the National Credit
Union Central Liquidity Facility Act (CLF Act), Pub. L. No. 95-630, Title
XVIII, codified at 12 U.S.C. § 1795 (1982). The CLF’s function is to provide for
the “ liquidity needs” of member credit unions.5 The CLF “ exist[s] within” the
National Credit Union Administration6 and is managed by the NCUA Board. 12
U.S.C. § 1795b. Credit unions may become “ members” of the CLF by subscrib­
ing to, and holding, CLF capital stock. 12 U.S.C. §§ 1795c, 1795d. Member
credit unions are entitled to apply for credit advances, 12 U .S.C. § 1795e(a)(l),
but they have no control over, or management responsibilities for, the CLF.
   The Facility’s lending activity is funded through its capital stock and through
borrowing. To date, all borrowing for the CLF has been from the Federal
Financing Bank, a corporate instrumentality within the Department of the
Treasury.7 Recently, however, the CLF was requested by the Office of Manage­
ment and Budget to develop plans to borrow in the private capital markets.8 The
CLF lacks the power to borrow from any source, but the CLF Act provides clear
authority for the NCUA Board to incur obligations on its behalf.
           The Board on behalf of the Facility shall have the ability to—
                   *       *        *         *         *
           (4) borrow from— (A) any source, provided that the total face

   3 These questions concern the C L F ’s possible exposure to liabilities arising from o th er N C U A activities. For
exam ple, you ask ou r concurrence in your G eneral C o u n sel’s determ ination that hypothetical claim an ts against the
N ational C redit U nion Share Insurance Fund might look only to the assets of the Fund fo r satisfaction o f their claim s.
We believe our resolution o f the full faith and credit issue m akes it unnecessary to address th ese additional
questions
   4 Principles of restraint and respect for the authority o f the C om ptroller G eneral as an agent o f C o n g ress require
that his opinions be accorded substantial w eight by the A ttorney G eneral See. e g., 41 Op. A tt’y G en . 507, 512
(1960); 41 O p A tt’y G en . 4 6 3 , 473 (1960). However, disagreem ents som etim es d o occur, see, e .g ., 41 Op. A tt’y
G en. 507 (1960); 37 O p A tt’y G en 559 (1934), 37 Op. A tt'y G en. 562 (1934), and in this case we believe the
C o m ptroller G enera! failed properly to apply the presum ption governing full faith and credit m atters w hich is
delineated in the opinions of th e A ttorney G eneral. T hese opinions are, as a m atter of course, to be follow ed by all
officers o f the Executive B ranch See 37 O p A tt’y G en. 562, 563 (1934); 20 O p A tt’y G en. 6 4 8 (1893) See
generally 28 U S .C . § 512; Smith v Jackson, 241 Fed 747, 773 (5th Cir. 1917), q jfd , 246 U .S . 388 (1918).
   5 The statutory definition o f “ liquidity needs’’ was designed to restrict the C L F to lending only fo r th e purpose o f
providing traditional credit unions— as distinct from corporate central credit unions— w ith credit to m eet em ergen­
cy outflows resulting from m anagem ent difficulties, local econom ic dow nturns, seasonal credit n ee d s, o r regional
econom ic decline. See 12 U .S C . § 1 7 9 5 a(l), 124 C ong Rec 38842 (1978) (rem ark s o f Rep St G erm ain). T h e
C L F is prohibited from providing credit the purpose o f w hich is “ to expand credit un io n portfo lio s.” 12 U .S .C
§ 1 795e(a)(l)
   6 The N CUA is “ established in the executive bran ch ” as “ an independent ag en cy ,” 12 U .S .C . § 1752a(a), an d is
m anaged by a three-m em ber B oard “ appointed by the President, by and w ith the advice and consent o f the S enate.”
12 U S .C § 1752a(b).
   1 See generally 12 U .S .C §§ 2 2 8 1 -2 2 9 6 (1982).
   8 This inform ation w as contained in your opinion request. See also Department c f Housing and Urban
Development—Independent Agencies Appropriations fo r 1982, Hearings Before a Subcommittee c f the House
Committee on Appropriations, 97th C o n g ., 1st Sess. 3 1 1 -1 2 (F eb. 5 , 1981) (testim ony of L aw rence C o n n ell,
C hairm an, N C U A ) (expressing w ish to end reliance on borrow ing from Federal F inancing B ank).


                                                          263
        value of these obligations shall not exceed twelve times a sub­
        scribed capital stock and surplus of the Facility[.]
12 U.S.C. § 1795f(a). The issue to be resolved is whether this language provides
full faith and credit backing for NCUA obligations incurred on behalf of the
Facility.

                                         II.

   It has long been the position of the Attorney General that when Congress
authorizes a federal agency or officer to incur obligations, those obligations are
supported by the full faith and credit of the United States, unless the authorizing
statute specifically provides otherwise.
       [T]here is no order of solemnity of valid general obligations of the
       United States a n d . . . no legal priority is afforded general obliga­
       tions contracted pursuant to an express pledge of faith or credit
       over those not so accompanied. It is enough to create an obligation
       of the United States if an agency or officer is validly authorized to
       incur such obligation on its behalf and validly exercises that
       power.
41 Op. A tt’y Gen. 403,405 (1959). See a/so 42 Op. A tt’y Gen. 341, 344 (1967);
41 Op. A tt’y Gen. 424, 430 (1959). See generally Perry v. United States, 294
U.S. 330, 353-54 (1935); Lynch v. United States, 292 U.S. 571, 580 (1934).
Thus,
       a guaranty by a Government agency contracted pursuant to a
       congressional grant of authority for constitutional purposes is an
       obligation fully binding on the United States despite the absence
       of statutory language expressly pledging its “ faith” or “ credit” to
       the redemption of the guaranty and despite the possibility that a
       future appropriation m ight be necessary to carry out such
       redemption.
42 Op. A tt’yG en. 21, 23-24(1961). See also 4 2 0 p . A tt’yGen. 429,432(1971);
42 Op. A tt’y Gen. 327 (1966); 42 Op. Att’y Gen. 305, 308 (1965); 42 Op. Att’y
Gen. 183, 184 (1963).
  The presumption that federal agency obligations are supported by the full faith
and credit of the United States absent statutory language to the contrary was
explicitly declared by the Attorney General in an opinion holding that the Small
Business Administration had authority to guarantee the sale of certain debentures
owned by it:
       [T]he threshold question concerning the effect of proposed SBA
       guaranties is not whether the statutory language expressly alludes
       to the “ faith” or “ credit” of the United States, but whether the
       statutory scheme authorizes the guaranties here proposed. If there

                                        264
           is statutory authority for the guaranties, absent specific language
           to the contrary such guaranties would constitute obligations of the
           United States as fully backed by its faith and credit as would be
           the case were those terms actually used.
(Emphasis added.) Letter from John N. Mitchell, Attorney General, to Thomas
S. Kleppe, Administrator, Small Business Administration, at 3—4 (April 14,
1971) (hereafter “ Kleppe letter” ). See also 42 Op. Att’y Gen. 327, 328 (1966)
(presumption applies not only to guarantees, but to any other “ contractual
liabilities” an agency is authorized to incur); 41 Op. Att’yG en. 363, 369(1958).
   The presumption favoring full faith and credit support for federal agency
obligations rests on a solid foundation of reason and equity. When a federal
agency enters the marketplace and lawfully incurs debts, the public which
becomes its creditor has a right to expect that, unless notified to the contrary, the
agency’s obligations will be supported by the government which created it and
which considers it a constituent part. Requiring investors to guess the wishes of
Congress in this area would be to require them to guess about the key feature of
this type of investment: the security of government debt obligations. Further­
more, the government’s interest in obtaining advantageous credit terms is pro­
moted when the public justifiably assumes that, unless Congress has clearly
provided otherwise, federal agency obligations are obligations of the United
States government, not merely those of a single agency supported by its limited
assets or periodic appropriations. For these reasons, we believe that when
Congress authorizes federal agencies to incur obligations without placing specif­
ic restrictions on their backing, it does so in accordance with the presumption
established in the opinions of the Attorney General.9
   The borrowing authority at issue here, 12 U.S.C. § 1795f(a), nowhere ex­
pressly limits recourse for NCUA obligations to the resources of the CLF, the
NCUA, or the two of them; nor can any such limitation reasonably be inferred.
We therefore find that debt obligations of the NCUA incurred on behalf of the
CLF pursuant to this provision are supported by the full faith and credit of the
United States.

                                                         III.

  Our conclusion is based not only upon application of the full faith and credit
presumption to the particular terms of the NCUA’s borrowing provision; it is
bolstered by the structure and language of that section as a whole. Examination of
§ 1795f(a) reveals that when Congress wished to place restrictions on Board
obligations, it did so explicitly. Although not conclusive, we believe the maxim

   9 Evidence that C ongress groups all law ful obligations o f federal agencies to g eth er w ith o b ligations explicitly
backed by the full faith and cred it of the U nited States, an d not with obligations incurred pursuant to statutes w hich
expressly prohibit any guarantee by the U nited States, is found in 1 2 U .S C § 2286(a). T hat section provides that
the S ecretary of the T reasury m ust approve the m ethod, source, tim ing, and financing term s o f all “ obligations
issued o r sold by any Federal agency; except that the approval of the S ecretary o f the Treasury shall n o t be required
w ith respect to (A ) obligations issued o r sold pursuant to an A ct of C ongress w hich expressly prohibits any
guarantee o f such obligations by the U nited Slates. . . . "


                                                         265
expressio unius est exclusio alterius is applicable here.10 First, Congress showed
an intention to limit the obligations which the Board could incur on behalf of the
Facility by limiting the value o f those obligations to twelve times the stock and
surplus of the Facility.11 12 U.S.C. § 1795f(a)(4). Notably, however, the backing
for such obligations is not similarly limited.
  More significant is the congressionally mandated limitation on guarantees
which the Board may provide for financial obligations of member credit unions
12 U .S.C . § 1795f(a)(5) provides:
             The Board on behalf of the Facility shall have the ability to—
             (5) guarantee performance of the terms of any financial obligation
             of a member but only when such obligation bears a clear and
             conspicuous notice on its face that only the resources c f the
             Facility underlie such guarantee [.]

(Emphasis supplied.) Had Congress intended similarly to limit NCUA debt
obligations, we believe it would have included similar language in § 1795f(a)(4).
   Finally, we believe a comparison between this provision and similar provisions
governing the Federal Home Loan Bank system (FHLB) sheds light on this
problem. The statute governing the FHLB is instructive because the CLF was
created to serve the liquidity needs of credit unions in the same manner that the
FHLBs serve savings and loan institutions.12 Federal Home Loan Banks are
authorized to “ issue debentures, bonds, or other obligations upon such terms and
conditions as the [FHLB] board may approve[.]” 12 U.S.C. § 1431(a) (1982).
However, the FHLB statute goes on explicitly to limit the backing for FHLB
obligations: “All obligations of Federal Home Loan Banks shall plainly state that
such obligations are not obligations of the United States and are not guaranteed by
the United States.” 12 U.S.C. § 1435. Although in many ways Congress
modeled the CLF’s powers and functions after those of the FHLB,13 it omitted
from the CLF Act any provision similar to 12 U.S.C. § 1435. We therefore
hesitate to infer a restriction on the backing of NCUA obligations where the
statute is completely silent on the matter.

                                                                IV.

  As already noted above, the Comptroller General concluded that NCUA
obligations incurred on behalf of the CLF would not be backed by the full faith

  10 See generally TVA v. H ill, 437 U.S. 153, 188(1978), N a t’I Railroad Passenger Corp v Nat'I Ass’n ofRailroad
Passengers. 4 I 4 U . S . 4 5 3 , 458 (1974); N ashville Milk Co. v. Carnation Co.. 355 U S 3 7 3 , 376 (1958); Duke v.
Univ. o f Texas, 663 F.2d 5 2 2 , 5 2 6 (5th C ir 1981) (all cases ap p ly in g m axim ); 2A , C S an d s, Statutes and Statutory
Construction § 47 23 (4th ed. 1973).
    11 T h is restriction m ay have been included not only to m ake the facility 's size more reasonable in relation to the
c red it un io n in d u stry ’s a ssets, b u t also to lim it the exposure o f the governm ent in the event o f default Cf. Community
Credit Needs, Hearings Before Subcomm. on Financial Institutions Supervision, Regulation and Insurance, c f the
H ouse Com mittee on Banking, Finance a n d Urban Affairs, 9 5 th C ong , 2d S ess. 208 (testim ony o f P hillip Jackson,
F ed. R eserve B d .) (h erein afte r C om m unity C redit N eeds H earings).
    12 See id. at 31 9 , 3 2 9 , 4 2 4 ; 124 Cong R e c 2421 (1978) (rem arks o f Rep. St G erm ain), 124 C ong Rec 30904
(1 9 7 8 ) (rem ark s o f S en. Proxm ire)
   ” /d.


                                                               266
and credit of the United States. This conclusion was based upon a careful and
thorough search through the legislative history of 12 U.S.C. § 1795f(a) to find
some hint of congressional intentions. We believe, however, that this search was
largely unnecessary, and reached an incorrect conclusion.
   The Comptroller General’s opinion began by recognizing “ the presumption of
full faith and credit which, at least initially, is accorded to a Government
agency. . . .” 14 The opinion also cited and expressed agreement with the hold­
ings of the various Attorney General opinions which delineate this presump­
tion.15 The Comptroller General believed, however, that this presumption was
inapplicable because “ the agency involved [i.e., the NCUA] is acting not on its
own behalf but on behalf of a mixed-ownership Government corporation, albeit
one established within the parent agency.” Finding this to be a “ critical distinc­
tion,” the opinion stated that the full faith and credit presumption “ does not
necessarily apply to a mixed-ownership Government corporation.” 16
   We find that the Comptroller General misapplied the presumption articulated
in the Attorney General opinions favoring full faith and credit. Assuming
arguendo that the presumption “ does not necessarily apply to a mixed-ownership
Government corporation,” this does not preclude its application here, because
the CLF does not incur obligations. It is the NCUA which incurs the obligations
under 12 U.S.C. § 1795f(a), and the NCUA is an independent agency within the
Executive Branch.17We do not understand the Comptroller General to contest the
application of the presumption to independent agencies within the Executive
Branch. See, e .g ., 41 Op. Att’y Gen. 403 (1959)18 (ICC guarantee constitutes an
obligation of the United States even though the statutory authority for guarantee
does not contain language pledging faith or credit of the United States, and
notwithstanding lack of an existing appropriation).
   Moreover, once it is determined that a federal agency has authority to incur
obligations, it is immaterial to the full faith and credit question that the obligation
may be incurred “ on behalf of” some other body or person.19 Numerous
Attorney General opinions treat government obligations incurred “ on behalf of”
non-federal entities. That fact has never played any part in a determination of the
full faith and credit issue.20 The presumption recognized by the Comptroller

   14 C o m p G en. D ec , supra note I, at 4.
   15 Id.
   16 T he C L F appears as a “ m ixed-ow nership G overnm ent co rporation” in 31 U .S .C . § 9 1 01(2)(G ) (1982)
   17 See note 6 , supra
   18Cited in C om p G en D ec . supra note I, at 4.
   19 At m ost, this fact m ay be relevant in determ ining w hether a particular obligation o f an agency is law ful, not
w hether it is backed by the full faith and credit o f the U nited States
   20 See, e g., 42 O p A tt'y G en 429 (1971) (E xport-Im port Bank guarantee o f Private Export Funding C orp.
obligations); 42 O p A tt’y G en. 341, 344 (1967) ("[In] a series o f opinions of the A ttorneys G eneral          it w as held
that a Federal ag e n cy ’s guaranty o r equivalent support of certain debt obligations c f a local Government agency or
private person to the holders thereof w ould be backed by the full faith and credit o f the U nited S tates” ) (em phasis
supplied), 42 Op. A tt’y G e n 305, 3 0 8 (1 9 6 5 ) (“the U nited States may becom e liable upon its un dertaking to buttress
another’s obligation w h eth e r o r not the governing statute uses language specifically confirm ing su ch liab ility ” )
(em phasis supplied); 42 O p A tt’y G en 183 (1963) (A ID guarantees to U .S . citizens and enterprises in respect of
investm ents made in foreign countries), 42 O p. A tt’y G e n 21 (1961) (D evelopm ent Loan Ftind guarantees to private
investors w ith respect to loans “ contributing to the econom ic progress” o f foreign nations), 41 O p A tt’y G en. 424
(1959) (guarantee o f housing m ortgages for m ilitary personnel).


                                                            267
General favoring full faith and credit “ absent specific language to the contrary” 21
should therefore have been applied to the obligations of the NCUA under 12
U.S.C. § 1795f(a).
   It was unnecessary for the Comptroller General to attempt to divine con­
gressional intent through an exhaustive examination of the legislative history of
12 U.S.C. § 1795f, because the policies underlying the presumption would be
frustrated if liability for federal agency obligations could be limited simply by
reference to obscure statements made in subcommittee hearings or the like.22For
this reason many determinations of full faith and credit matters by the Attorney
General have been made without reference to legislative history.23
   However, because the Comptroller General found the legislative history of 12
U.S.C. § 1795f(a) to be controlling, we have carefully reviewed that history and
found it to be, at best, inconclusive. The legislative history nowhere reveals any
clear statement one way or the other regarding congressional intent concerning
full faith and credit for NCUA obligations. The following two sections discuss
the C om ptroller G eneral’s legislative history argument and post-enactment
evidence.
A. The D eletion o f Language Providing fo r NCUA Authority to Borrow
“ With or Without the Guarantee cf the United States.”
   The initial version of the title establishing the CLF was approved by the Senate
on October 12, 1978, when it passed its own version of H.R. 14279,24 the bill
which ultimately became Pub. L. No. 95-630. As initially passed by the Senate,
the CLF borrowing provision read as follows:25
            The Administrator on behalf of the Facility shall have the authority
            to—
                            jje                Jfc


               (4) Borrow from—(A) any source with or without the guaran­
            tee c f the United States a s to principal and interest. The total face
            value of those obligations guaranteed by the United States shall
            not exceed twenty times the subscribed capital stock and surplus
            of the Facility[.]
Thus just three days before the CLF statute was sent to the President for signature
the Senate had approved language explicitly providing government guarantees
for NCUA borrowing.26
   21 K leppe letter, supra p 5
  22 We are not faced w ith a question raised b y a statute w hose term s d o not lim it full faith and cred it, b ut w hose
legislative histo ry explicitly and plainly ev in ces a congressional intention to d o so See text im m ediately infra.
  23 See, e.g . 42 O p A tt’y G en . 429 (1971); 4 2 Op. A tt’y G en . 417 (1969); 4 2 Op. A tt’y G en. 327 (1 9 6 6 ); 42 Op.
A tt’y G en . 305 (1965); 41 O p. A tt’yG en 403 (1 9 5 9 ); 41 O p. A tt'y G e n 363 (1958).           a /so 4 2 O p A tt’y G e n 323
(1 966) (finding unpersuasive certain legislative history o p p o sin g application o f full faith and credit; see note 36
infra). Cf. 42 O p. A tt’y G en . 183 (1963); 4 2 O p A tt’y G en 21 (1961): 41 Op. A tt’y G en 424 (1959)
    24 9 5 th C o n g ., 2d S ess. (1978). See 124 C o n g . Rec. 3 6 1 2 0 , 3 6 1 3 4 -3 6 (O ct. 12, 1978).
    25 124 C o n g . R ec. 36135 (O ct. 12, 1978) (em phasis supplied).
    26 A s th e C o m p tro lle r G eneral notes, this initial version o f the C L F b orrow ing provision was identical to that
c o ntained in a n u m b e r o f bills to establish the C L F that had been considered by both H ouses of C ongress. See, e g ,
S 3499, 95th C o n g ., 2d S ess (1978); H R . 11310, 95th C o n g ., 2d S ess (1978) T h ese bills unam biguously
au thorized a g o vernm ent g uarantee for N C U A debts incurred on b eh a lf o f the facility. A s the Senate Report
accom panying S . 3499 ex p lain ed , “ fu]p to 2 0 tim es th e paidin capital m ay be borrow ed utilizing a Federal
go vernm ent g u aran tee ’’ S . Rep. No 1273, 9 5 th C o n g ., 2d Sess. 6 (1978).


                                                                268
   Action in the House was more ambiguous. On October 14, 1978, the House
concurred in the Senate’s amendments to H.R. 14279, but substituted a House
Banking subcommittee’s language regarding the establishment of the Central
Liquidity Facility.27 The House debate on October 14th did not explain the
purpose of this substitution. On the following day the House substitute was
concurred in by the Senate,28 and it was this language which became law when
signed by the President on November 10, 1978.
   The House language adopted on October 14, 1978, originated as Title III of
H.R. 14044, 95th Cong., 2d Sess. (1978). Although reported out of the Subcom­
mittee on Financial Institutions Supervision, Regulation and Insurance on Sep­
tember 22, 1978, the House Banking Committee did not complete consideration
of this bill before adjournment, and no committee report explaining the CLF
provisions was written. On November 9, 1978, over three weeks after final
congressional action had occurred, Subcommittee Chairman St Germain insert­
ed into the Congressional Record language which he said “ would have been
included in the House report on this significant title.” 29 This would-be report on
H.R. 14044 provides no evidence of any intention to deny full faith and credit
support to the debt obligations of the NCUA.30
   The Comptroller General insists, however, that an investigation into the origins
of H.R. 14044 reveals an intention by the House to deny full faith and credit to
NCUA obligations. In introducing H.R. 14044, Rep. St Germain provided the
following explanation of the CLF provisions in the bill.
           Title III [of H.R. 14044] establishes a central liquidity facility for
           credit unions and is almost identical to H.R. 11310 [95th Cong.,
           2d Sess. (1978)]. The changes [from H.R. 11310] reflect sugges­
           tions made by National Credit Union Administrator Lawrence
           Connell, Gov. Phillip Jackson of the Board of Governors of the
           Federal Reserve System and others during subcommittee hear­
           ings. The changes are:
                          j};                                Jfc              ♦                 4:


           Sixth. Revised borrowing authority to limit the total amount of
           such borrowing to twelve times capital stock and surplus of the
           facility. The 12 would apply whether the borrowings have a
           Government guarantee or not. This is comparable to the borrow­
           ing authority for other Federal Government entities.31
124 Cong. Rec. 28805 (1978) (emphasis supplied).32

  27 124 C ong Rec 3 8 2 8 7 ,3 8 3 1 1-13 (1978)
   28 124 C ong. R ec S 19146 (O ct 15, 1978)
   » 124 C ong Rec 3 8 8 4 2 -4 3 (1978)
   30 T he only rem ark relevant to N C U A ’s borrow ing authority states, “ Finally, th e A dm inistrator is authorized to
issue d ebt obligations o n behalf o f the facility, in a total face value not exceeding 12 tim es the subscribed capital
stock and surplus o f th e facility ” 124 C ong. R ec. 38843 (1978)
   31 Rep. St G erm ain w as probably referring to a com parable requirem ent that FH L B borrow ing be lim ited to 12
tim es its capital and reserves. 12 C .F R § 506 1.
   32 The C om ptroller G eneral acknow ledges that ‘‘at first g la n ce” Rep St G erm ain ’s rem arks m ight suggest that
under the revised language C L F borrow ings would be covered by a governm ent guarantee We agree


                                                           269
   In order fully to understand the meaning of the underlined sentence, we must
refer to the original provisions of H.R. 11310, which permitted the Admin­
istrator, on behalf of the Facility, to borrow from
            any source with or without the guarantee of the United States as to
            principal and interest. The total face value of those obligations
            guaranteed by the United States shall not exceed 20 times the
            subscribed capital stock and surplus of the Eacility[.]33
(Emphasis added.) H.R. 14044 altered H.R. 11310 in two respects: (1) it
restricted the total amount of NCUA borrowing authority to twelve times the
capital stock and surplus of the Facility; and (2) it specified that this lower limit
would apply, in Rep. St Germain’s words, “ whether the borrowings have a
Government guarantee or not.” Rep. St Germain’s comments do not reveal any
intention to eliminate government guarantees, but merely to limit the maximum
amount the NCUA could borrow by issuing government guaranteed obligations.
   The Comptroller General disagrees, and finds that Rep. St Germain’s changes
in H.R. 14044 reflect suggestions made by Phillip Jackson, a member of the
Federal Reserve Board of Governors, in hearings before the Congressman’s
subcommittee. In his testimony, Mr. Jackson proposed two amendments to H.R.
11310:34
            The [Federal Reserve] Board has discussed a few modifications
            and clarifications to the proposed legislation with the National
            Credit Union Administration. During those discussions, the Ad­
            ministrator of the NCUA indicated that he agrees that these
            changes would improve the bill. One amendment would clarify
            that the private borrowings of the facility would not have the U.S.
            Government’s guarantee. Another would reduce the borrowing
            leverage on capital to ten times capital, which would make the
            facility’s size more reasonable in relation to industry assets.
   There are three reasons why we believe the Comptroller General’s reliance
upon Mr. Jackson’s suggestions is misplaced. First, statements made in con­
gressional hearings by witnesses are generally accorded little weight in con­
struing statutes.35 This is especially so in this instance, where the witness’s
remarks about full faith and credit were cursory and failed to address the
substantial body of precedent in this area found in the opinions of the Attorney
General.36
    33 H .R . 11310, § 30 7 , reprinted in C om m unity C redit N eeds H earings, supra note 11, at 36 4 , 3 7 1 -7 2 (em phasis
supplied).
    34 See C o m m u n ity C redit N eeds H earings, supra note 11, at 208
    35 See McCaughn v. Hershey Chocolate C o , 283 U S. 488, 4 9 3 -9 4 (1931); Austasia fntermodal Lines, Ltd v
FM C, 5 8 0 F.2d 6 4 2 , 645 (D C . C ir 1918); M arch v. United Slates, 506 F 2d 1306, 1314 & n .3 0 (D C .C ir 1974);
U nited States v Fairfield Gloves, 558 F .2d 1023, 1027 (C C .P A 1977)
    36 In 4 2 O p A tt’y G en 323 (1966), the A ttorney G eneral held that guarantees by the Federal N ational M ortgage
A sso ciatio n o f ce rta in “ participation certificates” gave n se to general obligations o f the U nited States. T he opinion
reco g n ized that co n trary statem ents w ere to be found in the legislative history assertin g that th e M ortgage
A sso ciatio n ’s g u aran tees w ere not backed b y the full faith and cred it o f the U nited States T h e A ttorney G eneral
d isc o u n te d th ese statem e n ts, in part because the full faith and cred it opinions o f the A ttorney G eneral “ w ere not
b ro u g h t to th e attention o f the w itnesses and com m ittee m em bers during the cited hearings, [and] it appears that the
p erso n s m a k in g the statem ents I have referre d to did not take them into account.” Id. at 324


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   Second, Mr. Jackson’s remarks were partially inaccurate, and his suggestions
were not all incorporated into H.R. 14044, the bill that was eventually adopted.
For example, contrary to Mr. Jackson’s declaration that the NCUA endorsed his
suggestions,37 the NCUA Administrator specifically objected to Jackson’s pro­
posals, noting that “ [Jackson’s proposal] significantly reduces the CLF’s lending
capacity and NCUA cannot accept it. . . .” 38 In addition, Mr. Jackson’s recom­
mendation to reduce the borrowing leverage of the CLF to ten times capital was at
best only partially reflected in H.R. 14044, where the limit was revised to 12
times capital. Under these circumstances, Mr. Jackson’s testimony cannot be said
to have had a determinative effect on the outcome of the CLF provisions.
   We note, finally, that no Member of Congress and no committee report
confirms Mr. Jackson’s views regarding full faith and credit backing for NCUA
obligations. In fact the only evidence that Mr. Jackson had any effect whatever on
the outcome is found in Rep. St Germain’s statement that H.R. 14044 reflects
“ suggestions made by National Credit Union Administrator Lawrence Connell,
Gov. Phillip Jackson of the Board of Governors of the Federal Reserve System
and others during subcommittee hearings.” 39The most reasonable interpretation
of this remark— and of the changes made in H.R. 11310 resulting in H.R.
14044— is that the drafters took account of both Mr. Jackson’s and Mr. Connell’s
suggestions and limited the borrowing authority and limited similarly the lia­
bility of the United States to 12 times capital. We find no indication that the
drafters of H.R. 14044 intended to remove completely the government’s backing
for NCUA obligations.40

B . Post-enactment Remark in Senate Appropriations Committee Report.

   In addition to reviewing the legislative history of § 1795f(a), the Comptroller
General cites the following brief remark from a Senate Appropriations Commit­
tee report written subsequent to enactment of the CLF Act:
           The principal source of funds for the lending operations [of the
           CLF] are the stock subscriptions by credit unions and the sale of
           obligations by the facility. These obligations are not guaranteed
           by the U.S. Government as to either principal or interest.41
This post-enactment remark lacks any support or accompanying analysis, and it
was written by a committee which had no responsibility for drafting the Act it

  37 See note 34, supra
  38 C om m unity C redit N eeds H earings, supra note 11, at 345.
  39 124 C ong. Rec 28805 (1978).
  40 Furtherm ore, as a general matter
       [we] m ust exercise caution before draw ing inferences regarding legislative intent from changes made
       in com m ittee w ithout explanation A lthough a succession of d raft bills may p o in t toward a clear
       legislative p urpose, am endm ents to a bill's language are frequently latent w ith am biguity: they may
       either evidence a substantive change in legislative design or sim ply a better m eans for expressing a
       provision in the original bill.
Western Coal Traffic League v United States, 677 F.2d 9 1 5 , 924, cert, denied, 459 U .S . 1086 (1 9 8 2 ) (citations
omitted).
  41 S. Rep No 2 5 8 , 96th C o n g ., 1st Sess. 63 (1979).


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was describing. Such post-enactment statements are not entitled to substantial
weight. See M athews v. Weber, 423 U.S. 261,272 n.7 (1976); Dawson v. Myers,
622F.2d 1304, 1312 (9th Cir. 1980), vacated on other grounds, 101 S. Ct. 1961
(1981).
   We therefore conclude that obligations of the NCUA incurred on behalf of the
Central Liquidity facility pursuant to 12 U.S.C. § 1795f(a) are supported by the
full faith and credit of the United States.

                                            Th eo d o r e B. O lso n
                                         Assistant Attorney General
                                          Office o f Legal Counsel




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